Waldrop v. Allen et al (DEATH PENALTY)

Filing 57

MEMORANDUM OPINION AND ORDER directing that the 1 petition for habeas corpus relief is DENIED; further ORDERING that petitioner is GRANTED a limited certificate of appealability as described in this order, as further set out. Signed by Chief Judge William Keith Watkins on 3/31/14. (djy, )

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

BOBBY WAYNE WALDROP,
Petitioner,
v.
KIM T. THOMAS,
Commissioner, Alabama Department
of Corrections, et al.,
Respondents.1

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CASE NO. 3:08-CV-515-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Petitioner is a death-sentenced inmate seeking habeas corpus relief from his conviction and
sentence in the state courts of Alabama. Petitioner filed his petition on June 30, 2008, raising sixteen
separately numbered claims for relief, many of which include additional sub-claims. Respondents
contend that several of petitioner’s claims are procedurally barred and that those claims not so barred
should be denied pursuant to the applicable standard of review. The parties have submitted all
briefing and the matter is ripe for decision. After considering the parties’ arguments, the state court
record, and all relevant law, the court finds that the petition for habeas corpus relief is due to be
denied.

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At the time the habeas petition was filed , petitioner named Richard Allen, the Commissioner of
the Alabama Department of Corrections, Troy King, the Attorney General for the State of Alabama, and
Grant Culliver, Warden of Holman Prison, as respondents. These individuals have been replaced in their
positions by Kim T. Thomas, Luther Strange, and Gary Hetzel, respectively. Accordingly, pursuant to Fed.
R. Civ. P. 25(d), Thomas, Strange, and Hetzel are substituted as respondents in this action.

I. BACKGROUND
The following factual summary of the events leading to petitioner’s conviction and sentence
is excerpted from the opinion of the Alabama Supreme Court affirming his conviction and sentence.
The evidence at trial revealed the following. Waldrop and his wife, Clara,
resided with Waldrop’s grandparents, Sherrell Prestridge and Irene Prestridge.
Sherrell had heart and hip problems and had difficulty walking. Irene was bedridden,
blind, and suffered from diabetes. Because of the Prestridges’ numerous medical
problems, the living room of their house had been converted into a bedroom with two
hospital beds. Testimony at trial indicated that Waldrop knew that his grandmother
and grandfather received Social Security checks before the third day of each month.
Between 10:30 a.m. and 2:00 p.m. on April 5, 1998, Waldrop and Clara left
the Prestridges’ house and checked into a hotel in Anniston. That same day, Waldrop
and Clara pawned Sherrell’s lawn mower and Waldrop smoked an undetermined
amount of crack cocaine. Later that evening, Waldrop and Clara returned to the
Prestridges’ house. Testimony at trial indicated that Waldrop was not high on crack
cocaine when he and Clara returned to the house. While Waldrop was in his
grandparents’ bedroom, Waldrop and Sherrell began arguing over money. In a
statement Waldrop made to the police, which was introduced at trial, Waldrop stated:
“I went into the kitchen and got the knife and [came] back. [Sherrell]
pushed me and he saw the knife and that's when I [swung] the knife
at his throat and he started to bleed from the throat real bad. [Sherrell]
was at the foot of the bed and I started to stab him and I had the knife
in my left hand and I cut myself in the hand. I got on top of him [on]
the floor and started to choke him, and he wouldn’t stop breathing, so
I cut a little more on both sides of his neck. It was [too] late. I stuck
the knife into his back and I figured it would hit his lungs and he’d
stop breathing. I just wanted to finish what I started. It looked like he
was suffering.”
Sherrell suffered 43 stab wounds to his head, neck, back, and chest; he died as a
result of his injuries.
Waldrop’s grandmother, Irene, had been lying in her bed in the same room
while Waldrop attacked his grandfather. She heard Waldrop kill her husband, and
she was screaming throughout the incident. After he killed Sherrell, Waldrop
instructed Clara to kill Irene. Clara cut and stabbed Irene twice. Waldrop then took
the knife from Clara. Testimony at trial indicated that Irene told Waldrop that she
loved him before he placed a pillow over her face and stabbed her in the chest, throat,
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and shoulders until she died. Irene suffered a total of 38 stab and cut wounds.
Waldrop and Clara took Sherrell’s wallet, and they left to buy drugs, ultimately
driving to Georgia where they were apprehended.
Waldrop was charged with two counts of murder made capital because the
murder was committed during a robbery in the first degree and one count of murder
made capital because two or more persons were murdered by one act or pursuant to
one scheme or course of conduct. At trial, the jury found Waldrop guilty of all three
counts. Subsequently, the trial court conducted a sentencing hearing pursuant to Ala.
Code 1975, § 13A-5-46. After the sentencing hearing, the jury, by a vote of 10-2,
recommended that Waldrop be sentenced to life imprisonment without the possibility
of parole. Circuit Judge Dale Segrest overrode the jury’s recommendation and
sentenced Waldrop to death.
Ex parte Waldrop, 859 So. 2d 1181, 1184-85 (Ala. 2002) (citations omitted). On direct appeal, the
Alabama Court of Criminal Appeals (“Court of Criminal Appeals” or “CCA”) “remanded the case
for the trial court to reweigh mitigating circumstances and the aggravating circumstances and to issue
a new sentencing order.” Id. (citing Waldrop v. State, 859 So. 2d 1138 (Ala. Crim. App. 2000)).
On return to remand, the Court of Criminal Appeals affirmed petitioner’s conviction and sentence.
Waldrop, 859 So. 2d at 1181. The Alabama Supreme Court granted petitioner’s request for
certiorari review “to determine whether the trial court’s sentencing order stated sufficient reasons
for overriding the jury’s recommendation of life imprisonment without the possibility of parole” and,
in addition, to determine the effect, if any, of the United States Supreme Court’s then-recent decision
in Ring v. Arizona, 536 U.S. 584 (2002), on petitioner’s conviction or sentence. Ex parte Waldrop,
859 So. 2d at 1184. The Alabama Supreme Court affirmed petitioner’s conviction and sentence.
Id. at 1193. The United States Supreme Court denied petitioner’s request for certiorari review of that
decision. Waldrop v. Alabama, 540 U.S. 968 (2003).
On April 23, 2004, petitioner filed a petition for relief from his conviction and sentence
pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in the Circuit Court of Randolph
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County, Alabama. St. Ct. R. Vol. 14, Tab R-52.2 On March 18, 2005, the circuit court entered an
order granting the State’s motion for summary dismissal of several of petitioner’s Rule 32 claims
and ordering an evidentiary hearing with respect to the remaining claims. R-73 at 21. The circuit
court conducted the evidentiary hearing on November 21 and 22, 2005. Rule 32 Tr. (R-60) at 1.
After the hearing, the Circuit court entered an order denying petitioner’s remaining claims. R-74
at 13. Petitioner appealed the circuit court’s judgment to the Alabama Court of Criminal Appeals,
which affirmed. Waldrop v. State, 987 So. 2d 1186, 1208 (Ala. Crim. App. 2007). On January 18,
2008, the Alabama Supreme Court denied petitioner’s request for certiorari review of this decision.
R-76 at 1. On June 30, 2008, petitioner filed the instant petition for federal habeas corpus relief.
II. PETITIONER’S CLAIMS
Petitioner presents the following claims for relief in his habeas petition:
A.

The trial court illegally refused to consider undisputed mitigating evidence.

B.

The trial court sentenced Bobby Waldrop to death on the basis of race in violation of
the United States Constitution.

C.

The trial court sentenced Bobby Waldrop to death in violation of the Sixth
Amendment’s command that the jury, not the judge, make the findings necessary to
impose death.

D.

It was unconstitutional for the trial court to impose a sentence of death upon Mr.
Waldrop after the jury sentenced him to life without parole.

E.

Bobby Waldrop was denied the effective assistance of counsel.

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The court will utilize the following citation conventions throughout this order. Citations to the
records of petitioner’s state court trial, direct appeal, and Rule 32 proceedings will refer to the tab and page
number within the given tab containing the cited material (“R-# at #”). Where necessary for purposes of
clarity, citations to the record on appeal of petitioner’s Rule 32 proceedings will cite the page number of the
cumulative record (“Rule 32 C.R. at #”). Citations to the transcripts of petitioner’s trial and the evidentiary
hearing in the Rule 32 proceedings will identify the proceeding and refer, where practicable, to the page
number of the reporter’s transcript (“Trial Tr. at #” or “Rule 32 Tr. at #”).

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F.

The trial judge failed to recuse himself on the basis of personal bias.

G.

The trial court improperly acted to intimidate defense witnesses and thereby
interfered with Mr. Waldrop’s right to present a defense.

H.

The trial court violated Bobby Waldrop’s rights by using evidence not admitted at
trial to override the jury’s life verdict.

I.

Mr. Waldrop was denied a jury drawn from a fair cross section of the community.

J.

The admission of hearsay statements from Bobby Waldrop’s co-defendant violated
his constitutional rights to confrontation, due process, and a fair trial.

K.

The trial court impermissibly restricted the defense expert’s testimony.

L.

The trial court erred in giving the jury misleading and incorrect instructions on the
law.

M.

The trial court erred in admitting Bobby Waldrop’s statement.

N.

Mr. Waldrop’s right to a fair and impartial jury was violated by jurors’ failure to
disclose truthfully on voir dire.

O.

The double counting of robbery as an element of the capital offense and as an
aggravating circumstance violated Mr. Waldrop’s right to an individualized sentence.

P.

The state failed to turn over exculpatory evidence to the defense.
III. STANDARDS OF REVIEW

Respondents argue that several of petitioner’s claims are procedurally barred from federal
habeas review while others cannot survive the deferential review required by 28 U.S.C. § 2254(d).
The court will below discuss the standards and criteria to be applied in evaluating these defenses.
A.

Procedural Defenses
Respondents’ procedural defenses entail the related but distinct concepts of exhaustion and

procedural default. 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. § 2254(b)(1)(A). “The
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prisoner exhausts his remedies by presenting his constitutional claim to the State courts, to afford
them an opportunity to correct any error that may have occurred.” Hardy v. Comm’r, Ala. Dep’t of
Corr., 684 F.3d 1066, 1074 (11th Cir. 2012) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam)). Courts generally require that the “opportunity” to resolve federal constitutional claims in
the state courts be “full and fair.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Hence, the
state prisoner must generally alert the state courts to the federal nature of a given claim. Duncan,
513 U.S. at 365-66 (“If state courts are to be given the opportunity to correct alleged violations of
prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims
under the United States Constitution.”). To do this, “a claim for relief in habeas corpus must include
reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle
the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). In addition, the state
prisoner must “invok[e] one complete round of the State’s established appellate review process.”
O’Sullivan, 526 U.S. at 845. This requirement obliges the state prisoner to seek even discretionary
review in the State’s highest court, provided that such “review is part of the ordinary appellate
review procedure in the State[,]” in order to exhaust federal habeas corpus claims in the State courts.
Id. at 847.
Because a federal court 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
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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.”).
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 (4th Cir. 2012) (citing Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). The Eleventh Circuit applies a
three-part test to . . . determine whether a state court’s procedural ruling constitutes
an independent and adequate state rule of decision. 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 miscarriage of justice will result if the federal claim is not

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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 “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).

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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.
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
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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 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)).
Given all of the above, 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, erects a substantial bar for state inmates seeking habeas relief in
federal court.3
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In this vein, the Supreme Court recently observed as follows:

If this standard is difficult to meet, that is because it was meant to be. As amended
by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation
of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664
(1996) (discussing AEDPA’s “modified res judicata rule” under § 2244). 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. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
(continued...)

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IV. DISCUSSION
The court will first examine whether respondents’ assertions of procedural defenses to certain
claims are meritorious and then proceed to apply § 2254(d) or conduct a de novo merits review of
any remaining claims.
A.

Procedural defenses as to claims raised for the first and only time in discretionary
review before the Alabama Supreme Court4
1.

Claims A, B, G, H, I, J, K, L, & O

Respondents first contend that eleven of petitioner’s claims are procedurally barred because
they were not “fairly presented,” and thus were not exhausted, in the state courts.5 Specifically,
respondents assert that, because the subject claims were first raised in petitioner’s petition for
certiorari review to the Alabama Supreme Court on direct review of his conviction, he failed to
invoke one full round of Alabama’s ordinary review process as to these claims, and he may not now

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(...continued)
concurring in judgment). 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.
Harrington v. Richter, 562 U.S. __, __, 131 S.Ct. 770, 786-87 (2011). 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.”).
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In this section, the court will discuss those claims which may be entirely disposed of by virtue of
certain procedural defenses. Claims which respondents contend are only partially procedurally barred and
are otherwise subject to review under § 2254(d), will be reviewed–as to both procedural defenses and the
merits–in a subsequent section of this opinion.
5

The eleven claims respondents contend are so procedurally barred are claims A, B, D, F, G, H,
I, J, K, L, and O (hereinafter, the “subject claims”). With two exceptions–claims D and F, which the court
will discuss separately–petitioner does not contest respondents’ description of when and how these claims
were presented in the state courts. Pet’r’s Reply (Doc. # 53) 1.

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return to state court to exhaust the claims due to state procedural limitations. See Resps.’ Br. (Doc.
# 41) at 2-8; Resps.’ Reply (Doc. # 50) at 7-18.
As discussed above, in order to exhaust claims in the state courts, “state prisoners must give
the state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845. In Castille
v. Peoples, 489 U.S. 346, 349 (1989), the United States Supreme Court denied that “the presentation
of claims to a State’s highest court on discretionary review, without more, satisfies the exhaustion
requirement.” In Castille, the habeas petitioner, Peoples, was convicted of several offenses in the
state courts of Pennsylvania. After his convictions were affirmed in Pennsylvania’s intermediate
appellate court, he sought discretionary review in the Pennsylvania Supreme Court by means of a
petition for allocatur, which raised various claims that, apparently, were not raised in the lower
courts. Id. at 347. The Court observed that, “[u]nder Pennsylvania law, such allocatur review ‘is
not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there
are special and important reasons therefor.’” Id. (citing Pa. R. App. P. 1114). Peoples did not
succeed in obtaining further review in the Pennsylvania Supreme Court, and he subsequently filed
a federal habeas corpus petition raising at least two claims that had only been raised in the state
courts in his petition for allocatur. Id. at 348.
Contrasting “exceptions” where a state court exercises discretion to rule on a presented claim
it could procedurally reject or where a state court simply fails to address a presented claim during
mandatory review, the Supreme Court held that “where the claim has been presented for the first and
only time in a procedural context in which its merits will not be considered unless ‘there are special
and important reasons therefor[,]’” the claim has not been fairly presented to the state courts and,
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therefore, will not satisfy the exhaustion requirement. Id. at 351 (quoting Pa. Rule App. P. 1114).
The Eleventh Circuit applied Castille in holding that a habeas petitioner failed to fairly present his
claims in the state courts because his “first and only presentation of his federal claims . . . came in
his petition for writ of certiorari before the Georgia Supreme Court.” Mauk v. Lanier, 484 F.3d
1352, 1358 (11th Cir. 2007). The Eleventh Circuit explained as follows:
Because the Georgia Supreme Court’s decision to grant certiorari is discretionary,
see, e.g., Adair v. Traco Div., 192 Ga. 59, 14 S.E.2d 466, 469 (Ga. 1941), and
because certiorari can only be granted in cases “which are of gravity or great public
importance,” Ga. Const. art. VI, § 6, ¶ 5, we cannot say, in light of Castille, that
Mauk has fairly presented his claims. Mauk’s claims were presented in a procedural
context in which the merits were not considered, as the Georgia Supreme Court’s
denial of certiorari does not constitute a ruling on the merits. See Adair, 14 S.E.2d
at 469 (explaining that the Georgia Supreme Court’s denial of a petition for certiorari
“‘shall not be taken as an adjudication that the decision or judgment of the Court of
Appeals is correct’”) (citation omitted); Ezor v. Thompson, 241 Ga.App. 275, 526
S.E.2d 609, 610-11 (Ga. Ct. App.1999) (same). We thus must conclude that Mauk
has not fairly presented his federal constitutional claims to the Georgia courts and
thus has failed to exhaust his state remedies.
Id.
Respondents contend that Castille and Mauk foreclose consideration of all claims that were
raised for the first and only time in Waldrop’s petition for certiorari in the Alabama Supreme Court
on direct appeal and that were not actually considered by that court. Respondents reason that
because, as in Castille and Mauk, “Waldrop raised [these claims] in a procedural context in which
the merits of a claim are not considered unless special reasons exist.” Resps.’ Br. (Doc. # 41) at 5.
Indeed, as respondents emphasize, the standard guiding the Supreme Court of Alabama’s exercise
of discretion in granting certiorari is essentially identical to that employed by the Pennsylvania
Supreme Court, as described in Castille. Compare Castille, 489 U.S. at 347 (citing Pa. R. App. P.
1114) (“Under Pennsylvania law, such allocatur review ‘is not a matter of right, but of sound judicial
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discretion, and an appeal will be allowed only when there are special and important reasons
therefor.’”), with Ala. R. App. P. 39(a) (“Certiorari review is not a matter of right, but of judicial
discretion. A petition for a writ of certiorari will be granted only when there are special and
important reasons for the issuance of the writ.”). Moreover, as the Eleventh Circuit found with
respect to Georgia in Mauk, the Alabama Supreme Court’s denial of certiorari review does not reflect
that court’s judgment on the merits of a particular claim or case. See Ex parte McDaniel, 418 So.
2d 934, 935 (Ala. 1982).
Petitioner proffers a number of reasons why he believes his claims were fairly presented in
the state courts, Castille and Mauk notwithstanding. First, citing Trawick v. Allen, 520 F.3d 1264,
1266 (11th Cir. 2008), he asserts that “Eleventh Circuit precedent recognizes that claims presented
in a certiorari petition at the Alabama Supreme Court are fairly presented in state court and thus
cognizable in federal court.” Pet’r’s Br. (Doc. # 44) at 9-10. Second, he contends, “the State’s
argument is undermined by the fact that it conceded elsewhere in its Answer that this Court must
review the merits of claims that were raised for the first time at the Alabama Supreme Court.” Id.
at 10. Specifically, he argues that, because respondents do not contend that his claim based upon
Ring is procedurally barred, the State has conceded that his other claims which were presented to,
but not decided by, the Alabama Supreme Court are subject to merits review. Id. at 10. Third,
petitioner asserts that respondents’ argument improperly predicates the exhaustion issue on whether
the Alabama Supreme Court opted to consider a given claim, rather than whether he simply afforded
the state courts the opportunity to consider the claim. Id. at 10-13. Finally, petitioner argues that
certain unique characteristics of Alabama’s appellate review procedure in capital cases materially
distinguish his case from Mauk and, by extension, Castille. Petitioner specifically identifies two
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such characteristics: first, in Alabama, after the Court of Criminal Appeals has affirmed a conviction
and death sentence, Alabama’s Rules of Appellate Procedure require the defendant-appellant’s
attorney to file a petition for certiorari review in the Supreme Court of Alabama; and second, those
same rules further empower the Supreme Court to consider granting certiorari “from a decision
failing to recognize as prejudicial any plain error or defect in the proceeding under review whether
or not the error or defect was brought to the attention of the trial court or the Court of Criminal
Appeals.” Ala. R. App. P. 39(a)(2)(A). See Pet’r’s Br. (Doc. # 44) at 13-14; Pet’r’s Reply (Doc.
# 53) at 3, 5-6.
Petitioner’s arguments are unpersuasive. First, Trawick simply does not hold, or even imply,
that all claims presented in a certiorari petition to the Alabama Supreme Court, whether considered
by that court or not, are fairly presented for purposes of applying the exhaustion requirement. In
Trawick, the Eleventh Circuit merely affirmed the district court’s judgment on Trawick’s claim that
the prosecution engaged in unlawful gender discrimination during jury selection at his trial. 520 F.3d
at 1266. The Eleventh Circuit noted that, “[a]lthough Trawick did not raise any objection to genderbiased striking during trial, he did argue that claim on direct appeal to the Alabama Supreme Court
on the basis of J.E.B. [v. Alabama, 511 U.S. 127 (1994)], which the U.S. Supreme Court decided
several weeks after Trawick’s conviction. The Alabama Supreme Court held that Trawick failed to
establish a prima facie case of gender discrimination.” Id. Thus, in Trawick, the Eleventh Circuit
affirmed the district court’s application of § 2254(d) review to a claim that had been decided on the
merits during discretionary review by the state’s highest court.6 The Eleventh Circuit did not even

6

The circumstances in Trawick are similar to this case with respect to petitioner’s Ring claim. Ring
was decided shortly after the Alabama Supreme Court had granted petitioner’s request for certiorari review
(continued...)

15

arguably endorse the proposition that a claim first presented in discretionary review to the state’s
highest court is fairly presented, and thus exhausted, even if the state court does not consider the
claim. Petitioner does not cite any case, much less one involving Alabama, in which a habeas court
has found a claim fairly presented, and thus exhausted, where it was first presented in discretionary
review in the state’s highest court and the state court explicitly limited its consideration to unrelated
claims. Thus, Trawick is inapplicable.7
Petitioner next contends that “the State’s argument is undermined by the fact that it conceded
elsewhere in its Answer that this Court must review the merits of claims that were raised for the first
time at the Alabama Supreme Court” because respondents do not contend that petitioner’s claim
based upon Ring is procedurally barred despite that it too was first presented in discretionary review
before the Alabama Supreme Court. Pet’r’s Br. (Doc. # 44) at 10. However, respondents merely

6

(...continued)
but had expressly limited its consideration to the separate issue of “whether the trial court’s sentencing order
stated sufficient reasons for overriding the jury’s recommendation of life imprisonment.” Waldrop, 859 So.
2d at 1184. Thus, the Alabama Supreme Court requested that the parties, as well as amicus curiae, “submit
supplemental briefs addressing the impact of Ring.” Id. In Trawick and in this case, the Alabama Supreme
Court simply took note of the release of potentially applicable intervening United States Supreme Court
authority and endeavored to apply the new authority in the first instance in a case already pending before it.
7

Indeed, closer review of the Alabama Supreme Court’s opinion in Trawick only further
distinguishes that case from petitioner’s. In Trawick the Alabama Supreme Court clarified that it had
“carefully reviewed the many issues Trawick raises in his brief” but that it was addressing “only the primary
issues and those issues that were not discussed in the opinion of the Court of Criminal Appeals.” Ex parte
Trawick, 698 So. 2d 162, 167 (Ala. 1997). Moreover, the court explained that it had “reviewed the record
and the briefs . . . in regard to all the issues raised by Trawick, not just those specifically discussed above.”
Id. at 178-79. Ultimately, the court found “no error, ‘plain’ or otherwise.” Id. at 179. Thus, the Alabama
Supreme Court made clear that, even as to claims not specifically addressed in its opinion, it had considered
all of the claims in Trawick’s briefing and rejected them. By contrast, in this case the Alabama Supreme
Court expressly limited its consideration of Waldrop’s petition for certiorari review to his claim concerning
whether the trial court sufficiently stated its reasons for overriding the jury’s recommended sentence and then
subsequently expanded its consideration in light of Ring. Nowhere does the Supreme Court of Alabama
suggest that it considered any matter other than these two issues during the course of its discretionary review
in Waldrop.

16

recognize that a claim that is first raised in discretionary review but is nevertheless considered and
adjudicated on its merits by the reviewing state court should not be treated as unexhausted, even if
it was not fairly presented, by the federal courts. Castille itself appears to support this distinction
as a “reasonabl[y] infer[red]” “exception” to a narrow interpretation of the statutory exhaustion
requirement that would otherwise require a petitioner to seek collateral relief in the state courts on
a claim that has already been decided on direct review. See 489 U.S. at 351; id. at 350 (“Read
narrowly, [§ 2254(c)] appears to preclude a finding of exhaustion if there exists any possibility of
further state-court review. We have, however, expressly rejected such a construction, Brown v.
Allen, 344 U.S. 443, 448-449, n.3 (1953), holding instead that once the state courts have ruled upon
a claim, it is not necessary for a petitioner ‘to ask the state for collateral relief, based upon the same
evidence and issues already decided by 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).
Because the exhaustion requirement is itself “grounded in principles of comity[,]” Mauk, 484
F.3d at 1357, federal courts may reasonably infer that a claim already decided on the merits by the
state’s highest court, whether fairly presented or not, is exhausted for purposes of federal habeas
review and is therefore not subject to the procedural bars potentially applicable to claims that were
similarly presented, but not considered, in discretionary review. See Castle v. Schriro, 414 F. App’x
924, 926 (9th Cir. 2011) (“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

17

under 28 U.S.C. § 2254(b)(1)(A).”). Accordingly, respondents’ failure to assert a similar procedural
defense against petitioner’s Ring claim is immaterial.
Petitioner next asserts that “this Court should reject the State’s fair presentation contention
because the [sic] it is predicated on the fact that the Alabama Supreme Court did not address the
claim.” Pet’r’s Br. (Doc. # 44) at 10. Petitioner goes on to argue that “federal habeas law recognizes
that the proper inquiry under the ‘fair presentation’ doctrine is not whether the state courts actually
reviewed the merits of a claim but instead on whether the state court had an opportunity to review
it.” Id. at 10-11. In this respect petitioner’s argument wholly ignores Castille and its obvious
instruction that the context surrounding the “opportunity” afforded the state court is important.
While there is undeniably a tension between the general requirement that a habeas petitioner must
at some point merely provide the state courts with the opportunity to resolve his federal claim and
Castille’s more exacting requirement that he not provide such opportunity for the first and only time
in discretionary review, there is no doubt that Castille materially contributes to the Court’s
exhaustion jurisprudence and is as much a part of “federal habeas law” as the more general cases
cited by petitioner. Thus, it is not enough simply to argue that the existence of some “opportunity”
afforded the state courts is the only pertinent consideration. As Castille and subsequent cases
applying it have made clear, the timing and circumstances of the “opportunity” and, indeed, the state
court’s response, are highly relevant to a federal court’s analysis. Petitioner’s argument that only
the “opportunity” is determinative fails to explain away the Supreme Court’s clear holding that the
“opportunity” Peoples afforded the Pennsylvania Supreme Court to address the federal claims in his
petition for allocatur, in a procedural context similar to that before the Alabama Supreme Court in
this case, was not sufficient to constitute “fair presentation.”
18

Petitioner’s final argument that the subject claims were “fairly presented” by virtue of his
petition for discretionary review relies upon the “unique” circumstances that he asserts distinguish
capital appellate review in Alabama’s state courts from the state appellate review processes which
were at issue in Castille or Mauk. Pet’r’s Br. (Doc. # 44) at 13-14. As discussed above, these traits
include the requirement that counsel for a capital defendant file a petition for discretionary review
upon the conclusion of direct review by the Alabama Court of Criminal Appeals (see Ala. R. App.
P. 39(a)(2)), and the ability of the Alabama Supreme Court “to review any claim in a death penalty
case, regardless of whether it was raised at the Court of Criminal Appeals” (see Ala. R. App. P.
(a)(2)(A)). Pet’r’s Br. (Doc. # 44) at 13. According to petitioner, these provisions of the Alabama
Rules of Appellate Procedure work to “ensure[] the state supreme court’s ability to review all claims,
including those not raised below.” Id.
The court fails to see how these rules, even acting in concert, effect a sufficiently “fair
presentation” of claims in discretionary review to satisfy Castille. While Alabama has taken
commendable steps to enhance the ability and likelihood of its Supreme Court to notice and correct
error in capital cases, it has not established a materially different standard of review guiding the
Court’s discretion in considering whether to grant certiorari. Even if the measures identified by
petitioner have the perceived effect of making certiorari review in capital cases more robust than that
for non-capital cases, this is a reflection of the stakes for the parties, not of any intent to make it
easier for appellants to preserve claims for subsequent federal review. Nor does it otherwise
transform what remains essentially a discretionary exercise by the Alabama Supreme Court. Even
in capital cases, certiorari review remains “not a matter of right, but of judicial discretion[,]” and,
even in a capital case, certiorari “will be granted only when there are special and important reasons
19

for the issuance of the writ.” Ala. R. App. P. 39(a). Thus, although the Alabama Supreme Court
requires the filing of a petition for certiorari review by the defendant’s attorney and although it has
carved out for itself the ability to consider granting certiorari on issues that were not raised at trial
or in the Court of Criminal Appeals, or even in the petition itself,8 the Rule provisions highlighted
by petitioner do not fundamentally transform the Alabama Supreme Court’s certiorari review into
a sort of quasi appeal as-of-right in which all claims presented receive mandatory consideration.
Accordingly, the provisions cited by petitioner do not materially distinguish Alabama’s discretionary
review in capital cases from the appellate procedures at issue in Castille and Mauk.9
Castille’s holding is simple: “[W]here the claim has been presented for the first and only
time in a procedural context in which its merits will not be considered unless there are special and
important reasons therefor,” it has not been fairly presented to the state courts. 489 U.S. at 351
(citations and quotation omitted). Because petitioner presented a number of claims for the first and
only time in his petition for certiorari review to the Alabama Supreme Court, and that court will not
grant such petitions unless “there are special and important reasons for the issuance of the writ,” Ala.
R. App. P. 39(a), he failed to fairly present those claims to the state courts irrespective of whether

8

See Ala. R. App. P. 39(a)(2)(D) (“The scope of review . . . is modified only to the extent necessary
to permit the Supreme Court to notice any plain error or defect in the proceeding under review, whether or
not brought to the attention of the trial court or the Court of Criminal Appeals or set forth in the petition, and
to take appropriate appellate action by reason thereof, whenever such error has or probably has adversely
affected substantial rights of the petitioner.”). The fact that the Supreme Court can “notice any plain error”
in the record, even if it is not “set forth in the petition” illustrates that the Rule has little to do with whether
and how a claim is presented to the court, which is the crux of a federal court’s subsequent analysis in the
fair presentation inquiry. Rather, it affirms that the Rule is designed to enhance the Court’s ability to correct
error, not to broaden or displace the “special and important” circumstances under which it might grant
discretionary review.
9

Indeed, the Rule preserves the essentially discretionary character of certiorari review by making
clear that the Alabama Supreme Court is not required “to conduct an independent review for the purpose for
determining the existence of plain error.” Ala. R. App. P. 39(a)(2)(D).

20

the Supreme Court of Alabama may have chosen in its discretion to consider one or more of his other
claims in the petition for discretionary review.
Apart from the above flaws in petitioner’s reasoning, his argument–that claims he presented
for the first and only time in his certiorari petition that were not considered by the state court are
nonetheless fairly presented for purposes of habeas review–evinces a disregard for comity, which
this court is not permitted to indulge. Comity is not just the reason for the exhaustion requirement;
it also accounts for the AEDPA’s restriction on the scope of federal habeas review. See Frazier v.
Bouchard, 661 F.3d 519, 527 (11th Cir. 2011) (“AEDPA limits the scope of federal habeas review
of state court judgments in the spirit of furthering ‘comity, finality, and federalism.’”) (quoting
Michael Williams v. Taylor, 529 U.S. 420, 436 (2000)). Petitioner would have this court repeatedly
apply the AEDPA’s highly deferential standard of review to, essentially, the Alabama Supreme
Court’s denial of certiorari review on certain of his claims under the theory that the state court “failed
to recognize” the merits of his claims when it denied certiorari. See, e.g., Pet’r’s Br. (Doc. # 44)
at 14 (“The state court’s failure to recognize this constitutional error [Claim A - petitioner’s Lockett
claim] is contrary to, and an unreasonable application of, . . . Supreme Court precedent.”); see also
id. at 108-09, 113, 114, 119, 122, 133, and 147. However, the AEDPA’s standard of review is
reserved for claims decided on their merits in the state courts. § 2254(d). As noted above, the
Supreme Court of Alabama has stated repeatedly that its denial of certiorari review “should never
be considered as an expression . . . on the merits of the controversy.” Ex parte McDaniel, 418 So.
2d at 935. It is for this reason that a federal court generally should not rely upon a state court’s
simple denial of certiorari or discretionary review as the relevant decision for purposes of applying
the AEDPA.
21

In the rare circumstance where there is some reason to emphasize to which of the various
state court decisions a federal court should apply § 2254(d), courts have recognized that a state
court’s denial of discretionary review is not relevant for § 2254(d) purposes. See, e.g., Frazer v.
South Carolina, 430 F.3d 696, 726 (4th Cir. 2005) (Luttig, J., dissenting) (“However, the majority
correctly acknowledges, as it must, that the state PCR court decision is the relevant state court
decision for purposes of section 2254(d). Under no circumstances can a discretionary denial of
certiorari be relevant to the inquiry mandated by section 2254(d).”).
In the conventional case–where the petitioner has invoked one complete round of state court
review by properly raising his federal claims before each applicable level of the state court system
but was denied discretionary review in the state’s highest court–applying § 2254(d) review to trial
or intermediate level appellate court judgments is routine. However, in this case there is no lower
court judgment on the merits of the subject claims to which this court could apply § 2254(d) because
petitioner raised them for the first and only time in discretionary review before the Alabama Supreme
Court. If that court has specifically, and repeatedly, admonished that its denial of certiorari should
not be construed as a statement on the merits of a given claim, issue, or case, then neither the
AEDPA nor comity is served by construing such a decision as a judgment on the merits and
proceeding to apply § 2254(d). Nevertheless, in repeatedly encouraging this court to apply § 2254(d)
review to the Alabama Supreme Court’s “failure to recognize” the merit of his various claims when
it rejected certiorari review, petitioner seeks precisely this result.
An additional troubling implication of petitioner’s argument is the incentive it possibly could
set for capital defendants appealing their conviction and sentence. If a claim is exhausted but not
subject to the standard of review in § 2254(d) because the state court did not decide the claim on its
22

merits, then it must be decided on its merits de novo in federal court. Muhammad v. Sec’y, Fla.
Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir. 2013). As set forth above, AEDPA’s highly
deferential standard of review is extremely difficult for a petitioner to surmount. A petitioner should
not be allowed to circumvent this exacting standard of review and obtain a de novo review of the
merits of his federal claims merely because he failed to properly raise all of his claims at each level
of the state court system and the state’s highest court declined to grant discretionary review of the
claims. Adopting petitioner’s reasoning would only encourage state court appellants to forego
presenting their claims at all levels of the state court system in hopes of later obtaining discretionary
review in the state’s highest court or, failing that, unencumbered merits review in federal court. This
would be a perverse result considering the AEDPA’s objective of upholding comity and federalism.
For all of the foregoing reasons, the court finds that those claims that petitioner raised for the
first and only time in his petition for discretionary review in the Alabama Supreme Court were not
“fairly presented” to the state courts because petitioner did not invoke one complete round of review
by properly raising the claims at each level of the state court system or in a context in which their
merits would necessarily be considered by the state courts. Thus, the court must determine whether
the claims are procedurally barred in federal habeas review.
As discussed above, “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.” McNair, 416 F.3d at 1305. Thus, the court must determine whether
any state court remedy remains available for those claims which petitioner failed to fairly present to
the state courts. For each of the claims petitioner first raised in his petition for discretionary review
in the Alabama Supreme Court, state law procedural limitations would preclude petitioner from
23

returning to state court to exhaust remedies. Among other possibly relevant limitations, Rule 32.2(b)
of the Alabama Rules of Criminal Procedure prohibits a successive petition raising grounds for relief
different from a previous petition, except in limited circumstances that are not applicable in this case.
See Hunt v. Comm’r, Ala. Dep’t of Corr., 666 F.3d 708, 730 (11th Cir. 2012) (holding that a claim
raised in a prior Rule 32 petition but not appealed to the Alabama Court of Criminal Appeals was
“unexhausted” and procedurally barred because “Alabama’s bar against successive Rule 32 petitions
would make exhaustion unavailable”). Likewise, Rule 32.2(c) imposes a one-year limitation on the
filing of Rule 32 petitions that precludes petitioner from filing a new Rule 32 petition raising the
subject claims. See Henderson v. Campbell, 353 F.3d 880, 891 n.16 (11th Cir. 2003) (noting that
claims that were not exhausted in state court would be barred in a subsequent Rule 32 petition due
to the Rule’s provision forbidding successive petitions and limitations period). Accordingly, no state
remedies remain available to petitioner for any of the subject claims, and they are procedurally
defaulted from federal habeas review unless he can show cause or prejudice for his failure to exhaust
the claims in state court.
As recounted above, the court may consider procedurally defaulted claims only if petitioner
can show cause for the procedural default in the state courts and resulting prejudice or a fundamental
miscarriage of justice. Bishop, 726 F.3d at 1258. Petitioner makes no attempt to satisfy this rigorous
standard, instead maintaining that each of the subject claims was fairly presented in the state courts.
See Pet’r’s Reply (Doc. # 53) 1-6. The court finds that petitioner cannot show “cause” for his failure
to exhaust his claims in the state courts, or that a fundamental miscarriage of justice will result if the
court fails to consider the merits of the subject claims.

24

For all of the foregoing reasons, the court finds that those claims which petitioner raised for
the first and only time in his petition for discretionary review in the Alabama Supreme Court are
procedurally defaulted for purposes of federal habeas corpus review. Petitioner’s brief concedes that
the following claims were raised in this fashion: Claim A (see Pet’r’s Br. [Doc. # 44] at 9); Claim
B (see id. at 19); Claim G (see id. at 108-09); Claim H (see id. at 112-13); Claim I (see id. at 11415); Claim J (see id. at 118); Claim K (see id. at 122); Claim L (see id. at 132); and Claim O (see
id. at 146-47). Accordingly, these claims are due to be dismissed.
2.

Other claims subject to procedural defenses

Claim D is petitioner’s claim that Alabama’s capital sentencing system violates the Equal
Protection Clause because it permits judicial override of the jury’s advisory verdict without
providing “guidance for weighing and considering the jury’s verdict[,]” “because of the
disproportionate application of the death penalty in Alabama against defendants convicted of killing
white victims[,]” and because, “at the time Bobby Waldrop was sentenced, Alabama appellate courts
did not review the appropriateness, reliability, or equal exercise of judicial overrides.” See Pet.
¶¶ 55, 58, and 59. Respondents contend that petitioner failed to raise this claim at trial or on direct
appeal, except to the extent he raised a state law claim in his petition for discretionary review in the
Alabama Supreme Court which argued that the trial court failed to adequately state its reasons for
overriding the jury’s sentencing recommendation. Resps.’ Ans. (Doc. # 16) at 19-20; Resps.’ Br.
(Doc. # 41) at 10-11. Petitioner states that he did raise this claim “as Claim XXVII in his certiorari
petition and Claim XXI in his supporting brief to the Alabama Supreme Court[,]” and he maintains
that “the Alabama Supreme Court addressed Mr. Waldrop’s arguments pertaining to the

25

unconstitutionality of Alabama’s standardless override system[,]” including his federal Equal
Protection claim. Pet’r’s Br. (Doc. # 44) 45-46; id. at n.10.
As the court discussed in the previous section of this opinion, claims which petitioner raised
for the first and only time in his petition for discretionary review before the Alabama Supreme Court
were not “fairly presented” to the state courts and, hence, are procedurally defaulted in federal habeas
corpus if the state court declined to consider the claim. Thus, petitioner’s concession that he first
raised the claim in his certiorari petition in the Alabama Supreme Court is dispositive of the fair
presentation inquiry and the claim is procedurally barred unless, as he contends, the Alabama
Supreme Court considered and decided this claim on its merits despite his failure to “fairly present”
it. Upon review of the record, the court finds that the Alabama Supreme Court did not consider,
much less decide, petitioner’s claim that Alabama’s judicial override sentencing scheme violates the
Equal Protection Clause of the Fourteenth Amendment to the Constitution for the reasons set forth
in ¶¶ 55, 58, and 59 of the petition.
The claim petitioner proffers as having “fairly presented” his federal Equal Protection claim
to the Alabama Supreme Court, Claim XXVII, reads as follows:
The trial court’s override of the jury’s sentencing recommendation was erroneous
because it was based on a statute which does not specify what weight the trial court
should have given to the jury’s recommendation that Mr. Waldrop be sentenced to
life imprisonment without parole. Thus, the court’s override violated the
constitutional requirement that there be ‘measured, consistent application’ of the
death penalty and ‘fairness to the accused,’ Eddings v. Oklahoma, 455 U.S. 104, 11011 (1982), and the correlative command of the Equal Protection Clause.
R-38 at 78-79. Petitioner presented a separate claim in his petition for certiorari review that also
challenged Alabama’s judicial override on distinct grounds. Claim XVI of the petition argued that
certiorari should be granted to review petitioner’s claim that the trial court’s final sentencing order
26

failed to provide “the court’s reasons for giving the jury’s sentencing recommendation the
consideration that it was given” as required by Ex parte Taylor, 808 So. 2d 1215, (Ala. 2001). R-38
at 68. Petitioner argued that the “trial court’s error violated Mr. Waldrop’s right to due process and
a reliable sentencing under the Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution, the Alabama Constitution, and Alabama law.” Id. at 68-69. The Alabama Supreme
Court’s order granting certiorari review concisely states that “consideration of the petition for writ
of certiorari, and briefing, shall be limited to whether the trial court’s order states sufficient reasons
for overriding the jury’s sentencing recommendation. See Ex parte Taylor[].” See also Ex parte
Waldrop, 859 So. 2d at 1184 (“On April 25, 2002, this Court granted Waldrop’s petition for
certiorari review to determine whether the trial court’s sentencing order stated sufficient reasons for
overriding the jury’s recommendation of life imprisonment without the possibility of parole, as
required by this Court’s instructions in Ex parte Taylor[].”).
It is clear in comparing the two claims raised in the petition and the Alabama Supreme
Court’s opinion that the Court granted certiorari only as to petitioner’s claim concerning whether the
content of the trial court’s sentencing order complied with Ex parte Taylor, a claim that even
petitioner describes as “a state-law-based claim challenging the court’s override,” Pet’r’s Br. (Doc.
# 44) at 45-46 n.10, not his separate Equal Protection challenge to the statute’s failure to instruct the
trial court what weight to afford a jury’s life recommendation. Moreover, the portion of the Alabama
Supreme Court’s opinion cited by petitioner as having addressed his Equal Protection challenge, see
id. (citing Ex parte Waldrop, 859 So. 2d at 1191, and referring, broadly, to petitioner’s “state and
federal challenges”), simply does not evince any such consideration. The portion cited by petitioner
consists almost entirely of the Court’s description of the issue before it in Ex parte Taylor, a lengthy
27

quote from that opinion, and a description of when Ex parte Taylor was released relative to the
procedural developments in petitioner’s case. Ex parte Waldrop, 859 So. 2d at 1191. Notably, it
does not include any description or analysis of an Equal Protection challenge to judicial override.10
Further review of the opinion in Ex parte Waldrop underscores that the Alabama Supreme
Court did not charge itself with considering or deciding the merit of petitioner’s instant Equal
Protection challenge to the statute authorizing judicial override. What the Court did decide in Ex
parte Waldrop was simply that, because Ex parte Taylor was released after the trial court had entered
its revised sentencing order and the Court of Criminal Appeals had affirmed on return to remand,
the sentencing order failed to comply with Ex parte Taylor’s requirement that the trial court
sufficiently state its reasons for overriding the jury’s sentencing recommendation, but that the normal
remedy of remand to the trial court was unavailable because the trial judge had retired. Id. at 119192. Thus, “in order to ensure that the death penalty in this case was not imposed in an arbitrary an
capricious manner,” the Alabama Supreme Court endeavored to “perform its own review of the
propriety of the death sentence and determine whether the aggravating circumstances outweigh the
mitigating circumstances.” Id. at 1192. After reviewing the circumstances of petitioner’s crime and

10

To the extent Ex parte Taylor addresses any Equal Protection claim, it does so summarily in a
footnote, which is not in that part of the opinion later excerpted in Ex parte Waldrop and proffered by
petitioner as indicative that his Equal Protection claim was addressed among his “federal challenges” to
Alabama’s judicial override. See Ex parte Taylor, 808 So. 2d at 1217 n.2 (“Taylor argues that the trial
judge’s override of the jury’s recommended sentence violations the Equal Protection Clause because, he says,
similarly situated capital defendants have not been sentenced to death by an order overriding a jury’s
recommendation of a life sentence without parole and because, he says, the death penalty is imposed
disproportionately in Alabama on defendants who are convicted of killing white persons. However, Taylor
presents no evidence, and cites no authority, to support these arguments, and we have found no evidence in
the record to support them. Therefore, we conclude that these arguments are without merit.”). Thus, there
is simply no support for petitioner’s assertion that, in discussing and quoting from a different part of its
decision in Ex parte Taylor, the Alabama Supreme Court somehow addressed his instant Equal Protection
claim among his “federal challenges.”

28

the mitigation evidence offered at trial, the Court concluded that “the trial court gave the mitigating
circumstances the correct weight.” Id. at 1193. Nowhere in the opinion does the Court purport to
consider, much less decide, any claim that Alabama’s judicial override violates Equal Protection
because “it was based on a statute which does not specify what weight the trial court should have
given the jury’s recommendation that Mr. Waldrop be sentenced to life imprisonment without
parole.” R.-38 at 78. In sum, then, the Alabama Supreme Court did not purport to grant certiorari
review of any “federal challenge[]” to Alabama’s judicial override based upon the Equal Protection
argument presented in the instant petition, and, in describing the context of Ex parte Taylor and how
the trial court failed to comply with that decision, did not decide any such claim on its merits.
Accordingly, Claim XXVII of petitioner’s certiorari petition to the Alabama Supreme Court
simply could not have served as the vehicle through which his present Equal Protection claim was
“fairly presented” and exhausted in the state courts because the Alabama Supreme Court did not
grant certiorari on that claim or otherwise consider it in discretionary review. As petitioner concedes
that this is the only forum in which he raised this claim in the state courts, for the reasons stated
above, he failed to “fairly present” and exhaust Claim D in the state courts and it is therefore
procedurally defaulted in federal habeas review and is due to be dismissed.
B.

Claims Wholly or Partially Subject to Review Under § 2254(d) or De Novo Merits
Review
1.

Claim C

Claim C is petitioner’s claim that his Sixth Amendment rights were violated because the trial
judge, rather than the jury, sentenced him to death. The claim is based largely upon the Supreme
Court’s decision in Ring, in which, applying its holding in Apprendi v. New Jersey, 530 U.S. 466

29

(2000), the Court held that capital defendants “are entitled to a jury determination of any fact on
which the legislature conditions an increase in their maximum punishment.” 536 U.S. at 589.
Petitioner asserts that, before a death sentence may be imposed, Alabama’s capital sentencing statute
requires a number of findings of fact which, under Ring, must be reserved for the jury. These factual
findings include (1) a finding concerning what, if any, [statutory] aggravating circumstances . . .
exist; (2) a finding concerning what statutory and non-statutory mitigating circumstances exist; and
(3) a finding that the statutory aggravating circumstances outweigh the mitigating circumstances.”
Pet.¶ 35. Petitioner argues that, contrary to Ring, the judge made these essential fact findings rather
than the jury: “The judge found that two aggravating circumstances existed; the judge made findings
concerning the existence of mitigating circumstances; the judge found that the aggravating
circumstances outweighed the mitigating circumstances.” Id. at ¶ 36 (emphasis in original).
Petitioner argues that, in permitting the judge to make these findings, Alabama’s capital sentencing
scheme unconstitutionally diminished the role of the jury in his case because “[t]he jury made no
reviewable fact-findings that any aggravating circumstances existed at the penalty phase[,]” and nor
did the jury “find the ‘heinous, atrocious, or cruel’ aggravating circumstance on which the judge
relied in imposing death” or “make the required finding that aggravating circumstances outweighed
the mitigating circumstances.” Id. at ¶ 37. Accordingly, petitioner claims, Alabama’s “judicial
override . . . is unconstitutional in light of Ring[,]” and the “state court adjudication of this claim
resulted in a decision that was contrary to, and involved an unreasonable application of, clearly
established United States Supreme Court precedent.” Id.
In elaboration on his Sixth Amendment Ring claim, petitioner divides the claim into several
numbered sub-arguments. First, he argues that, because the jury’s sentencing verdict form does not
30

require the jury to indicate its factual findings regarding aggravating circumstances, and instead only
requires the jury to indicate its recommendation of death or life without parole, there is no indication
that the jury found the existence of any aggravating circumstance in this case. See Pet. ¶¶ 38-43.11
Second, he argues that his Sixth Amendment rights were violated when, contrary to Ring, the trial
judge alone found and relied upon the existence of Alabama’s statutory aggravating circumstance
that the murder was heinous, atrocious, or cruel in sentencing him to death. Id. at ¶¶ 44-46. As
petitioner asserts, there is no indication in the record that the jury found the existence of this
aggravating circumstance. Third, Petitioner argues that his death sentence violates his Sixth
Amendment rights because the jury’s advisory verdict of life without parole indicates its finding
“that the aggravating circumstances, if any existed, did not outweigh the mitigating circumstances.”
Id. at ¶ 47 (emphasis in original). However, he asserts, by overriding the jury’s verdict, the trial
court, contrary to Ring, “necessarily made a finding that the aggravating circumstances outweighed
the mitigating circumstances, and thus relied on a factual determination that the jury specifically
rejected.” Id. Fourth, petitioner argues Ring invalidates Alabama’s capital sentencing statute to the
extent the statute permits a trial judge to override a jury’s sentencing verdict despite that “the jury
did not find beyond a reasonable doubt the facts necessary to impose the death penalty.” Id. at ¶ 48.
Respondents concede that petitioner exhausted his claims based upon Ring in the state courts.
Resps.’ Ans. (Doc. # 16) 14-16. Indeed, as set forth above, because Ring was decided after the
Alabama Supreme Court granted petitioner’s request for discretionary review on a separate claim,

11

As a component of this sub-argument, petitioner maintains that the Alabama Supreme Court’s
“judicial reconstruction” of Alabama’s capital murder statute, by which it determined that the jury’s verdict
that petitioner was guilty of capital murder in the course of a robbery constitutes a factual finding of the
existence of at least one aggravating circumstance, see Waldrop, 859 So. 2d at 1187-88, is incorrect as a
matter of state and federal law and itself constitutes a violation of his constitutional rights. See Pet. ¶¶ 41-43.

31

and in view of its potential ramifications for Alabama, the Court thereafter requested that the parties
and amicus curiae submit briefs on Ring’s effect on petitioner’s case. Ultimately, the Alabama
Supreme Court denied relief. The state court first rejected petitioner’s claim that the trial judge,
rather than the jury, rendered factual findings that made petitioner eligible for the death penalty:
Because the jury convicted Waldrop of two counts of murder during a robbery in the
first degree, a violation of Ala. Code 1975, § 13A-5-40(a)(2), the statutory
aggravating circumstance of committing a capital offense while engaged in the
commission of a robbery, Ala. Code 1975, § 13A-5-49(4), was “proven beyond a
reasonable doubt.” Ala. Code 1975, § 13A-5-45(e); Ala. Code 1975, § 13A-5-50.
Only one aggravating circumstance must exist in order to impose a sentence of death.
Ala. Code 1975, § 13A-5-45(f). Thus, in Waldrop’s case, the jury, and not the trial
judge, determined the existence of the “aggravating circumstance necessary for
imposition of the death penalty.” Ring, 536 U.S. at 609. Therefore, the findings
reflected in the jury’s verdict alone exposed Waldrop to a range of punishment that
had as its maximum the death penalty. This is all Ring and Apprendi require.
Waldrop, 859 So. 2d at 1188. The state court also rejected petitioner’s claim that Ring requires that
the jury, rather than the judge, “determine whether the aggravating circumstances outweigh the
mitigating circumstances.” Id. The court held that the weighing of aggravating and mitigating
circumstances does not require a factual determination. Rather, “it is a moral or legal judgment that
takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific
formula or the discovery of a discrete, observable datum.” Id. at 1189. Accordingly, the court held,
“Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the
mitigating circumstances.” Id. at 1190. Finally, the Alabama Supreme Court rejected petitioner’s
claim that the trial judge’s exclusive finding of the existence of the heinous, atrocious, or cruel
aggravating circumstance violated Ring. The court held as follows:
However, Ring and Apprendi do not require that the jury make every factual
determination; instead, those cases require the jury to find beyond a reasonable doubt
only those facts that result in “an increase in a defendant’s authorized punishment ...”
32

or “‘expose[ ] [a defendant] to a greater punishment . . . .’” Ring, 536 U.S. at 602,
604 (quoting Apprendi, 530 U.S. at 494). Alabama law requires the existence of only
one aggravating circumstance in order for a defendant to be sentenced to death. Ala.
Code 1975, § 13A-5-45(f). The jury in this case found the existence of that one
aggravating circumstance: that the murders were committed while Waldrop was
engaged in the commission of a robbery. At that point, Waldrop became “exposed”
to, or eligible for, the death penalty. The trial court’s subsequent determination that
the murders were especially heinous, atrocious, or cruel is a factor that has
application only in weighing the mitigating circumstances and the aggravating
circumstances, a process that we held earlier is not an “element” of the offense.
Id. at 1190. Respondents submit that, in all relevant aspects, the Alabama Supreme Court’s decision
on petitioner’s Ring claim is neither contrary to, or an unreasonable application of, United States
Supreme Court precedent. Resps.’ Ans. (Doc. # 16) 15-16; Resps.’ Br. (Doc. # 50) 19-30.
In Lee v. Commissioner, Alabama Department of Corrections, 726 F.3d 1172 (11th Cir.
2013), the Eleventh Circuit addressed a claim very similar to petitioner’s Ring claim. Lee, like
petitioner, was convicted of murder during the course of a robbery and sentenced to death. Id. at
1197. Like petitioner, Lee argued “that his death sentence is unconstitutional under Ring because
the state trial judge in his case, not the jury: (1) found the specific aggravating fact that authorized
the death penalty; and (2) concluded that the aggravating fact outweighed the mitigating
circumstances.” Id. The state courts in Lee, relying upon the Alabama Supreme Court’s decision
in Ex parte Waldrop, see Lee v. State, 898 So. 2d 790, 858 (Ala. Crim. App. 2001), determined that
Ring did not invalidate Lee’s sentence or Alabama’s capital sentencing scheme. Id. The Court of
Appeals held that the state courts’ decision was neither contrary to nor an unreasonable application
of Supreme Court precedent:
We can easily dispose of Lee’s claim in light of the narrowness of the
Supreme Court’s holding in Ring. As the state appellate court . . . concluded, the
jury’s guilty verdict on the capital offense of robbery-murder established the
existence of an aggravating circumstance sufficient to support a death sentence. In
33

Alabama, a statutory aggravating circumstance is that “[t]he capital offense was
committed while the defendant was engaged or was an accomplice in the commission
of, or an attempt to commit . . . robbery.” Ala. Code § 13A-5-49(4). In the guilt
phase, the jury convicted Lee of the capital offense of “[m]urder by the defendant
during a robbery in the first degree or an attempt thereof committed by the
defendant.” Ala. Code § 13A-5-40(a)(2). A jury’s guilt-phase finding of conviction
under § 13A-5-40(a)(2) necessarily includes a finding that the aggravating
circumstance in § 13A-5-49(4) is present. Alabama statute requires interpreting the
jury verdict in this manner. See Ala. Code § 13A-5-45(e) (“[A]ny aggravating
circumstance which the verdict convicting the defendant establishes was proven
beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable
doubt for purposes of the sentencing hearing.”). Nothing in Ring–or any other
Supreme Court decision—forbids the use of an aggravating circumstance implicit in
a jury’s verdict. Indeed, Ring itself specifically left open and did not decide the
question of whether the aggravator used to impose a death sentence could be implicit
in the jury’s verdict. See Ring, 536 U.S. at 609 n.7 (“We do not reach the State’s
assertion that any error was harmless because a pecuniary gain finding was implicit
in the jury’s guilty verdict.”).
Furthermore, Ring does not foreclose the ability of the trial judge to find the
aggravating circumstances outweigh the mitigating circumstances. As the Ring Court
also made clear, it was not deciding whether the Sixth Amendment: (1) required the
jury to make findings as to mitigating circumstances; (2) required the jury to make
the ultimate determination as to whether to impose the death penalty; or (3) forbade
the state court from reweighing aggravating and mitigating circumstances. Id. at 597
n. 4.
The holding of Ring is narrow: the Sixth Amendment’s guarantee of jury
trials requires that the finding of an aggravating circumstance that is necessary to
imposition of the death penalty must be found by a jury. That occurred in Lee’s case
by virtue of the jury’s capital robbery-murder verdict. Ring goes no further, and Lee
points to no Supreme Court precedent that has extended Ring’s holding to forbid the
aggravating circumstance being implicit in the jury’s verdict or to require that the
jury weigh the aggravating and mitigating circumstances.
Accordingly, we must conclude that the state appellate court’s decision is not
contrary to or an unreasonable application of Ring, and Lee is not entitled to habeas
relief on this claim.
Id. at 1197-98.

34

In consideration of this authority, the court must conclude that petitioner’s Ring claim is due
to be denied.12 Because Ring does not preclude the trial court from finding and applying an
aggravating circumstance that is implicit in the jury’s verdict, and it further does not preclude the
trial court from finding that aggravating circumstances outweigh mitigating circumstances, the state
court’s decision on this claim is not contrary to, or an unreasonable application of, Supreme Court
precedent. This conclusion disposes of the first, third, and fourth of the numbered sub-headings of
the Sixth Amendment/Ring claim stated in the petition. Likewise, “in light of the narrowness of the
Supreme Court’s holding in Ring,” Lee, 726 F.3d at 1197, the court concludes that, because the jury
had already found sufficient facts to render petitioner eligible for the death penalty, the trial court’s
additional finding and application of Alabama’s heinous, atrocious, or cruel aggravating
circumstance did not violate petitioner’s Sixth Amendment rights. The state court’s decision as to
this aspect of petitioner’s Ring claim, therefore, is not contrary to, or an unreasonable application
of, Supreme Court precedent. This disposes of the second numbered sub-heading comprising

12

Of course, the Court of Appeals’ decision in Lee is not “clearly established federal law”–meaning
it is not a decision of the United States Supreme Court–for the purposes of review or granting habeas relief
pursuant to § 2254(d). But it is precedent as to the interpretation of Ring, especially as it applies to the
similar fact pattern in this case. See, e.g., Meriwether v. Chatman, 292 F. App’x 806, 822 (11th Cir. 2008)
(“However, [two relevant Courts of Appeals decisions] are precedent as to what Supreme Court law is
regarding waiver of the Sixth Amendment right to counsel and thus aid our analysis of whether the state
court’s decision was ‘contrary to, or an unreasonable application of’ Supreme Court precedent.”) (citing
Phoenix v. Matesanz, 233 F.3d 77, 83 (1st Cir. 2000)). Indeed, the district court in Lee itself recognized that
opinions of the intermediate appellate courts are valuable to the district courts both in determining whether
a state court decision is contrary to clearly established federal law and, more fundamentally, “obtaining
guidance . . . concerning what the Supreme Court meant . . . as to a particular point.” Lee v. Thomas, 2012
WL 3137901 *12 n.23 (S.D. Ala. Aug. 1, 2012). Thus, while “Circuit precedent may not be used ‘to refine
or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme]
Court has not announced[,]” Lee, 726 F.3d at 1192, it is nonetheless valuable to the district courts in
interpreting “clearly established federal law” for purposes of its application in habeas corpus proceedings.

35

petitioner’s claim. Because all components of petitioner’s Sixth Amendment/Ring claim cannot
surmount the standard of review pursuant to § 2254(d)(1), Claim C is denied.13
2.

Claim E

Claim E is petitioner’s claim that he was denied the effective assistance of counsel at trial.
It is petitioner’s lengthiest claim, spanning several pages of the petition and consisting of numerous
sub-parts and arguments. See Pet. ¶¶ 63-93. Respondents submit that the petition raises thirteen
separate claims of ineffective assistance, and that several of these discrete claims are procedurally
barred. Resps.’ Ans. (Doc. # 16) at 21-55; Resp.’s Br. (Doc. # 41) at 12-29. To the extent the claims

13

The petition arguably suggests that additional sub-claims are intended to be raised in conjunction
with petitioner’s Ring claim. For instance, petitioner appears to allege a claim charging the Alabama
Supreme Court with having violated his constitutional rights:
The state supreme court’s retroactive revision of Alabama law impermissibly eases the
State’s burden of proving that the death penalty is appropriate by ensuring that jurors are
unaware that their guilt-innocence phase finding will authorize the trial judge to impose the
death penalty without additional process in violation of the requirements of the Due Process
Clause and the Sixth, Eighth and Fourteenth Amendments. It likewise violated Bobby
Waldrop’s rights to confrontation, due process, effective assistance of counsel, and to a fair
trial and reliable sentencing determination by a jury, as guaranteed by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
Pet. ¶ 19. For the reasons given above, to the extent this allegation supports or is a component of petitioner’s
Ring claim, it fails. To the extent petitioner actually intends to present a discrete claim of constitutional error
inflicted on him by the “judicial reconstruction” of the Alabama Supreme Court, it is unclear why he did not
separately allege such a claim in the petition. What is clear is that he did not exhaust any such claim in the
state courts by, for instance, alleging the claim in his Rule 32 petition. Moreover, to the extent he argues that
the purported “judicial reconstruction” was contrary to Supreme Court precedent, see Pet’r’s Br. (Doc. # 44)
25-29, he fails to cite any authority holding that a jury’s findings of fact at the guilt phase cannot, alone,
establish an aggravating circumstance which is implicit in the jury’s verdict and is subsequently applied by
the trial judge. Thus, any such claim, to the extent it is even intended and is somehow not procedurally
defaulted, is due to be denied.
Petitioner also arguably presents a claim that Alabama’s robbery-murder aggravating circumstance
is constitutionally invalid. See Pet. ¶ 41 n.6 (“The robbery-murder aggravating circumstance, standing alone,
cannot make a defendant subject to the death penalty in a constitutionally meaningful way because the
circumstance is so pervasive.”). However, for the same reasons identified above, to the extent any discrete
claim was indeed intended and is not procedurally defaulted, it is due to be denied.

36

are not procedurally barred, respondents assert, they are due to be dismissed as insufficiently pleaded
pursuant to Rule 2(c) of the Rules Governing § 2254 Cases in the United States District Courts (“the
Habeas Rules”), or, alternatively, they are due to be denied pursuant to the standard of review of §
2254(d). The court will examine each of petitioner’s claims and allegations of ineffective assistance
in-turn to determine whether respondents’ assertion of procedural default applies or whether the
claim or allegation is subject to review under § 2254(d) or de novo review of its merits. To best
facilitate this process, the court will divide petitioner’s claims into categories related to counsel’s
investigation and preparation for the guilt phase, investigation and preparation for the penalty phase,
specific allegations concerning counsel’s performance at trial, and petitioner’s claim of cumulative
error.
Claims that are not procedurally defaulted are subject to review on their merits or pursuant
to the deferential standard of the AEDPA. A petitioner claiming that his constitutional rights were
violated by the ineffective assistance of counsel must satisfy the familiar two-prong test of Strickland
v. Washington, 466 U.S. 668 (1984), by showing both that his counsel performed deficiently and that
he was prejudiced by counsel’s deficient performance. The Eleventh Circuit recently described such
a petitioner’s burden as follows:
The performance prong is satisfied only if the petitioner “show[s] that counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). In other words, the petitioner “must establish
that no competent counsel would have taken the action that his counsel did take.”
Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Under
the prejudice prong, the petitioner must show a “reasonable probability” that, but for
counsel’s errors, the outcome of his trial would have been different. Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Furthermore, “[b]ecause the failure to
demonstrate either deficient performance or prejudice is dispositive . . . there is no
reason for a court deciding an ineffective assistance claim to address both
37

components of the inquiry if the defendant makes an insufficient showing on one.”
Windom v. Sec’y, Dep't of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (internal
quotation marks and alteration omitted).
McNabb v. Comm’r, Ala. Dep’t of Corr., 727 F.3d 1334, 1339 (11th Cir. 2013).
To the extent petitioner’s claims were exhausted and decided on the merits in the state courts
and are now subject to the AEDPA, his burden in obtaining relief is significantly enhanced. In
Harrington, the Supreme Court discussed the interplay of the Strickland standard and § 2254(d).
The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that the inquiry, the analysis
would be no different than if, for example, this Court were adjudicating a Strickland
claim on direct review of a criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the two questions are different.
For purposes of § 2254(d)(1), “an unreasonable application of federal law is different
from an incorrect application of federal law.” Williams, supra, at 410. A state court
must be granted deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.
...
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689-690. Even under de
novo review, the standard for judging counsel’s representation is a most deferential
one. Unlike a later reviewing court, the attorney observed the relevant proceedings,
knew of materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s
assistance after conviction or adverse sentence.” Id. at 689; see also Bell v. Cone,
535 U.S. 685, 702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The
question is whether an attorney’s representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or most
common custom. Strickland, 466 U.S., at 690.
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and §
2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997), and when the two apply in tandem, review is “doubly” so, Knowles[
38

v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one,
so the range of reasonable applications is substantial. 556 U.S., at 123. Federal
habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.
Harrington, 562 U.S. at __, 131 S.Ct. at 785, 788 (emphasis in original). In other words, as the
Eleventh Circuit recently explained,
[w]here the highly deferential standards mandated by Strickland and AEDPA both
apply, they combine to produce a doubly deferential form of review that asks only
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard. This [d]ouble deference is doubly difficult for a petitioner to
overcome, and it will be a rare case in which an ineffective assistance of counsel
claim that was denied on the merits in state court is found to merit relief in a federal
habeas proceeding.
Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013) (quotations and citations omitted).
It is through these layered deferential standards that the court must consider any of petitioner’s
ineffective assistance claims that were decided on their merits in the state courts.
a.

Failure to investigate and prepare for the guilt phase

Petitioner claims that counsel was ineffective in his investigation and preparation for the guilt
phase of trial. As best the court can tell, petitioner complains that counsel failed to investigate “the
circumstances surrounding the crime, the nature of Mr. Waldrop’s relationship with his codefendant, and the conditions of Mr. Waldrop’s interrogation” because he did not sufficiently discuss
these matters with petitioner. Pet. ¶¶ 66, 68. Petitioner also alleges that counsel was ineffective in
investigating and presenting the defense theory that petitioner “lacked the requisite intent to support
a capital murder conviction because he had no intent to commit robbery at the time of the murder
and because intoxication prevented him from forming an intent to kill.” Pet. ¶ 68. See also id. at
39

¶ 82 (alleging counsel “failed to investigate mental health evidence vital to Mr. Waldrop’s defense
at both phases”); id. at ¶ 83 (faulting counsel for failing to “seek funds for an independent
psychologist who would have testified during the guilt/innocence phase about Mr. Waldrop’s
inability to form the requisite intent to be convicted of capital murder or to competently and
voluntarily waiv[e] his rights while being interrogated by police”).
Respondents argue that petitioner’s claims alleging that counsel failed to adequately
investigate and prepare for the guilt phase and failed to adequately investigate mental health
evidence, including securing an independent psychologist, are procedurally defaulted because he
failed to exhaust the claims by raising them in his direct appeal of the Rule 32 court’s denial of his
Rule 32 petition and he may not now return to state court in order to exhaust them. See id. at 1216.14 Petitioner argues that his claims were exhausted. Pet’r’s Br. (Doc. # 44) at 95-96. In order to
resolve respondents’ procedural defenses, the court must first clearly delineate petitioner’s
allegations of ineffective assistance and survey the state court record for each of the allegations.
Petitioner’s first claim is that counsel failed to “adequately investigate and prepare Mr.
Waldrop’s defense, including the circumstances surrounding the crime, the nature of Mr. Waldrop’s
relationship with his co-defendant, and the conditions of Mr. Waldrop’s interrogation.” Pet. ¶ 68.
The only allegation in the petition which appears to specifically state what counsel failed to do or
what more counsel could have done to investigate these circumstances, other than to more

14

To be clear, in order to exhaust those claims presented in his Rule 32 petition, petitioner was
obliged to fairly present such claims at all levels of the state court system, not just the intermediate Court of
Criminal Appeals. See Hunt, 666 F.3d at 729-30 (citations omitted) (“In the context of this case, the prisoner
must appeal the Rule 32 court’s denial of his claim to the court of criminal appeals in order to satisfy the
exhaustion requirement. . . . Moreover, after the court of criminal appeals affirms the Rule 32 court’s denial
of a claim, the prisoner, to exhaust all available remedies, must petition the Alabama Supreme Court for
certiorari review.”).

40

thoroughly investigate mental health evidence and procure expert assistance, separate allegations that
will be considered separately below, is petitioner’s claim that counsel should have asked him “about
his relationship with the victims and with his co-defendant, about the circumstances of the crime,
including Mr. Waldrop’s state of mind, or about the circumstances of his arrest and interrogation.”
Id. at ¶ 66.15 However, petitioner does not allege that his counsel completely failed to speak with
him prior to trial, and he does not explain why he did not volunteer any of the information he
believes counsel should have extracted from him. Petitioner does not state with any clarity the
content of the information counsel failed to obtain from him regarding “the circumstances of the
crime,”16 so that the court can evaluate prejudice.17

15

Although petitioner also claims–presumably in connection with his guilt-phase investigation and
preparation claim given the location of the paragraph in the petition–that counsel should have spoken with
his family members and others before trial, the “information and testimony” to be offered by these persons
concerned his “violent and impoverished upbringing, devotion to church and to his grandparents, good
behavior at school, and that he was a hard worker.” Pet. ¶ 67. Even if relevant to his penalty phase defense,
petitioner fails to explain how any of this information would have benefitted his guilt phase defense.
16

To be sure, petitioner states that “[e]ffective trial counsel would have discussed with Bobby
Waldrop topics including his childhood; relationships with his parents, grandparents, siblings, and codefendants; childhood exposure to violence and abuse; crack cocaine dependency; and educational, medical
and employment history.” Pet. ¶ 66. Even if taken as a true and fair comment on the expectations for a
reasonable and effective counsel, petitioner does not explain how any of this information would have been
relevant to his case at the guilt phase. At first blush, information of the sort described by petitioner would
have far more relevance to the penalty phase of the trial. Even to the extent that petitioner’s telling counsel
about his relationships, hard upbringing, and drug addiction could have informed trial strategy at the guilt
phase, it is clear that counsel was not oblivious to such matters. As the court will discuss infra, elements of
these issues were in fact adduced in the guilt phase testimonies of petitioner’s mother and his expert witness.
17

This general lack of specificity arguably constitutes a pleading deficiency and supports
respondents’ argument that, in addition to being procedurally barred, this claim is “due to be dismissed
because it fails to comply with Rule 2(c)” of the Habeas Rules. See Resps.’ Br. (Doc. # 50) at 57-58.
Petitioner’s briefing in support of this claim does not clarify or expand upon the claims in the petition. In
fact, in the portion of his merits briefing related to his claim that counsel was ineffective at the guilt phase
of trial, he stated simply that he “relies for his merits argument on his Petition for Writ of Habeas Corpus,
at ¶ 63-68, 82-93.” Pet’r’s Br. (Doc. # 44) at 95. Ultimately, the court need not dismiss the claim on the
basis of the sufficiency of petitioner’s pleading because, even assuming the claim is adequately pleaded,
(continued...)

41

Petitioner presented the same general allegations in his Rule 32 petition. He claimed that
counsel failed to adequately interview him about guilt phase issues like “the circumstances of the
crime, including Mr. Waldrop’s state of mind, or about the circumstances of his arrest and
interrogation.” R.-52 at 6. Also, as with his federal petition, Waldrop argued generally in his Rule
32 petition that counsel “did not adequately investigate the circumstances surrounding the crime, the
nature of Mr. Waldrop’s relationship with his co-defendant, or the conditions of Mr. Waldrop’s
interrogation. Trial counsel did not adequately investigate or present the theory that Mr. Waldrop
lacked the requisite intent to support a capital murder conviction because he had no intent to commit
robbery at the time of the murder and because intoxication prevented him from forming an intent to
kill.” R.-52 at 8-9. He alleged that counsel’s failure to adequately investigate prejudiced him at the
guilt phase of trial because it “prevented him from making reasonable strategic decisions.” Id. at 43.
However, except to the extent that he alleged a number of separate instances of counsel’s alleged
ineffectiveness during the guilt phase, petitioner did not explain what “reasonable strategic
decisions” counsel should have made. When the State first asserted that petitioner consequently
failed to sufficiently articulate facts establishing prejudice due to counsel’s alleged insufficient
investigation and preparation for the guilt phase, petitioner answered simply that his “pleading is
sufficiently specific in that he alleges that considering the totality of trial counsel’s errors, there is
a reasonable probability that the outcome of his trial would have been different.” R.-54 at 10-11.
Ultimately, for purposes of review in this court, the trial court found that the claim lacked
merit, either as a matter of substance or because it was not sufficiently pleaded. The court first ruled

17

(...continued)
petitioner is not entitled to relief.

42

that petitioner’s claim about counsel’s insufficient interviews with petitioner was without merit. R.73 at 5-6. Next, the court determined that petitioner’s more general claim about counsel’s guilt
phase investigation and preparation was to be dismissed pursuant to Rules 32.6(b) and 32.7(d)
because it was “insufficiently specific” and devoid of any “material issue of fact or law which would
entitle the petitioner to relief.” R.-73 at 6.18
On appeal, petitioner challenged the summary nature of the Rule 32 court’s denial of his
ineffective assistance claims concerning counsel’s preparation for the guilt phase. He argued that
the circuit court’s “order failed to respond to the claim as a whole and ignored the cumulative nature
of the ineffectiveness analysis” and that the circuit court improperly “took as true the State’s
assertions and assumptions and denied claims on the merits without” providing petitioner the
opportunity to prove facts. R.-63 at 77-78. For instance, he argued that the circuit court erred in
concluding that he had failed to specifically allege how he was “prejudiced by counsel’s failure to
investigate” because “the petition contains hundreds of paragraphs alleging the facts counsel should
have discovered and presented.” R.-63 at 77. After noting that much of Waldrop’s appellate brief
consisted of “general assertions but only specifically identifies a few claims,” the Court of Criminal

18

The Eleventh Circuit has “held repeatedly that a state court’s rejection of a claim under the state’s
heightened-fact pleading rule in Alabama Rule of Criminal Procedure 32.6(b) is a ruling on the merits.” Lee,
726 F.3d at 1208 (footnote omitted).
In short, an Alabama court’s consideration of the sufficiency of the pleadings concerning
a federal constitutional claim contained in a Rule 32 petition necessarily entails a
determination on the merits of the underlying claim; we cannot construe such a rule to be
a state procedural bar that would preclude our review. We therefore must review the merits
determination of the Court of Criminal Appeals under the deferential standards set forth in
AEDPA.
Borden v. Allen, 646 F.3d 785, 816 (11th Cir. 2011).

43

Appeals affirmed the circuit court’s dismissal, but only discussed those claims specifically identified
in Waldrop’s brief. Waldrop, 987 So. 2d at 1205-07.
In his petition for certiorari review in the Alabama Supreme Court, petitioner continued to
challenge the summary nature of the circuit court’s denial of his claim, rather than squarely restating
the ineffective assistance claim that was denied by the circuit court. The only portion of Waldrop’s
petition for certiorari review which purports to concern counsel’s ineffectiveness in his guilt-phase
investigation argues that the “summary dismissal of Mr. Waldrop’s allegations in part I of his
petition specifying counsel’s failures to investigate and his allegations regarding counsel’s first-phase
failures” contravenes state decisional law clarifying the pleading requirements in a Rule 32 petition.
See R.-67 at 66. The Alabama Supreme Court denied certiorari. R.-76.
To the extent the instant claim alleges simply that counsel failed to adequately investigate
and prepare for the guilt phase of trial because counsel did not adequately interview petitioner, the
court finds that the claim was not exhausted in the state courts because, although the circuit court
denied this claim on its merits, petitioner did not present the claim “‘face-up and squarely’” in his
brief to the Court of Criminal Appeals or in his petition for certiorari in the Alabama Supreme Court.
See Hunt, 666 F.3d at 731 (quoting Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th
Cir. 2004)). Instead, petitioner presented a more general challenge to the summary nature of the
circuit court’s denial of several of his ineffective assistance claims, and argued that the circuit court
improperly applied Alabama law by requiring him to “prove” his allegations at the pleading stage.
Although, as will be discussed below, petitioner specifically raised other guilt-phase ineffective
assistance claims in his appellate filings, his briefing cannot be construed as having raised and
exhausted any claim that counsel failed to adequately interview him before trial. Because petitioner
44

would now be barred from returning to state court to exhaust the claim, and because he has not
shown cause or prejudice for his failure to exhaust this claim in the state courts, or that a
fundamental miscarriage of justice will result if the claim is not adjudicated on its merits, the claim
is procedurally defaulted from federal habeas review.19
To the extent that petitioner intends the instant claim as a more generalized allegation about
counsel’s failure to investigate–similar to the general allegation presented in his Rule 32 petition–
the court finds that petitioner is not entitled to relief. In failing to allege what more counsel could
have done to investigate the matters described in ¶ 68 of the petition–again, apart from more
strenuously interviewing petitioner, investigating mental health evidence, and procuring appropriate
expert assistance, the latter two of which are considered separately below–petitioner has failed to
properly allege deficient performance on the part of counsel.
Petitioner’s next claim concerning counsel’s guilt-phase preparation and investigation is
premised on counsel’s alleged failure to “investigate mental health evidence” Pet. ¶ 82. Petitioner
only alleges that “mental health evidence,” consisting of his “exposure to violence and trauma;
family and personal history of chemical dependency; constant displacement and unstable familial
relationships caused by his mother’s infidelity; and his mother’s history of depression and suicide

19

Were the claim not procedurally defaulted, the court would nevertheless deny it on its merits.
The record indicates that petitioner was interviewed by his counsel “numerous times” while awaiting trial.
Rule 32 Tr. (R.-60) at 48. Based upon these interviews and other available evidence, counsel believed that
petitioner was addicted to cocaine, that he committed the murders as a result of his addiction, and that this
would be the core of his defense to the charges. Id. at 61. Both in state court and in this court, petitioner has
failed to allege, much less demonstrate, how, if counsel had conducted more rigorous interviews with
petitioner, there is a reasonable likelihood that he would not have been convicted of capital murder. Indeed,
the “hundreds of paragraphs” alleging facts which counsel could have discovered upon a more thorough
investigation that petitioner alluded to in his appeal to the Court of Criminal Appeals pertain, almost entirely,
to the penalty phase of trial. Accordingly, petitioner has not demonstrated deficient performance or prejudice
and he is not entitled to habeas relief on this claim.

45

attempts” was “vital to [his] defense at both phases.” Pet. ¶ 82. However, neither the petition nor
petitioner’s briefing materially attempts to relate such information to petitioner’s guilt phase defense.
Instead, “mental health evidence” of the sort described by petitioner is repeatedly described as
“mitigating” and extensively linked to petitioner’s penalty phase ineffective assistance claims. See
Pet. ¶¶ 73, 76-78; Pet’r’s Br. (Doc. # 44) at 54-69. Respondents contend that this claim is
procedurally barred because petitioner did not raise it in his appeal of the denial of his Rule 32
petition. Resps.’ Br. (Doc. # 41) at 15-16.
Petitioner first raised his claim that counsel failed to adequately investigate mental health
evidence for use at the guilt phase in his Rule 32 petition. R.-52 at 31. Specifically, he argued that,
had counsel spoken with his family members prior to trial,
he would have discovered evidence vital to Mr. Waldrop’s defense at both the
guilt/innocence and penalty phases, including but not limited to: Mr. Waldrop’s
exposure to violence and trauma; family and personal history of chemical
dependency; constant displacement and unstable familial relationships caused by his
mother’s infidelity; and his mother’s history of depression and suicide attempts.
R.-52 at 31. Like his federal petition, petitioner’s Rule 32 petition was similarly vague about the
import of evidence of this sort to his guilt-phase defense. See R.-52 at 31. Moreover, when the State
first challenged petitioner’s allegation about counsel’s failure to investigate mental health evidence
for use at the guilt phase as insufficiently specific, petitioner, as he has done in this court, only relied
on allegations in the petition discussing such evidence in the context of his penalty phase
ineffectiveness claim. See R.-54-7-8; R.-56 at 5 (once again describing the relevant “mental health
evidence” as “mitigating”).
The Rule 32 court dismissed petitioner’s general claim about the failure to investigate mental
health evidence as both procedurally barred pursuant to Rule 32.2(a), because it was raised and
46

addressed on direct appeal, and without merit. R.-73 at 7-8. As to the merits, the court found that
counsel had conducted an adequate investigation into mental health evidence because counsel had
considered a pretrial psychological evaluation of petitioner’s competency to stand trial and mental
state at the time of offense, as well as a report on petitioner’s request for youthful offender status.
The court found that counsel was entitled to rely upon the information contained in these reports in
making his strategic determinations about what evidence to investigate and present at the guilt phase
of trial, and that, therefore, counsel had acted reasonably in his investigation of mental health
evidence. R.-73 at 8.
On appeal, petitioner argued that the circuit court improperly denied this claim because it
made “merits determinations that are simply unsupported by the record and base[d] its conclusions
on assumptions and errors that Mr. Waldrop was entitled to rebut factually at an evidentiary
hearing.” R.-63 at 77. Specifically, he argued that the circuit court erroneously found the claim
without merit because it effectively absolved counsel of the duty to further investigate mental health
evidence based merely upon counsel’s review of a court-ordered competency evaluation and youthful
offender report. Id. at 77-78. Nevertheless, the Court of Criminal Appeals affirmed, holding that
the “record supports the court’s findings.” 987 So. 2d at 1206-07. Petitioner then sought certiorari
review in the Alabama Supreme Court, arguing that the “appeals court’s finding that a competency
evaluation and youthful offender report stating that Mr. Waldrop had never been in a mental
institution sufficed as a reasonable investigation into Bobby’s mental health contravenes precedent
finding it unreasonable for counsel to rely on a competency evaluation to rule out mental health
evidence . . . .” R.-67 at 67-68. The Alabama Supreme Court, however, denied certiorari review.
R.-76. Accordingly, because petitioner presented this claim at all levels of the state courts and it was
47

decided on its merits in the Court of Criminal Appeals, the claim is not procedurally defaulted, as
argued by respondents, and the court must determine whether the Court of Criminal Appeals’
decision survives review pursuant to § 2254(d).
Because the state court decided this issue on Strickland’s performance prong and did not
reach whether petitioner was prejudiced, the court considers only that prong in its analysis under §
2254(d). After reviewing the record, the court cannot conclude that petitioner has shown that the
state court’s decision denying his claim that counsel failed to adequately investigate mental health
evidence for use at the guilt phase of trial was contrary to, or involved an unreasonable application
of, clearly established federal law, or that it was based upon an unreasonable factual determination
in light of the record before the state courts.
Before counsel was appointed to represent petitioner at trial, petitioner was subject to an
Outpatient Forensic Psychological Evaluation to determine “his competency to stand trial and mental
state at the time of the alleged offense.” R.-31 at 1. The examiner interviewed petitioner and
administered the Competency to Stand Trial Assessment Instrument. Id. at 1-3. He observed
“normal motor activity, normal eye contact,” no “unusual mannerisms,” logical thought structure,
normal affect, coherence, and comprehension, excellent memory, accurate orientation to place and
time, no reported “hallucinations, delusions, depersonalization, nor derealization,” and he described
petitioner’s responses as “good to excellent.” Id. at 3. As to petitioner’s mental state at the time of
the offense, the examiner found as follows:
All the information available to me indicates quite clearly that at the time of the
alleged offense of Capital Murder, Mr. Waldrop had a fairly lengthy history of
dependence on crack cocaine and marijuana as well as narcotics. While he may have
been voluntarily intoxicated at the time of the alleged offense, he was suffering no
serious mental illness or mental defect that would render him incapable of
48

understanding the nature an quality of his actions or the consequences of his
behaviors.
Id. at 4. This evaluation was reported on January 27, 1999. Id. at 1. When counsel was appointed
in mid to late March of 1999, with a trial date in early August, counsel had to determine, based on
his own impressions of the case as reflected in the evidence and his interviews with petitioner, how
best to use expert evidence, if any, to explain petitioner’s actions. Counsel was aware of and had
considered the pretrial forensic psychological exam. Rule 32 Tr. (R.-60) at 74. Counsel queried
petitioner at the outset about issues related to mental health, but did not perceive any signs of mental
illness. Id. at 75. Rather, the evidence and his discussions with petitioner quickly led him to believe
that explaining to the jury petitioner’s cocaine addiction, and how it motivated his behavior, was
imperative for both the guilt and penalty phases of trial. See id. at 61-63, 73. Moreover, apart from
his reliance on the pretrial reports and his own impressions of petitioner’s mental health, counsel’s
strategy related to the investigation and presentation of mental health evidence was informed by his
own prior experience in front of Judge Segrest in a separate capital murder case. In that case, which
also involved “cocaine addiction,” counsel believed his client to be severely mentally ill and,
accordingly, retained a “mental health expert” to present a coordinated mental health defense. Id.
at 70. Counsel obtained a recommendation for a life sentence from the jury which Judge Segrest
overrode in sentencing his client to death. Id.
Given all of these concerns, counsel determined that his investigation into mental health
evidence should be focused on explaining to the jury the effects of petitioner’s cocaine addiction in
relatable but authoritative terms. Thus, on the advice of counsel from the Southern Center for
Human Rights (“SCHR”), a well-regarded advocacy group with substantial experience litigating

49

capital cases in Alabama, counsel hired Dr. Randall Tackett, a professor of pharmacology and
toxicology at the University of Georgia, to offer expert opinion about how crack cocaine affects the
brain and influences behavior. Id. at 63-64. As Dr. Hackett explained to the trial judge in-chambers,
he has considerable knowledge and training in neuroanatomy and neuropharmacology, that is, “how
drugs work by interacting with certain neurotransmitter systems in the brain.” Trial Tr. (R.-10) at
782-83. His work in the field won an award from the Georgia Psychological Association and he
consulted with the National Psychological Association on its licensing exam. Id. at 783. Thus,
while Dr. Hackett was not experienced with clinical psychological analysis, he was eminently
qualified to testify about how drugs like crack cocaine affect the brain and influence behavior. At
the guilt phase of trial, counsel offered Dr. Tackett’s testimony about how crack cocaine affects brain
chemistry in hopes of showing the jury that petitioner lacked sufficient intent to be convicted of
capital murder as a consequence of his addiction. See Rule 32 Tr. (R.-60) at 73 (“Well, I think not
only his testimony spoke of the cocaine addiction, but it gave the jury some pause as to whether or
not he could form the intent to kill his grandparents.”)
Based upon this record, the court cannot conclude that the state court’s determination that
counsel’s investigation into mental health evidence was not deficient is contrary to, or an
unreasonable application of, Supreme Court precedent. Counsel reviewed the available reports on
petitioner’s mental health,20 interviewed petitioner about mental health issues, and determined, based
upon these observations and his own prior experience in front of Judge Segrest,21 that he should

20

In general, attorneys are permitted to rely upon the findings of an expert psychological evaluation
in formulating trial strategy. Darling v. Sec’y, Dep’t of Corr., 619 F.3d 1279, 1284 (11th Cir. 2010).
21

Notably, Strickland recognizes that, in evaluating counsel’s performance, counsel’s “selection
(continued...)

50

focus the defense on explaining petitioner’s drug addiction and its effects on his behavior to the jury.
To that end, he consulted with an organization of experienced capital attorneys about how best to
do this and settled upon presenting the testimony of an expert in neuropharmacology and toxicology
to show how crack cocaine affects brain chemistry and behavior. While counsel certainly might have
done more to discover mental health evidence, reasonable jurists can debate whether no competent
counsel would have done as counsel did in this instance. Accordingly, the state court’s conclusion
that counsel did not render deficient performance is not unreasonable, and petitioner is not entitled
to habeas corpus relief on his claim that counsel was ineffective in his investigation of mental health
evidence for use at the guilt phase of trial.
Petitioner’s final allegation arguably included within the ambit of his guilt phase
investigation and preparation ineffectiveness claim is at least related to, if not a part of, his claim
about counsel’s failure to investigate mental health evidence. He alleges that counsel failed to “seek
funds for an independent psychologist, who would have testified during the guilt/innocence phase
about Mr. Waldrop’s inability to form the requisite intent to be convicted of capital murder or to
competently and voluntarily waiv[e] his rights while being interrogated by police.” Pet. ¶ 83. To
the extent that this claim is intended as a separate allegation of ineffective assistance, the court finds
it is unexhausted and procedurally defaulted.
Petitioner first presented this claim in his Rule 32 petition, arguing that counsel should have
retained a psychological expert capable of informing the jury about his purported inability to form
the requisite intent to commit murder or voluntarily waive his rights as a result of his addiction to

21

(...continued)
of strategies” might reasonably be influenced by “the idiosyncracies of the particular decisionmaker, such
as unusual propensities toward harshness or leniency.” Strickland, 466 U.S. at 695.

51

cocaine, as well as explain why petitioner was susceptible to “chemical dependency.” See R.-52 at
31-34. The circuit court found the claim to be without merit because trial evidence indicated that
petitioner was not intoxicated at the time of his confession and because petitioner’s pharmacology
expert testified at trial about cocaine’s effects on the brain and offered his opinion that petitioner
committed the murders to facilitate feeding his addiction. R.-73 at 8-10.
In that portion of his appellate brief challenging the circuit court’s dismissal of his other guilt
phase ineffectiveness claims, petitioner did not discuss the circuit court’s judgment that his claim
about counsel’s failure to hire an independent psychologist for use at the guilt phase of trial was
without merit. See R.-63 at 76-80. However, in an earlier portion of the brief he argued that the
circuit court improperly precluded him at the evidentiary hearing from offering expert opinion in
support of his claim that counsel was ineffective for failing to retain an independent psychologist for
purposes of presenting “mitigating evidence.” See R.-63 at 12, 15-17.22 Petitioner further stated that
the circuit court’s dismissal of his claim about counsel’s failure to obtain expert psychological
assistance for the guilt phase was erroneous for the reasons discussed in the subsequent portion of
his brief dealing with his other guilt phase ineffectiveness claims. Id. at 17. The Court of Criminal
Appeals affirmed the circuit court’s exclusion of the testimony of petitioner’s psychologist because
it agreed with the circuit court’s conclusion that petitioner’s underlying ineffective assistance claim
was without merit, and because petitioner “failed to comply with the circuit court’s order to submit

22

At the evidentiary hearing in the circuit court, he expressly argued that he should be allowed to
present the expert testimony of a clinical neuropsychologist to show what counsel should have presented
during the sentencing phase of trial. See Rule 32 Tr. (R.-60) at 403-04, 406-08, 420-21.

52

a statement of the experts’ expected testimony.” Waldrop, 987 So. 2d at 1191-93.23 On the merit
of the claim, the Court of Criminal Appeals held as follows:
The transcript of Waldrop’s trial shows that a mental evaluation was conducted on
Waldrop before trial to determine his mental competency to stand trial and his mental
state at the time of the murders. Waldrop was evaluated by a clinical psychologist.
It was this expert’s opinion that Waldrop was competent to stand trial and that he was
not suffering from a mental disease at the time that he committed the murders. The
trial record also shows that Waldrop’s attorney at trial, Charles Gillenwaters,
specifically stated that he was not going to pursue a mental-disease defense, because
if he did the State said it was ready to rebut any evidence presented on this claim.
Thus, trial counsel had no reason to retain another psychologist to dispute the first
expert’s findings. A postconviction petition does not show ineffective assistance
merely because it presents a new expert opinion that is different from the theory used
at trial. Counsel is not ineffective for failing to shop around for additional experts.
Counsel is not required to continue looking for experts just because the one he has
consulted gave an unfavorable opinion. Thus, we agree with the court that there was
no “material issue of fact or law that would entitle [Waldrop] to relief” on this issue.
Therefore, the court did not err in excluding [petitioner’s expert psychologist’s]
testimony at the Rule 32 hearing.
Id. at 1193 (citations and quotations omitted). Thus, in effect, as with petitioner’s claim about
counsel’s failure to investigate mental health evidence, the state court determined that he failed to
show counsel’s deficient performance in failing to retain an independent psychologist.

23

In making this determination, the Court of Criminal Appeals (“CCA”)may have conflated
petitioner’s separate guilt and penalty phase ineffective assistance claims concerning counsel’s failure to
retain a psychological expert. The claim was ostensibly presented to the CCA as a challenge to the circuit
court’s failure to allow petitioner’s expert psychologist to testify at the Rule 32 evidentiary hearing about
the applicability of mitigating circumstances. The CCA affirmed the circuit court, utilizing the lower court’s
reasoning as to the guilt phase issue–that petitioner had not stated a viable claim for relief–to deny
petitioner’s argument about the exclusion of the testimony on penalty phase issues. Waldrop, 987 So. 2d
at 1193. Thus, it is not entirely clear that the CCA intended to address this claim as it relates to the guilt
phase. However, considering that it also is not entirely clear that petitioner intended to present the claim as
a guilt phase issue, and further mindful of the deference owed a state court in adjudicating the issues before
it, prudence and comity counsel construing the CCA’s judgment as affecting both the guilt and penalty phase
components of this claim. See Harrington, 133 S.Ct. at 1095-96 (“While it is preferable for an appellate
court in a criminal case to list all of the arguments that the court recognizes as having been properly
presented, federal courts have no authority to impose mandatory opinion-writing standards on state courts.”).
See also Lee, 726 F.3d at 1210-12.

53

In his petition for certiorari review in the Alabama Supreme Court, petitioner distinguished
his guilt and penalty phase ineffectiveness claims predicated on counsel’s failure to hire an
independent psychologist. R.-76 at 11-14. He argued that the lower courts erroneously relied upon
the determination that, as a guilt phase claim, the issue lacked merit when deciding whether he was
entitled to present the expert’s testimony at his Rule 32 evidentiary hearing on his penalty phase
claims. Id.24 The remainder of the petition for certiorari deals mostly with petitioner’s penalty phase
ineffectiveness claim. See id. at 22-53. In the subsequent portion of the petition addressing his guilt
phase ineffective assistance claims, he argued that the circuit court’s summary dismissal of his guilt
phase claims violated state law precedents clarifying Rule 32’s pleading burdens. Id. at 66.
Petitioner did not specifically challenge or even discuss the lower courts’ treatment of his guilt phase
ineffectiveness claim concerning counsel’s failure to retain an independent psychological expert.
Thus, while petitioner clearly challenged the exclusion of his expert psychologist’s testimony on
penalty phase ineffective assistance issues, he did not appeal the CCA’s judgment to the extent it
disposed of his corresponding guilt phase claim, despite what arguably served as judgment on the
merits of the claim. Petitioner failed to exhaust, therefore, this claim in the state courts. Hunt, 666
F.3d at 729-30. Because he may not now return to the state courts to exhaust the claim, it is
procedurally defaulted in federal habeas corpus review. Moreover, because petitioner has not shown

24

See also R.-76 at 18 (citation omitted) (emphasis in original) (“The appeals courts’
decision provides no legal basis for barring this patently mitigating evidence. It merely parrots the
circuit’s order denying on the merits the allegations that counsel was ineffective at the first phase
for failing to obtain expert assistance on issues related solely to first-phase determinations (namely,
whether mental health problems prevented Mr. Waldrop from forming the requisite intent to be
convicted of capital murder and from making a knowing and voluntary statement). The record is
clear that Mr. Waldrop was not attempting to present expert testimony on first-phase issues at the
Rule 32 hearing.”).
54

cause or prejudice for his failure to exhaust the claim, or that he will suffer a fundamental
miscarriage of justice if the claim is not adjudicated on its merits, the claim is due to be dismissed
as procedurally defaulted.25

25

Were this claim not subject to procedural default, the court would still deny relief. Based upon
a review of the record, the court concludes that petitioner cannot show deficient performance or prejudice
on this claim as it relates to the guilt phase. As to deficient performance, which would be reviewed pursuant
to the AEDPA given that the CCA decided the claim on that prong, the court cannot conclude that the state
court’s judgment was unreasonable. The state court recognized the expert opinion evidence which counsel
already had respecting petitioner’s mental health at the time of the offense and determined that he was not
required to go searching for a separate expert who might offer a contrary opinion. Moreover, as this court
recounted with respect to petitioner’s claim about counsel’s investigation of mental health evidence,
counsel’s strategy was informed by his own recent experiences in a death penalty case in front of Judge
Segrest in which he had presented expert mental health evidence, in a case he judged more amenable to that
kind of evidence, and had watched as Judge Segrest overrode the jury’s recommendation for a life sentence.
It thus was not unreasonable for counsel to attempt to establish important evidence about petitioner’s ability
to form intent through his pharmacology expert. While counsel might have fared better with an independent
expert psychologist, reasonable jurists could debate whether any competent counsel would have done the
same given the circumstances confronting counsel.
As to prejudice, which this court would review de novo because the CCA did not reach that prong
of the Strickland inquiry, the court finds that there is not a reasonable probability that the result of the guilt
phase of trial would have been different had counsel retained an independent psychologist. Petitioner alleges
that such an expert “would have testified during the guilt/innocence phase about Mr. Waldrop’s inability to
form the requisite intent to be convicted of capital murder or to competently and voluntarily waiving [sic]
his rights while being interrogated by police[.]” Pet ¶ 83. Indeed, petitioner alleges that counsel should have
better developed the theory that he lacked the requisite intent “because intoxication prevented him from
forming the intent to kill.” Id. at ¶ 68. But in order to show that he lacked sufficient intent due to his
voluntary intoxication, petitioner would have had to show that his voluntary intoxication was so severe that
it amounted to insanity. See Ex parte McWhorter, 781 So. 2d 330, 340-41 (Ala. 2000). Nothing in the
record or the petition and petitioner’s briefs indicates that petitioner could have satisfied this rigorous
requirement. The petition does not posit any other theory under which he might have negated the intent
element of capital murder with the aid of an independent psychological expert. Moreover, the expert
psychologist petitioner retained in Rule 32 proceedings does not unequivocally opine that petitioner was
incapable of forming the intent to commit murder. See Rule 32 C.R. at 351-57. While the expert clearly
opines about the applicability of certain statutory mitigating circumstances based upon petitioner’s mental
state at the time of the offense, his affidavit does not speak with the same force about petitioner’s ability to
form intent as a legal matter. Rather, his observations about petitioner’s intent are more vague and general.
He opines that petitioner had “diminished” “cognitive functioning and self-control of behavior,” an
“overwhelmed” “capacity to control emotions and behavior,” and that he “lacked the cognitive resources to
constrain his behavior.” Id. Nor does the expert opine that petitioner was incapable of voluntarily submitting
to questioning after his arrest. He only states that petitioner was “distraught and emotional and unable to
withhold information,” but that he “answered every question posed by the interviewer, was not evasive, and
(continued...)

55

b.

Failure to investigate and prepare for the penalty phase of trial

Petitioner’s lengthiest claim concerns counsel’s alleged ineffectiveness with respect to his
investigation and preparation for the penalty phase of trial. He faults counsel for failing to, inter
alia, hire an “investigator, mitigation specialist, or social worker to obtain a family or social history,”
obtain important “medical, educational, divorce, or social history records,” interview people other
than petitioner and his mother, “assemble a defense team, obtain co-counsel, or seek assistance from
a mental health expert,” further investigate leads uncovered by his meager investigation, and prepare
for the judicial sentencing hearing after he obtained the jury’s recommendation for a life sentence.
Pet. ¶¶ 72-74.
Petitioner claims that a wealth of mitigation evidence was left unused or undiscovered due
to counsel’s insufficient investigation and preparation for the penalty phase. The court need not, for
present purposes, recite all of the mitigation evidence petitioner argues should have been presented
at the penalty phase. Petitioner has ably recounted the evidence in his briefing in this court, see
Pet’r’s Br. (Doc. # 44) at 55-76, as well as in his briefing in the state courts in support of this claim,
all of which the court has reviewed extensively. The federal habeas petition summarizes this
evidence as follows:
76.
The jury or sentencing judge should have learned that Bobby Waldrop
experienced a nightmarish childhood characterized by physical and emotional abuse,
violence perpetrated by and among family members, neglect and abandonment, his
mother’s infidelity and suicide attempts, poverty, and a family history and
environment that left him uniquely vulnerable to addiction. In spite of the factors set
against him, Bobby Waldrop started working at an early age to help his family

25

(...continued)
demonstrated appropriate emotional response.” Id. at 356. Based upon this record, the court cannot conclude
that petitioner could show prejudice due to counsel’s failure to retain an independent psychologist for use
at the guilt phase of trial.

56

purchase food and was a hard worker and respectful student who was active in
church and nursed his beloved grandparents. A series of crises overwhelmed
Bobby’s limited capacity to cope - he spiraled into depression and began using crack
cocaine after his wife lost their baby, the couple’s belongings burned right before his
eyes, and, for the first time, he was arrested and taken to jail. By Christmas 1997,
just prior to the offense, he was gaunt and unrecognizable to his own mother - he was
not himself at all. [. . .]
77.
Counsel failed to discover or present readily available mitigating
evidence about Bobby’s mother, her treatment of him, her multiple suicide attempts,
her sexual indiscretions and their effect on her family, and her illegal, violent
behavior. Trial counsel failed utterly to discover and present available mitigating
evidence about the nightmarish violence and abuse that characterized Bobby’s family
and life history, including the fact that Bobby’s mother held him and his sister at
gunpoint and threatened to kill them.
78.
Trial counsel failed to discover and present readily available
mitigating evidence that Bobby’s addiction was the product of genetics and a tragic,
neglectful environment. Counsel presented no evidence about the causes of Mr.
Waldrop’s cocaine addiction. Readily available evidence shows that Bobby became
addicted while reeling from a series of traumatic events, including his wife’s
miscarriage of their baby, with which he could not otherwise cope.
79.
Trial counsel failed to discover readily available evidence about
Bobby Waldrop’s generous character in the face of hardship, ability to do well in
structured environments, and caring behavior towards his grandparents. Trial
counsel did not present testimony from Bobby’s family members or friends about
their close and loving relationships with him.
Pet. ¶¶ 76-79 (citations omitted). Petitioner concludes that counsel’s
failure to conduct a reasonable and complete investigation and to present powerful
mitigating evidence that would have convinced the sentencer to sentence Bobby
Waldrop to life without parole in accordance with the jury’s recommendation denied
Mr. Waldrop his right to effective assistance of counsel and a reliable sentencing
proceeding as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution. The state court adjudication of this claim resulted
in a decision that was contrary to, and involved an unreasonable application of,
clearly established United States Supreme Court precedent.
Id. at ¶ 81.

57

Respondents contend that, to the extent petitioner’s claim is predicated on his allegations
about counsel’s failure to investigate mental health evidence or retain an independent psychologist
for use at the penalty phase and failure to hire a social worker to prepare a social history in advance
of the penalty phase, the claim is procedurally barred because these allegations were not raised in
petitioner’s appeal of the denial of his Rule 32 petition. Resp.’s Br. (Doc. # 41) at 15-18. In all
other respects, respondents argue, petitioner is not entitled to relief because the CCA’s adjudication
of his claim is not contrary to, and does not involve an unreasonable application of, clearly
established federal law, and is not based upon an unreasonable factual determination in light of the
record before the state courts. Resps.’ Reply (Doc. # 50) at 34-55. The court will first examine
respondents’ procedural default argument.
i.

Procedural default

Respondents contend that petitioner’s allegations respecting counsel’s failure to sufficiently
investigate mental health evidence, retain an independent psychologist, and hire a social worker in
preparation for the penalty phase are procedurally defaulted because they were not raised in
petitioner’s appeal of the circuit court’s denial of his Rule 32 petition. Resp.’s Br. (Doc. # 41) at 1518. Petitioner raised these claims in his appeal of the denial of his Rule 32 petition. Under the
heading “Counsel’s Investigation was Deficient” in his brief before the Court of Criminal Appeals,
petitioner faulted counsel for failing to “engage an investigator, mitigation specialist, or social
worker to obtain a family or social history even though the circuit court granted funds” and for
failing to “seek the assistance of a defense mental health expert” for purposes of presenting
mitigation evidence. R.-63 at 25-26. The brief describes much of the evidence proper investigation
and utilization of these sources would have allowed counsel to present in the penalty phase. Id. at
58

29-54. The Court of Criminal Appeals concluded that the circuit court’s exclusion of testimony by
petitioner’s expert witnesses, a social worker and a neuropsychologist, was not erroneous because
petitioner’s claim that counsel was ineffective for retaining a psychologist was without merit and the
testimony he would have offered through his social worker was cumulative of the testimony of his
other witnesses. Waldrop 987 So. 2d at 1193. The Court of Criminal Appeals also determined that
counsel was not ineffective for failing to present much of the evidence that would have been
cultivated and explained by an expert social worker and neuropsycholgist, including evidence about
petitioner’s family history of abuse and neglect, genetic predisposition to substance abuse and
addiction, and the effects of his addiction on his actions because petitioner could not show prejudice.
Id. at 1194-1202. Petitioner presented these same claims in his petition for certiorari review in the
Alabama Supreme Court. See R.-67 at 26-27, 29-48. Accordingly, the court finds that, because
petitioner presented his penalty phase ineffectiveness claims related to counsels’ failure to hire a
social worker, investigate mental health evidence, and retain an independent psychologist in the state
courts and, indeed, exhausted those claims, the claims are not procedurally defaulted from review
in federal habeas corpus.
ii.

Application of § 2254(d) or de novo merits review

As the court has determined that no portion of this claim is procedurally defaulted and
respondents concede that the remainder of petitioner’s penalty phase investigation and preparation
claim was exhausted and decided on its merits in the state courts, the court must review the Court
of Criminal Appeals’ decision pursuant to the AEDPA. The court will first summarize the state
court’s decision and then discuss the petitioner’s specific arguments about the application of
§ 2254(d).
59

(a)

The Court of Criminal Appeals’ Decision

In denying this claim, the CCA first articulated the Strickland standard and, in pertinent part,
correctly recited the prejudice inquiry as it is set out in Wiggins v. Smith, 539 U.S. 510 (2003).
Waldrop, 987 So. 2d at 1194-95. The CCA then examined, apart from petitioner’s allegations about
what counsel failed to do, all of the things counsel affirmatively did in preparation for the penalty
phase of trial, including speaking with petitioner, his mother, one of his sisters, and his employer,
examining petitioner’s prison records, attending portions of petitioner’s co-defendant’s trial and
obtaining a transcript of the trial, and retaining Dr. Tackett “to testify about the effects of cocaine
addiction.” Id. at 1195. The CCA noted counsel’s belief, as expressed at the evidentiary hearing,
that, after reviewing the evidence and speaking with petitioner, his best hope to avoid a death
sentence was to explain and emphasize how petitioner’s addiction motivated his actions. Id. at 1196.
Thus, although counsel argued before the jury that other mitigating circumstances were applicable,
including that petitioner was “‘from a broken family, his age, and the fact that he had no prior
criminal record[,]’” id., counsel limited his presentation on those issues because he believed the fact
that petitioner so violently killed his grandparents–whom had often provided him with a sort of
refuge from the dysfunction and iniquities of his own parents–would likely militate against any
feelings of sympathy for petitioner. Rather, counsel believed that “‘cocaine addiction was the
strongest mitigator that [he] should focus on,’” and he therefore sought to persuasively explain that
circumstance to the jury by, inter alia, presenting the expert testimony commended to him by SCHR.
Id. The CCA summarized counsel’s presentation of mitigating evidence during both phases of trial:
“Although Petitioner’s claim is that his trial counsel should have done something
more, we first look at what the lawyer did in fact.” Chandler v. United States, 218
F.3d 1305, 1320 (11th Cir. 2000). A review of the record shows that at the guilt
60

phase [counsel] called Waldrop’s mother and several other witnesses to testify.
Waldrop’s mother said that she had had Waldrop when she was 14 years old, that she
did not know how to care for a child, that Waldrop’s father was not responsible, and
that Waldrop lived the majority of his life with her parents, the victims.
At the sentencing hearing, [counsel] asserted that Waldrop had no significant
history of criminal activity, that Waldrop had been under the influence of cocaine
when he committed the murders, that he could not appreciate the criminality of his
actions, that he was only 19 years of age at the time of the murders, that he came
from a broken home, that he worked well with others, and that he was remorseful for
his actions.
Dr. Tackett testified at sentencing that the use of crack cocaine changes a
person’s brain chemistry and that it was his opinion that Waldrop was on cocaine
when he committed the murders. He said that Waldrop was suffering extreme mental
or emotional disturbance at the time of the murders because of his addiction to
cocaine. Bobby Waldrop testified at sentencing that at the time of the murders he was
under the influence of cocaine and heroin. The following occurred:
“[Defense counsel]: Why did you kill them?
“[Waldrop]: On account of the drugs I was using. I love my
grandparents very much and at that time I was on these drugs—I
mean I was not—I wasn’t the person that I am now. I mean, it was
like this was all I cared about. I didn’t care about my family. I didn’t
care about my wife. I didn’t care if I hurt myself or anybody else.”
(R. 1030.) Sheriff Jeff Fuller also testified that he was responsible for the Randolph
County jail and that for the four months Waldrop had been in jail awaiting trial
Waldrop had caused no problems.
Id. at 1196-97.
After reviewing counsel’s investigation and presentation of mitigating evidence at trial, the
CCA evaluated whether the additional evidence petitioner presented during the Rule 32 evidentiary
hearing in the circuit court established prejudice. The CCA quoted from the circuit court’s findings
of fact respecting the value of this evidence. Id. at 1197-1200. For the most part, the circuit court
found the evidence alluded to in ¶¶ 76-79 of the petition and meticulously detailed in petitioner’s
briefing uncorroborated, incredible, irrelevant, unpersuasive, or insufficiently compelling to
61

undermine confidence in the outcome of petitioner’s sentencing. Moreover, the CCA, by way of the
circuit court, questioned whether, had counsel presented the mitigation case offered by petitioner
during Rule 32 proceedings, the jury might have still recommended a life sentence.
“If [counsel] had presented the testimony that Mr. Waldrop offered at the Rule 32
evidentiary hearing it is conceivable to this Court that the jury would have lost the
significance of the cocaine addiction and become angered that Mr. Waldrop was
trying to blame his actions on one of the deceased victims (Sherrell Prestridge), his
mother, his father, or his ‘family’s history’ of alcohol and drug use. Thus,
[counsel’s] strategic decision to focus on his ‘strongest jury argument’ was not
unreasonable and was effective with the jury. Based on the evidence produced at the
hearing, [counsel] had discovered most of the information that Mr. Waldrop claims
he did not have and therefore his investigation was not unreasonable. It is this
Court’s opinion that Mr. Gillenwaters acted reasonably and that the result of Mr.
Waldrop’s trial would not have been different.”
Waldrop, 987 So. 2d at 1200. The CCA accordingly adopted the circuit court’s findings of fact in
concluding that petitioner was not prejudiced.
The circuit court’s findings are supported by the record, and we adopt them as part
of this opinion. Few witnesses at the evidentiary hearing offered any negative insight
into Waldrop’s upbringing except his mother. The majority of her testimony
consisted of detailing the abuse that she had suffered at the hands of her father, one
of the victims, and her husband. Furthermore . . . it is conceivable that evidence of
an abusive childhood environment would have hurt Waldrop given that he was
charged with killing his grandparents—the two people who were his primary
caregivers during his childhood.
Id.
Having surveyed counsel’s investigation and preparation for the penalty phase and adopted
the circuit court’s findings on prejudice, the Court of Criminal Appeals next distinguished
petitioner’s case from Wiggins, upon which petitioner had relied in challenging counsel’s penalty
phase investigation. The court held that, unlike in Wiggins, in this case counsel “conducted a
reasonable investigation and chose not to concentrate on Waldrop’s childhood. However some

62

evidence of Waldrop’s childhood was introduced at trial. This case is distinguishable from Wiggins,
and that case does not mandate reversal.” Waldrop, 987 So. 2d at 1201. Ultimately, the Court of
Criminal Appeals concluded as follows:
Clearly, this is not a case where counsel failed to investigate, a case where counsel
was ignorant of what evidence could be presented in mitigation, or a case where
counsel presented no mitigation evidence. [Counsel] was also aware that the
sentencing judge, the same judge who had sentenced Waldrop’s wife for the murders,
had evidence of Clara Waldrop’s abusive childhood and stated in his sentencing
order that he afforded it little weight.[] [Counsel] made a reasoned strategic decision
to portray Waldrop as the victim of his cocaine addiction. This defense was so
effective that the jury recommended that Waldrop be sentenced to life imprisonment
with the possibility of parole. Under the unique circumstances of this case, we hold
that [counsel]’s performance was not ineffective and that the court correctly denied
relief on this claim.
Id. at 1202 (footnote omitted). Accordingly, the CCA determined that counsel’s performance was
not deficient and that petitioner was not prejudiced by counsel’s investigation and preparation for
the penalty phase.
(b)

Petitioner’s arguments about the Court of Criminal
Appeals’ application of Strickland’s deficient Performance
and prejudice prongs

Petitioner contends that the Court of Criminal Appeals’ decision is contrary to, and an
unreasonable application of, clearly established federal law. Pet. ¶ 81; Pet’r’s Br. (Doc. # 44) at 46,
88 (as to deficient performance) and 94 (as to prejudice). On counsel’s performance, petitioner
portrays the Court of Criminal Appeals’ decision as holding that “because counsel had some
information about Bobby Waldrop’s background, he therefore ‘conducted a reasonable investigation’
and ‘made a reasoned strategic decision’ to exclusively ‘portray Waldrop as the victim of his cocaine
addiction.’” Pet’r’s Br. (Doc. # 44) at 79 (emphasis in original). He argues that, “[i]n holding that
defense counsel in a capital trial provides effective assistance as guaranteed by the Sixth Amendment
63

so long as he learns some information about the defendant’s background and presents some evidence
at the penalty phase,” the state court’s decision is contrary to and an unreasonable application of
numerous Supreme Court precedents which hold generally that counsel are not insulated from a
finding of ineffectiveness merely because counsel performed a cursory investigation and presented
some evidence during the penalty phase. Id. at 80 (emphasis in original). Petitioner also argues that
the state court’s decision is contrary to, or an unreasonable application of, Strickland and its progeny
because it tacitly approves of counsel’s admission that he did little or nothing to prepare for the
judicial sentencing hearing following the jury’s recommendation of a life sentence. Id. at 85-86.
Petitioner describes counsel’s conduct in this regard as a “total abdication of his duty to his client.”
Id. at 86. Finally, petitioner argues that the state court’s decision was contrary to and unreasonably
applied Strickland because it relied upon counsel’s testimony that petitioner never informed him of
any abuse from his childhood in finding that counsel made a reasonable strategic decision not to
further investigate petitioner’s background. Id. at 86-87. Petitioner concludes his argument about
counsel’s deficient performance as follows:
The Alabama Court of Criminal Appeals’s decision focusing entirely on counsel’s
decision not to present additional mitigating evidence at sentencing, and failing to
address whether counsel’s investigation was adequate under prevailing professional
norms, is contrary to and an unreasonable application of Strickland. Trial counsel
abandoned his investigation at an unreasonable point, particularly in light of the
information about Bobby’s background that was known to counsel. By simply
assuming that trial counsel’s investigation was adequate, without considering the
reasonableness of counsel’s decision to limit the scope of their inquiry, the Alabama
court unreasonably applied Strickland.
Id. at 87-88 (citations and internal quotations omitted).
Ultimately, the court need not determine whether the Court of Criminal Appeals’ judgment
that counsel did not perform deficiently is contrary to, or involved an unreasonable application of,
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clearly established federal law, or whether it was based upon an unreasonable determination of the
facts in light of the evidence before the state courts. Even assuming that the CCA’s judgment about
counsel’s performance is unreasonable, the court finds that the state court’s judgment that petitioner
was not prejudiced by counsel’s performance is not contrary to, or an unreasonable application of,
clearly established federal law. On the issue of prejudice, petitioner contends that he is entitled to
habeas corpus relief because
the state court unreasonably discounted mitigating evidence because it was presented
through family member witnesses, speculated that evidence about Bobby Waldrop’s
disadvantaged and abusive background was not mitigating because the victims in this
case were his grandparents, weighed against a finding of prejudice the jury’s life
verdict, failed to evaluate prejudice using the reasonable sentencer standard, and
failed to consider the totality of the relevant mitigating evidence to determine
whether there is a reasonable probability that a reasonable sentencer would have
sentenced Bobby Waldrop to life instead of death.
Pet’r’s Br. (Doc. # 44) at 88 (emphasis in original). The court will examine each of these points in
evaluating the state court’s judgment pursuant to § 2254(d).
(c)

Application of § 2254(d) to the state court’s analysis of
prejudice

Petitioner’s first argument is that the Court of Criminal Appeals, by virtue of adopting the
circuit court’s findings of fact, unreasonably found that he had “failed to prove any additional
mitigating circumstances at the Rule 32 hearing” because the court did not fully “credit the testimony
of family members because they are related to Bobby[.]” Pet’r’s Br. (Doc. # 44) at 88-89. He argues
that “[e]very major Supreme Court decision addressing a claim of ineffectiveness at the penalty
phase relies on the testimony of the defendant’s family members, especially to prove facts about the
defendant’s childhood (such as abuse, neglect, and domestic violence) that are unlikely to be
provable through non-family witnesses who are not privy to what happens inside a family’s home.”
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Id. at 89. Petitioner also points to other evidence, including the testimony of non-family witnesses,
the proffered testimony of his two experts, and “over 350 pages of documentary evidence, all of
which established a considerable amount of mitigation that was never rebutted by the State.” Id.
at 89-90. He maintains that the family member testimony “discredited” by the state courts “was
corroborated by other witnesses who testified about the frequent police calls to the Waldrop
household, seeing bruises on Bobby and his siblings, and witnessing criminally violent behavior by
Bobby’s parents.” Id. at 90.
Petitioner’s first argument is flawed in several respects.

To begin with, petitioner

exaggerates the extent to which the state courts discredited the testimony of his family member
witnesses. Petitioner cites to a single sentence in the entirety of the CCA’s opinion to support his
contention that the state courts “refus[ed] to credit the testimony of family members because they
are related to Bobby[.]” See id. at 89. That sentence, which is found in one of the portions of the
opinion in which the CCA is quoting from the circuit court’s order, reads as follows: “‘Regardless,
the Court did not find Mrs. Irelan’s testimony credible on this issue. She clearly has an interest in
the outcome of this hearing–Mr.Waldrop is her son and she already lost her parents.’” Waldrop, 987
So. 2d at 1197-98. What petitioner omits is that the state court’s credibility “finding” on “this issue”
is preceded by the court’s discussion of petitioner’s allegation that counsel failed to introduce
evidence that petitioner’s grandfather–Mrs. Irelan’s father and one of the victims–“‘beat her on many
occasions, even while [she was] pregnant.’” Id. at 1197. In questioning the reliability of this portion
of Mrs. Irelan’s testimony, the state court did not somehow refuse to credit the entirety of the
testimony of petitioner’s family member witnesses, including the remaining aspects of Mrs. Irelan’s
testimony. The court did not, for example, question the veracity of any testimony about Mrs. Irelan’s
66

adultery or promiscuity, her violent outbursts against others, her suicide attempts, or whether
petitioner loved and was loved by his grandparents, all of which were important points in petitioner’s
case during Rule 32 proceedings, and much of which was established by the testimony of petitioner’s
family members. Elsewhere, the court questioned the relevance of testimony about the violence
inflicted on petitioner’s family members, but not the credibility of the witnesses. See id. at 1198.
A closer review of the decision indicates that the state court’s trepidation on this point is the
reasonable product of the state court’s obligation to balance competing interests when assessing
credibility. While petitioner is indisputably correct that the testimony of family members is often
the crux of any effort to establish the unpleasant facets of a person’s childhood and family history
for mitigation purposes, courts are not required to accept all such testimony without scrutiny. The
CCA’s opinion reflects the circuit court’s searching on this point, not merely a categorical rejection
of the testimony of all of petitioner’s family member witnesses, when it questions why petitioner
offered little to nothing to corroborate Mrs. Irelan’s testimony about the very serious abuse she
claims she suffered at the hands of her father. In the sentences immediately succeeding the
credibility finding cited by petitioner, the CCA, by way of the circuit court, remarked as follows:
Mr. Waldrop’s own witness, the Prestridges’ and Waldrop’s neighbor, Phyllis
Lipham, testified that she never saw Mr. Prestridge hit his children. Mr. Waldrop did
not produce any corroborating documents of Mrs. Irelan’s claim that she lost a baby
after one of the alleged beatings or her claim that a teacher observed blood on her
dress while at school. Additionally, Mr. Waldrop did not call to testify Mrs. Irelan’s
two sisters who were present in court the day of the hearing and on his witness list,
one of whom Mrs. Irelan also testified, was also ‘beat’ by their father to corroborate
Mrs. Irelan’s testimony.
Id. at 1198. Thus, to the extent the state courts made any explicit credibility determination against
his family member witnesses, it related to the much narrower issue of whether the victim, Mr.

67

Prestridge, so severely and regularly beat his children, including petitioner’s mother, to the point that
he terminated Mrs. Irelan’s pregnancy and left her with noticeable bruising and wounds that openly
bled even while Mrs. Irelan was at school. And even to that extent, the state courts’ findings are
reasonable given that petitioner failed to offer the sort of corroborating evidence one might
reasonably expect to support the allegations. In this case, the court finds it particularly salient that
Mrs. Irelan’s siblings, including Nancy Rostofer, who was also allegedly subject to beatings by Mr.
Prestridge, see Rule 32 Tr. (R.-60) at 354-55, did not corroborate her testimony. The testimony of
another family member who experienced Mr. Prestridge’s beatings, but was not also as objectively
motivated to support petitioner’s case as was his mother, would have been especially powerful
evidence in support of petitioner’s allegations about Mr. Prestridge. The state courts did not act
unreasonably in questioning Mrs. Irelan’s credibility due to the omission of such evidence.
Petitioner’s first argument is also undermined by his specious assertion that the state courts
overlooked the purported corroboration of the testimony of his family members by other, non-related
witnesses. Petitioner points to three such examples, arguing that non-family witnesses testified about
“the frequent police calls to the Waldrop household,” “seeing bruises on Bobby and his siblings,”
and “witnessing criminally violent behavior by Bobby’s parents.” Pet’r’s Br. (Doc. # 44) at 90.
However, the corroboration described by petitioner is not as conclusive or as probative as he portrays
it to be. For example, petitioner points to the testimony of the Prestridges’ neighbor, Phyllis Lipham,
about “the frequent police calls to the Waldrop household,” supposedly as corroboration of
unspecified portions of his family members’ testimonies about violence perpetrated by petitioner’s
family members. First, to the extent a distinction need be drawn here, Mrs. Lipham was asked about
her observations of the Prestridges’ home, not “the Waldrop household.” Although her subsequent
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testimony makes clear that the Waldrops lived in a trailer very near the Prestridges’ home, see Rule
32 Tr. (R.-60) at 234-35, it is important to recognize that Mrs. Lipham did not testify specifically that
she had seen police visiting “the Waldrop household.” In any event, Mrs. Lipham simply testified
that she had never seen a fight or “conflict” occur at the Prestridges’ home, but that she would
sometimes hear some sort of commotion emanating from the Prestridges’ and would sometimes see
law enforcement going out to visit. Id. at 228-29. Mrs. Lipham’s testimony is not related temporally
by petitioner to any of the specific events described in the petition. As to the frequency of law
enforcement visits, she testified that they occurred “[s]ometimes pretty often. Sometimes it would
be a couple times a week.” Id. at 229. She thought the visits might have been more frequent on
Friday and Saturday nights, but could not remember because it had been so long. Id. at 230. Thus,
her testimony about police visits was vague at best and, even if indicative of recurrent problems at
the Prestridge household, is of limited use in assessing the value of petitioner’s specific allegations
of violence by his family members that he observed or experienced. More importantly, her testimony
in no way corroborates the specific allegations about Mr. Prestridge’s beatings of petitioner’s mother
that the state courts found incredible.
Petitioner also points to Mrs. Lipham’s testimony about “seeing bruises on Bobby and his
siblings” as supposed corroboration of his family members’ testimony about abuse he and his
siblings endured. However, Mrs. Lipham’s testimony on this point is equivocal at most and, more
reasonably construed, offers little of the corroboration claimed by petitioner. Mrs. Lipham testified
that she never observed fights or conflicts at the Prestridges’ home (id. at 228), that the Waldrop
children always appeared nourished and clothed (id. at 258), and that she never saw any signs of
abuse or beatings on the Waldrop children (id. at 258). When asked specifically about her
69

observation of bruises on the Waldrop children, she testified as follows: “I never saw any, nothing
other than the normal childhood play. You know, kids get out in the yard and play, and they’re going
to get a few knocks and bruises.” Id. at 258. Thus, Mrs. Lipham, who testified that she saw the
Waldrop children a good bit when they were younger (id. at 257), clearly saw no signs of abuse or
neglect on the children and attributed the minor “knocks and bruises” she may have observed to
ordinary “childhood play” in the yard, not abuse by petitioner’s parents, grandfather, or other
relatives. Mrs. Lipham’s testimony simply does not provide the sort of unequivocal corroboration
for which petitioner offers it, and it in no way corroborates his specific allegations about Mr.
Prestridge’s alleged abuse of petitioner’s mother and others.
Finally, petitioner points to the testimony of Johnny Morrison as corroboration for other
family members’ testimony about “witnessing criminally violent behavior by Bobby’s parents.” Mr.
Morrison testified that he was shot by petitioner’s mother when he was attempting to move a trailer
onto property near the Prestridges’ home. Id. at 102-04. While Mr. Morrison’s testimony certainly
corroborates one particularly egregious act of violence by petitioner’s mother, it does not corroborate
any of petitioner’s other allegations or family witness testimonies about other violent acts by
petitioner’s mother, much less violent acts by his father or Mr. Prestridge. Furthermore, as noted
above, the state courts did not find any of petitioner’s allegations about violent acts by his mother
incredible. Rather, the state courts simply found Mrs. Irelan’s testimony about severe beatings
inflicted by her father incredible. Thus, the corroboration offered by Mr. Morrison is of little use in
judging the reasonableness of the state court’s credibility judgment as to Mrs. Irelan’s testimony.
For all of the foregoing reasons, petitioner’s claim that the state court unreasonably
discredited all of the testimony of his family members is unfounded. While the state court certainly
70

found much of the testimony of limited relevance or persuasive value, petitioner has failed to show
that the state court acted unreasonably in the narrow instance in which it found Mrs. Irelan’s
testimony about beatings inflicted on her and her siblings by her father incredible.
Petitioner’s second argument in support of his claim that the state courts unreasonably
resolved the prejudice inquiry is that “the state court unreasonably discounted all evidence about
Bobby’s abusive and neglectful childhood based on speculation” that such evidence would have
backfired against petitioner because he killed his grandparents, the two persons who often provided
for him when his parents were unable to do so. Pet’r’s Br. (Doc. # 44) at 90-91. He argues this
“points up the state court’s failure to consider the totality of the evidence in evaluating prejudice, but
also conflicts with Supreme Court precedent” which has found state court decisions unreasonable
for disregarding evidence about a petitioner’s abusive childhood where such evidence might have
offered some insight about the defendant’s relationship with the victim. Id. at 91. He further argues
that “[c]ompetent counsel should have used evidence that Bobby grew up in a family that habitually
used extreme violence against each other in response to conflict and stress to help the jury
understand Bobby and his acts, which horrified no one so much as Bobby himself.” Id. at 91.
In speculating about whether, considering his victims, petitioner’s mitigation case could have
been damaged had counsel offered the childhood abuse and neglect evidence adduced at the Rule
32 hearing, the CCA did not unreasonably “discount” all such evidence, as argued by petitioner.
Indeed, by the time the court engaged in the “speculation” challenged by petitioner, it had already
endorsed and adopted the circuit court’s finding that much of petitioner’s childhood abuse and
neglect evidence was not “‘particularly credible or relevant.’” Waldrop, 987 So. 2d at 1199. Thus,
the CCA’s “speculation” about whether, considering its limited probative value, presenting more of
71

the childhood abuse and neglect evidence would have ultimately benefitted petitioner because of the
identity of his victims was not the basis for the court’s credibility and relevance findings about that
evidence.26 The record does not support any contention that the CCA discounted petitioner’s
mitigating evidence due only to the fact that his victims were his grandparents.27
26

Importantly, the CCA had already adopted the circuit court’s finding that, considering that
counsel succeeded in obtaining a life recommendation from the jury, had counsel “presented the
testimony that Mr. Waldrop offered at the Rule 32 evidentiary hearing[,] it is conceivable to this
Court that the jury would have lost the significance of the cocaine addiction evidence,” which
counsel perceived as his best jury argument in mitigation. Waldrop, 987 So. 2d at 1199-1200.
27

Nor can the court conclude that any speculation by the state court about the possibility that
petitioner’s childhood abuse and neglect evidence could have worked as a “double-edged sword” was
unreasonable. The CCA remarked that it was “conceivable” that presenting the childhood abuse and neglect
evidence could have backfired because, although petitioner had presented little to no evidence about
suffering violence or abuse at their hands, he gruesomely murdered his grandparents. The evidence adduced
in post-conviction proceedings overwhelmingly allocated any blame for petitioner’s hardships to his parents.
Indeed, the evidence mostly indicated that petitioner’s grandparents provided important nurturing and
resources to him throughout his life. Given these circumstances, it was reasonable to speculate that evidence
of petitioner’s difficult childhood, mitigated as it was by the considerable evidence of petitioner’s
grandparents’ substantial role in balancing his own parents’ failings, might conceivably have angered the jury
and distracted from the substance abuse evidence, which counsel reasonably considered his strongest point
of mitigation.
Petitioner asserts that “[c]ompetent counsel should have used evidence that Bobby grew up in a
family that habitually used extreme violence against each other in response to conflict and stress to help the
jury understand Bobby and his acts, which horrified no one so much as Bobby himself.” Pet’r’s Br. (Doc.
# 44) at 91. He reasons that this sort of evidence “is not the type of damaging evidence that counsel could
reasonably decide not to present, such as evidence of other crimes committed by the defendant.” Id.
However, even accepting that evidence of petitioner’s family background could be generally mitigating and
not objectively damaging to his case, it is reasonable to speculate that in the unique context of this case
counsel might have feared the jury would not have connected any “evidence that Bobby grew up in a family
that habitually used extreme violence against each other in response to conflict and stress” to his actions.
Petitioner’s manifestation of the “extreme violence” he argues characterizes his family was more
gruesome, senseless, and overwhelmingly disproportionate to any act of violence he alleges has been
committed by any of his other family members, even considering that his mother once shot a man. Moreover,
there is scant evidence that petitioner’s violent actions were the result of any “conflict or stress” involving
his grandparents. Rather, as petitioner’s own statement made clear, he killed his grandparents because he
wanted their money so he could buy drugs. See R.-2 at 182-83 (petitioner’s statement) (“Papa and I got to
fussing about me borrowing some money and I was so high and I knew he was on a monthly income. I went
into the kitchen and got the knife and came back Papa pushed me and he saw the knife and that’s when I
(continued...)

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Petitioner’s third argument in support of his claim that the state courts unreasonably decided
the prejudice prong of his penalty phase ineffectiveness claim is that the state courts “weighed
against a finding of prejudice the jury’s 10-2 verdict for life.” Pet’r’s Br. (Doc. # 44) at 92. He
argues this “weighing” “is contrary to and an unreasonable application of Strickland, which makes
clear that, in assessing prejudice, the reviewing court must acknowledge that a ‘verdict or conclusion
only weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.’” Id. (quoting Strickland, 466 U.S. at 696). Petitioner apparently
construes the jury’s recommendation of a life sentence as indicating that the trial judge’s ultimate
verdict of death lacks substantial support in the record and that, therefore, the failure to present the
mitigating evidence he offered during Rule 32 proceedings “‘weighs heavily in favor of a finding of
prejudice.’” Id. (quoting Williams v. Allen, 542 F.3d 1326, 1343 (11th Cir. 2008)) (emphasis
petitioner’s).
The court finds petitioner’s argument unavailing. At the outset, the court notes that
petitioner’s apparent premise–that a jury recommendation of life necessarily weighs in favor of a
finding of prejudice–is logically flawed and is not reflexively applied by the Eleventh Circuit. See
Lee, 726 F.3d at 1196 (“Indeed, the fact that the jury recommended life imprisonment counsels

27

(...continued)
swung the knife at his throat and he started to bleed from the throat real bad.”) (emphasis supplied).
Confronted with the practical reality of these blunt facts–and charged with trying to persuade a jury to vote
to spare his client’s life–counsel unsurprisingly, and reasonably, determined that, in order to “help the jury
understand Bobby and his acts,” he should focus his case on showing the jury how petitioner’s addiction
controlled and compelled his behavior. Counsel certainly could have presented more evidence about how
petitioner’s family often resorted to violent outbursts “in response to conflicts and stress.” Such evidence
might even have “help[ed] the jury understand Bobby” and sympathize with him as a person. But given the
unique intimacy and violence of petitioner’s actions, it is questionable whether such evidence would have
appreciably helped the jury to understand why he stabbed and sliced his grandparents to death.

73

against a determination that Lee was prejudiced under Strickland.”). The jury’s life recommendation
in this case does not necessarily entail that the purportedly meager childhood and family background
evidence offered by counsel at trial was sufficiently compelling that, had counsel only presented
more evidence of that ilk, there is a reasonable probability that the jury’s life recommendation would
have been unanimous or that the trial judge would have accepted the jury’s recommendation rather
than imposing a death sentence. The jury’s life recommendation just as easily may–and more likely
does–reflect that counsel’s focus on presenting petitioner’s drug addiction as mitigation was
persuasive to the jury.
Even setting aside Lee and any inherent logical fallacies, however, petitioner does not explain
how the state court purportedly determined that the jury’s life recommendation precluded a finding
of prejudice. Nor does he provide a quotation from the Court of Criminal Appeals demonstrating
the unreasonable “weighing” he attributes to the state courts. Rather, he merely provides a citation
to a single page of the CCA’s opinion. See Pet’r’s Br. (Doc. # 44) at 92 (citing Waldrop, 987 So.
2d at 1202). In the cited portion of the CCA’s opinion, the state court is discussing petitioner’s
argument on appeal that “he is entitled to a new sentencing hearing” pursuant to a prior CCA
decision, Harris v. State, 947 So. 2d 1079 (Ala. Crim. App. 2004), in which the CCA “held that
counsel was ineffective for failing to investigate Harris’s background to obtain mitigation evidence”
where Harris’s counsel instead “relied on ‘residual doubt,’ which . . . is not a mitigating
circumstance, even though counsel had an abundance of mitigating evidence that he failed to
discover and present.” Waldrop, 987 So. 2d at 1201-02 (citing Harris, 947 So. 2d at 1079 ). In
concluding that petitioner was not entitled to a new sentencing hearing under Harris, the CCA
remarked that “this is not a case where counsel failed to investigate, a case where counsel was
74

ignorant of what evidence could be presented in mitigation, or a case where counsel presented no
mitigation evidence.” Id. at 1202. In addition, the CCA recognized counsel’s judgment that,
considering that the trial judge had afforded little weight to evidence of petitioner’s co-defendant’s
“abusive childhood” when offered during her penalty phase case, counsel’s best argument in
mitigation was to focus on his addiction evidence. The Court of Criminal Appeals concluded as
follows:
Gillenwaters made a reasoned strategic decision to portray Waldrop as the victim of
his cocaine addiction. This defense was so effective that the jury recommended that
Waldrop be sentenced to life imprisonment with the possibility of parole. Under the
unique circumstances of this case, we hold that Gillenwaters’s performance was not
ineffective and that the court correctly denied relief on this claim.
Id. (emphasis supplied).
This court does not imbue this passage of the CCA’s opinion with the same significance as
petitioner. First, it is evident that the point of the section of the CCA’s opinion that petitioner cites
was merely to contrast petitioner’s counsel’s performance with that of the attorneys in Harris. See
id. (considering that counsel performed some investigation, was not wholly ignorant of available
mitigation evidence, and presented some mitigation evidence, “we hold that Gillenwaters’s
performance was not ineffective”). The CCA was not specifically rendering any findings on the
issue of prejudice. The CCA decided that issue earlier in its opinion when it quoted extensively from
and approved of the circuit court’s findings that petitioner had failed to provide any especially
credible or relevant mitigation evidence during the Rule 32 proceedings. Id. at 1199-1200. The
Court simply observed that the reasonable strategic decision it attributed to counsel was objectively
successful before the jury. Up to that point, the entire purpose of the passage had been to distinguish
petitioner’s counsel’s actions from the attorneys in Harris, who, rather than investigating and
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preparing to present copious and available mitigation evidence, oriented their strategy on arguing
residual doubt, which “is not a mitigating circumstance.” By contrast, petitioner’s counsel presented
expert opinion about addiction that was directly pertinent to two statutory mitigating circumstances
and that had already conclusively been found as mitigating by the same trial judge in petitioner’s codefendant’s case, who did not receive a death sentence.28
In any event, this court fails to grasp petitioner’s argument that the CCA’s reasoning is
“contrary to and an unreasonable application of Strickland.” Pet’r’s Br. (Doc. # 44) at 92. While
that decision certainly, and unremarkably, observes that “a verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than one with overwhelming
record support,” 466 U.S. at 696, petitioner does not explain how the verdict in his case is “only
weakly supported by the record.” Strickland does not hold that an advisory jury verdict for life
somehow indicates a lack of “record support” for a death sentence imposed by the ultimate
sentencer. Nor does petitioner cite any other Supreme Court case with such a holding.
Furthermore, this case is highly aggravated, notwithstanding the jury’s recommendation of
a life sentence. This point distinguishes petitioner’s case from Williams, which he cites apparently
for the proposition that the jury’s recommendation of a life sentence, rendered without the benefit
of “‘powerful evidence adduced at postconviction, weighs heavily in favor of a finding of
prejudice.’” Pet’r’s Br. (Doc. # 44) at 92 (quoting 542 F.3d at 1343) (emphasis petitioner’s). But
in Williams, which relied upon the same Strickland language cited by petitioner, the Eleventh Circuit

28

See Rule 32 C.R. 1268 (the trial court’s sentencing order in Clara Waldrop’s case) (“The Court
finds that the defendant had been smoking crack cocaine prior to the commission of the offense, but she was
not so intoxicated that she could not form an intent. There is no question, however, that her ability to
appreciate the criminality of her conduct or to conform her conduct to the requirements of law was impaired;
and the court finds this to be a mitigating circumstance.”).

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specifically found that the finding of prejudice due to counsel’s failure to present certain mitigating
evidence was particularly supported because the “case is not highly aggravated.” 542 F.3d at 1343.
In Williams, “the trial court imposed the death penalty on the basis of a single statutory aggravating
circumstance [the robbery-murder aggravator]–one that is an element of the underlying capital
murder charge.” Id. In this case, however, death was imposed based on that aggravator and the
additional, “particularly powerful,” see Boyd, 592 F.3d at 1302-03, “heinous, atrocious, or cruel”
aggravator. Indeed, in Boyd, without operating in the confines of AEDPA deference, the Eleventh
Circuit held that, even in a case where the jury recommended a life sentence, the unique weight of
the “heinous, atrocious, or cruel” aggravator in that case was sufficient to overcome any weight in
the prejudice inquiry owed to the jury’s life recommendation. See id. at 1303. Thus, petitioner has
failed to show either that CCA unreasonably weighed the jury’s life recommendation in its prejudice
analysis, or that its decision is contrary to or an unreasonable application of Strickland.
Petitioner’s fourth argument in support of his claim that the state courts unreasonably
resolved the prejudice inquiry against him is his contention that “the Court of Criminal Appeals
found no prejudice in part because the particular sentencing judge would not have afforded much
weight to evidence of Bobby’s abusive childhood.” Pet’r’s Br. (Doc. # 44) at 93. He argues that the
CCA’s decision is “contrary to and unreasonably applies Strickland because it fails to measure
prejudice based on the presumption of a reasonable sentencer.” Id. In support of this argument,
petitioner cites, without any quotation or extended discussion, to the same portion of the CCA
opinion discussed in relation to his prior argument about the CCA’s purported failure to properly
weigh the jury’s recommendation of a life sentence in its prejudice findings.

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Petitioner’s argument is without merit. As discussed above, the portion of the CCA’s
opinion upon which petitioner relies was concerned with evaluating the reasonableness of counsel’s
investigation, especially as compared to two cases cited by petitioner, Wiggins and Harris, in his
appellate brief. Thus, the CCA was examining counsel’s performance, not prejudice, which the
court had already resolved against petitioner by that point. In pertinent part, the CCA observed that,
in deciding to focus more on addiction evidence than childhood abuse evidence, counsel “was also
aware that the sentencing judge, the same judge who had sentenced Waldrop’s wife for the murders,
had evidence of Clara Waldrop’s abusive childhood and stated in his sentencing order that he
afforded it little weight.” Waldrop, 987 So.2d at 1202.
As the Supreme Court explained in Strickland, the “reasonable sentencer” standard is
relevant to a court’s reweighing of aggravating and mitigating circumstances in resolving the
prejudice inquiry, not determining the reasonableness of counsel’s actions under the performance
prong.
The assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the standards
that govern the decision. It should not depend on the idiosyncracies of the particular
decisionmaker, such as unusual propensities toward harshness or leniency. Although
these factors may actually have entered into counsel’s selection of strategies and, to
that limited extent, may thus affect the performance inquiry, they are irrelevant to the
prejudice inquiry.
Strickland, 466 U.S. at 695 (emphasis supplied). See also Ferrell v. Hall, 640 F.3d 1199, 1234 (11th
Cir. 2011). Thus, in observing that counsel likely opted to focus his penalty phase strategy on
presenting evidence about petitioner’s drug addiction in light of the trial judge’s diminishment of
the childhood abuse evidence offered at his co-defendant’s trial, the CCA was not unreasonably
“fail[ing] to measure prejudice on the presumption of a reasonable sentencer.” Pet’r’s Br. (Doc. #
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44) at 93. Indeed, the CCA was not measuring prejudice at all, but was instead assessing the
reasonableness of the strategic decision the CCA attributed to counsel. There is no clearly
established federal law that requires counsel to adopt a trial strategy based upon Strickland’s
hypothetical “reasonable sentencer.” Rather, counsel is permitted to reasonably tailor trial strategy
to accommodate the practical reality that the case will be tried before a judge with unique tendencies
and sensibilities. The CCA did not unreasonably fail to weigh prejudice pursuant to the “reasonable
sentencer” standard of Strickland.
Petitioner’s final argument in support of his contention that the CCA unreasonably resolved
the prejudice inquiry is that the state court failed to “‘evaluate the totality of the available mitigating
evidence.’” Pet’r’s Br. (Doc. # 44) at 93 (quoting Williams, 529 U.S. at 397-98). He asserts that the
CCA “either did not consider or unreasonably discounted the mitigation evidence adduced in the
postconviction hearing, and its decision that Bobby Waldrop was not prejudiced by his counsel’s
failure to conduct a thorough investigation is unreasonable.” Pet’r’s Br. (Doc. # 44) at 94. Petitioner
submits that the CCA’s “failure to consider the evidence adduced in post-conviction together with
the evidence at trial is apparent from its failure to recognize that its speculative theory about the
negative effect of mitigating information was disproven when, in response to hearing just a small
amount of the available mitigating evidence about Bobby Waldrop’s background–including evidence
about his relationship with his grandparents–the jury returned a life verdict.” Id. at 93. Moreover,
he maintains that the mitigating evidence he offered in postconviction “contradicts the critical
misperceptions on which the sentencing judge apparently relied in rejecting the jury’s life verdict,
particularly with respect to Bobby’s drug addiction.” Id. at 94. He concludes that the CCA’s
holding “that Bobby Waldrop failed to meet his burden to show that he was prejudiced by counsel’s
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deficiency is contrary to and an unreasonable application of clearly established Supreme Court
precedent. Id.
This argument is, in effect, the most significant of those related to petitioner’s penalty phase
ineffective assistance of counsel claim because petitioner is challenging the CCA’s purported failure
to properly recognize and weigh all of the mitigating evidence introduced at trial and in
postconviction proceedings when assessing prejudice. In order to determine whether the CCA’s
decision is contrary to, or involved an unreasonable application of, clearly established federal law,
the court will first briefly recount the mitigating evidence introduced at trial and during post
conviction proceedings.
The totality of the mitigating evidence
At trial, counsel began to elicit mitigating evidence about petitioner’s family circumstances
and his relationship with his grandparents from the State’s first witness during the guilt phase,
petitioner’s aunt. She testified on cross examination that petitioner’s mother was “fourteen or
fifteen” when petitioner was born, and that the family lived with the Prestridges at that time. Trial
Tr. (R.-9) at 373-74. Sherrell Prestridge purchased a trailer for petitioner and his wife to live in
because, in effect, petitioner was “the oldest grandson, and he had raised him, . . . because that was
his son in other words.” Id. at 374. Sometimes petitioner’s parents would prevent the Prestridges
from visiting with the Waldrop children out of spite, but at other times the children would stay with
their grandparents “for a time.” Id. at 374-75. Just prior to the murders, the Prestridges had
provided petitioner with money, a place to live, and helped him obtain a car. Id. She confirmed that
her parents loved petitioner. Id. at 375. She also testified that petitioner’s mother “left with another
man and was living with him” before she and petitioner’s father were divorced, and that petitioner
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was saddened by his parents’ divorce. Id. at 377-79. She testified that she and her father signed the
bond to have petitioner released from jail when he was first arrested on drug possession charges.
Id. at 379.
Counsel’s first witness after the State rested was petitioner’s mother, Shirely Irelan, who
testified about petitioner’s use of drugs around the time of the murders. Trial Tr. (R.-10) at 740-41.
She also testified that petitioner loved his grandparents and that they loved him and wanted him to
move in with them because they were worried about him. Id. at 742. She was fourteen when she
married petitioner’s father, and they lived with her parents after the marriage. Id. at 745. She
confirmed that petitioner had spent a substantial part of his nineteen years living with his
grandparents because she “didn’t know how to take care of a baby, and his father was not really
responsible either. So, I knew if I left him with momma and daddy that he would be took care of.”
Id. at 746. When asked specifically when she first noticed that petitioner had a drug problem, Mrs.
Irelan responded that it was when petitioner was sixteen, after the divorce and after he dropped-out
of school, when he started smoking marijuana. Id. at 747. She believed that he was on crack cocaine
a few months before her parents were killed. Id.
Counsel also presented the testimony of petitioner’s former manager at Trintex Corporation,
who testified that petitioner “was such a good worker” who was energetic and “got along with his
fellow employees[,]” and that he never had “any kind of disciplinary actions . . . other than his
absentees[,]” which eventually resulted in his termination. Id. at 759. Petitioner’s absentees mostly
occurred on Mondays, and he was terminated after accruing five unexcused absences. Id. at 759-60.
A few months after he was first terminated, petitioner was rehired, and again “his performance on

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the job was great.” Id. at 761. However, he began having unexcused absences again a few months
later and was again terminated. Id.
Counsel’s next witness was petitioner’s great aunt, Irene Prestridge’s sister. She testified that
the Prestridges often cared for petitioner and that he lived with them “off and on from the time he
was born” such that they “thought of Bobby as their son and not their grandson. They loved Bobby
and Bobby loved them.” Id. at 765-66.
Counsel’s next witness was Dr. Tackett, who, as discussed previously in this opinion,
testified generally about drug intoxication and addiction, and about how crack cocaine addiction can
influence behavior. He ultimately surmised that, even if petitioner was not intoxicated at the time
of the murders, he committed the murders in order to be able to satisfy his body’s craving for the
drug.
After petitioner was convicted of capital murder, counsel argued in his opening statement of
the penalty phase that, drawing upon much of the evidence already entered during the guilt phase,
the jury should consider several mitigating circumstances, including petitioner’s lack of criminal
history, that he was under the influence of extreme mental or emotional disturbance, that his ability
to “appreciate the criminality of his conduct and conform his conduct to the requirements of law was
substantially impaired” due to his use of cocaine, his age, “the facts of Bobby’s
childhood”–including that he “came from a broken home” and that his grandparents essentially
raised him due to his parents’ failings, that he was a good worker before his addiction caused him
to start missing work, and that he demonstrated remorse for his actions. Trial Tr. (R.-18) at 1010-14.
Counsel again called Dr. Tackett, who testified in the penalty phase that he believed petitioner’s
“brain chemistry was still being influenced by the drug” at the time of the murders in that, “when this
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occurred, . . . he was probably on the depressive phase of coming down from being on the effects of
crack cocaine.” Trial Tr. (R.-20) at 1017. He testified that withdrawal from crack cocaine can cause
someone to “suffer extreme mental or emotional disturbance[,]” and that he believed petitioner was
likely experiencing symptoms of that sort at the time of the murders. Id.
After Dr. Tackett’s testimony, petitioner testified about his heavy drug use leading up to the
day of the murders. Id. at 1026-30. When asked why he killed his grandparents, he testified as
follows:
On account of the drugs I was using. I love my grandparents very much and at that
time I was on these drugs–I mean I was not–I wasn’t the person that I am now. I
mean, it was like this was all I cared about. I didn’t care about my family. I didn’t
care about my wife. I didn’t care if I hurt myself or anybody else.
Id. at 1030. Petitioner also testified that his grandparents had raised him since he was a child, that
they were good to him, and that he had never had any altercations with either of them. Id. at 1033.
Petitioner’s final witness in the penalty phase was Sheriff Fuller, who testified that petitioner had
not caused any problems since he was incarcerated in the county jail awaiting trial. Id. at 1042.
At the sentencing hearing before the trial judge, after having obtained the jury’s life
recommendation, counsel again asserted as mitigating circumstances that petitioner had no prior
record of serious criminal offenses, that the murder was committed while petitioner was under the
influence of extreme mental or emotional disturbance, that his capacity to appreciate the criminality
of his conduct and conform his conduct to the requirements of law was substantially impaired, that
his age was mitigating, and “that he was from a broken home, his work record, and the fact that he
was remorseful for his actions.” Trial Tr. (R.-25) at 1094-96, 1100-06. Counsel also argued against
the applicability of the heinous, atrocious, or cruel aggravator based on his contention that the State

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had failed to prove that petitioner tortured the victims. Id. at 1098-99. When it became apparent that
the trial judge would not assign much weight to any mitigating circumstances that were attributable
to petitioner’s use of and addiction to cocaine, petitioner’s counsel objected strenuously to the
court’s findings. Id. at 1119-23.
Against this backdrop of the evidence and argument presented to the jury and trial judge,
petitioner offered new evidence at the Rule 32 hearing to show that he was prejudiced by counsel’s
alleged deficient investigation and preparation for the penalty phase. The bulk of this information
concerned the circumstances of petitioner’s childhood, including his family’s poverty, alleged
pervasive violence involving his family members, privation and neglect, and his mother’s alleged
adultery and promiscuity. For example, at the Rule 32 evidentiary hearing, Johnny Morrison
testified about the time that petitioner’s mother shot him while he attempted to deliver a trailer to
land near the Waldrop’s. Rule 32 Tr. (R.-60) at 103-04. Howard House, a manager at Trintex at the
time that petitioner and his parents worked there, testified that he had seen petitioner’s parents
arguing at work, that he had terminated petitioner’s mother, and that after she was terminated, she
attacked and beat up one of the other Trintex employees before leaving the premises. Id. at 143-46.
Freddie Whitley testified that he was a pastor at a church where the Waldrops attended for about a
year while petitioner was a teenager. Id. at 177. He testified that petitioner participated in Bible
readings, played drums, and sang in the church choir. Id. at 178. Petitioner attended with his parents
and siblings, and sometimes with his grandparents as well. Id. Mr. Whitley believed petitioner and
his grandparents loved each other, and that they got along well. Id. at 178-80.
T.J. Morgan, another manager at Trintex who had also testified at trial, reiterated his trial
testimony about petitioner’s good work and reputation at Trintex. Id. at 188-89. Barrett Holloway
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taught petitioner in seventh grade, and testified that he was always respectful and well-behaved in
class. Id. at 204-05. Petitioner had eight absences that year, which Holloway described as “getting
to an excessive amount.” Id. at 217. As discussed previously, the Prestridges’ neighbor, Phyllis
Lipham, testified about the occasional commotion and apparent arguing she would hear coming from
the Prestridges’ from time-to-time, as well as the law enforcement visits. Id. at 229-30, 256. Mrs.
Lipham also testified about often observing men visiting the Waldrop home–presumably to have sex
with petitioner’s mother–after petitioner’s father had left for work. Id. at 250-51. She testified that
the children were usually at home or playing out in the yard during these visits. Id. at 251.
As much as the above evidence might have hinted at some problematic circumstances
surrounding petitioner’s family background, other evidence offered by these same witnesses militates
against the harshness of many of petitioner’s allegations about the circumstances of his life. For
instance, Mr. House testified that petitioner’s father was even-tempered, that he never saw signs of
abuse between petitioner’s parents, and that they always appeared well-fed and properly attired. Id.
at 147. Pastor Whitley similarly saw no signs of abuse or neglect respecting the Waldrop children;
petitioner never informed him of any problems at home; petitioner never appeared lacking of food
or appropriate clothing; and he appeared appropriately cleaned and groomed. Id. at 183-85. Mr.
Holloway, petitioner’s teacher, also saw no signs of abuse in his year with petitioner, and he never
heard of any problems involving petitioner’s home life. Id. at 221. Mrs. Lipham testified that she
never saw any fights at the Prestridges’, she never saw Sherrell Prestridge hit one of his children or
grandchildren, and that he would yell at them when he needed to get on to them. Id. at 226-27. She
also testified that Sherrell Prestridge was not a heavy drinker, that he had quit drinking altogether,
but that he probably drank more when petitioner was a young boy. Id. at 254-55. Finally, as
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discussed above and consistent with many other witnesses, Mrs. Lipham–who lived next to the
Prestridges from around 1969 until their deaths–testified that she never saw signs of abuse on the
Waldrop children, other than ordinary knicks and bruises, which she attributed to child’s play, and
that she always observed them to be properly fed and clothed. Id. at 257-58.
In addition to the above non-family member witnesses, petitioner presented the testimonies
of numerous family members at the Rule 32 evidentiary hearing. Petitioner’s aunt on his father’s
side, Retha McGehee, testified that she lived with the Waldrops shortly after petitioner was born.
Id. at 262. She testified that petitioner’s mother made sure that he was “fed and bathed,” but that she
was not very affectionate with him, “wouldn’t get him out of the baby bed much,” and would often
leave him alone in his crib while she visited her parents. Id. at 263. She also testified that
petitioner’s mother had affairs with other men, and that they would fight about it when petitioner’s
father, Wesley, learned of the affairs. Id. at 266-67. She testified that petitioner’s mother was often
violent toward and showed little affection for Wesley, and that they often argued over little things
that led to physical fighting. Id. at 267-69. Mrs. McGehee also testified about her and Wesley’s own
histories of abuse and neglect, which predated petitioner’s birth, including that they were taken from
their parents and lived with their uncle, that their parents were alcoholics, that she did not know her
real mother’s identity until her mother died, that her uncle would beat petitioner’s father, that her
uncle molested her, and that her uncle’s children were treated more favorably than she and
petitioner’s father. Id. at 269-76. On the subject of Wesley’s drinking, Mrs. McGehee testified that
he would sometimes drink “two or three beers” after coming home from work during the time that
she lived with the Waldrops shortly after petitioner’s birth. Id. at 279. She further testified that

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petitioner began using smokeless tobacco, with his parents knowledge, around the age of four. Id.
at 280.
Petitioner’s mother was the focal point of his presentation of mitigating evidence about the
circumstances of his childhood and family background. Mrs. Irelan first testified that she was not
aware that she was pregnant with petitioner until approximately the seventh month of the pregnancy.
Id. at 304. In general, due to her age and lack of time to prepare, she did not know how to take care
of a baby. Id. at 305. She testified that the family sometimes went hungry, that they stole food from
a neighbor’s garden, that petitioner worked in a chicken house to help provide food, and that Everett
Pauley, whom Mrs. Lipham said was one of the men who would visit while Wesley Waldrop was
at work, helped them buy groceries. Id. at 306. In addition, the Waldrops were once without power
for over three months, and were forced to used a propane stove provided by Mr. Prestridge to cook
food. Id.
Mrs. Irelan testified about the circumstances of her own childhood, including that the family
lacked “whole, whole lots” of groceries, her parents often argued and physically fought, and, as
discussed above, her father often severely beat her all the way into her twenties. Id. at 306-11. Mrs.
Irelan testified about other violence around the Prestridge and Waldrop households, including when
she threw a sledgehammer at her brother-in-law, fights between her husband and brother-in-law, and
fights between her father and her brother-in-law and his brothers. Id. at 311-13. She testified about
a fight between petitioner’s father and petitioner’s uncle which petitioner observed. Id. at 313. She
explained that alcohol was always involved in these fights. Id. Her grandfather and uncles were
involved in producing and selling moonshine. Id. at 315. She testified that petitioner’s father would
drink on the weekends, “especially when the kids was little.” Id. at 316. She stated that she drank
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alcohol and smoked pot while pregnant with petitioner, but did not quantify the amount of this
behavior and did not clarify if it occurred only during the time during which she was unaware she
was pregnant. Id. at 317.
Mrs. Irelan also testified about the appearance of her son as it became apparent that he was
using drugs. Id. at 317. She explained that, in short succession, petitioner’s wife had a miscarriage,
a car that he had been working on was lost in a fire, and he was arrested for the first time on drug
possession charges. Id. at 317-24. According to Mrs. Irelan, petitioner seemed unable to cope with
these events as he lost a lot of weight and was very unhappy. Id. at 324. After these events it
became clear that petitioner was involved in heavier drug use. On the topic of petitioner’s history
of substance abuse, she testified that she saw petitioner “huffing” gasoline around the age of eight
or nine and found marijuana in his clothes when he was fifteen or sixteen. Id. at 325.
Mrs. Irelan also vaguely testified about the violence between her and petitioner’s father.
Within a year of their marriage, they began having physical fights involving hitting, choking, and
biting. Id. at 325-27. She described one instance in which she stabbed Wesley in the leg in front of
the children. Id. at 327-28. She also testified about trying to shoot petitioner’s father, again in front
of the children, when he attacked her after she had been gone from the home for a couple of days.
Id. at 328. The gun did not discharge. Id. She testified that her fights with Wesley often left her
with marks and bruises, which she attempted to hide. Id. at 330. Law enforcement often visited the
home as a result of these fights. Id.
Mrs. Irelan also testified about violence inflicted on petitioner by his father. She explained
that, as he grew, petitioner would try to intervene when she was fighting Wesley. Id. at 331. This
started around the age of seven. Id. Wesley would usually sling him across the room. Id. As
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petitioner matured, these instances turned into fights between petitioner and his father. Id. She also
described an instance in which petitioner’s father threw food at petitioner because he was a picky
eater. Id. at 332. According to Mrs. Irelan, Wesley sometimes hit and choked petitioner, as well as
verbally abused him. Id. at 332-33. Mrs. Ireland admitted that she, too, had hit petitioner. She
threw an ashtray, which cut him in his back and hit him several times with a broom handle. Id. at
333. Mrs. Irelan testified that she attempted suicide on multiple occasions because of all the
violence surrounding her. Id. at 334-37. She stayed in a hospital for observation over several nights
in connection with the shooting of Johnny Morrison. Id. at 337. She fought often with her sister.
Id. at 339. She would leave the children in the care of her parents for days at a time while staying
with one of her boyfriends. Id. Sometimes her boyfriends would visit the house while the children
were there. Id. at 340.
After her divorce from petitioner’s father, Mrs. Irelan still fought with him. One time she
threw a piece of glass and cut him on his head. Id. at 340. She testified–without offering any
specifics as to timing, frequency, or severity–that she saw her father whip and yell at petitioner. Id.
at 341. Nevertheless, she maintained that petitioner loved and cared for his grandparents. Id. at 34142.
Petitioner’s brother, Joey Waldrop, testified that he had seen his mother hit petitioner, and
that his parents were violent toward each other. Id. at 366. He saw his mother stab his father in the
leg. Id. at 370. His father drank when he was growing up. Id. Petitioner’s sister, Christie
Fortenberry, testified that their mother was mean to the children, had held them at gunpoint one time,
and had fired at a vehicle occupied by petitioner and his father. Id. at 373-74. She saw Mrs. Irelan
throw the ashtray at petitioner and hit him with things like belt buckles, belts, brooms, and other
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things. Id. at 374. She saw her mother stab and “severely bite” her father. Id. Their mother would
leave for hours or weeks at a time, which would upset petitioner. Id. at 375-76. The Waldrop
children were teased because of their mother’s activities with the fathers of other children. Id. at
376. She was there when her mother tried to harm herself, and also saw her grandfather threaten to
harm himself. Id. at 377. She saw her father choke petitioner and hit him with his hands and a belt
buckle, as well as throw food at him. Id. at 378. She, too, was choked by her father. Id. She also
observed petitioner caring for his grandparents, including cooking for them and feeding, shaving,
and carrying his grandmother. Id.
As with some of the non-family member witnesses, petitioner’s family member witnesses
also offered testimony that, in some instances, dulled the harshness of the allegations in the Rule 32
petition. For example, Mrs. McGehee testified that, although her parents were heavy drinkers, they
were not mean to the children when they visited with them at her uncle’s house. Id. at 277. She also
testified that she never observed her brother or Mr. Prestridge strike petitioner at any point in his life,
and that she never saw any signs of abuse on petitioner. Id. at 291. Although she testified about
almost daily fights between petitioner and his father, Mrs. Irelan conceded that she did sign papers
conferring custody of the children to petitioner’s father as part of her divorce. Id. at 351-52. Mrs.
Irelan also testified that many of her fights with her sister were the result of her trying to protect her
children from Nancy Rostofer’s severe discipline of the children, which included slapping. Id. at
361. Likewise, she explained that she shot Mr. Morrison because she believed a child molester was
planning to live in the trailer he was delivering to the property. Id. at 362. Christie Fortenberry
testified that her father actually favored petitioner, and that her grandparents “did better” for
petitioner than they did for the other grandchildren. Id. at 382. She also clarified that the time her
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mother left for weeks was after her parents divorced and the children were living with their father.
Id. at 382-83.
In addition to the above witnesses’ testimonies, petitioner made a proffer to the court of the
expert testimony he had intended to introduce in support of this claim. He explained that Dr. Loring,
a licensed social worker, would have “testified about severe and chronic violence in Bobby’s
household, the trauma he underwent as a child and during the time of this offense, the neglect and
rejection that he suffered as a child, acute crises that predate his cocaine abuse.” Id. at 419. Dr.
Loring would have explained to the court the “significance of” all of the events described by the
various witnesses. Id. at 420. Dr. Tarter, a clinical neuropsychologist, would have testified about
statutory mitigating circumstances that Bobby suffered from a mental disease or
defect at the time of the offense; namely, substance abuse disorder with dependency
on cocaine and explain to the Court that that is a chronic disease of the brain and a
neuro psychiatric illness which would have had an effect on Bobby’s behavior at the
time of the offense. He would explain that effect. He would also be talking about
the ways in which Bobby’s substance abuse was both indicated by and exacerbated
by his compromised mental developmental history which starts from conception
onward, and specifically with respect to exposure to psycho affective chemicals and
neuro toxins as a child and up through his cocaine abuse.
Id. at 420-21.29

29

Petitioner also made a written proffer of the evidence he was precluded from introducing at the
evidentiary hearing. The proffer included much of the hearsay evidence that the court had excluded at the
hearing, as well as the expert opinion evidence he had intended to offer through Drs. Loring and Tarter.
Petitioner’s experts provided affidavits describing their conclusions from having interviewed and evaluated
petitioner, as well as from interviewing family members and reviewing the voluminous records that petitioner
also provided with his proffer. See Rule 32 C.R. 315-668. In pertinent part, Dr. Loring states in her affidavit
that petitioner grew up in an extremely violent environment which “put him at high risk for violent behavior
as a young adult.” Id. at 338. She describes the physical abuse petitioner endured as another risk factor
leading to petitioner’s own violent behavior. Id. at 338-39. Petitioner’s trauma and emotional abuse led him
to mutilate himself and self-medicate with drugs. Id. at 339. Petitioner also endured severe neglect and
abandonment by his parents. Id. at 339-40. This neglect and abandonment is believed to present a
“heightened risk for a host of psychological problems ranging from low self-esteem to truncated moral
development to difficulty handling aggression.” Id. at 340. The abuse, neglect, abandonment, and shame
(continued...)

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The Court of Criminal Appeals’ weighing of aggravating and mitigating evidence
After considering all of the evidence before the Court of Criminal Appeals, this court cannot
conclude that the CCA’s judgment that petitioner was not prejudiced by counsel’s purportedly

29

(...continued)
owing to his mother’s promiscuity left him alienated in the community and among his peers. He was bullied.
He was forced to protect his mother from his father’s beatings and to care for his siblings when his parents
were unable or unwilling. This sort of “role reversal” “heightened the chronic stress and terror that
characterized his childhood and predisposed him to react aggressively to threats to his safety.” Id. at 341-42.
Petitioner turned, like many in his family, to substances to cope with the myriad threats to his development,
which, in turn, only “contributed to his developmental impairments, exacerbated his deficits in regulating
his behavior and coping with environmental threats, and left him particularly vulnerable to addiction.” Id.
342-43. The trilogy of crises that petitioner endured in rapid succession “overwhelmed [his] minimal coping
skills” and sent him on a “downward spiral of depression, anguish, and hopelessness,” which led him to
consume crack cocaine. Id. at 343. All of petitioner’s accumulated risk factors combined with the traumatic
events he had recently endured and his deepening dependence on drugs to “overwhelm” the “protective
factor” that his grandparents had always provided him. Id. at 343-44.
Dr. Tarter explained that he was retained “to determine within a developmental perspective the
factors underlying and predisposing to the homicide Mr. Waldrop’s mental and behavior condition at the time
of the crime.” Id. at 352. Based on his evaluation, Dr. Tarter concluded as follows:
Mr. Waldrop committed the offense while under the influence of extreme mental
disturbance, namely substance use disorder with dependency on cocaine, and that his
capacity to conform his conduct to the requirements of law was substantially impaired at the
time of the homicide. Mr. Waldrop’s cognitive functioning and self-control of behavior
were diminished at the time of the offense beyond his usual dispositional low self-regulation
due to cocaine withdrawal combined with multiple sources of stress. The factors underlying
his dispositionally low capacity for self-regulation can be traced to a multigenerational
history of alcoholism and violence in the family, adverse prenatal and postnatal
development, and lifelong stress. In other words, a set of cumulative factors starting at Mr.
Waldrop’s conception resulted in his reduced mental and behavioral competence at the time
of the offense.
Id. at 352. Dr. Tarter’s affidavit describes the numerous cumulative factors which in his opinion combined
to make petitioner “dysregulated, highly vulnerable to stress, with limited coping abilities, and predisposed
to addiction.” Id. at 352-55. He explains that, because petitioner was experiencing withdrawal at the time
of the murders, his already “low cognitive and behavioral self-regulation,” “primed Mr. Waldrop for
impulsive aggression precipitated by the rapidly spiraling altercation with his grandfather.” Id. at 356. Dr.
Tarter asserts that the severity of petitioner’s “dyscontrol is evidenced by the fact that Mr. Waldrop killed
the two people to whom he was most closely attached.” Id. Dr. Tarter believes “there is no evidence
indicating that Mr. Waldrop planned to commit the homicides[, and that] his post-crime behavior, such as
having no escape plan or more carefully concealing evidence, illustrates a lack of foresight[.]” Id. He
concluded from viewing petitioner’s interrogation that “Mr. Waldrop had genuine affection for his
grandparents” and that petitioner is not “characterologically cruel and has genuine remorse. He does not
have a psychopathic personality.” Id.

92

deficient investigation is contrary to, or involved an unreasonable application of, clearly established
federal law. The court must emphasize at the outset that a court charged with assessing prejudice
is required to weigh the mitigating evidence adduced by the petitioner at trial and in collateral
proceedings against the aggravating circumstances. Boyd, 592 F.3d at 1295. The Eleventh Circuit
has described the heinous, atrocious, or cruel aggravator that was established in this case as a
“particularly powerful” factor in this weighing process. Id. at 1302 n.7; id. at 1297 (quoting Dobbs
v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998)) (“With crimes like this one, that are ‘carefully
planned, or accompanied by torture, rape or kidnapping,’ we have often held ‘that the aggravating
circumstances of the crime outweigh any prejudice caused when a lawyer fails to present mitigating
evidence.’”). See also DeYoung v. Schofield, 609 F.3d 1260, 1290 (11th Cir. 2010) (describing the
“weight of aggravation evidence” as “immense” where the petitioner, who wanted money to start a
business, killed his parents in their bed by inflicting over “three dozen slashing, stabbing, cutting,
and chopping wounds” on each victim, many of which were “inflicted while the victims were lying
down and trying to move around or roll away”). After remand, the trial court explained its finding
that the murders were especially heinous, atrocious, or cruel as follows:
The defendant and his co-defendant entered the victims’ home, stabbed the victims
and slit the victims’ throats. According to the medical examiner, Sherrell Prestridge
had forty three stab and cut wounds to the head, neck, back and chest. Irene
Prestridge had thirty-eight stab and cut wounds. The evidence indicated that Sherrell
had heart and hip problems and had difficulty walking. Irene was blind and bedridden. Because of their infirmities, the living room of their house had been
converted to a bedroom with two hospital beds where they slept. He repeatedly
stabbed and cut both victims. He killed his grandfather by stabbing him to death in
the presence of his grandmother. Testimony indicated that Irene was screaming
loudly throughout the incident. During a video-taped statement, Waldrop stated that,
before he stabbed Irene, she told him that she loved him. The evidence also indicated
that Christy Waldrop, Waldrop’s sister, made a statement to the police in which she
said Waldrop told her that, during the incident, Irene told Sherrell that she loved him
93

and that she would see him in heaven. He then killed his grandmother by repeatedly
stabbing and cutting her. He unnecessarily inflicted physical and psychological pain
on both victims. Evidence indicating the intentional killing of more than one victim
in each other’s presence has long been held to support a finding that the murders
were especially heinous, atrocious and cruel. In this case, no speculation at all is
required to find the existence of this aggravating circumstance. The evidence in this
case is that the only victim capable of defending himself, namely, Sherrell Prestridge,
was attacked first and that he fought his assailant in a violent struggle taking place
only inches away from his wife as she lay helpless in a hospital bed. The evidence
is that even the blind victim, Irene Prestridge, was aware of what was happening, first
to her husband and then to herself. The evidence was supplied by the defendant’s
own statement and it was self-evident from the physical evidence at the crime scene.
He chose the method of killing and deliberately carried it out. The court finds that
the actions of the defendant were cruel and heinous and that they were intended to
inflict pain on the victims. The crime was objectively atrocious.
R.-69 at 6-7. The Court of Criminal Appeals affirmed the trial court’s finding of this aggravating
circumstance. Waldrop, 859 So. 2d at 1180. Thus, while it is certainly possible that a habeas
petitioner can show prejudice even in a case involving the heinous, atrocious, or cruel aggravator or
its functional equivalent in another state, it is clear that petitioner’s burden in overcoming the
powerful aggravating circumstances in this case is substantial.
So, in light of this powerful aggravating circumstance, the court must assess the
reasonableness of the CCA’s judgment that the totality of petitioner’s mitigating evidence does not
support a finding of prejudice. It is clear from the mitigating evidence recounted above that,
crediting the evidence as true, petitioner faced substantial adversity in his life due to the confluence
of factors described by his lay witnesses and in his proffer of expert opinion evidence. The record
indicates that petitioner was raised in an environment in which he at least occasionally experienced
the effects of poverty, and in which he experienced or observed frequent violent interactions among
essentially all of his family members. Appropriate behavioral modeling appears to have been poor
to non-existent. There appear to have been few positive influences in petitioner’s home and family
94

life other than his grandparents, and even they–to the extent petitioner alleges that Sherrell Prestridge
beat his children or grandchildren and drank excessively–are also alleged to have participated in
creating the supposedly toxic milieu that resulted in petitioner’s “dispositionally low capacity for
self-regulation.” Anecdotal evidence about the severity and frequency of any violence inflicted on
petitioner by his family members is mostly vague, but it appears clear that petitioner was sometimes
the target of violent actions by his parents.
Nevertheless, the record also bears evidence that petitioner was loved and cared for by his
grandparents, and was generally provided for through the efforts of both his parents and
grandparents. Likewise, while petitioner describes the abuse, neglect, and privation he allegedly
endured as seemingly constant and pervasive, the court notes that a string of his own
witnesses–including his pastor, a teacher, and a lifelong neighbor–all testified that they never
observed any objective indicia of such abuse, neglect, or privation. Moreover, petitioner was not
alone in experiencing the circumstances of the “nightmarish childhood” he describes. The fact that
his two younger siblings grew up in the same circumstances and are not alleged to have resorted to
similar criminal behavior, or even to have succumbed to the substance abuse which he has described
as essentially an inevitable consequence of genetics and environment in his family, further undercuts
his claim of prejudice. See Kormondy v. Sec’y, Fla. Dep’t of Corr., 688 F.3d 1244, 1283 (11th Cir.
2012) (“The evidence of Kormondy’s impoverished upbringing, lack of parenting, and a father who
abandoned him is also problematic. Kormondy’s half-siblings . . . were brought up in the same
environment of physical abuse, neglect and poverty, their fathers left their mother to fend for herself
and her children, yet the emerged as law abiding citizens. The mitigating evidence now pressed by
Kormondy has its obvious limitations.”); Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1247
95

(11th Cir. 2010) (finding omitted evidence of childhood abuse evidence “damaging” to the extent
it revealed that the petitioner’s siblings “were affected by the same childhood abuse and neglect, . . .
but acknowledged that [petitioner] was the only one of the siblings who had ever been arrested for
a violent crime”). In sum, while the court does not intend to minimize the evident adversities faced
by petitioner, the court cannot conclude that the CCA’s failure to find that the totality of this
mitigating evidence is sufficient to undermine confidence in the outcome of petitioner’s sentencing
is contrary to or an unreasonable application of Supreme Court precedent, especially considering the
formidable evidence in aggravation.
Throughout his briefing, petitioner cites to a number of Supreme Court cases that, he argues,
show that the CCA’s decision on prejudice unreasonably applies Supreme Court precedent. This
approach–essentially arguing that his case is factually similar to the cited Supreme Court cases
because one case might involve a petitioner’s parents’ alcoholism, one might involve abuse, one
might involve a mother’s promiscuity, etc.–does not embrace the full scope of this court’s obligation
in habeas review. This court must review the reasonableness of the state court’s assessment of the
totality of the mitigating evidence in this case and its weighing of that evidence against the
aggravating evidence. Petitioner cannot meet his burden merely by pointing to stray factual
similarities between his case and a number of Supreme Court cases. Nevertheless, while this court
is reluctant to endorse as dogma a review methodology that would have each case devolve into a sort
of contest of horribles whereby the petitioner strains vigorously to show that certain unfortunate
circumstances of his or her life conform with and even exceed the perceived benchmarks set out in
a string of Supreme Court cases decided in recent years, there is little for the court to do but compare
the cases cited by petitioner with his own in order to show that the CCA’s judgment is not contrary
96

to, or an unreasonable application of, those Supreme Court decisions. The Eleventh Circuit too has
performed this exercise when considering whether a habeas petitioner has shown prejudice. See,
e.g., Lee, 726 F.3d at 1194; Rose v. McNeil, 634 F.3d 1224, 1245-46 (11th Cir. 2011); and Boyd, 592
F.3d at 1299-1300. For the following reasons, a faithful and more comprehensive review of the
cases cited by petitioner does not advance his argument.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Virginia
Supreme Court’s decision denying post-conviction relief to Williams was unreasonable because the
court “mischaracterized at best the appropriate rule . . . for determining whether counsel’s assistance
was effective within the meaning of the Constitution[,]” and because it “failed to evaluate the totality
of the available mitigation evidence . . . .” Id. at 397-98. On the latter point, the Supreme Court
described the “[s]ignificant mitigating evidence unrelated to dangerousness” which counsel failed
to discover and present at sentencing, including “extensive records graphically describing Williams’
nightmarish childhood,” which were generated in connection with Williams’ commitment to state
custody at the age of eleven when his parents were incarcerated due to their criminal neglect of
Williams and his siblings. Id. at 395. These records revealed “that Williams had been severely
beaten by his father,” that Williams’ “home was a complete wreck” with feces and urine left on the
floors and trash scattered everywhere, and that the Williams children “were all dirty and none of
them had on under-pants.” Id. at 395 n.19. In addition, counsel had failed to present “available
evidence that Williams was ‘borderline mentally retarded[,]’” or that he “had suffered repeated head
injuries, and might have mental impairments organic in origin.” Id. at 396, 370.
By contrast, in this case petitioner’s own mitigating evidence simply does not paint as
compelling a picture as that in Williams v. Taylor. There is no evidence that petitioner’s parents
97

were imprisoned due to neglect, or even that social service programs of any sort were required to
intervene on behalf of the children due to parental neglect or abuse, even after petitioner’s mother
was prosecuted for shooting Mr. Morrison. Nor is there any account of petitioner’s home life that
describes the circumstances of his home in the dire, explicitly detailed, and squalid terms cited by
the Court in Williams. On the contrary, the testimony indicated that petitioner was always properly
clothed, cleaned, and attired, and that he enjoyed access to his grandparents’ nurturing when his own
parents were unable or unwilling. Moreover, while petitioner’s experts opined about the effects of
petitioner’s substance abuse on his mental health, there is little to no evidence that petitioner is
borderline mentally retarded, has suffered repeated head trauma, or possibly suffers from mental
impairments that are organic in nature like the petitioner in Williams.30
In Wiggins v. Smith, 539 U.S. 510, 536 (2003), the Supreme Court held, without the
constraints of the AEDPA’s deference to a state court’s judgment,31 that, “had the jury been
confronted with” the powerful mitigating evidence which counsel had failed to offer at trial, “there
is a reasonable probability that it would have returned a different sentence.” The mitigating

30

Dr. Tarter expressed his opinion, based upon petitioner’s mother’s account of her behavior and
other circumstances she experienced while pregnant, that petitioner’s “fetal development was compromised,
impeding neurologic development,” and also remarked that petitioner’s “low forceps delivery” is “associated
with high risk for neurologic injury.” See C.R. 353. However, Dr. Tarter did not offer any specific opinion
about the extent or nature of any actual injury to petitioner’s brain, and there is no evidence of any specific
testing or imaging that was performed to confirm the existence, and the extent of, any injury or damage to
petitioner’s brain. Rather, Dr. Tarter met with petitioner for four hours on one day in 2005. Id. at 352. He
“administered the drug dependence section of the Diagnostic Interview Schedule and a number of
psychological tests to gain information about Mr. Waldrop’s lifetime exposure to psychoactive drugs and
evaluate cognitive, emotion and behavior functioning. Id.
31

The fact that a federal court is not bound by AEDPA deference to a state court’s judgment is an
important factor not to be overlooked in those cases where federal courts have found prejudice without
AEDPA deference. See Johnson v. Sec’y, DOC, 643 F.3d 907, 937 (11th Cir. 2011).

98

evidence, which was drawn from “state social services, medical, and school records, as well as
interviews with petitioner and numerous family members” included that
petitioner’s mother, a chronic alcoholic, frequently left Wiggins and his siblings
home alone for days, forcing them to beg for food and to eat paint chips and garbage.
Mrs. Wiggins’ abusive behavior included beating the children for breaking into the
kitchen, which she often kept locked. She had sex with men while her children slept
in the same bed and, on one occasion, forced petitioner’s hand against a hot stove
burner-an incident that led to petitioner’s hospitalization. At the age of six, the State
placed Wiggins in foster care. Petitioner’s first and second foster mothers abused
him physically, and . . . the father in his second foster home repeatedly molested and
raped him. At age 16, petitioner ran away from his foster home and began living on
the streets. He returned intermittently to additional foster homes, including one in
which the foster mother’s sons allegedly gang-raped him on more than one occasion.
After leaving the foster care system, Wiggins entered a Job Corps program and was
allegedly sexually abused by his supervisor.
Id. at 517 (citations omitted).
Once again, petitioner’s own account of abuse and neglect in this case pales by comparison.
There is no evidence that petitioner was often abandoned by all of his caretakers, even if his mother
did occasionally leave him in the care of his father or his grandparents. Nor is there any evidence
that, even if the Waldrop family was poor, petitioner was so desperate that he would eat paint chips
or trash or other non-food materials to ward off hunger. Indeed, the evidence indicated that
petitioner’s grandparents provided for him, that the family sometimes received assistance from
others to purchase groceries, and that, in any event, no one ever observed any indication that the
Waldrop children were underfed. Moreover, even if there is general evidence about petitioner’s
mother’s promiscuity, there is no evidence that she had sex with men while her children were in the
bed. Finally, petitioner’s allegations of occasional fights with his father or physical abuse by his
mother simply are not as compelling as the “physical torment, sexual molestation, and repeated
rape,” 539 U.S. at 535, described by the Court in Wiggins.
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In Rompilla v. Beard, 545 U.S. 374 (2005), again without the constraints of the AEDPA, the
Supreme Court found prejudice due to counsel’s failure to investigate and present mitigating
evidence. The Court recounted the mitigating evidence counsel could have uncovered:
“Rompilla’s parents were both severe alcoholics who drank constantly. His mother
drank during her pregnancy with Rompilla, and he and his brothers eventually
developed serious drinking problems. His father, who had a vicious temper,
frequently beat Rompilla’s mother, leaving her bruised and black-eyed, and bragged
about his cheating on her. His parents fought violently, and on at least one occasion
his mother stabbed his father. He was abused by his father who beat him when he
was young with his hands, fists, leather straps, belts and sticks. All of the children
lived in terror. There were no expressions of parental love, affection or approval.
Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla
and his brother Richard in a small wire mesh dog pen that was filthy and excrement
filled. He had an isolated background, and was not allowed to visit other children or
to speak to anyone on the phone. They had no indoor plumbing in the house, he slept
in the attic with no heat, and the children were not given clothes and attended school
in rags.”
545 U.S. at 392 (citations omitted). Had counsel discovered this available mitigating evidence and
presented it to the mental health experts that examined Rompilla prior to trial, the “red flags”
indicated by this evidence would presumably have led to further testing of Rompilla which, when
finally performed during post-conviction proceedings, revealed that “Rompilla suffers from organic
brain damage, an extreme mental disturbance significantly impairing several of his cognitive
functions[,]” and that his “problems relate back to his childhood, and were likely caused by fetal
alcohol syndrome [and that] Rompilla’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the law was substantially impaired at the time of the offense.” Id. (citations
and internal quotations omitted). Furthermore, according to the Court, this mitigating evidence
would have pointed the way to still more evidence available in “school and juvenile records,”
including that “when Rompilla was 16 his mother was missing from home frequently for a period

100

of one or several weeks at a time[,]” that “his mother “has been reported . . . frequently under the
influence of alcoholic beverages, with the result that the children have always been poorly kept and
on the filthy side which was also the condition of the home at all times[,]” and that “Rompilla’s IQ
was in the mentally retarded range.” Id. at 393 (citations and internal quotations omitted).
As with the other cases cited by petitioner, the mitigating evidence described in Rompilla has
some of the same elements of the mitigating evidence in petitioner’s case. However, in its totality,
it presents a far more compelling mitigation case than petitioner has presented. In particular, there
is no evidence in this case that the abuse and neglect allegedly endured by petitioner included
anything on the order of being locked in a small, filthy, and excrement-filled dog pen. There is no
evidence that petitioner’s parents “drank constantly.”

Instead, the evidence indicated that

petitioner’s father drank a couple beers after work or moderately on the weekends and was able to
maintain regular employment throughout petitioner’s childhood. Nor is there any evidence
establishing that petitioner’s mother was a heavy drinker. Nor is there any compelling evidence that
petitioner was not given clothes and was forced to attend school in “rags,” that he was “poorly kept
and on the filthy side,” or that his home could accurately be described in the same terms. On the
contrary, a string of petitioner’s own witnesses testified that the Waldrop children always appeared
well-fed and properly clothed, and that they enjoyed access to their caring grandparents. Finally,
there is little compelling evidence, unlike in Rompilla, that petitioner suffers any sort of organic
brain damage that has affected his cognitive functioning, that he is “mentally retarded,” or that he
suffered fetal alcohol syndrome. Rather, petitioner has only offered his expert’s speculation about
possible impeded neurologic development, which he based upon petitioner’s mother’s account of
her own prenatal behavior and possible brain injury at birth due to “a low forceps delivery.”
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In Porter v. McCollum, 558 U.S. 30, 42 (2009), the Supreme Court held that the state court’s
finding that petitioner was not prejudiced by his counsel’s failure to investigate and present certain
mitigating evidence was unreasonable because the state court “either did not consider or
unreasonably discounted the mitigation evidence adduced in the postconviction hearing.” This
evidence would have informed the sentencer about “(1) Porter’s heroic military service in two of the
most critical–and horrific–battles of the Korean War, (2) his struggles to regain normality upon his
return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty
reading and writing, and limited schooling.” Id. at 41. The Court recounted the mitigating evidence
adduced in state postconviction proceedings:
The depositions of his brother and sister described the abuse Porter suffered
as a child. Porter routinely witnessed his father beat his mother, one time so severely
that she had to go to the hospital and lost a child. Porter’s father was violent every
weekend, and by his siblings’ account, Porter was his father’s favorite target,
particularly when Porter tried to protect his mother. On one occasion, Porter’s father
shot at him for coming home late, but missed and just beat Porter instead. According
to his brother, Porter attended classes for slow learners and left school when he was
12 or 13.
To escape his horrible family life, Porter enlisted in the Army at age 17 and
fought in the Korean War. His company commander, Lieutenant Colonel Sherman
Pratt, testified at Porter's postconviction hearing. Porter was with the 2d Division,
which had advanced above the 38th parallel to Kunu-ri when it was attacked by
Chinese forces. Porter suffered a gunshot wound to the leg during the advance but
was with the unit for the battle at Kunu-ri. While the Eighth Army was withdrawing,
the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the
Eighth Army to live to fight another day. As Colonel Pratt described it, the unit
“went into position there in bitter cold night, terribly worn out, terribly weary, almost
like zombies because we had been in constant—for five days we had been in constant
contact with the enemy fighting our way to the rear, little or no sleep, little or no
food, literally as I say zombies.” The next morning, the unit engaged in a “fierce
hand-to-hand fight with the Chinese” and later that day received permission to
withdraw, making Porter’s regiment the last unit of the Eighth Army to withdraw.

102

Less than three months later, Porter fought in a second battle, at
Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and
defended itself for two days and two nights under constant fire. After the enemy
broke through the perimeter and overtook defensive positions on high ground,
Porter’s company was charged with retaking those positions. In the charge up the
hill, the soldiers “were under direct open fire of the enemy forces on top of the hill.
They immediately came under mortar, artillery, machine gun, and every other kind
of fire you can imagine and they were just dropping like flies as they went along.”
Porter’s company lost all three of its platoon sergeants, and almost all of the officers
were wounded. Porter was again wounded and his company sustained the heaviest
losses of any troops in the battle, with more than 50% casualties. Colonel Pratt
testified that these battles were “very trying, horrifying experiences,” particularly for
Porter’s company at Chip’yong-ni. Porter’s unit was awarded the Presidential Unit
Citation for the engagement at Chip’yong-ni, and Porter individually received two
Purple Hearts and the Combat Infantryman Badge, along with other decorations.
Colonel Pratt testified that Porter went absent without leave (AWOL) for two
periods while in Korea. He explained that this was not uncommon, as soldiers
sometimes became disoriented and separated from the unit, and that the commander
had decided not to impose any punishment for the absences. In Colonel Pratt’s
experience, an “awful lot of [veterans] come back nervous wrecks. Our [veterans’]
hospitals today are filled with people mentally trying to survive the perils and
hardships [of] . . . the Korean War,” particularly those who fought in the battles he
described.
When Porter returned to the United States, he went AWOL for an extended
period of time.[] He was sentenced to six months’ imprisonment for that infraction,
but he received an honorable discharge. After his discharge, he suffered dreadful
nightmares and would attempt to climb his bedroom walls with knives at night.[]
Porter’s family eventually removed all of the knives from the house. According to
Porter’s brother, Porter developed a serious drinking problem and began drinking so
heavily that he would get into fights and not remember them at all.
In addition to this testimony regarding his life history, Porter presented an
expert in neuropsychology, Dr. Dee, who had examined Porter and administered a
number of psychological assessments. Dr. Dee concluded that Porter suffered from
brain damage that could manifest in impulsive, violent behavior. At the time of the
crime, Dr. Dee testified, Porter was substantially impaired in his ability to conform
his conduct to the law and suffered from an extreme mental or emotional disturbance,
two statutory mitigating circumstances, Fla. Stat. § 921.141(6). Dr. Dee also testified
that Porter had substantial difficulties with reading, writing, and memory, and that
these cognitive defects were present when he was evaluated for competency to stand
trial. Although the State’s experts reached different conclusions regarding the
103

statutory mitigators,[] each expert testified that he could not diagnose Porter or rule
out a brain abnormality.
Id. at 33-37 (footnotes and citations to the record omitted).
Once again, while there are common threads in the mitigating evidence adduced by petitioner
and that discussed in Porter, the differences in the total mitigation cases presented are substantial
and material. First, in Porter the Court observed that “the weight of evidence in aggravation is not
as substantial as the sentencing judge thought” because, of the four aggravating circumstances which
the trial judge found in sentencing Porter to death, two implicitly were not sufficient to tip toward
death because petitioner did not receive a death sentence for a separate murder where those same two
circumstances applied and, of the remaining two aggravating circumstances, the state appellate court
subsequently rejected the heinous, atrocious, or cruel aggravating circumstance, meaning that only
one remaining aggravating circumstance could have warranted death. Id. at 41-42.32 In this case,
by contrast, no subsequent appellate opinion has negated the aggravating circumstances, particularly
the especially powerful heinous, atrocious, or cruel aggravating circumstance found by the trial court
but specifically rejected by the appellate court in Porter. Nor is petitioner’s case supported by the
sort of uniquely powerful mitigating evidence Porter presented about his military service. As the
Supreme Court observed,
Our Nation has a long tradition of according leniency to veterans in recognition of
their service, especially for those who fought on the front lines as Porter did.[]

32

The two aggravating circumstances applicable to both murders in Porter were that “the defendant
was previously convicted of another capital felony or a felony involving the use or threat of violence to that
person” and that “the capital felonies were committed while the defendant was engaged in the commission
of a burglary.” Porter v. State, 564 So. 2d 1060, 1062 n.2 (Fla. 1990). The two additional circumstances
applicable to the murder for which Porter received a death sentence were the HAC aggravating circumstance
and that “the murder was committed in a cold, calculated, and premeditated manner without any pretense of
moral or legal justification[.]” Id.

104

Moreover, the relevance of Porter’s extensive combat experience is not only that he
served honorably under extreme hardship and gruesome conditions, but also that the
jury might find mitigating the intense stress and mental and emotional toll that
combat took on Porter.
Id. at 43-44 (footnotes omitted). In sum, in Porter the totality of the mitigating evidence, when
weighed against “the appropriately reduced [] ballast on the aggravating side of the scale,”
established a “reasonable probability that the advisory jury–and the sentencing judge–‘would have
struck a different balance,’ and it is unreasonable to conclude otherwise.” Id. at 42 (citing Wiggins,
539 U.S. at 537). Based upon a review of the mitigating evidence and aggravating circumstances
in this case, this court cannot conclude that the CCA’s failure to find prejudice is an unreasonable
application of Strickland in light of Porter.
The final Supreme Court case cited by petitioner in support of his prejudice argument is
Sears v. Upton,

U.S.

, 130 S.Ct. 3259, 3261 (2010). In that case, the Supreme Court held that

the state courts had “failed to apply the correct prejudice inquiry” in deciding Sears’ ineffective
assistance of counsel claim. In relevant part, the state courts had found Sears’ counsel performed
deficiently with respect to his mitigation investigation, but “found itself unable to assess whether
counsel’s inadequate investigation might have prejudiced Sears” because Sears’ counsel had
presented some mitigating evidence during the penalty phase and that, therefore, the state court was
unable to speculate about the possible effects had a different mitigation theory been presented. Id.
at 3261, 3264. Thus, even though the Court discussed the mitigation evidence counsel could have
presented had counsel conducted a reasonable investigation, see id. at 3262-63, the Court did not
render any finding about whether Sears was actually prejudiced. See id. at 3267 (“It is for the state
court–and not for either this court or even Justice Scalia–to undertake this reweighing in the first

105

instance.”). Accordingly, this court cannot conclude that Sears somehow illustrates the CCA’s
failure to reasonably apply Strickland in this case.33
Recent Eleventh Circuit cases in which the Court of Appeals has found that the habeas
petitioner was prejudiced by counsel’s failure to investigate and present mitigating evidence are
likewise distinguishable from petitioner’s case due to the totality of the mitigating evidence found
in those cases. For example, in Johnson, 643 F.3d at 935-937, the Eleventh Circuit, without
applying AEDPA deference to a state court’s decision, found prejudice. The evidence counsel
should have presented included that Johnson’s parents were “abusive alcoholics” rather than the
moderate drinkers depicted at trial, that Johnson was “singled-out” for physical and emotional abuse
and torment by his mother, that Johnson’s grandparents, rather than being the nurturing safe-haven
portrayed to the jury, also “inflicted horrible physical and emotional abuse on [Johnson] in a home
he described as ‘pure hell,’” that Johnson’s grandparents psychologically tormented him by rubbing
his face in his own urine when he wet the bed, and that Johnson’s mother and brother died in the
same manner–drug overdose–and that when petitioner found his mother after her suicide she was
clutching a picture of his dead brother. Id. at 936-37. If for no other reason, Johnson is plainly

33

The court does note, however, that, as with the numerous other Supreme Court cases cited by
petitioner, the mitigating evidence counsel failed to discover and present in Sears presents a more compelling
case than that omitted by counsel in this case. The mitigating evidence in Sears included, inter alia, that
Sears “suffered sexual abuse at the hands of an adolescent male cousin,” was subject to severe and
humiliating verbal abuse by both of his parents, including in front of his teachers and others, and that Sears
was described in high school as “severely learning disabled and as severely behaviorally handicapped.”
Sears, 130 S.Ct. at 3262 (internal quotations and citations to the record omitted). Even apart from this
evidence, however, the Court found “more significant[]” evidence that “Sears suffered significant frontal
lobe abnormalities” which were traceable, at least in part, to the “several serious head injuries he suffered
as a child[.]” Id. at 3262-63. Even if this evidence were not more compelling than the evidence that
petitioner has produced, it bears mentioning that on remand to the state courts in Sears, the Supreme Court
of Georgia unanimously held, after a far more exhaustive review of the evidence than that conducted by the
United States Supreme Court, that Sears was unable to establish prejudice. See Sears v. Humphrey, 294 Ga.
117, 751 So. 2d 365, 377-95 (Ga. 2013).

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distinguishable from the instant case because there is no doubt that, unlike in Johnson, petitioner’s
grandparents actually provided him with a caring and nurturing haven from whatever abusive
circumstances he alleges were created by his own parents.
Likewise, in Cooper v. Secretary, Department of Corrections, 646 F.3d 1328, 1342-46 (11th
Cir. 2011), a case which the Eleventh Circuit deemed “strikingly similar” to Johnson, see 646 F.3d
at 1354, the Eleventh Circuit again found prejudice without the constraints of the AEDPA. The
petitioner presented during post-conviction proceedings extensive evidence about, inter alia, the
pervasive and extreme physical abuse inflicted by his father, which was corroborated by evidence
of bruising that was observed by the petitioner’s school principal, significant head trauma related to
petitioner’s abuse that caused neurological deficits, and the fact that he was “borderline mentally
retarded.” This evidence, combined with evidence establishing that the petitioner was under the
substantial domination of another at the time of the murder, was sufficient to establish prejudice.
Id. at 1354-56.
Finally, in Ferrell, 640 F.3d at 1234, the Eleventh Circuit found that the state court’s
judgment that petitioner did not suffer prejudice was unreasonable because the petitioner’s “‘new’
mitigating evidence is consistent, unwavering, compelling, and wholly unrebutted.” The evidence
counsel should have presented in Ferrell had both a familial/home-life component and a mental
illness component. As to the former, counsel failed to present evidence that
Ferrell’s father regularly abused his children, especially Ferrell, waking them in the
middle of the night to beat them, sometimes stripped naked, with razor strops, fan
belts, and old used belts. The family also lived in fear of loan sharks and those to
whom their father owed gambling debts. And Ferrell’s mother suffered from clinical
depression, suicidal ideations, rage blackouts, and urges to physically hurt her
children.

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Id. at 1234. As to the latter, three separate “mental health professionals averred that Ferrell suffers
from organic brain damage, bipolar disorder, an epileptic seizure disorder, and borderline mental
retardation.” Id. at 1234. This mental health evidence “weakens the aggravating circumstances”
applied against Ferrell because, his experts opined,
organic brain damage to Ferrell’s frontal lobe has led to impaired insight, impaired
judgment, increased impulsiveness and explosiveness, emotional and mental
dysfunctions, decreased ability to plan and understand consequences, and inability
to process information in stressful situations. The experts further opined that due to
Ferrell’s temporal lobe epilepsy, he is hyperreligous and hypergraphic, has grandiose
ideations, takes actions that are sudden, unplanned and undirected, is overtaken by
powerful emotions (anger or fear), hallucinations or flashbacks, and has altered
behavior after seizures that results in dullness, unawareness and confusion.
Cumulatively, say the experts, Ferrell has increased impulsivity, decreased
sound judgment, and takes actions that are not entirely volitional. Thus, the mental
health expert opinions would have served to reduce the volitional nature of the crime,
as well as Ferrell’s ability to plan and act rationally, and as a result, undercut the
senselessness and cold-blooded nature of the crime as stressed by the prosecutor, and,
importantly, explain Ferrell’s odd, disaffected behavior afterwards.
Id. at 1235.
For the reasons already discussed elsewhere in this opinion, these cases are materially
distinguishable from petitioner’s case despite the apparent stray similarities petitioner’s case might
have with aspects of the cases. Considering the mitigating evidence offered by petitioner, the court
simply cannot conclude that the CCA’s determination that he was not prejudiced by his counsel’s
investigation, preparation, and presentation of evidence at the penalty phase of trial unreasonably
applied clearly established federal law. Rather, petitioner’s case is consistent with a number of cases
where, although additional mitigating evidence was presented in postconviction proceedings, it
simply was not enough to undermine confidence in the outcome of petitioner’s sentencing. See, e.g.,
Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d 1255, 1286-88 (11th Cir. 2013) (finding no prejudice,
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despite that the petitioner presented new mitigating evidence including that he was “physically
abused by his father and mother, sometimes with objects like wooden spoons, and sometimes
without provocation,” “verbally abused by his father,” and “had a mother who was abused by [his]
father and let men inside the family home,” because of the strength of the aggravating circumstances
and the possibility that additional mitigating evidence would have opened to door to negative
information about the petitioner); Lee, 726 F.3d at 1194-96 (finding, without AEDPA deference, that
petitioner’s mitigating evidence was not cumulatively on par with that of Rompilla, Wiggins, or
Porter because the evidence was not as compelling on the issues of poverty, abuse, and neglect
presented in those cases, the petitioner’s “new” substance abuse evidence, which was cumulative of
evidence already presented at trial, and the mitigating evidence failed to link any asserted head
trauma he suffered with any alleged mental illness); Boyd, 592 F.3d at 1294-1304 (finding, without
AEDPA deference, and despite the fact that the trial court overruled the jury’s recommendation of
a life sentence, that petitioner’s mitigating evidence about alleged abuse, neglect, and poverty,
including that petitioner “had been abandoned by an alcoholic, violent father, beaten by an assaultive
stepfather, raised by an ineffective mother in an impoverished environment, and looked after by
alcoholic, if loving, grandparents,” “does not reveal the kind of abuse and deprivation inherent in
other cases where Strickland prejudice actually has been found”). See also Rose, 634 F.3d at 124546; Suggs v. McNeil, 609 F.3d 1218, 1229-33 (11th Cir. 2010); and DeYoung, 609 F.3d at 1290-91.
Petitioner’s claim placed the state courts in the difficult position of surmising whether the
new mitigating evidence he offered during post-conviction proceedings would have so re-calibrated
the balance between the aggravating circumstances and the mitigating evidence adduced at trial that
there is a reasonable probability that he would have received a different sentence had his counsel
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discovered and presented the evidence. There is no formula whereby petitioner’s new facts can be
plugged in and an answer to the court’s inquiry is computed. It is not an exercise in formalism or
pedantry; petitioner should not win just because he can point to some similar factual elements
between his case and those decided by the Supreme Court, and nor should he lose just because he
cannot show that his case bears substantially all of the factual elements of any given case in which
prejudice has been found. The reviewing court’s obligation is only to consider the totality of the
mitigating evidence in conducting its required re-weighing. Even if this court disagrees with the
CCA’s judgment or would strike a different balance if conducting its own reweighing of the
aggravating and mitigating evidence, habeas relief must be denied unless petitioner can show that
the CCA’s judgment was unreasonable. Based upon a review of the entire state court record, this
court cannot conclude that the CCA’s judgment that petitioner was not prejudiced by his counsel’s
failure to discover and present the mitigating evidence introduced during post-conviction
proceedings was contrary to, or an unreasonable application of, clearly established federal law, as
petitioner argues in his petition, see Pet. ¶ 81, and in his extensive briefing on the matter, see Pet’r’s
Br. (Doc. # 44) at 94 and Pet’r’s Reply (Doc. # 53) at 19. Accordingly, the court concludes that
petitioner is not entitled to habeas corpus relief on his claim that counsel failed to adequately
investigate and prepare for the penalty phase of his trial.
Petitioner’s separate claims about counsel’s investigation of mental health
evidence and failure to hire an independent psychologist and social worker
Petitioner’s penalty phase claims about counsel’s failure to investigate mental health
evidence, retain an independent psychologist, and retain a social worker or other mitigation expert
(see Pet. ¶¶ 82-84) are not separately addressed in his briefing. Rather, it appears they are

110

incorporated into the discussion of his broader claim that counsel was ineffective in his investigation
for the penalty phase. He makes explicit reference to the subject of the claims in his discussion of
counsel’s deficient performance. See Pet’r’s Br. (Doc. # 44) at 50 (“He did not assemble a defense
team, obtain co-counsel, or seek assistance from a mental health expert.”). And, without explicitly
referencing the conclusions of his experts, he appears to have incorporated them into at least one
portion of his argument that he was prejudiced by counsel’s failure to investigate and prepare for the
penalty phase. See, e.g., id. at 69 (“Trial counsel was ineffective for failing to present mitigating
evidence showing that Bobby’s family history and early exposure to substance abuse made him
particularly vulnerable to addiction and demonstrating that he became addicted to crack cocaine not
as a result of recreational drug use but because he was predisposed by nature and nurture to use
substances to shore up his limited capacity to cope with conflict and stress.”). For the reasons
already stated, to the extent these claims are subsumed within petitioner’s larger penalty phase
ineffective assistance claim, the court concludes that petitioner is not entitled to relief.
To the extent these claims present discrete allegations of ineffective assistance of counsel that
are not incorporated into petitioner’s larger claim about counsel’s failure to investigate for the
penalty phase, petitioner has failed to offer any discernible argument about whether the CCA’s
judgment on the claims is contrary to, or an unreasonable application of, clearly established federal
law, or is based upon unreasonable factual determinations in light of the record before the state court,
or even if it is entitled to AEDPA deference in these proceedings. As recounted above, the CCA
addressed petitioner’s claims about his counsel’s failure to investigate mental health evidence and
procure expert assistance for the penalty phase in the context of his argument that the circuit court
incorrectly precluded him from offering the testimony of the experts at the evidentiary hearing on
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his claim that counsel was ineffective at the penalty phase. See Waldrop, 987 So. 2d at 1190-93.
The CCA articulated distinct bases for upholding the exclusion of petitioner’s expert witnesses. As
to counsel’s failure to sufficiently investigate mental health evidence and failure to retain an
independent psychologist for the penalty phase, the CCA held that, given the mental health opinion
evidence already available to counsel and his strategic decision not to pursue a “mental-disease
defense,” counsel had no need for further mental health investigation and hiring an independent
psychologist. Id. at 1193. The court has already construed this as a judgment on the merits of the
performance prong of Strickland. As to counsel’s failure to hire a social worker, the CCA concluded
that petitioner’s underlying ineffective assistance claim was meritless because the social worker’s
“testimony was cumulative of other evidence that had already been presented at the evidentiary
hearing,” which the CCA would go on to find insufficient to establish prejudice. Id.
The court must first determine whether the state court’s judgment that counsel did not
perform deficiently in his investigation of mental health evidence and failing to hire an independent
psychologist and social worker for the penalty phase is contrary to, or an unreasonable application
of, clearly established federal law. As discussed in relation to the guilt phase aspect of this claim,
counsel initially investigated mental health issues by reviewing the pretrial forensic psychological
evaluation and speaking with petitioner. He did not perceive any obvious mental health issues other
than the possibility that petitioner’s substance abuse and addiction might be relevant to both
attacking the intent element at the guilt phase and establishing important statutory mitigating
circumstances at the penalty phase. Moreover, he was mindful that Judge Segrest had overrode a
jury’s life recommendation in a previous, more compelling case in which he had presented a mental
health defense utilizing expert opinion from an independent mental health expert. Accordingly, he
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consulted with the SCHR and decided to retain an expert pharmacologist to testify before the jury
about how crack cocaine affects the brain and influences behavior, cognition, and decisionmaking.
At the penalty phase of the trial, counsel then elicited from Dr. Tackett the sort of pertinent
testimony about mitigating circumstances that counsel clearly had anticipated. Dr. Tackett testified
as follows:
Basically what crack cocaine does is, not only when it hits the brain does it change
the brain chemistry, but actually what happens is, in Mr. Waldrop’s case, I think what
is occurring, or what occurred was, is that basically with his addiction that his
body–in an addictive state, your body has adapted to where it needs the drug, and the
body considers having the drug present as normal functioning. So, that when the
drug starts disappearing, the body starts rebelling in the sense of something that it
thinks is normal, which is the crack cocaine, is missing; and, so, that changes
people’s behaviors.
Q:
Would that cause him to suffer extreme mental or emotional
disturbance?
A:
I think so. That is many of the symptoms we see with people that not
only are on crack cocaine, but that are going through withdrawal, and that is welldocumented in the literature.
Q:
Based–would it be your opinion that back on April the 5th of 1998,
that he was suffering extreme mental or emotional disturbance at the time?
A:
Yes. I think his body was–I think there was a conflict between what
his moral values were. . . . [Y]our body normally has or your mind has several core
values, and when a person becomes impaired, addicted with a substance of abuse,
what happens is those core values get swapped out for the drug, because it changes
the brain chemistry.
Trial Tr. 1017-18. Dr. Tackett also confirmed his opinion that, as to the other pertinent statutory
mitigating circumstance argued by counsel, due to the changes in petitioner’s brain chemistry caused
by crack cocaine, petitioner was impaired in his capacity to conform his conduct to the requirements
of law. See id. at 1020, 1024. Dr. Tackett even offered testimony about the effect crack cocaine
could have on somebody with petitioner’s “family history”: “Well, I think that with the family
history that–you know, that I am aware of, there’s already some emotional troubles that have

113

occurred, and that tends to be exacerbated by crack. I think also there is some conflict between value
systems, based upon some of the conflicts that he has.” Id. at 1020.34
Thus, trial counsel reviewed the evidence, observed petitioner, considered already-available
expert opinion about petitioner’s mental state at the time of the offense, consulted with a reputable
organization experienced in litigating capital cases in Alabama, and, relying upon SCHR’s advice
and his own prior experience with Judge Segrest in a separate case, determined that he could best
explain the serious mitigating evidence implicated by petitioner’s use of and addiction to crack
cocaine through an expert in neuropharmacology. He then utilized that expert to present compelling
testimony about crack cocaine’s effects on the brain and how it influences behavior. He succeeded
in procuring the expert’s testimony that two key statutory mitigating circumstances were applicable.
Petitioner’s claim, in effect, boils down to whether, in light of the circumstances described above,
counsel can be found ineffective for choosing a neuropharmacologist rather than a psychologist to
present his overriding mitigation theory. It is certainly plausible that an expert psychologist who

34

On the vital issue of crack cocaine’s affect on petitioner at the time of the offense, Dr. Tackett’s
testimony resembles the opinion of the expert psychologist petitioner faults counsel for failing to retain.
Petitioner’s expert psychologist opined in the Rule 32 proceedings that petitioner
was in cocaine withdrawal in the immediate period prior to the homicide. . . . Accordingly,
he was under emotional distress and was in a diminished state of self-control . . . . Cocaine
withdrawal is distinguishable from being ‘high’ on cocaine in that the withdrawal state is
aversive. It is not readily observable by others but experienced nonetheless by the person
as impaired social, occupational or psychological functioning. Whereas euphoria is the
predominant response while under cocaine influence, the withdrawal period is featured by
agitation, fatigue, and sleep disturbance.
Rule 32 C.R. at 355-56. Likewise, petitioner’s Rule 32 expert, even if more authoritatively, similarly opined
that the applicability of the same two mitigating circumstances advanced by Dr. Tackett at the trial. See id.
at 357 (“I therefore conclude that the offense was committed while Mr. Waldrop was under the influence of
extreme mental or emotional disturbance and that his capacity to conform his conduct to the requirements
of law was substantially impaired at the time of the homicide.”).

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conducted a clinical evaluation of petitioner might have better explained petitioner’s actions in the
global context of his biological and environmental influences, substance abuse, and other stressors.35
The state court may even have erred in concluding that counsel reasonably decided not to further
investigate mental health evidence or retain such an expert. But it is patently debatable among jurists
of reason whether no competent counsel would have done what counsel did in this case.36
Accordingly, the state court’s judgment finding that petitioner cannot show deficient performance
is not contrary to, or an unreasonable application of, clearly established federal law and he is not
entitled to habeas corpus relief.37

35

In this respect, the court is mindful that in his Revised Sentencing Order the trial judge found,
contradicting his own prior findings before remand, that neither of the two statutory mitigating circumstances
discussed by Dr. Tackett were supported by the evidence. In rejecting the applicability of the “extreme
mental or emotional disturbance” mitigating circumstance, the trial judge reasoned that “Dr. Tackett is
neither a psychologist nor a psychiatrist. His expertise is not in the mental health field. He has no clinical
experience that qualifies him as an expert concerning mental or emotional disturbances” R.-69 at 8
(emphasis in original). However, Dr. Tackett’s perceived lack of qualifications to opine on the subject is not
the only, or even the most important, factor which influenced the trial judge to reject the mitigating
circumstance. Rather, it appears the trial judge rejected the mitigating circumstance primarily because he
did not believe it could ever be supported merely by evidence of drug addiction, intoxication, or withdrawal.
See id. (“Voluntary chemical addiction with its highs and lows is simply not the kind of extreme mental or
emotional disturbance that the legislature had in mind when it enacted statutory mitigating circumstance No.
2.”). While it is likely that a hypothetical reasonable sentencer might find that this statutory mitigating
circumstance could be supported by substance addiction evidence, it is also possible that a reasonable
sentencer would not reject out-of-hand Dr. Tackett’s opinions about how crack cocaine was affecting
petitioner’s behavior and decision making at the time of the offense merely because he is not a psychologist
or a psychiatrist.
36

See, e.g., Gissendaner, 735 F.3d at 1331-32 (concluding that state court’s finding that counsel
adequately investigated mental health evidence was not unreasonable where counsel obtained the petitioner’s
mental health records, relied upon a mental health exam which might have concerned more than just “mental
retardation and insanity,” and, importantly, the petitioner did not exhibit the sort of “red flags” calling for
further investigation of her mental health–including talking about religion excessively, speaking directly to
God, hallucinating, suffering seizures, shaking, speaking gibberish, “or otherwise behaving strangely”–which
have been recognized in other cases to compel more stringent investigation into mental health issues).
37

Furthermore, the court is not convinced that, were this claim not denied on deficient performance
grounds, petitioner could show prejudice. The petition states that counsel should have hired an independent
(continued...)

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Petitioner’s final allegation in support of his claim about counsel’s failure to sufficiently
investigate and prepare for the penalty phase is his claim that counsel failed to hire a social worker
or other mitigation expert to prepare a social history of petitioner or otherwise assist with counsel’s
investigation and preparation of mitigating evidence. The court has already determined that, to the
extent this claim is separate from the larger claim about counsel’s failure to investigate, it is not
procedurally barred because it was presented to the CCA in the context of the circuit court’s
exclusion of petitioner’s expert at the Rule 32 evidentiary hearing. The CCA merely held that the
circuit court’s exclusion of the expert’s testimony was permissible because it would have been
cumulative of the lay testimony already presented at the evidentiary hearing. The CCA therefore at
least implicitly found that petitioner’s ineffective assistance claim was without merit for two reasons:
1) as to deficient performance, the state court observed that “‘the decision to hire a social worker
appears to be second-guessing by current counsel, rather than identification of a defect in trial
37

(...continued)
psychologist to testify that “this tragedy resulted from a chemical dependency on crack cocaine.” Pet. ¶ 83.
However, such testimony would have been markedly similar to the testimony counsel did offer through Dr.
Tackett who testified that “the deaths resulted as a result of wanting to get the necessary funds to buy the
drug. That the individuals were killed in order to get the money in order to purchase enough drugs to get out
of the craving stage.” Trial Tr. (R.-10) at 819; id. at 829 (“I think that the necessity of getting the drug was
the motivating factor for the murder.”). Dr. Tackett described petitioner’s addiction as a “psychological
addiction” in that, although the addict’s body can function without the drug, withdrawal from the drug
typically causes severe psychological symptoms, including depression, paranoia, and extreme agitation,
irrationality, confusion, and hyperactivity. Id. at 820-21. Perhaps a reasonable sentencer would have been
better swayed by such testimony if coming from a psychologist. But the court cannot conclude that it was
folly to offer the testimony from Dr. Tackett, or that there is a reasonable probability that petitioner’s
sentence would have been different merely had counsel offered such an expert.
Likewise, “the mere fact a defendant can find, years after the fact, a mental health expert who will
testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that
expert at trial.” Reed, 593 F.3d at 1242. See also Gissendaner, 735 F.3d at 1332. Indeed, new or improved
expert opinion evidence about the applicability of the type of statutory mitigating circumstances petitioner’s
psychological expert would have testified about in this case has been held in analogous circumstances
insufficient to establish prejudice, even under a de novo standard of review. See Ponticelli v. Secretary,
Florida Dep’t of Corrections, 690 F.3d 1271, 1301-02 (11th Cir. 2012).

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counsel’s strategy[,]’” Waldrop, 987 So. 2d at 1193 n.5 (quoting Gudinas v. State, 816 So. 2d 1095,
1108 (Fla. 2002)); and 2) as to prejudice, the state court found that the social worker’s testimony
would have been cumulative of the evidence petitioner presented at the Rule 32 hearing, including,
inter alia, the evidence of childhood abuse, neglect, family violence, social isolation and alienation,
and substance abuse, which the court would go on to find insufficient to establish prejudice.
Other than his more general argument that counsel failed to sufficiently investigate and
prepare for the penalty phase of trial, petitioner has not presented any argument that the state court’s
judgment on this claim is contrary to, or an unreasonable application of, clearly established federal
law. As to deficient performance, for the reasons this court has already articulated, the court finds
that the state court’s judgment that counsel did not perform deficiently is not contrary to, or an
unreasonable application of, clearly established federal law. Indeed, while counsel is certainly
obligated to undertake a reasonable investigation of mitigating evidence in preparation for the
penalty phase, there is no general requirement that counsel retain a social worker or any other expert
for the penalty phase, even if doing so is a sensible and widely accepted practice.
Petitioner did not ask counsel at the evidentiary hearing why he chose not to hire a social
worker or other mitigation expert. Counsel did testify that petitioner did not tell him that “he had
been abused in any manner by any individual” in their interviews. Rule 32 Tr. (R.-60) at 67. Rather,
petitioner only indicated that his parents had often been uninvolved in his life, and that “his
grandparents were his providers and raised him mainly his entire life.” Id. Counsel further testified
at the Rule 32 evidentiary hearing that his efforts to speak with petitioner’s family were not very
fruitful because “much of the family was not very cooperative and did not want to assist Bobby in
any way.” Rule 32 Tr. (R.-60) at 48. He attributed this reluctance to the fact that petitioner’s family
117

was the victims’ family as well. Id. at 60. To the extent counsel might have been unable to gather
substantial mitigating evidence about petitioner’s childhood and family history from petitioner or
a diverse range of family members that might have persuaded him to seek a social worker to compile
a social history because petitioner was not forthcoming38 and his family members were
understandably aggrieved by their loss and harboring resentment toward petitioner,39 his strategic
decision to pivot his defense onto the substance abuse and addiction evidence is only made more
reasonable. It is certainly debatable among jurists of reason, therefore, whether in similar
circumstances no competent attorney would devote his limited resources and time to retaining and
working with a social worker to craft a social history, especially where, as here, counsel perceives
his stronger argument lies in explaining the significance of drug abuse and addiction. To the extent
the state court found that counsel did not perform deficiently in failing to hire a social worker, the
state court’s judgment is not contrary to, or an unreasonable application of, clearly established
federal law.
As to prejudice, petitioner has failed to present any argument in his briefing about why he
was prejudiced by counsel’s failure specifically to hire a social worker. Petitioner’s brief describes
the generations of abuse, neglect, and chemical dependence that he argues precipitated the
38

Petitioner did not testify at the Rule 32 evidentiary hearing and has not challenged counsel’s
contention that he did not inform counsel of the abuse and neglect evidence that was presented in the Rule
32 proceedings. The Eleventh Circuit has recognized that counsel’s strategy is very reasonably informed by
the information conveyed by the client, and that, in particular, “‘an attorney does not render ineffective
assistance by failing to discover and develop evidence of childhood abuse that his client does not mention
to him.’” Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008) (quoting Williams v. Head, 185 F.3d 1223,
1237 (11th Cir. 1999)). See also De Young, 609 F.3d at 1288; Stewart v. Secretary, Dep’t of Corrections,
476 F.3d 1193, 1210-11 (11th Cir. 2007).
39

See DeYoung, 609 F.3d at 1285-86 (recognizing that the reluctance of family member witnesses
to support the defendant/petitioner because the victims were also family members is an important factor in
assessing attorney performance).

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circumstances under which he killed his grandparents, but he does not intimate, specifically, how
a social worker was uniquely essential in conveying the mitigating value of this information. The
court has reviewed the affidavit of his social worker, see Rule 32 C.R. at 335-44, in which he
presents the social history he faults counsel for having failed to present. The court observes that the
social history largely rehashes the evidence introduced in the Rule 32 proceedings, as well as the
hearsay evidence the circuit court excluded, and, in interpreting this evidence, offers a theory to
explain petitioner’s behavior as a function of his environment and the “risk factors” he accumulated
over his lifetime leading up to the murders. Even if the context it provides is informative, a state
court could reasonably conclude that it is not sufficiently compelling that, due to its absence at trial,
confidence in the outcome of the petitioner’s sentence is undermined. Accordingly, any state court
decision finding that petitioner was not prejudiced by counsel’s failure to hire a social worker was
not contrary to, or an unreasonable application of, clearly established federal law.
3.

Specifically alleged errors in counsel’s performance at trial

In addition to his allegations about counsel’s investigation and preparation for the guilt and
penalty phases of trial, petitioner presents a number of allegations that counsel was ineffective in his
performance at trial. See Pet. ¶¶ 85-92. However, petitioner does not discuss the merits of these
claims in his briefing, instead relying on the petition to present the entirety of his argument. The
court will address these claims in the order in which they are presented in the petition.
a.

Failure to challenge the admission of petitioner’s statement as the fruit
of an illegal arrest

Petitioner first claims that his attorney “was ineffective for not challenging the admission of
Mr. Waldrop’s statement as the fruit of an illegal arrest.” Pet. ¶ 85 (citing Payton v. New York, 445

119

U.S. 573, 590 (1980)). He incorporates his argument on the overlying substantive claim set forth
in Claim M of his petition to demonstrate prejudice. Id. Respondents argue that this claim was
exhausted in the state courts, and that petitioner cannot show that the state court’s judgment denying
this claim was contrary to, or an unreasonable application of, Supreme Court precedent, or that it was
based upon unreasonable factual determinations in light of the record before the state courts. Resps.’
Br. (Doc. # 50) at 61.
Petitioner first raised this claim in his Rule 32 petition. He argued that, because police
officers entered his home and forcibly arrested him without a warrant or exigent circumstances, the
subsequent custodial statement he gave was inadmissible. R.-52 at 35. The circuit court denied the
claim on its merits, finding that, based upon the testimony at trial, petitioner was not arrested at his
home because he was living with his grandparents in Alabama at the time of the murders and he was
arrested at his mother’s mobile home in Georgia. R.-73 at 10. He argued on appeal to the CCA that
the circuit court erred in summarily denying his claim “without giving Mr. Waldrop an opportunity
to prove his allegations.” R.-63 at 78. The CCA affirmed. 987 So. 2d at 1207. Petitioner then
raised the claim in his petition for certiorari review in the Alabama Supreme Court. R.-67 at 67.
The Alabama Supreme Court denied certiorari. R.-76.
Petitioner has not presented any argument that the CCA’s decision denying relief on this
claim is not entitled to AEDPA deference, that it is contrary to, or unreasonably applies, Supreme
Court precedent, or that it is based upon an unreasonable finding of fact. There is no appreciable
argument in support of his illegal arrest contention in the portion of his brief discussing Claim M,
and he has pointed to no evidence, in state court or in this court, which substantiates his claim that
he was arrested in his own home. See Pet’r’s Br. (Doc. # 44) at 135-36. In ¶ 139 of the petition, he
120

asserts that the “arrest took place in a mobile home where Mr. Waldrop resided with members of his
family.” But the portion of the trial record he cites to support this allegation consists only of the
testimony of one of the arresting officers about the circumstances surrounding the arrest at the
mobile home in Georgia. It offers nothing in support of any contention that petitioner lived at the
mobile home at the time of the arrest.40 Petitioner has failed to show, therefore, that the state court’s
finding of fact on this issue is not entitled to the presumption of correctness under § 2254(e)(1).
Moreover, petitioner has not overcome the deference owed to the state court’s judgment under
§ 2254(d), and he has not demonstrated deficient performance or prejudice. Accordingly, this claim
is due to be denied.
b.

Failure to move for a change of venue

Petitioner asserts that his attorney was “ineffective for not moving for a change of venue”
considering the small, mostly rural population of Randolph County and the “extensive media and
public attention” devoted to the murders. Pet. ¶ 86. Respondents argue that this claim is
procedurally barred because it was not raised in petitioner’s appeal of the denial of his Rule 32
petition, it is consequently unexhausted in the state courts, and petitioner would be precluded by state
procedural rules from returning to state court to exhaust the claim. Resps.’ Br. (Doc. # 41) at 18-19.
Petitioner has asserted, without specific argument, that the claim is not procedurally barred because
40

Indeed, as the state courts concluded, the trial evidence consistently demonstrated that petitioner
lived with his grandparents, not his mother, at the time of the murders. See Trial Tr. 363-64 (petitioner’s aunt
testifying that petitioner had lived with his grandparents for two weeks at the time of the murders, that he
had lived with Clara’s parents before that, that he had lived with Mrs. Irelan before that, and that he had lived
with his grandparents before that). Petitioner’s mother testified that he and Clara came to her home on
Tuesday morning, and that they were brought there by Clara’s mother. Id. at 739-40. She testified that
petitioner had last lived in her home in “the last part of November” in the year before the murders, and that
that had lasted for six or eight weeks. Id. at 741-42. She confirmed that petitioner had lived with his
grandparents for a few weeks before the murders. Id. at 742. Even petitioner testified that he was living with
his grandparents at the time of the murders. Id. at 1029-30.

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he did exhaust the claim in the state courts. Pet’r’s Br. (Doc. # 44) at 95-96; Pet’r’s Reply (Doc. #
53) at 19-20.
Petitioner raised this issue in his Rule 32 petition. R.-52 at 36-37. The circuit court
summarily denied the claim on its merits, relying on the trial court’s statement at the conclusion of
voir dire that, although many of the potential jurors had been exposed to some pretrial publicity
about the case, there was no indication that the potential jurors responded emotionally to the
publicity or that they could not cooly and impartially judge the evidence and apply the law. R.-73
at 11. Despite this determination on the merits of his claim, petitioner did not specifically reference
this claim in his larger objection on appeal about the circuit court’s summary denial of his claim of
ineffective assistance at the guilt phase. See R.-63 at 77-79. For this reason, the CCA did not
address the circuit court’s denial of the claim. Waldrop, 987 So. 2d at 1205.
Petitioner has not directed the court to any portion of the record which demonstrates that he
presented this claim in his state court appeals of the denial of his Rule 32 petition. Thus, because
petitioner did not raise this claim in his appeal of the circuit court’s denial of his Rule 32 petition,
he did not fairly present the claim at all levels of the state court’s review process and, consequently,
he has not exhausted the claim. Because petitioner would likewise now be barred by state procedural
rules from returning to state court to exhaust the claim, the claim is procedurally defaulted from
federal habeas corpus review and is due to be dismissed.
c.

Failure to conduct an adequate voir dire, failure to obtain necessary
information to support peremptory and cause challenges to jurors, and
failure to move to strike a biased venireperson

Petitioner next claims that his attorney “did not conduct an adequate voir dire and thereby
deprived Mr. Waldrop of a fair and impartial jury,” (Pet. ¶ 87), did not “obtain the information
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necessary to remove biased jurors for cause and to make effective use of peremptory challenges,”
(id. at ¶ 88), and “did not move to strike” juror M.S. for cause (id. at ¶ 89). Respondents contend
that these claims are procedurally barred because petitioner did not raise any of the claims in his
appeal of the denial of his Rule 32 petition. Resps.’ Br. (Doc. # 41) at 19-23.
Petitioner raised these claims in his Rule 32 petition. R.-52 at 38-40. The circuit court
summarily denied the claims on their merits, citing to the juror questionnaires and instructions to the
jury as indicating that petitioner could not show prejudice.

R.-73 at 12-13.

Despite this

determination on the merits of his claim, petitioner did not specifically reference these claims in his
larger objection on appeal about the circuit court’s summary denial of his claim of ineffective
assistance at the guilt phase. See R.-63 at 77-79. For this reason, the CCA did not address the circuit
court’s denial of the claims. Waldrop, 987 So. 2d at 1205.
Petitioner has not directed the court to any portion of the record that demonstrates that he
presented these claims in his state court appeals of the denial of his Rule 32 petition. Thus, because
petitioner did not raise these claims in his appeal of the circuit court’s denial of his Rule 32 petition,
he did not fairly present them at all levels of the state court’s review process and, consequently, he
has not exhausted the claims for federal habeas review. Because petitioner would likewise now be
barred by state procedural rules from returning to state court to exhaust the claims, they are
procedurally defaulted from federal habeas corpus review and are due to be dismissed.
d.

Failure to object to prejudicial evidence

Petitioner claims that his attorney was ineffective because he “did not object to evidence that
Mr. Waldrop and his co-defendant Clara stole and illegally pawned a riding lawnmower earlier on
the day of the offense.” Pet. ¶ 90. He asserts that counsel’s objection to “evidence regarding the
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pawning of other stolen items was sustained” because such evidence was prejudicial, and, had
counsel similarly objected to evidence about the lawnmower, it too would have been excluded. Id.
Respondents assert that this claim is procedurally barred because petitioner did not raise it in his
direct appeal of the circuit court’s denial of his Rule 32 petition. Resps.’ Br. (Doc. # 41) at 23-24.
Petitioner first raised this claim in his Rule 32 petition. R.-52 at 40-41. The circuit court
denied the claim on its merits, finding that “counsel is not required to make every possible objection
to be effective.” R.-73 at 13. On appeal to the CCA, petitioner only argued that the circuit court
erred in denying this claim to the extent the court based its decision on the fact that it was determined
on direct appeal that admission of the lawnmower evidence did not constitute plain error. R.-63 at
79. Citing a decision of the Alabama Supreme Court, petitioner argued that the circuit court applied
the “wrong legal standard.” Id. The CCA did not specifically refer to or discuss this claim in its
opinion affirming the denial of the Rule 32 petition.
Given all of the above, it is arguable whether this claim was fairly presented and exhausted
in the state courts. However, the court ultimately need not resolve that question because, even
assuming that the claim is not procedurally defaulted and is entitled to de novo review in this court,
petitioner is not entitled to habeas relief. First, as to deficient performance, petitioner has not shown
that the circumstances surrounding the pawning or selling of the lawnmower were not so different
from those of the other items counsel succeeded in having excluded such that his failure to object
to evidence about the lawnmower could be deficient. That is, while evidence about other items
stolen and pawned by petitioner might have been inadmissible as prior bad acts because those events
were not necessarily temporally related to the crime for which petitioner was on trial, petitioner has
not rebutted the CCA’s conclusion on direct appeal that evidence about the lawnmower was part of
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the “corpus delicti of a robbery committed during a murder,” Waldrop, 859 So. 2d at 1167, since
it occurred on the same day as the murders. More importantly, though, petitioner has not presented
any argument or rationale for how he suffered cognizable Strickland prejudice due to counsel’s
failure to object to the evidence about the lawnmower. The evidence of petitioner’s guilt, even
absent any testimony about the lawnmower, is overwhelming. There simply is no reasonable
probability that the jury would have had a reasonable doubt about petitioner’s guilt had counsel
objected to the testimony about the lawnmower. See, e.g., Peoples v. Campbell, 377 F.3d 1208,
1236-37 (11th Cir. 2004) (denying conclusory ineffective assistance claim based upon counsel’s
failure to object to certain evidence because petitioner could not show prejudice); Duren v. Hopper,
161 F.3d 655, 662-63 (11th Cir. 1998) (finding no prejudice on petitioner’s claim that counsel failed
to object to improper prosecutorial remarks because evidence of guilt, including petitioner’s
confession, was “overwhelming”); McKenzie v. Sec’y, Fla. ep’t of Corr., 507 F. App’x 907, 908-09
(11th Cir. 2013) (citing Strickland, 466 U.S. at 697) (finding that habeas petitioner was not
prejudiced by counsel’s failure to object to the admission of prejudicial hearsay statements given the
totality of the other evidence admitted at trial). Because petitioner cannot establish deficient
performance or prejudice, he is not entitled to habeas corpus relief on this claim.
e.

Failure to adequately cross-examine Ricky Whaley

Petitioner next claims that his attorney failed to cross-examine “Ricky Whaley, a crucial state
witness who is related to one of the victims’ daughters, about his interest in the outcome of the trial.”
Pet. ¶ 91. Respondents contend that this claim is procedurally barred because it was not raised in
petitioner’s appeal of the denial of his Rule 32 petition. Resps.’ Br. (Doc. # 41) at 25-26.

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Petitioner first raised this claim in his Rule 32 petition. R.-53 at 41-42. The circuit court
denied the claim on its merits. R.-73 at 14-15. Petitioner did not discuss or otherwise mention this
claim in the portion of his appellate brief challenging the circuit court’s denial of his guilt phase
ineffective assistance claims. R.-63 at 77-80. For this reason, the CCA did not address the circuit
court’s denial of the claim in its opinion. Waldrop, 987 So. 2d at 1205.
Petitioner has not directed the court to any portion of the record that demonstrates that he
presented this claim in his state court appeals of the denial of his Rule 32 petition. Thus, because
petitioner did not raise the claim in his appeal of the circuit court’s denial of his Rule 32 petition,
he did not fairly present it at all levels of the state court’s review process and, consequently, he has
not exhausted the claim for federal habeas review. Because petitioner would likewise now be barred
by state procedural rules from returning to state court to exhaust the claim, it is procedurally
defaulted from federal habeas corpus review and is due to be dismissed.
f.

Failure to prepare Shirley Irelan for her testimony

Petitioner next claims that his attorney “did not prepare . . . Shirley Irelan for crossexamination by the State and never discussed with her techniques for effective communication.” Pet.
¶ 92. Petitioner appears to allege that this failure manifested itself when Mrs. Irelan was interrupted
in her testimony by the trial judge, “admonished and intimidated” by him about her testimony, and
then forced to continue with her testimony “while she was shaken and unprepared.”

Id.

Respondents contend that this claim is procedurally barred because it was not raised in petitioner’s
appeal of the circuit court’s denial of his Rule 32 petition. Resps.’ Br. (Doc. # 41) at 26-27.
Petitioner first raised this claim in his Rule 32 petition. R.-53 at 42. The circuit court denied
the claim on its merits, concluding that it was insufficiently pleaded because petitioner had failed
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to allege how he was prejudiced. R.-73 at 15. Petitioner did not discuss or otherwise mention this
claim in the portion of his appellate brief challenging the circuit court’s denial of his guilt phase
ineffective assistance claims. R.-63 at 77-80. Consequently, the CCA did not address the circuit
court’s denial of the claim in its opinion. Waldrop, 987 So. 2d at 1205.
Petitioner has not directed the court to any portion of the record that demonstrates that he
presented this claim in his state court appeals of the denial of his Rule 32 petition. Thus, because
petitioner did not raise the claim in his appeal of the circuit court’s denial of his Rule 32 petition,
he did not fairly present it at all levels of the state court’s review process and, consequently, he has
not exhausted the claim for federal habeas review. Because petitioner would likewise now be barred
by state procedural rules from returning to state court to exhaust the claim, it is procedurally
defaulted from federal habeas corpus review and is due to be dismissed.
4.

Cumulative Error

Petitioner’s final claim of ineffective assistance is that all of the errors he identifies in the
petition “individually and collectively denied Mr. Waldrop the effective assistance of counsel[,]” and
that his attorney’s “performance in its entirety was so lacking it undermined the reliability of Bobby
Waldrop’s conviction and sentence.” Pet. ¶ 93. He asserts that the “state court adjudication of this
claim resulted in a decision that was contrary to, and involved an unreasonable application of, clearly
established United States Supreme Court precedent.” Id. Respondents assert that this claim is
procedurally barred because it was not raised in petitioner’s appeal of the denial of his Rule 32
petition. Resps.’ Br. (Doc. # 41) at 27-29.
In his Rule 32 petition, petitioner alleged that counsel’s individual and cumulative errors in
both the guilt and penalty phases of trial denied him the effective assistance of counsel. R.-52 at 41127

42, 49-50. The circuit court first denied the claim with respect to the guilt phase based upon its
finding that petitioner had failed to present any meritorious guilt phase ineffective assistance claim
in the Rule 32 petition. R.-73 at 15. After the evidentiary hearing, the court denied petitioner’s
ineffective assistance claims related to the penalty phase. R.-74. On appeal, petitioner argued that
he had alleged that his counsel was ineffective at both phases of the trial, but that the circuit court
“failed to respond to the claim as a whole and ignored the cumulative nature of the ineffectiveness
analysis[.]” R.-63 at 77.
Even assuming that petitioner did fairly present and exhaust a claim that he was denied the
effective assistance of counsel due to counsel’s cumulative error, the court finds that, contrary to
petitioner’s assertion in ¶ 93 of the petition, the state court’s adjudication of that claim was not
contrary to, or an unreasonable application of, United States Supreme Court precedent. Petitioner
has presented no substantial argument in support of any claim of cumulative error, and “he has not
shown that in this case the cumulative effect of counsel’s alleged errors amounted to ineffective
assistance.” Hunt, 666 F.3d at 731-32. See also Borden, 646 F.3d at 823 (declining to “elaborate
further on the concept of ‘cumulative effect’” where the petitioner did not plead sufficient facts to
establish prejudice with respect to any single ineffectiveness claim or on such a “cumulative effect”
claim).
C.

Claim F
Claim F is petitioner’s claim that his due process rights were violated because the trial judge

failed to recuse himself on the basis of personal bias against petitioner. Pet. ¶¶ 94-101. Petitioner
cites a number of instances as examples of the trial judge’s bias, including the following: his denial
of petitioner’s application for youthful offender status (¶ 95); his involvement in a pretrial meeting
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with petitioner’s sister in which he sought to intimidate her and secure testimony helpful to the State
(¶ 96); his prejudicial comments about whether petitioner had the requisite intent to kill the victims
(¶ 97); his conduct in scolding, intimidating, or circumscribing witnesses testifying on petitioner’s
behalf (¶¶ 98-99); and his appearing to prejudge petitioner’s sentence and rely upon evidence not
introduced at trial to support the death sentence he imposed (¶ 100).
Respondents first assert that this claim is procedurally defaulted because petitioner did not
raise it at trial or on direct appeal, and because the state court found it procedurally barred in
collateral review. Resps.’ Br. (Doc. # 41) 29-31. Petitioner replies that, as to his allegations related
to the trial judge’s conduct with petitioner’s sister, the state courts’ imposition of a procedural bar
was erroneous and, as to his other allegations in support of his claim, he “fairly presented” such
claims in his petition for discretionary review in the Alabama Supreme Court. See Pet’r’s Br. (Doc.
# 44) 101-04. In light of petitioner’s reliance on his briefing in discretionary review before the
Alabama Supreme Court, respondents assert that raising any components of this claim for the first
and only time in the petition for certiorari review failed to “fairly present” those components in the
state courts and they are procedurally defaulted on that basis in addition to the other asserted
procedural bars. Resps.’ Reply (Doc. # 50) 8 n.2. Notwithstanding his prior representations about
having presented at least a portion of his claim for the first and only time in his petition for
discretionary review, petitioner clarifies that his “claim was raised in postconviction at the trial court,
the Court of Criminal Appeals, and the Alabama Supreme Court.” Pet’r’s Reply (Doc. # 53) 1 n.1.
Petitioner first presented a claim in his brief in support of his petition for discretionary review
in the Alabama Supreme Court under the header “The Trial Judge Erred by Failing to Recuse
Himself on the Basis of Personal Bias or Prejudice and Personal Knowledge of Disputed Evidentiary
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Facts.” R.-39 at 66. Petitioner did not present this claim in the Court of Criminal Appeals. In his
brief in support of the petition, he offered several of the same examples of trial judge conduct that
are set forth in the petition as indicative of the judge’s personal bias. See id. at 67-71. As detailed
in previous sections of this opinion, this claim was not among those the Alabama Supreme Court
considered when it granted certiorari review in this case. Any component allegations of petitioner’s
claim, therefore, that were presented for the first and only time in his petition for discretionary
review were not “fairly presented” in the state courts and, therefore, were not exhausted in the state
courts and are now procedurally defaulted from federal habeas review. The factual allegations set
out in paragraphs other than ¶ 96 of the petition are subject to this procedural default on this basis.
The allegation of judicial bias in ¶ 96 of the petition, that the trial judge coerced petitioner’s
sister to testify against him at trial, was first presented in collateral review in Waldrop’s Rule 32
petition. R.-52 at 58. The circuit court found this claim procedurally barred because it could have
been raised at trial or on appeal. R.-73 at 20-21. The court also found that the claim was not stated
with sufficient specificity, pursuant to Ala. R. Crim. P. 32.6(b), and that it failed to state a claim,
pursuant to Ala. R. Crim. P. 32.7(d), because of other evidence in the record tending to demonstrate
the trial judge’s impartiality.41 Id. at 21. On appeal, petitioner argued that the trial judge’s alleged
conduct violated his constitutional rights, that he was improperly denied the opportunity to prove the
claim by the circuit court, that the claim was sufficiently pleaded and specific, and that there is no
requirement that he prove a claim at the pleading stage in Rule 32. R.-63 at 71-74. In denying this
claim, the Court of Criminal Appeals quoted from the circuit court’s order and held that the “court

41

As this court has already noted, this determination by the state court pursuant to Rules 32.6(b)
and 32.7(d) is an adjudication on the merits for purposes of applying § 2254(d). See Lee, 726 F.3d at 1208.

130

correctly found that this claim was procedurally barred because it could have been raised at trial or
on appeal.” Waldrop, 987 So. 2d at 1203-04. In addition, after recounting the testimony of
petitioner’s sister at the Rule 32 hearing, the Court of Criminal Appeals found as follows: “There
was no indication that Judge Segrest had had any unlawful contact with Fortenberry, much less that
he coerced Fortenberry to testify. Thus, relief was properly denied on this claim.” Id. at 1204.
Petitioner further raised this claim in his petition for certiorari in the Alabama Supreme Court, see
R.-67 at 59-62, which denied certiorari review, see R.-76. Respondents contend that, due to the
Court of Criminal Appeals’ finding of a state procedural bar, the judicial bias claim supported by ¶
96 of the petition is procedurally defaulted. Resp.’s Br. (Doc. # 41) 30-31.
Petitioner argues that, contrary to the Court of Criminal Appeals’ holding, he could not have
raised his claim of bias based on the judge’s conduct toward his sister at trial or on appeal and, in
any event, the procedural bar applied in this context is not regularly and consistently applied by the
state courts. Pet’r’s Br. (Doc. # 44) 101-02. As discussed above, in order for a state court’s finding
of a state procedural bar to preclude federal habeas review of a claim, the state court must “clearly
and expressly say that it is relying on state procedural rules[,]” “the state court decision must rest
solidly on state law grounds,” and, most pertinent here, the state law procedural rule must be
“adequate.” Boyd, 697 F.3d at 1335-36. A state procedural rule is “adequate” if it is not “applied
in an arbitrary or unprecedented fashion.” Id. at 1336. Importantly, “[t]he 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.” Id.
Applying these principles, the court is troubled by respondents’ assertion of procedural
default as to this claim. While there is no doubt that the Court of Criminal Appeals “clearly and
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expressly” stated its intent to impose a state procedural bar,42 and that its decision rested firmly on
state law grounds, the court is not persuaded that the procedural ground utilized by the state courts
is “adequate” because it is not clear that the state courts have regularly and consistently imposed a
similar procedural bar to claims premised on allegations of judicial bias or misconduct43 and, more
concerning, the state court’s treatment of this claim arguably is “manifestly unfair” considering the
nature of petitioner’s allegations.
To be sure, federal courts have previously recognized that the Alabama state courts’
imposition of a procedural bar due to a Rule 32 petitioner’s failure to raise his claim at trial or on
appeal, see Ala. R. Crim. P. 32.2(a)(3) & (5), constitutes an adequate and independent state
procedural ground for purposes of procedural default. See, e.g. Boyd, 697 F.3d at 1335 (“We have
squarely held that claims barred under Rule 32.2(a)(3) and (a)(5) are procedurally defaulted from
federal habeas review.”) (listing cases). However, in this instance petitioner persuasively argues that
he could not have raised this particular claim of judicial bias at trial or on appeal “because neither
Bobby Waldrop nor trial counsel knew about the facts underlying the claim.” Pet’r’s Br. (Doc. # 44)
101. Petitioner alleges that the trial judge “engaged in a coordinated, ex parte effort with the District
Attorney to secure the testimony of Bobby Waldrop’s sister,” which allegedly included threats of jail
time should she refuse to testify. Pet. ¶ 96. Petitioner rightfully argues that, by virtue of the Canons

42

Notably, a claim may be procedurally defaulted in federal habeas review even where, as here, the
state court reaches a merits determination in the alternative to its procedural ruling. See Philmore v. McNeil,
575 F.3d 1251, 1260 (11th Cir. 2009).
43

To this end, petitioner cites a number of cases for the proposition that Alabama has failed to
consistently apply the procedural bar imposed on this claim because “Alabama postconviction courts have,
on numerous occasions, considered the merits of claims involving previously unknown judicial bias.” Pet’r’s
Br. (Doc. # 44) 102. Respondent does not rebut petitioner’s assertion or cited cases. See Resps.’ Br. (Doc.
# 50) 8 n.2.

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of Judicial Ethics, he and his counsel were entitled to rely upon the trial judge’s fidelity to his
essential obligation to remain impartial or, at a minimum, to avoid participating in a clandestine, ex
parte meeting where, in collusion with prosecutors, he will intimidate reluctant witnesses into
testifying for the State’s benefit.
The state courts, however, would afford criminal defendants no such reasonable
accommodation. Despite that nothing in the trial record suggests that counsel should have suspected
that petitioner’s sister was coerced into testifying by the trial judge,44 in concluding that petitioner
could have raised his claim at trial or on appeal, the circuit court found as follows: “If the witness
remained unwilling to testify against Mr. Waldrop, then the most logical participant in the trial to
report this to would have been her brother’s lawyer. If the event occurred and she told Waldrop’s
attorney, this could have been raised at trial or on appeal.” R.-73 at 21. The circuit court’s
explanation, wholly endorsed and adopted by the Court of Criminal Appeals, see Waldrop, 987 So.
2d at 1203-04, unfairly assumes that petitioner’s then teenaged sister, or any reasonable witness who
has just been threatened with incarceration in the presence of both the prosecutor and a powerful
judge, would immediately report the judge’s conduct to the very entity whose interests are apparently
adverse to that of the judge.
Moreover, the state court’s rationale also unfairly imposes on defendants and their counsel
the obligation to inquire of each witness testifying at trial whether he or she has been coerced into
testifying by the improper and intimidating actions of the judge presiding over the trial. Not only
would this tact bog down the trial and distract jurors, it would needlessly antagonize trial judges who

44

At trial, petitioner’s sister testified both within and without the presence of the jury concerning
her acquisition of a letter that was admitted as evidence at trial. See Trial Tr. (R.-11) at 840-847, 857-64.
She did not offer any testimony suggesting that her testimony was the result of coercion by the trial judge.

133

have not engaged in such behavior. Assuming this sort of vigilance by unsophisticated lay witnesses,
and requiring this sort of vigilance by counsel, is fanciful and unfair to the litigant who very
understandably does not reap the benefit of such extraordinary vigilance in everyday criminal
proceedings. Accordingly, the court cannot conclude that, in this case, the state court’s application
of the procedural rule was not “‘manifestly unfair’ in its treatment of the petitioner’s federal
constitutional claim.” Boyd, 697 F.3d at 1336. The court finds that this claim, as set forth in ¶ 96
of the petition, is not procedurally defaulted and will review the state court’s alternative merits ruling
on the claim pursuant to § 2254(d).
Petitioner’s allegation in ¶ 96 of the petition is as follows:
Judge Segrest further demonstrated his lack of impartiality when prior to trial he
engaged in a coordinated, ex parte effort with the District Attorney to secure the
testimony of Bobby Waldrop’s sister, Kristy Fortenberry, against Mr. Waldrop. Mrs.
Fortenberry did not want to testify, but after the District Attorney and Judge Segrest
threatened her with jail time, she felt pressured and ultimately took the stand at trial.
This allegation was first presented in petitioner’s Rule 32 petition. See R.-52 at 58-59. Although
the Rule 32 court summarily dismissed the claim prior to the evidentiary hearing, see R.-73 at 20-21,
petitioner nevertheless procured Fortenberry’s testimony about the meeting with Judge Segrest at
the evidentiary hearing. See R.-60 at 391-97. In making its alternative merits determination, the
Alabama Court of Criminal Appeals found Fortenberrry’s testimony about the event unpersuasive:
Moreover, Fortenberry testified at the Rule 32 hearing that she met with the
prosecutor before trial, that he encouraged her to testify, and that she felt coerced.
She said that at the meeting “It was just me and him for a little while, and then I seen
Mr. Segrest.” There was no indication that Judge Segrest had had any unlawful
contact with Fortenberry, much less that he coerced Fortenberry to testify. Thus,
relief was properly denied on this claim.

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Waldrop, 987 So. 2d at 1204. Petitioner argues “[t]his assertion ‘was based upon an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.’” Pet’r’s
Br. (Doc. # 44) at 100 (citing 28 U.S.C. § 2254(d)(2)). He contends that the Court of Criminal
Appeals misapprehended Fortenberry’s Rule 32 testimony:
Mrs. Fortenberry clearly and unequivocally testified that she was summoned for a
meeting with the District Attorney “[a]nd at some point in the meeting, Judge Segrest
was present” and, upon leaving the meeting, Mrs. Fortenberry felt that “they tricked
[her] into [testifying].” She explained that “they told [her] if [she] didn’t [testify she]
could go to jail.”[] These facts establish Judge Segrest’s involvement in an ex parte
meeting with the District Attorney and Mrs. Fortenberry during which he assisted in
securing her testimony at trial.
Id. (citations to the record and footnote omitted). Because respondents only assert that this claim
is procedurally defaulted, they have not responded to petitioner’s argument that the state court’s
adjudication of this claim is based upon an unreasonable determination of the facts pursuant to §
2254(d)(2).
To review, in determining
whether a state court’s decision was based on an “unreasonable determination of the
facts” under § 2254(d)(2), [this court must] presume the state court’s factual findings
are correct, and the petitioner has the burden to rebut those facts by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller–El v. Cockrell, 537
U.S. 322, 340 (2003). This statutory presumption of correctness applies to the
factual determinations of both state trial and appellate courts. Bui v. Haley, 321 F.3d
1304, 1312 (11th Cir. 2003).
Wellons, 695 F.3d at 1206. Upon review of the state court record, and considering the deference and
the presumption of correctness owed to the Court of Criminal Appeals’ findings of fact, the court
cannot conclude that the CCA’s decision is based upon an unreasonable determination of the facts
in light of the record before the state courts.

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Because of the circuit court’s prior ruling that this claim is procedurally barred, the State
sought to exclude and then limit Fortenberry’s testimony at the evidentiary hearing about her alleged
meeting with Judge Segrest. Thus, the hearing testimony utilized by the CCA in its denying this
claim is sparse, equivocal, and is often interrupted with objections and argument about the relevance
of the testimony.45 Nevertheless, petitioner was able to elicit sufficient testimony such that he
voluntarily ceased his questioning on the matter. Rule 32 Tr. (R.-60) at 397. In pertinent part,
Fortenberry testified that she was asked by the prosecutor and investigator James Bailey to testify
about her recovery of a letter, written by petitioner and intended for his co-defendant wife, which
the prosecution intended to introduce into evidence at trial. Rule 32 Tr. (R.-60) at 390. She stated
that she had sought to have the letter provided to Bailey, who assured her “that it would be used
against Clara, and that it would never be known that I turned it in.” Id. After ongoing pressure from
the prosecutor and Bailey, whom she testified visited her house several times to speak with her about
testifying, she went to the courthouse during the trial to discuss the matter with the prosecutor. She
testified that at some point during the meeting with the prosecutor she saw Judge Segrest. Id. at 391.
She testified that Judge Segrest “came into” the meeting. Id. at 394. She clarified that neither
petitioner or his attorney were present for the meeting. Id. at 396-97. Fortenberry did not provide
any testimony about Judge Segrests’ specific conduct or statements at the meeting. Rather, when
asked what happened at the meeting, Fortenberry testified as follows:

45

Notably, the entirety of the testimony at issue was elicited in redirect examination of Fortenberry
at the evidentiary hearing. Petitioner devoted his entire direct examination of Fortenberry to eliciting
evidence about the circumstances of petitioner’s childhood and his relationship with the victims and other
family members. Petitioner questioned Fortenberry about the meeting with Judge Segrest only after the State
had questioned her about the circumstances of her trial testimony on cross-examination.

136

A.

Q.
A.

First when I talked to Mr. Clark [the prosecutor], I was upset because I didn’t
want to testify because I felt like they tricked me into it any way because of
the letter. Like I said, they ensured me about the letter. And he showed me
a picture of my grandpa and asked me if it changed my mind.
Were you pressured to testify?
I felt like I was, because they told me if I didn’t I could go to jail.

Id. at 397. After this exchange, petitioner concluded his examination of Fortenberry. Id.
It is apparent from the above summary that Fortenberry’s testimony at the Rule 32 hearing
was, at most, equivocal and vague as to the precise actions or role of Judge Segrest during the
meeting about which she testified. Nowhere did Fortenberry specifically testify that Judge Segrest
directly pressured her into testifying, much less that he threatened her with jail for refusing to testify.
The most she says of Judge Segrest is that he appeared at a meeting involving her and the prosecutor
and that she felt she had been pressured to testify due to the actions of the unspecified “they.”
Petitioner relies upon his own interpretation of the meaning behind Fortenberry’s use of “plural
pronouns” to substitute for the lack of direct testimony about specific words or actions by Judge
Segrest. See Pet’r’s Br. (Doc. # 44) at 100 n.25 (“In contrast with Mrs. Fortenberry’s use of plural
pronouns to refer to the actions of both Judge Segrest and the District Attorney, she used a singular
pronoun when referencing statements or actions undertaken only by the District Attorney.”).
However, from a fair reading of the transcript, it is not clear that when Fortenberry testified that she
felt pressured to testify because “they” told her she could go to jail if she refused, that she was
referring to Judge Segrest. Fortenberry testified that she didn’t want to testify but felt tricked into
doing so “because of the letter. Like I said, they ensured me about the letter.” Rule 32 Tr. (R.-60)
at 397 (emphasis supplied). However, her earlier testimony makes clear that any assurances about
“the letter,” including whether it would be used against petitioner and whether it would be disclosed

137

that she had provided the supposedly crucial evidence, were advanced by the prosecutor and Bailey,
the investigator who had repeatedly visited her at her home prior to trial.46 Thus, it is far from clear
that Fortenberry is referring specifically to Judge Segrest when she complains that she felt tricked
or pressured into testifying by unspecified persons. While it is possible that Fortenberry was
referring to Clark and Bailey with her first and second “they” and Clark and Judge Segrest with her
third “they,” such a conclusion certainly is not compelled by the state court record. It is equally
plausible that Clark or Bailey may have told her that she could go to jail for refusing to testify,
especially considering her unambiguous testimony that the two men visited her often to discuss her
testimony and made her promises about how and against whom the letter would be used. The record
simply is not clear. Fortenberry could have clarified the matter by offering direct and unequivocal
testimony about Judge Segrest’s specific words or deeds that caused her to feel tricked, pressured,
or threatened into testifying, but she did not do so before counsel ceased questioning her about the
meeting.
Ultimately, the fact that petitioner’s claim hinges on the ambiguous diction of the witness
and his own grammatical acrobatics to divine her intent is dispositive of this claim. Considering
Fortenberry’s ambiguous testimony and the deference owed to the state court’s findings of fact and
the statutory presumption of correctness, the court simply cannot conclude that the Court of Criminal
Appeals’ factual finding that “[t]here was no indication that Judge Segrest had had any unlawful
contact with Fortenberry, much less that he coerced Fortenberry to tesify” constitutes an
unreasonable determination of the facts in light of the record before the state courts. § 2254(d)(2).

46

See Rule 32 Tr. (R.-60) at 391 (“And I called my aunt, and I asked her to take it to James Bailey
because he was the investigator. And so she did. But it was, like I said, it was supposed to–he ensured me
that it would be used against Clara, and that it would never be known that I turned it in.”).

138

Accordingly, petitioner is not entitled to relief on his claim of judicial bias based upon the trial
judge’s purported coercion of Fortenberry’s testimony. To the extent Claim F is not procedurally
defaulted, it is denied.
D.

Claim M
Claim M is petitioner’s claim that his statement was erroneously entered into evidence at trial

because it was the product of an illegal arrest, it was involuntary, and it was culled from interview
notes that were unlawfully withheld by the State prior to trial. Pet. ¶¶ 137-43. Respondents contend
that, to the extent this claim is predicated on Brady v. Maryland, 373 U.S. 83 (1963), in that
petitioner is alleging that the State unconstitutionally withheld exculpatory information contained
within the interview notes, the claim was exhausted in the state courts and decided on its merits.
Resps.’ Ans. (Doc. # 16) 69-70. However, respondents maintain, the state court’s decision is not
contrary to, or an unreasonable application of, Supreme Court precedent and, moreover, is not based
upon an unreasonable determination of the facts. Id. Respondents further contend that, to the extent
petitioner is complaining that his statement should not have been admitted because it is the product
of an illegal arrest, his claim is barred pursuant to the doctrine of Stone v. Powell, 428 U.S. 465
(1976). Id. at 71-72. Finally, as to petitioner’s claim that his statement was involuntary, respondents
concede that the claim was exhausted and decided on its merits in the state courts, but argue that the
state court’s judgment denying the claim is not contrary to, or an unreasonable application of,
Supreme Court precedent, and is not based upon an unreasonable determination of the facts before
the state courts. Id. at 72-73. The court will examine each of petitioner’s discrete arguments about
the admission of his statement separately.

139

1.

Failure to disclose interview notes

Petitioner first appears to argue that his statement should not have been admitted at trial
because it was not complete.
The document was not a verbatim account of what Bobby Waldrop said and it
omitted portions of Mr. Waldrop’s statement. It was compiled from notes taken by
Agent Wheeles, who destroyed them before providing them to defense counsel (who
specifically requested them). The notes contained potentially exculpatory
information that Wheeles did not include in his typewritten report, which contained
only statements that he believed were truthful.
Pet’r’s Br. (Doc. # 44) at 133-34 (citations omitted). He maintains that it was erroneous for the court
to admit the statement because the State’s failure to turn over the notes “denied Bobby Waldrop his
rights to a fair trial and due process” in violation of Brady. Id. at 134. Petitioner presented this
claim on direct appeal of his conviction to the Alabama Court of Criminal Appeals, see R.-32 at 6875, which denied the claim on the merits. See Waldrop, 859 So. 2d at 1159-60. Petitioner sought
discretionary review of this claim in the Alabama Supreme Court, see R.-38 at 64-67, which was
denied except as to unrelated claims. Hence, the claim was exhausted in the state courts and the
Court of Criminal Appeals’ opinion is the relevant state court decision for purposes of applying §
2254(d). In denying this claim, the Court of Criminal Appeals observed as follows:
Waldrop maintains that, under Brady v. Maryland, 373 U.S. 83 (1963), he
was denied due process because, he says, the State failed to comply with the trial
court’s discovery order concerning alleged exculpatory evidence. Specifically, he
refers to notes written by Investigator Wheeles during his interview with him on
April 7, 1998. Waldrop argues that because Investigator Wheeles destroyed his notes
containing allegedly exculpatory material, the trial court should not have admitted
into evidence the signed statement summarizing the information contained in the
notes taken during Waldrop's interview.
The evidence at issue here was notes taken by Investigator Wheeles during
an interview of Waldrop on April 7, 1998. During a suppression hearing,
Investigator Wheeles testified that, in accordance with a standard precautionary
140

procedure of the Alabama Bureau of Investigation, he destroyed those notes.
Additionally, Investigator Wheeles stated that Investigator James Bailey compiled
a statement summarizing the information contained in his and Investigator Bailey’s
notes taken during the interview. Investigator Wheeles indicated that the information
contained in that statement did not vary from the destroyed notes. However, at trial,
Investigator Wheeles testified that Waldrop had initially told him that he was in
Georgia when his grandparents were killed. Waldrop’s statement concerning his
alleged absence from the state during the murders was not contained in the statement
summarizing Waldrop’s interview. Defense counsel objected and moved for a
mistrial on the ground that the State had violated the trial court’s discovery order and
had failed to produce the statement concerning Waldrop’s alleged absence from the
state during the murders. The trial court overruled the objection and denied the
motion for a mistrial. The trial court further determined that, because defense
counsel was able to confer with Waldrop concerning any statements he had made,
defense counsel had access to the information.
In Freeman v. State, 722 So. 2d 806 (Ala. Crim. App. 1998), this Court
addressed the discovery of a defendant’s statements to the police, wherein we stated:
“To prove a Brady violation, a defendant must show that ‘(1) the
prosecution suppressed evidence; (2) the evidence was favorable to
the defendant; (3) the evidence was material to the issues at trial.’”
Johnson v. State, 612 So. 2d 1288, 1293 (Ala. Crim. App. 1992),
quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990), cert.
denied, Stano v. Singletary, 516 U.S. 1122 (1996). See Smith v. State,
675 So. 2d 100 (Ala. Cr. App. 1995). “‘The evidence is material
only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.’” Johnson, 612 So. 2d
at 1293, quoting United States v. Bagley, 473 U.S. 667, 682, (1985).”
“. . . .
“ . . . As for the appellant’s statement to the police, the appellant’s
counsel could have discovered from the appellant himself the fact that
the appellant had given a statement. Thus, the appellant could have
obtained all of the evidence in question by exercising due diligence.
‘There is no Brady violation where the information in question could
have been obtained by the defense through its own efforts.’ Johnson,
612 So. 2d at 1294; see also Jackson v. State, 674 So. 2d 1318 (Ala.
Cr. App. 1993), aff’d in part and rev’d in part on other grounds, 674
So. 2d 1365 (Ala. 1994). “Evidence is not ‘suppressed’ if the
defendant either knew . . . or should have known . . . of the essential
facts permitting him to take advantage of any exculpatory evidence.”
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United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982)[, cert.
denied, 459 U.S. 1174 (1983)]. Carr v. State, 505 So. 2d 1294, 1297
(Ala. Cr. App. 1987) (noting, ‘The statement the appellant contends
was suppressed in this case was his own, and no reason was set forth
to explain why he should not have been aware of it.’) Where there is
no suppression of evidence, there is no Brady violation. Carr, 505
So. 2d at 1297.”
722 So. 2d at 810–11.
Given that defense counsel was able to confer with Waldrop regarding the
statement, Waldrop has failed to establish that he was injured by the destruction of
Investigator Wheeles’s notes. Because a Brady violation did not occur, the trial court
did not abuse its discretion in admitting into evidence the statement summarizing
Waldrop’s interview.
Waldrop, 859 So. 2d at 1159-60. Petitioner argues that the CCA’s decision “unreasonably applies
Brady” and “is unreasonable in light of the record, which shows that Bobby had not slept or eaten
for a long period and was laboring under extreme intoxication and/or withdrawal at the time of his
statement and therefore could not recall what was said during his interrogation with police.” Pet’r’s
Reply (Doc. # 53) at 21.
Petitioner’s argument that the state court’s decision was contrary to or an unreasonable
application of Brady is without merit. It is evident that the only information encompassed within
this particular Brady claim is petitioner’s own purportedly exculpatory statements to law
enforcement investigators. The Eleventh Circuit has affirmed the denial of habeas corpus relief
under similar circumstances. In Boyd v. Commisioner, Alabama Department of Corrections, the
habeas petitioner sought post-conviction relief in state court, alleging that “the State failed to provide
exculpatory statements made by Boyd while he was in police custody and at the District Attorney’s
office prior to being charged.” 697 F.3d at 1327-28. The state court denied relief on procedural and

142

substantive grounds. Id. at 1329. In affirming the district court’s denial of Boyd’s petition for
habeas relief, the Court of Appeals held as follows:
But even if the Brady claims, somehow, were not procedurally barred, the state court
did not act contrary to or unreasonably apply clearly established Supreme Court law
in rejecting them. As for the first one–that Boyd’s statement to police was
suppressed–this is not Brady material. Boyd was obviously present during this
questioning and thus aware of anything he may have said. Evidence is not
suppressed “if the evidence itself . . . proves that [the petitioner] was aware of the
existence of that evidence before trial.” Felker[v. Thomas, 52 F.3d 907, 910 (11th
Cir. 1995)].
Id. at 1335. Thus, it was not unreasonable in this case for the Court of Criminal Appeals to rely upon
petitioner’s presence and presumed knowledge of his own statements to the investigators in
concluding that no Brady violation occurred.
To the extent petitioner claims that the Court of Criminal Appeals’ opinion “is unreasonable
in light of the record,” in that he could not have been aware of the possibly exculpatory content of
his own statements given his mental state and purported “extreme intoxication” at the time of the
statement, see Pet’r’s Br. (Doc. # 53) at 21, the Court of Criminal Appeals separately addressed this
issue in its consideration of petitioner’s Miranda claim, which the court will discuss below. In short,
the state court rendered presumptively correct findings of fact in support of its conclusion that
petitioner’s statement was voluntary which petitioner has not rebutted by clear and convincing
evidence. Accordingly, the findings are entitled to deference under the AEDPA, and the court does
not find them, or the state court’s legal conclusion based on those findings, unreasonable. The court
concludes that, in accordance with Boyd, the CCA’s judgment that petitioner’s rights under Brady
were not violated by the State’s failure to disclose the investigators’ notes of petitioner’s own

143

statements to the investigators is not contrary to, or an unreasonable application of, Brady or any
other Supreme Court precedent.
2.

Petitioner’s claim of illegal arrest

Petitioner claims that his “statement should have been suppressed because it was the product
of an illegal arrest[,]” in that he was “arrested in his home without a warrant, without consent, and
without exigent circumstances.” Pet. ¶ 139. In response to respondents’ argument that this claim
is barred in habeas corpus by the doctrine of Stone v. Powell, petitioner argues that respondents
“overlook[] the claim that counsel was ineffective for failing to challenge the statement as the fruit
of Mr. Waldrop’s illegal arrest.” Pet’r’s Reply (Doc. # 53) at 22. Indeed, petitioner did allege in the
petition that “counsel was ineffective for not challenging the admission of Mr. Waldrop’s statement
as the fruit of an illegal arrest.” Pet. ¶ 85. He maintains that Stone “does not bar ineffectiveness
claims.” Pet’r’s Reply (Doc. # 53) at 22. To the extent this may be accurate, it nonetheless appears
petitioner concedes that any freestanding illegal arrest claim is barred by Stone. To the extent
petitioner argues that this claim remains viable due to his ineffective assistance claim, the court has
already disposed of the ineffective assistance claim in a prior portion of this opinion. Accordingly,
the court finds that petitioner is not entitled to relief on his claim that his statement was erroneously
admitted because it was the fruit of an illegal arrest.
3.

Petitioner’s claim that his statement was involuntary

Petitioner also claims that his statement “should have been suppressed because it was
involuntary.” Pet. ¶ 141. He argues that he “was arrested and interrogated immediately after a
period of several days during which he consumed cocaine and other drugs and had not slept or eaten
regularly[,]” and that trial testimony “established that he was experiencing the effects of the cocaine
144

or the withdrawal symptoms associated with its use at the time he was subjected to the investigator’s
leading questions.” Id. at ¶ 142. Thus, he maintains, “there is insufficient evidence to establish that
his confession was voluntary or that it conforms with the commands of Miranda and its progeny.”
Id. Petitioner presented this claim on direct appeal of his conviction to the Alabama Court of
Criminal Appeals, see R.-32 at 75-79, which denied it on the merits. See Waldrop, 859 So. 2d
at 1155-59. Petitioner sought discretionary review in the Alabama Supreme Court, see R.-38 at 7273, which was denied except as to unrelated claims. Hence, the claim was exhausted in the state
courts and the CCA’s opinion is the relevant state court decision for purposes of applying § 2254(d).
In denying this claim, the CCA thoroughly examined the governing law and the relevant
evidence:
Waldrop maintains that the trial court erred in denying his motion to suppress
statements he made to the police. Specifically, he claims that he was unable to
understand his Miranda[] rights and that he did not voluntarily waive those rights
because, he says, at the time of the interrogation, he was under the influence of crack
cocaine, he had been deprived of food and sleep, and he was emotional.
In Maples v. State, 758 So. 2d 1 (Ala. Crim. App. 1999), this Court stated:
“‘In reviewing the correctness of the trial court’s ruling on a motion
to suppress, this Court makes all the reasonable inferences and
credibility choices supportive of the decision of the trial court.’”
Kennedy v. State, 640 So. 2d 22, 26 (Ala. Cr. App. 1993), quoting
Bradley v. State, 494 So. 2d 750, 761 (Ala. Cr. App. 1985), aff’d,
494 So. 2d 772 (Ala. 1986), cert. denied, 480 U.S. 923 (1987). A
trial court’s ruling on a motion to suppress will not be disturbed
unless it is “palpably contrary to the great weight of the evidence.”
[citations omitted]
758 So. 2d at 41.
It has long been the law that a confession is prima facie involuntary and
inadmissible, and that before a confession may be admitted into evidence, the burden
is upon the State to establish voluntariness and a Miranda predicate. Jackson v.
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State, 562 So. 2d 1373, 1380 (Ala. Crim. App. 1990). A two-pronged test is used
to determine whether an accused’s statement is admissible. First, the trial court must
determine whether the accused was informed of his Miranda rights. Second, the trial
court must determine whether the accused voluntarily and knowingly waived his
Miranda rights before making his statement. Holder v. State, 584 So. 2d 872, 878
(Ala. Crim. App. 1991); Carpenter v. State, 581 So. 2d 1277, 1278 (Ala. Crim. App.
1991).
This Court addressed the voluntariness of a waiver of Miranda rights in Click
v. State, 695 So. 2d 209 (Ala. Crim. App. 1996):
“Whether a waiver is voluntary, knowing, and intelligent depends on
the particular facts and underlying circumstances of each case,
including the background, experience, and conduct of the
accused—i.e., the totality of the circumstances. Magwood v. State,
494 So. 2d 124, 135 (Ala. Cr. App. 1985), aff’d, 494 So. 2d 154
(Ala.), cert. denied, 479 U.S. 995 (1986); Chandler v. State, 426 So.
2d 477 (Ala. Cr. App. 1982) (citing Edwards v. Arizona, 451 U.S.
477 (1981)); Myers v. State, 401 So. 2d 288 (Ala. Cr. App. 1981).
The trial court need only be convinced from a preponderance of the
evidence that a confession or inculpatory statement was voluntarily
made. Magwood v. State, supra; Harris v. State, 420 So. 2d 812
(Ala. Cr. App. 1982). The finding of the trial court as to
voluntariness will not be disturbed unless it appears contrary to the
great weight of the evidence. Dill v. State, 600 So. 2d 343, 368 (Ala.
Cr. App. 1991), aff’d, 600 So. 2d 372 (Ala. 1992), cert. denied, 507
U.S. 924 (1993); Magwood v. State, supra.”
695 So. 2d at 218.
In Jackson v. State, 674 So. 2d 1318 (Ala. Crim. App. 1993), aff’d as to
conviction, rev’d and rem’d as to sentence, 674 So. 2d 1365 (Ala. 1994), this Court
stated:
“‘[U]nless intoxication, in and of itself, so impairs the defendant’s
mind that he is ‘unconscious of the meaning of his words,’ the fact
that the defendant was intoxicated at the time he confessed is simply
one factor to be considered when reviewing the totality of the
circumstances surrounding the confession.’” Carr v. State, 545 So.
2d 820, 824 (Ala. Cr. App. 1989). “The intoxicated condition of an
accused when he makes a confession, unless it goes to the extent of
mania, does not affect the admissibility and evidence of the
confession, but may effect its weight and credibility.” Callahan v.
146

State, 557 So. 2d 1292, 1300 (Ala. Cr. App.), affirmed, 557 So. 2d
1311 (Ala. 1989).” [citations omitted]
Jackson v. State, 674 So. 2d at 1326. See also Gaddy v. State, 698 So. 2d 1100,
1117 (Ala. Crim. App. 1995), aff’d, 698 So. 2d 1150 (Ala.), cert. denied, 522 U.S.
1032 (1997). “‘Mere emotionalism and confusion do not dictate a finding of mental
incompetency or insanity’ so as to render a statement inadmissible.” Callahan v.
State, 557 So. 2d 1292, 1300 (Ala. Crim. App. 1989), quoting Sullivan v. Alabama,
666 F.2d 478, 483 (11th Cir. 1982).
A trial court’s determination that a defendant voluntarily waived his Miranda
rights will not be overturned absent an abuse of discretion. Thompson v. State, 503
So. 2d 871, 877–78 (Ala. Crim. App. 1986); Duncan v. State, 278 Ala. 145, 176 So.
2d 840 (Ala. 1965). “Where the trial judge finds conflicting evidence that the
confession was voluntarily made, its finding will not be disturbed on appeal unless
found to be contrary to the great weight of the evidence.” Thompson, 503 So. 2d
at 878. “‘When there is conflicting evidence of the circumstances surrounding an
incriminating statement or a confession, it is the duty of the trial judge to determine
its admissibility, and if the trial judge decides it is admissible his decision will not
be disturbed on appeal ‘unless found to be manifestly contrary to the evidence.’”
A.W.M. v. State, 627 So. 2d 1148, 1150 (Ala. Crim. App. 1993), quoting Ex parte
Matthews, 601 So. 2d 52, 53 (Ala.), cert. denied, 505 U.S. 1206 (1992). See, e.g.,
Burks v. State, 600 So. 2d 374, 380 (Ala. Crim. App. 1991); Leonard v. State, 551
So. 2d 1143, 1148 (Ala. Crim. App. 1989).
During the suppression hearing, Todd Wheeles, an agent for the Alabama
Bureau of Investigations, testified that at 11:55 a.m. on April 7, 1998, in a room at
the Coweta County sheriff’s office, he read Waldrop his Miranda rights and the
waiver-of-rights form. Investigator Wheeles stated that he did not speak to Waldrop
before he read him his Miranda rights. Additionally, the record indicates that
Waldrop was not handcuffed and that he had not been charged with the murder of his
grandparents. Investigator Wheeles stated that Waldrop signed the waiver-of-rights
form, which listed his Miranda rights. The form signed by Waldrop stated:
“I have been advised of my rights and I understand what my rights
are. I am willing to make a statement and answer questions. I do not
want a lawyer at this time. I understand and know what I am doing.
No promises or threats have been made to me and no pressure or
coercion of any kind has been used against me.”
Investigator Wheeles stated that James Bailey, an investigator for the Randolph
County Sheriff’s Department, was also present and took notes during the interview.

147

According to Investigator Wheeles, neither he nor Investigator Bailey threatened,
coerced, or promised Waldrop anything in return for his making a statement.
Investigator Wheeles testified that, after Waldrop waived his rights, he asked
Waldrop if he understood why he was being questioned, and Waldrop stated that he
knew that the questioning was in reference to the deaths of Irene and Sherrell.
Investigator Wheeles stated that, in his opinion, Waldrop did not appear to be under
the influence of crack cocaine. According to Investigator Wheeles, Waldrop drank
a soft drink and smoked cigarettes during the interview.
Additionally, Investigator Wheeles testified that, after initially questioning
Waldrop, Investigator Bailey reviewed his notes and wrote a summary of Waldrop’s
statement. Investigator Wheeles stated that Investigator Bailey read the statement to
Waldrop, and that, at 1:28 p.m., Waldrop signed the statement. In that statement,
Waldrop indicated that, on the evening of April 5, 1998, he and Clara went to a
friend’s house and smoked crack cocaine for several hours. Waldrop stated that, later
that evening, he and Clara returned to his grandparents’ house, and that he and his
grandfather argued about money. Waldrop gave a detailed statement relating the
killing of his grandparents. Waldrop indicated that, during the early morning hours
of April 6, he and Clara returned to his friend’s house and that he purchased
approximately $250 worth of crack cocaine, and that he and the friend smoked the
crack cocaine. Waldrop stated that, after he finished smoking the cocaine, he
purchased another $250 worth of crack cocaine and that he and a friend smoked it.
The statement reveals that Waldrop stated that, later, on the evening of April 6, he
smoked an additional amount of crack cocaine worth approximately $50.
The record indicates that, on April 7 at 1:05 p.m. in a room at the Coweta
County Sheriff’s Department, Investigator Wheeles and Investigator Bailey
interrogated Waldrop and that Waldrop gave a second videotaped statement. In that
videotape, Waldrop acknowledged that the officers had read to him his Miranda
rights and that he understood that he had waived his rights. Additionally, Waldrop
acknowledged that he understood he was being questioned about the deaths of his
grandparents. Waldrop stated that, after killing his grandparents during the late
evening of April 5 or the early morning hours of April 6, he and Clara went to a
friend’s house and smoked approximately $250 worth of crack cocaine.
Additionally, Waldrop indicated that, after most of the crack cocaine was gone, he
purchased approximately $200 worth of crack cocaine and smoked it with friends.
Waldrop stated that, on the afternoon of April 6, he and Clara drove around and
smoked approximately $40 worth of crack cocaine. Waldrop indicated that the car
ran out of gas and that he and Clara remained in the car overnight. Waldrop stated
that, on the early morning of April 7, Clara obtained gasoline from a nearby gas
station and filled up their car. Waldrop further stated that they went to Clara’s
mother’s house, and that Clara’s mother told them about the incident, and told them
148

that they needed to give a statement to the police. Waldrop’s videotaped interview
ended at 1:25 p.m.
The trial court made the following determination:
“I have heard the evidence. There is no question that the defendant
was properly Mirandized. There is no question that the statement was
voluntarily made. I have looked at the tape. There’s no visible
evidence that he was under the influence of drugs so as to be impaired
to the extent that he didn’t know what he was doing or that he was
subject to any—or being coerced or influenced by the police to do
what he was doing. In fact, his statement was the epitome of
voluntariness. He freely told everything that he did and said. And,
of course, I’m not expert enough to know whether he might have had
some drugs in his system or not. I think legally it didn’t make too
much difference even if he had some lingering effects of voluntarily
ingested drugs in his system. I don’t think that would effect the
admissibility of the evidence. And, how much effect it has on the
weight would be up to the trier of fact, not the Court. So, the motion
to suppress is denied.”
At trial, the videotaped statement was played to the jury.
As did the trial court, we have reviewed the statement contained in the record
and the videotaped statement. Although the record indicates that Waldrop was
emotional and that he cried during the videotaped statement, a review of the
videotape reveals that Waldrop answered the law-enforcement officers’ questions in
a coherent manner and that he appeared to understand their questions. We conclude
that there is no indication that Waldrop was so intoxicated that he could not
comprehend his circumstances or that his statements were rendered involuntary.
Additionally, we reject Waldrop’s argument that his statements were not
voluntary because, he says, when he made them he had been deprived of food or
sleep for a prolonged time. See, e.g., Pardue v. State, 695 So. 2d 199 (Ala. Crim.
App. 1996). Indeed, there was no testimony from any officers indicating that
Waldrop had not received any food or that he had been prevented from sleeping, or
that he was exhausted to the point of being unable to give a voluntary statement. The
record simply does not establish that Waldrop was deprived of food or sleep before
he made the statement. Moreover, whether a defendant was physically exhausted
when he gave his statement is merely one factor to be considered by the jury in
determining the credibility and weight to afford the statement. Burgess v. State,
supra.

149

Waldrop also appears to argue that there was no showing that he was able to
read the waiver-of-rights form and the transcribed statement he signed. Although
testimony during the suppression hearing did not reveal the level of Waldrop’s
education, Investigator Bailey testified at trial that Waldrop told him he had
completed ninth grade, and that he could read, and write, and that he understood the
English language. In Ex parte Price, 725 So. 2d 1063 (Ala. 1998), the Supreme
Court of Alabama stated:
“[W]e will apply the long-standing rule that, in considering whether
the trial court properly overruled a defendant’s motion to suppress an
extrajudicial confession or other inculpatory statement, a reviewing
court may consider both the evidence presented at the pretrial
suppression hearing and the evidence presented at trial. See, e.g.,
Henry v. State, 468 So. 2d 896, 899 (Ala. Crim. App. 1984).”
725 So. 2d at 1067 (some citations omitted.). Because Investigator Bailey’s
testimony revealed that Waldrop was capable of reading the waiver-of-rights form
and the transcribed statement, the trial court did not err in admitting the statement.
There was ample evidence from which the trial court could conclude that
Waldrop’s statements were knowingly and voluntarily made. Thus, the trial court’s
determination was not palpably contrary to the great weight of the evidence.
Waldrop, 859 So. 2d at 1155-59 (citations to record on appeal omitted).
Respondents maintain that the Court of Criminal Appeals’ disposition of this claim is not
contrary to, or an unreasonable application of, clearly established federal law, and is not based upon
an unreasonable determination of fact in light of the record before the state court. Resps.’ Br. (Doc.
# 50) at 76-77. In response, petitioner argues that, given the trial evidence of his drug use,
withdrawal symptoms, deprivation of food, water, and sleep, and obvious heightened emotional state
and anxiety during the interview, respondents have not sufficiently rebutted his argument that he is
entitled to relief pursuant to § 2254(d)(2) because the state court’s factual findings are unreasonable
in light of the evidence. Pet’r’s Reply (Doc. # 53) 22-23. Petitioner also argues that the “state
court’s exclusive reliance on Miranda to resolve Mr. Waldrop’s Fourteenth Amendment

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voluntariness claim was unreasonable[,]” and that this court should “address the merits of the claim
under” separate Supreme Court precedents concerning the due process requirements for determining
the voluntariness of a statement. Id. at 23.
The determination of a confession’s voluntariness requires an examination
of the totality of the circumstances and ultimately requires an inquiry into whether
the statement was “the product of an essentially free and unconstrained choice.”
Hubbard v. Haley, 317 F.3d 1245, 1252-53 (11th Cir. 2003) (citation and quotation
marks omitted). We consider a number of factors, and the presence of one alone is
not determinative. Id. at 1253. A confession that was not the product of free will and
rational[] intellect or that was made when the individual’s will was “overborne” by
physical, psychological, or drug-induced means, is inadmissible. Townsend v. Sain,
372 U.S. 293, 307 (1963), overruled on other grounds by Keeney v. Tamayo–Reyes,
504 U.S. 1, 5 (1992). In determining whether or not a confession is constitutionally
voluntary, the truth or lack thereof of the statement is irrelevant. See Rogers v.
Richmond, 365 U.S. 534, 544 (1961).
In Alabama, although a confession will be deemed inadmissible if the
defendant’s mind was “substantially impaired” at the time of the confession,
“[i]ntoxication, short of . . . impairment of the will and mind as to make the
individual unconscious of the meaning of his words, will not render a statement or
confession inadmissible.” Free v. State, 495 So. 2d 1147, 1156 (Ala. Crim. App.
1986) (citation and quotation marks omitted). The voluntariness determination is a
matter of law for the trial court, and that court’s decision will not be reversed unless
it is manifestly wrong or contrary to the great weight of the evidence. Id.
Parker v. Allen, 565 F.3d 1258, 1280 (11th Cir. 2009). In short, a habeas petitioner claiming that
his out-of-court statement was improperly admitted because it was involuntary due to intoxication
or undue physical, psychological, or emotional influence must show that the affecting circumstance
was so pervasive that it rendered him unable to exercise free will and unaware of the meaning and
effect of his words and actions. Because this standard is so high, courts routinely deny claims
alleging involuntary confessions based upon intoxication, mental defect, and emotional and
psychological vulnerability. See, e.g., Parker, 556 F.3d at 1279-80 (holding that petitioner could not
show prejudice from counsel’s failure to challenge voluntariness of statement, despite that evidence
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indicated petitioner had consumed several beers and smoked copious marijuana on the day he gave
a statement to police); Hubbard, 317 F.3d at 1251-52 (rejecting petitioner’s claim that his statement
was involuntary due to his “‘biologically coercive state,’” caused by his alcoholism and “low I.Q.[,]”
where he gave his statement at a time when he was either intoxicated by alcohol or suffering severe
withdrawal from alcohol); and Grayson v. Thompson, 257 F.3d 1194, 1230 (11th Cir. 2001) (denying
claim that confession should have been suppressed due to alcohol intoxication and “coercive
environment” of the interrogation). See also United States v. Smith, 322 F. App’x 876, 878-79 (11th
Cir. 2009) (holding that statement was voluntary where defendant showed only that, while he had
been intoxicated, “at least three hours elapsed” before questioning began); and Duran v. Walker, 223
F. App’x 865, 874 (11th Cir. 2007) (denying habeas relief on involuntary confession claim where
police officer testified at the suppression hearing that petitioner did not appear to be under the
influence of alcohol or narcotics, petitioner appeared to understand all questions and answer
coherently, and trial court viewed videotape of interrogation before determining that statement was
voluntary).
On the issue of voluntariness, petitioner does not appear to argue that the CCA’s decision
was contrary to or unreasonably applied any clearly established federal law. Indeed, it is apparent
that, consistent with the cases discussed above, the state court correctly identified the principles
governing its review of petitioner’s claim. See Waldrop, 859 So. 2d at 1155-58. Rather, it appears
that petitioner is primarily arguing
that the state court’s decision is based on an unreasonable determination of the facts
in light of the evidence presented at trial, 28 U.S.C. § 2254(d), specifically, the
considerable evidence showing that at the time Mr. Waldrop was brought in for
questioning, he had been using significant amounts of narcotic drugs, was reeling
from the pangs of withdrawal, and had gone without sleep, food, and water.
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Pet’r’s Reply (Doc. # 53) 22-23. However, even as to this issue, the state court’s judgment survives
review under § 2254(d)(2).
The Court of Criminal Appeals reviewed the entire record and determined that, although
petitioner was clearly emotional as he recounted his actions during the interview, he nevertheless
“answered the law-enforcement officers’ questions in a coherent manner and . . . appeared to
understand their questions.” Waldrop, 859 So. 2d at 1159. Thus, the state court held that “there is
no indication that Waldrop was so intoxicated that he could not comprehend his circumstances or
that his statements were rendered involuntary.” Id. This conclusion, as a finding of fact that
petitioner challenges pursuant to § 2254(d)(2), is entitled to a presumption of correctness under
§ 2254(e)(1) which petitioner can rebut only by presenting “clear and convincing evidence” that the
state court erred in its fact finding. Burgess v. Comm’r, Ala. Dep’t of Corr., 723 F.3d 1308, 1315
(11th Cir. 2013). To meet this burden, petitioner only provides a handful of citations to the state
court record, see Pet’r’s Br. (Doc. # 44) at 135 & Pet’r’s Reply (Doc. # 53) at 22-23, consisting of
testimony and the statement itself, in support of his sweeping claim that he was so overcome by
intoxication or the symptoms of withdrawal that his statement must be considered involuntary.
Indeed, there is no dispute that petitioner consumed crack cocaine and possibly other drugs between
the time he murdered his grandparents and when he gave his statement. The statement itself
indicated that he and his co-defendant purchased $400-$500 dollars worth of crack cocaine in the
day after the murders. R.-2 at 225-27. Petitioner indicated that they had consumed all of their drugs
by the end of the day after the murders, which was the day before petitioner gave his statement to
investigators. R.-27 at 32-33. Petitioner also cites to the trial testimony of his expert witness that
his behavior during the interview–characterized by “a lot of remorse and emotional
153

fluctuations”–exhibited signs of someone “on the downside of being on crack cocaine.” R.-10 at
825.
Thus, while there is evidence that petitioner consumed significant quantities of drugs prior
to his statement, there is essentially no evidence that he remained intoxicated at the time of his
statement, much less that he was intoxicated to a degree that his statement was involuntary. Agent
Wheeles testified that he did not observe any evidence that petitioner was intoxicated at the time he
gave his statement, R.-27 at 17, and he attributed petitioner’s emotional state during the interview
to petitioner’s coping with what he had done, not the influence of drugs or withdrawal. Id. at 31-32.
Moreover, petitioner’s own expert testified that petitioner did not appear to be under the “direct”
influence of the drug at the time of his statement. R.-10 at 825. While the expert did opine that the
drug had altered petitioner’s “brain chemistry” such that he was “still experiencing the effects of the
drug” without manifest intoxication, he surmised only that petitioner’s emotional state was
consistent with someone “on the downside of being on crack cocaine.” Id.; id. at 833. Whatever
the lingering effects of crack cocaine or withdrawal might have had on petitioner, the expert
conceded that petitioner answered investigators’ questions, offered lengthy narrative accounts on his
own, and, in general, appropriately engaged in the conversation with investigators. Id. at 833-34.47
Petitioner has not presented any compelling evidence that his emotional behavior during the
interview was the result of intoxication or withdrawal from narcotics, as opposed to his own attempt
to cope with his actions and grasp their implications, or that his physical, psychological, or emotional

47

Petitioner’s expert psychologist in the Rule 32 proceedings offered a similar opinion: “In the
videotaped statement taken by law enforcement, Mr. Waldrop was distraught and emotional and unable to
withhold information. He answered every question posed by the interviewer, was not evasive, and
demonstrated appropriate emotional response.” Rule 32 C.R. at 356.

154

state–whatever its provenance–overcame his ability to exercise his free will. Finally, petitioner
failed to present any evidence that he was so deprived of food or sleep prior to making the statement
that he was incapable of rendering a voluntary confession. Indeed, the evidence indicates that
petitioner was at least provided with soft drinks and cigarettes during the interview, R.-27 at 36-37,
and, according to petitioner’s own statement, he had slept in his car the night before the interview.
Trial Tr. (R.-2) at 226.
Considering all of this evidence, this court cannot conclude that petitioner has sufficiently
rebutted the presumption of correctness to be afforded the state court’s findings supporting its
conclusion that his statement was voluntarily given. The court finds that the state court’s judgment
was not based upon an unreasonable determination of the facts in light of the record before the state
courts, and petitioner is therefore not entitled to relief pursuant to § 2254(d)(2).
Petitioner’s final argument related to this claim is that the state courts erred in failing to
address his argument “that his statement was obtained unlawfully under the Fourteenth Amendment
line of cases which includes Jackson v. Denno, 378 U.S. 368 (1964), and Brown v. Mississippi, 297
U.S. 278 (1936).” Pet’r’s Reply (Doc. # 53) at 23. Petitioner does not afford this court with a more
detailed description of any claim or argument premised on these authorities. Neither petitioner’s
petition for writ of certiorari review to the Alabama Supreme Court nor his brief in support of the
petition cites Jackson or Brown in support of his argument that the trial court erred in admitting his
statement because it was involuntarily given. See R.-38 at 72-73; R.-39 at 106-08. Both of these
filings present the claim straightforwardly as a voluntariness claim premised on Miranda and its

155

progeny. Id.48 Thus, while petitioner’s brief to the Court of Criminal Appeals included a citation
to Jackson, see R.-32 at 79, it is not clear that any discrete argument predicated on this line of cases
was fully exhausted in the state courts. Ultimately, though, whether petitioner exhausted any such
argument is inconsequential because, even assuming he did, the state court’s decision is not contrary
to, or an unreasonable application of, Supreme Court precedent.
As if petitioner’s silence on the matter was not sufficiently confounding, the court fails, on
its own, to discern the specific relevance of Jackson and Brown to his case. In Brown, which was
decided in 1936, the Supreme Court reversed a state conviction where the only evidence against the
defendant consisted of a statement that, indisputably, was the product of “[c]ompulsion by torture
to extort a confession[.]” 297 U.S. at 285. The Court simply held that due process forbids a state to
“contrive[] a conviction resting solely upon confessions obtained by violence.” Id. at 286. Petitioner
fails to explain how Brown compels the conclusion that his own due process rights were violated by
the admission of his confession, or how the state court’s judgment was otherwise contrary to, or an
unreasonable application of, Brown.
Likewise, in Jackson, which also predated Miranda, the Supreme Court rejected the State
of New York’s trial procedure for determining the voluntariness of confessions, pursuant to which
the trial judge “submitted that issue to the jury along with the other issues in the case” and instructed
the jury that “if it found the confession involuntary, it was to disregard it entirely” but that “if it
found the confession voluntary, it was to determine its truth or reliability and afford it weight
accordingly.” 378 U.S. at 374-75. Ultimately, the Court held that this procedure did not comport

48

At most, petitioner’s supporting brief only includes a boilerplate reference to the Fourteenth
Amendment in the conclusion of the claim and does not present any specific argument outside of his Miranda
claim. R.-39 at 108.

156

with due process where the voluntariness of the confession is a disputed issue: “In our view, the New
York procedure employed in this case did not afford a reliable determination of the voluntariness of
the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free
of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack
under the Due Process Clause of the Fourteenth Amendment.” Id. at 377.
The essential problem with New York’s procedure, according to the Court, was that because
“the New York jury returns only a general verdict upon the ultimate question of guilt or innocence[,]
. . . [i]t is impossible to discover whether the jury found the confession voluntary and relied upon it,
or involuntary and supposedly ignored it.” Id. at 379. This uncertainty was problematic because due
process requires that a “defendant objecting to the admission of a confession is entitled to a fair
hearing in which both the underlying factual issues and the voluntariness of his confession are
actually and reliably determined.” Id. at 380; id. at 387 (“The admixture of reliability and
voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings
in any case in which the essential facts are disputed, for we cannot determine how the jury resolved
these issues and will not assume that they were reliably and properly resolved against the accused.
And it is only a reliable determination on the voluntariness issue which satisfies the constitutional
rights of the defendant and which would permit the jury to consider the confession in adjudicating
guilt or innocence.”).
At its core, then, Jackson is concerned with the process employed by a court to reach a
reliable determination about the voluntariness of the confession. See id. at 391 (“The procedures
used in the trial court to arrive at its conclusions on the coercion issue progressively take on added
significance as the actual measure of the protection afforded a defendant under the Due Process
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Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures
must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness
of the confession, including the resolution of disputed facts upon which the voluntariness issue may
depend.”). It is evident that courts applying Jackson have recognized this as the decision’s import;
courts often refer to a “Jackson-Denno hearing” as a sort of shorthand for a separate hearing where
the parties litigate the issue of voluntariness before the trial court. See, e.g., Jones v. Walker, 540
F.3d 1277, 1295 (11th Cir. 2008); United States v. Woodard, 531 F.3d 1352, 1363 (11th Cir. 2008);
and Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001). Petitioner’s allegations
establish, at most, only that he disagrees with the ruling of the state courts on whether his confession
was voluntary. He does not appear to argue that he was afforded insufficient due process by the state
courts in reaching its determination on the matter. Petitioner has not shown that the state court’s
decision is contrary to or an unreasonable application of Jackson.
Petitioner has not shown that the state court’s judgment that his statement was voluntary is
contrary to or an unreasonable application of clearly established federal law, or that it is based upon
an unreasonable determination of fact. Accordingly, he is not entitled to habeas corpus relief on his
claim that his statement should not have been admitted on that basis.
E.

Claim N
Claim N is petitioner’s claim that his rights to a fair trial and due process were violated by

the failure of certain jurors to truthfully answer questions during voir dire and otherwise disclose
pertinent information. The majority of these jurors’ alleged failures to truthfully answer questions
relate to their supposed relationships with prosecutors, court employees, members of the victims’
(and, by extension, petitioner’s) family, and law enforcement officers. Other jurors are alleged to
158

have failed to relate information like a juror’s motivation to serve on the jury, past involvement with
law enforcement, “preoccupation” with crime-scene photographs, and failure to disclose pretrial
familiarity with the case. Pet. ¶¶ 145-150.
Petitioner first raised this claim in his Rule 32 petition. See R.-52 at 50-57. The trial court
found the claim procedurally barred, pursuant to Ala. R. Crim. P. 32.2(a)(3) & (5), because petitioner
could have, but did not, raise the claim at trial or on direct appeal. The court reasoned that “nothing
prohibited counsel from speaking with the jurors after their deliberations were completed and they
were excused. This could have occurred prior to the sentencing hearing before the judge or before
the time for a Motion for New Trial expired.” R.-73 at 18-19. In addition to its procedural ruling,
the court determined that the claim was due to be dismissed as insufficiently specific, pursuant to
Rule 32.6(b), and that, given petitioner’s insufficient allegations, the claim was also due to be
dismissed pursuant to Rule 32.7(d) because “there is no material issue of fact or law that would
entitle the petitioner to relief[,]” Id. at 19. The circuit court thus summarily dismissed this claim
without affording petitioner an evidentiary hearing. Petitioner appealed this judgment to the Court
of Criminal Appeals, see R.-63 at 75-76, which affirmed. Waldrop, 987 So. 2d at 1205. Petitioner
then sought discretionary review in the Alabama Supreme Court, R.-67 at 64-66, which was denied.
R.-76.
Respondents contend that this claim is procedurally defaulted because of the procedural bar
imposed by the Court of Criminal Appeals. Resps.’ Br. (Doc. # 41) at 40. Petitioner argues that the
CCA’s procedural ruling conflicts with state law, as made clear by the Alabama Supreme Court’s
subsequent opinion in Ex parte Burgess, 21 So. 3d 746, 754 (Ala. 2008). Pet’r’s Br. (Doc. # 44)
139-41. Petitioner also argues that Alabama state courts do not regularly or consistently apply the
159

procedural bar in similar juror misconduct cases. Id. a 141-42. Respondents then maintain that
Alabama’s state courts continue to bar juror misconduct claims in collateral review, even after Ex
parte Burgess. Resps.’ Br. (Doc. # 50) 77-79.
1.

Procedural default

Once again, in order for a state procedural rule that barred review of a claim in state court
to suffice for procedural default purposes in federal habeas corpus, the rule must be “adequate” in
that the rule is “‘firmly established and regularly followed.’” Boyd, 697 F.3d at 1336 (quoting Ford
v. Georgia, 498 U.S. 411, 423-24 (1991)). And, as noted above, federal courts generally have
recognized that Alabama’s procedural bars resulting from a Rule 32 petitioner’s failure to raise his
claim at trial or on appeal are adequate and independent state law grounds for imposing procedural
default. Id. at 1335. Thus, the court must determine whether, in this instance, the procedural bar
imposed is firmly and consistently followed in the context of claims like petitioner’s. Upon
reviewing relevant case law, the court simply cannot conclude that Alabama’s state courts regularly
have applied the relevant procedural bars as in this case.
Petitioner’s trial occurred in August of 1999. At that time, the law in Alabama on whether
a claim of juror misconduct predicated on a failure to truthfully answer voir dire questions could be
barred in a Rule 32 petition was on the precipice of a period of considerable flux. In 1992, the Court
of Criminal Appeals had decided, in State v. Freeman, 605 So. 2d 1258 (Ala Ct. Crim. App. 1992),
that a Rule 32 petitioner’s claim alleging a juror’s misconduct in failing to truthfully
answer questions on voir dire examination was not procedurally barred by Rule 32.2,
where defense counsel was not aware of the juror’s failure to truthfully answer until
one week before the court conducted the evidentiary hearing on the defendant’s Rule
32 petition.[] In Freeman, the defendant’s counsel uncovered the information during
juror interviews. Thus, the Court of Criminal Appeals held that the issue was not
procedurally barred because “the fact that the juror had been a policeman [that fact
160

was the information withheld] was not known at the time of trial or at the time of
direct appeal.”
Ex parte Pierce, 851 So. 2d 606, 616 (Ala. 2000) (citation omitted). Then, on October 1, 1999,
shortly after the conclusion of petitioner’s trial, the Court of Criminal Appeals reversed its holding
in Freeman and held that “[b]efore a claim of juror misconduct may be addressed on the merits in
a postconviction petition the petitioner must meet the requirements for newly discovered evidence
contained in Rule 32.1(e), Ala.R.Crim.P.” Brown v. State, 807 So. 2d 1, 8 (Ala. Crim. App. 1999).
Then, approximately eleven months later, in Ex parte Pierce, the Alabama Supreme Court held that,
in presenting a claim of juror misconduct based on the failure to truthfully answer questions during
voir dire, a Rule 32 petitioner is not required to satisfy the requirements for presenting a Rule 32
petition premised on “newly discovered material facts” pursuant to Rule 32.2(e). 851 So. 2d at 613.
Rather, because such claims are brought pursuant to Rule 32.1(a), they may be excluded only if they
“could have been raised at trial or on appeal,” but were not so raised. Id. In Ex parte Pierce, the
Alabama Supreme Court clearly envisioned that, in order for a petitioner to be able to show that he
could not have raised his juror misconduct claim at trial or on appeal, meaningful evidentiary
development was essential to a court’s ability to resolve the issue. Id. at 614-17. In the following
years, Alabama courts sometimes found similar claims barred in collateral review due to the
petitioner’s failure to raise them at trial or on appeal49 and sometimes concluded otherwise.50
49

See, e.g., Jenkins v. State, 972 So. 2d 165, 167-68 (Ala. Crim. App. 2005). Notably, in Jenkins,
the Rule 32 petitioner was afforded the opportunity to establish at an evidentiary hearing whether or not his
counsel could have raised his juror misconduct claim at trial or on direct appeal prior to the claim being
dismissed by the circuit court. Because Jenkins failed to offer any “evidence indicating why this claim was
raised in the Rule 32 petition and not in earlier proceedings[,]” the procedural bar was upheld. Id.
50

See, e.g., McGahee v. State, 885 So. 2d 191, 201-03 (Ala. Crim. App. 2003). McGahee, too, was
provided with an evidentiary hearing during which he introduced evidence concerning his counsel’s inability
(continued...)

161

Finally, in Ex parte Burgess, 21 So. 3d 746 (Ala. 2008), the Alabama Supreme Court greatly
clarified the viability of applying the Rule 32.2(a)(3) & (5) procedural bars to claims of this type,
and, in doing so, unambiguously repudiated the reasoning employed by the circuit court and Court
of Criminal Appeals in this case. The Court explicitly rejected the notion that counsel should be
required to engage in a “fishing expedition” to obtain evidence that jurors failed to truthfully answer
questions during voir dire in time to present such claims in a motion for new trial or on direct appeal.
The Court held as follows:
Burgess reasonably expected that potential jurors answered accurately the
questions posed to them during the voir dire examination. It is unreasonable to hold
that a defendant must uncover any and all juror misconduct in the form of inaccurate
responses to voir dire examination in time to raise such claims in a motion for a new
trial or on appeal. Requiring a defendant to raise such claims of juror misconduct
during the interval between the voir dire examination and the filing of posttrial
motions places an impracticable burden on defendants. In this case, there is no
evidence before us indicating that Burgess suspected or should have suspected that
any jurors did not accurately answer a question during the voir dire examination.
Burgess particularly did not have any reason to suspect that a juror allegedly had a
personal relationship with the district attorney because before trial his counsel had
moved for the district attorney to disclose any relationships he had with potential
jurors.
The trial court, in finding that Burgess’s claims were procedurally barred by
Rule 32.2(a)(3) and (a)(5), found “that the information obtained from the jurors was
available to newly appointed appellate counsel and could have been raised in
[Burgess's] Motion for New Trial. All counsel had to do was to interview the jurors
in post-trial interviews just as was done by petitioner’s counsel herein.” However, it
is unreasonable to require that a defendant, unaware of any failure to answer correctly
questions posed during the voir dire examination, must contact each juror and ask
whether he or she accurately and truthfully answered such questions. Jury service is
sufficiently disruptive of a citizen’s regular activities without this Court announcing
a rule that would routinely subject jurors to potentially insulting postverdict

50

(...continued)
to present his juror misconduct claim at trial or on appeal. Although the circuit court nevertheless found the
claim barred, the Court of Criminal Appeals reversed as to this finding, concluding that McGahee had
“sustained his burden of disproving the grounds of preclusion pleaded by the State.” Id. at 203.

162

interrogation concerning their veracity. Absent any evidence that a telephone call to
some or all the jurors would have been nothing more than a mere fishing expedition,
we cannot hold on this record that Burgess’s claims are precluded.
21 So. 3d at 754-55.
Thus, it is clear that the procedural bar imposed in this case is not to be imposed where
counsel reasonably has no cause to believe that jurors have failed to truthfully answer questions and
that, moreover, counsel is not required to “speak[] with the jurors after their deliberations [are]
completed and they [are] excused[,]” R.-73 at 18-19, in order to fish for hints of juror misconduct
to be presented in time for a motion for new trial. Importantly, the Alabama Supreme Court made
clear that its opinion in Ex parte Burgess was not a recalibration of existing law but was, instead,
merely based upon the CCA holdings in Freeman and DeBruce v. State, 890 So. 2d 1068 (Ala.
Crim. App. 2003), and, especially, its own opinion in Ex parte Pierce. Id. at 754. In addition, after
Ex parte Burgess, the Alabama Supreme Court has clarified that a Rule 32 petitioner is not required
to show in his Rule 32 petition “why he could not have reasonably discovered the alleged juror
misconduct in time to assert that claim in his motion for a new trial or on appeal.” Ex parte
Harrison, 61 So. 3d 986, 990-91 (Ala. 2010). Rather, where the trial record does not indicate that
the petitioner “should have been aware before he filed his motion for a new trial or his direct appeal
that some jurors had provided untruthful or inaccurate answers during voir dire examination[,]” a
claim of juror misconduct discovered during post-conviction investigation will not be procedurally
barred. Id. at 991.
In sum, it is apparent that, at the time petitioner’s trial was ongoing and in the months
following trial, Alabama’s law concerning the viability of certain procedural defenses in the context
of juror misconduct claims like petitioner’s was in a considerable state of flux. However, it is now
163

clear that the Alabama Supreme Court explicitly rejects the twin premises relied upon by the state
courts in finding petitioner’s claim procedurally barred. The Court has made clear that, where there
was nothing in the trial court record that reasonably should have caused counsel to question the
veracity of jurors,51 petitioner’s counsel was not obliged to undertake a “fishing expedition” in the
form of interviews with the jurors in time to raise his claim in a motion for new trial or on direct
appeal. Likewise, where the record evinced no reason to suspect that jurors had misled counsel,
petitioner was not required to show in his Rule 32 petition why he could not have raised his juror
misconduct claims at trial or on direct appeal. Moreover, even assuming that petitioner was required
to show that he could not have raised his juror misconduct claims at trial or on direct appeal–despite
the apparency of this circumstance in the trial record itself–petitioner was not afforded an evidentiary
hearing by the circuit court before this claim was summarily dismissed.52 All of these facts compel
the court to conclude that the state courts’ imposition of a procedural bar in this instance is not
“adequate” for procedural default purposes because it was not fairly imposed and, furthermore, is
not firmly established and regularly followed in the state courts. The court finds, therefore, that
petitioner’s juror misconduct claim is not procedurally defaulted.

51

Petitioner asserts that “[t]he trial record in this case contains no indication counsel should have
known jurors were not being truthful during voir dire.” Pet’r’s Resp. (Doc. # 44) 140 n.33. Respondents
do not dispute this assertion and do not point to any part of the record which should have caused trial counsel
to question the veracity of jurors during voir dire. Nor is this court aware of anything after its own review
of the record.
52

To be sure, when the State first argued that the circuit court should summarily dismiss petitioner’s
juror misconduct claims pursuant to Rule 32.2(a)(3) & (5), petitioner vehemently objected, arguing that his
“trial counsel could not have had any information that jurors had failed to disclose information during voir
dire” and that the voir dire transcript was not even prepared until “nearly two months after the date upon
which the motion for new trial was due.” R.-54 at 15-16. Nevertheless, the circuit court adopted the State’s
proposed order dismissing this claim as procedurally barred prior to the evidentiary hearing.

164

2.

Application of § 2254(d)

The court’s conclusion that this claim is not procedurally defaulted does not entitle petitioner
to de novo review of his juror misconduct claim on its merits. Rather, as the parties concede, the
state courts also dismissed petitioner’s juror misconduct claims on the grounds that they were
insufficiently specific, pursuant to Rule 32.6(b), and that, therefore, petitioner failed to show any
material issue of fact or law that, if proven, would entitle him to relief, as required by Rule 32.7(d).53
This court must treat this determination as an adjudication on the merits for purposes of applying §

53

In fairness, the parties agree only that the circuit court also dismissed this claim pursuant to Rules
32.6(b) and 32.7(d). Petitioner maintains that “the Court of Criminal Appeals did not adopt the trial court’s
finding that the juror misconduct allegations were insufficiently specific under Rule 32.6(b).” Pet’r’s Resp.
(Doc. # 44) 142. Petitioner arrives at this conclusion despite that the Court of Criminal Appeals never
explicitly limited its adoption of the circuit court’s judgment and, furthermore, it quotes verbatim from that
portion of the circuit court’s order dismissing the claim pursuant to Rules 32.6(b) and Rule 32.7(d) and
ultimately concludes that petitioner “failed to meet his burden under Rule 32.3” to sufficiently plead his
claim. See Waldrop, 987 So. 2d at 1205. Indeed, the portion of the CCA’s opinion recounting the circuit
court’s “alternative” holding constitutes the greatest portion of its discussion of this claim, as it includes the
circuit court’s numerous factual findings about the supposed inadequacies of petitioner’s claims about several
different jurors’ alleged misconduct. Id.
Petitioner offers no compelling justification for his proposition that the Court of Criminal Appeals
did not adopt the circuit court’s full judgment. Rather, he only asserts that “[t]hough the court did reference
Rule 32.3, it did so only on [sic] to the extent that Mr. Waldrop failed to allege in CCA is petition that his
juror misconduct claim could not have been raised at trial or on appeal (as opposed to the trial court’s finding
that the claim was not specific for various other reasons).” Petr’s’ Resp. (Doc. # 44) 142-43 n.34. But
petitioner does not explain why or how he draws this conclusion, and it is not self-evident, or even implicit,
on the face of the opinion itself. In order to accept petitioner’s argument, the court would have to conclude
that the CCA deliberately but superfluously included a lengthy excerpt from the circuit court’s opinion which
provides many factual findings about the merits of petitioner’s allegations but which was wholly irrelevant
to the court’s singular procedural ruling. Lacking any indication of such intent, the court believes that the
CCA is entitled to the benefit of doubt. In any event, at most, the opinion is only ambiguous on this point.
A more reasonable reading, however, is that, where the CCA did not expressly limit its adoption of the circuit
court’s opinion to its procedural bar judgment, and it further devoted the greatest portion of its discussion
of this claim to a verbatim quote of the lower court’s application of Rules 32.6(b) and 32.7(d), and where
it concluded its analysis by upholding the lower court’s finding that petitioner failed to fulfill his sufficient
pleading obligations under Rule 32.3, the CCA also adopted the circuit court’s finding that petitioner failed
to sufficiently plead his claim and that it was therefore due to be dismissed pursuant to Rules 32.6(b) and
32.7(d).

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2254(d). Lee, 726 F.3d at 1208; Borden, 646 F.3d at 816. Thus, the circuit court rendered, and the
Court of Criminal Appeals later adopted, numerous factual findings related to the underlying merit
of petitioner’s juror misconduct claims before denying them on their merits. As the court has
determined that petitioner’s claim is not procedurally defaulted, the court is required to review the
state court’s merits determinations pursuant to the AEDPA.
The court will first summarize petitioner’s specific allegations of juror misconduct.
Petitioner’s allegations respecting each juror are as follows: a) juror A.W. failed to disclose that she
“knew the prosecutor and her husband[,]” that she knew “Sheriff Jeff Fuller and his wife on a
personal basis[,]” and that “she knew the victims’ son-in-law and Mr. Waldrop’s uncle, Darrell
Boyd” (Pet. ¶ 145); b) juror H.S. failed to disclose that he or she had met Circuit Clerk Kim
Benefield “when she spoke at the juror’s community club[,]” and that he or she knew Sheriff Fuller
(Id. at ¶ 146); c) juror W.W. failed to disclose that she had previously “spoken to Ms. Benefield
when filing legal papers” (Id.); d) juror A.M. failed to disclose that she knew “deputy district
attorney Baldwin and had worked at a Movie Gallery video rental store, which Ms. Baldwin
frequented” (Id.); e) juror C.S. “did not reveal that he knew Sheriff Fuller” (Id.); f) juror M.S. failed
to “disclose that he knew several members of victim Irene Prestridge’s family[,]” from whom he had
frequently purchased moonshine, failed to disclose that his interest in serving on the case stemmed
from guilt he felt for previously lying to escape jury duty in a separate murder case, failed to disclose
that he knew Deputy District Attorney Baldwin and Sheriff Fuller, failed to disclose that he had a
DUI conviction, and failed to disclose supposedly relevant information about his own preconceived
notions regarding the presumption of innocence, the defendant’s right to remain silent, and the need
for trial “since Bobby plead guilty” (Id. at ¶ 147); g) juror L.W. failed to disclose that her brother had
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“repeated run-ins with the Randolph County Sheriff’s Department and recently had been prosecuted,
convicted, and sent to jail” for DUI (Id. at ¶ 148); h) juror S.N. failed to disclose–apparently before
having seen any of the crime scene photographs–that she would be preoccupied by the gore depicted
in the photographs (Id. at ¶ 149); and i) juror D.C. failed to disclose that she “had been neighbors
with Sheriff Fuller’s parents and had met Sheriff Fuller socially on several occasions” and failed to
disclose that she54 had heard of the case prior to being called for jury service (Id. at ¶ 150).
All material allegations in support of petitioner’s juror misconduct claim were raised in his
Rule 32 petition in the state courts. See R.-52 at 50-57. In addition to finding the claim procedurally
barred because petitioner did not raise it at trial or on direct appeal, the circuit court found as
follows:
In addition to the procedural bar discussed above, the Court further finds that
these claims are not sufficiently specific and are subject to being denied for that
reason. Waldrop’s petition discusses an individual juror in each section of this claim.
Most of the allegations concern the juror “knowing” some named person, but not
disclosing that information. For example, Juror A.W. is suppose to know the
Assistant District Attorney Melody Baldwin and her husband, while juror H.S. is
suppose to know Sheriff Jeff Fuller. However, Waldrop does not indicate how or
when he discovered “the relationships” existed, when they occurred, or whether they
might have had any effect on the juror’s ability to remain unbiased. Also juror W.H.
acknowledged that he knew Sheriff Fuller (R. 275), but was not struck. Similarly,
juror W.W. is suppose to know Circuit Clerk Kim Benefield through “filing legal
papers.” A relationship such as this is not the kind of “knowledge” that would
influence a juror. Additionally, two people who remained on the jury acknowledged
knowing Ms. Benefield–juror A.K. (R. 206) and alternate C.S. (R. 90). It should also
be noted that two of the Sections (D and G) concern the two alternates, juror C.S. and
juror M.S. A juror who is dismissed before deliberations begin would not be in a
position to improperly influence those deliberations. . . . For these reasons, this
claim is denied because it is not sufficiently specific, Rule 32.6(b), and because there
is no material issue of fact or law that would entitle the petitioner to relief. Rule
32.7(d).

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The petition uses both “he” and “she” as pronouns referring to juror D.C. See Pet. ¶ 150. Upon
review of the trial transcript, the court believes that D.C. is female.

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R.-73 at 19. As discussed above, the Court of Criminal Appeals wholly included and adopted the
circuit court’s finding. See Waldrop, 987 So. 2d at 1205.
Petitioner argues that the failure of the subject jurors to truthfully answer questions or
disclose requested information violated his “rights to due process, a fair and impartial jury, and a
reliable conviction and sentence as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution.” Pet’r’s Br. (Doc. # 44) at 136-37 (citing Morgan
v. Illinois, 504 U.S. 719, 727 (1992); Irwin v. Dowd, 366 U.S. 717, 722 (1961); and Rogers v.
McMullen, 673 F.2d 1185, 1188 (11th Cir. 1982)). He asserts that he was prevented from
“challenging [the jurors] for cause or using a peremptory challenge to remove them from the
venire[,]” and, therefore, he was “not tried before a panel of ‘impartial, indifferent jurors.’” Id. at 144
(quoting Irwin, 366 U.S. at 722). Petitioner therefore argues that “the state court adjudication of this
claim resulted in a decision that was contrary to, and involved an unreasonable application of, clearly
established United States Supreme Court precedent.” Pet. ¶ 151; Pet’r’s Br. (Doc. # 44) at 144.
Despite that the court entered an order instructing respondent to submit briefing addressing the
merits of petitioner’s claims in addition to raising any applicable procedural defenses, respondents
have not addressed the merit of petitioner’s juror misconduct claim and , instead, have only argued
that the claim is procedurally defaulted. See Resp.’s Br. (Doc. # 41) at 39-41; Resp.’s Br. (Doc. #
50) at 77-80.
The Supreme Court has recognized that “due process alone has long demanded that, if a jury
is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must
stand impartial and indifferent to the extent commanded by the Sixth Amendment.” Morgan, 504
U.S. at 727. Moreover, “part of the guarantee of a defendant’s right to an impartial jury is an
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adequate voir dire to identify unqualified jurors.” Id. at 729. Of course, truthful responses by jurors
during voir dire are essential to vindicating the defendant’s right to a fair trial.
Voir dire examination serves to protect that right by exposing possible biases, both
known and unknown, on the part of potential jurors. Demonstrated bias in the
responses to questions on voir dire may result in a juror being excused for cause;
hints of bias not sufficient to warrant challenge for cause may assist parties in
exercising their peremptory challenges. The necessity of truthful answers by
prospective jurors if this process is to serve its purpose is obvious.
McDonough Power Equip., Inc., v. Greenwood, 464 U.S. 548, 554 (1984). Given the interests at
stake, each instance of alleged juror misconduct must be considered in its own context, as not all
errors, mistakes, or obfuscations require a retrial.
A trial represents an important investment of private and social resources, and it ill
serves the important end of finality to wipe the slate clean simply to recreate the
peremptory challenge process because counsel lacked an item of information which
objectively he should have obtained from a juror on voir dire examination. . . . We
hold that to obtain a new trial in such a situation, a party must first demonstrate that
a juror failed to answer honestly a material question on voir dire, and then further
show that a correct response would have provided a valid basis for a challenge for
cause. The motives for concealing information may vary, but only those reasons that
affect a juror’s impartiality can truly be said to affect the fairness of a trial.
Id. at 555-56.
Thus, assuming the veracity of petitioner’s allegations that certain jurors failed to adequately
respond to voir dire questions or otherwise disclose pertinent information, the question becomes at
what point did such “juror misconduct” deprive petitioner of a fair trial as required by the
Constitution? This inquiry–whether the juror failed to disclose information that would have
provided grounds supporting a for-cause challenge–requires the court to assess whether the withheld
information establishes or suggests “a showing of bias that would disqualify the juror.” United
States v. Ervin, 517 F. App’x 734, 743 (11th Cir. 2013). “Actual bias may be shown either by

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express admission or by proof of specific facts showing such a close connection to the circumstances
at hand that bias must be presumed.” Id. (citing United States v. Carpa, 271 F.3d 962, 967 (11th Cir.
2001)). Furthermore, a “juror’s bias may be implied if the juror has a special relationship with a
party, such as a familial or master-servant relationship.” Id. (citing United States v. Rhodes, 177
F.3d 963, 965 (11th Cir. 1999)).
Applying these standards to petitioner’s allegations of juror misconduct, the court cannot
conclude that the state court’s finding that petitioner’s claim is inadequate or insufficient on the
merits is contrary to, or an unreasonable application of, the Supreme Court precedents discussed
above. To begin, the great majority of petitioner’s allegations of misconduct concern jurors who
failed to disclose their supposed relationships or familiarity with Assistant District Attorney
Baldwin, Sheriff Fuller, or Circuit Clerk Benefield. None of these relationships is described as
anything more substantive than just “knowing” the respective person, as in having met them at some
social or political event, through work encounters such as at a movie rental store, or through ordinary
and perfunctory interactions like filing legal papers. These jurors’ mere familiarity with one of these
persons would not have supported a for-cause challenge of the respective jurors and, indeed, many
jurors who disclosed their familiarity or relationship with the same individuals were not challenged
for cause on that basis.55 In addition, petitioner does not even allege that any of the subject jurors
were rendered biased due to their supposed familiarity with Baldwin, Fuller, or Benefield. In sum,

55

For example, potential jurors C.H., M.A., B.C., P.R., W.H, and L.T. all indicated that they knew
Sheriff Fuller but were not challenged for cause on that basis. Likewise, numerous potential jurors indicated
that they knew Clerk Benefield, including eventual jurors C.S., L.W., and A.K., yet also were not challenged
on that basis. Notably, in contrast to his voir dire questioning of the other panels, counsel did not even
inquire of the second panel of potential jurors whether they knew Baldwin, Fuller, or Benefield. See Trial
Tr. (R.-4) at 120-140.

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none of the attenuated relationships or interactions with the persons described in the petition
demonstrate “actual bias” on the part of the juror or even suggest that the juror enjoyed a “special
relationship” with a party or otherwise had “such a close connection to the circumstances at hand that
bias must be presumed.” Ervin, 517 F. App’x at 743.
Petitioner also alleges that certain jurors failed to disclose their familiarity or relationships
with the victims or their families. See Pet. ¶¶ 145, 147, and 150. Depending on the strength or
character of any such relationships, the prospect of actual or implicit bias is certainly more acute
where the victims or their close family members are concerned, and is therefore deserving of
heightened scrutiny. However, even in this respect, petitioner’s allegations are insufficient, as none
of the information supposedly withheld by the jurors would have supported a for-cause challenge
of the juror. First, petitioner claims that juror A.W. “knew the victims’ son-in-law and Mr.
Waldrop’s uncle, Darrell Boyd.” Id. at ¶ 145. Petitioner does not describe the circumstances of this
juror’s relationship with Mr. Boyd, and the mere fact that A.W. may have known an in-law of the
victims does not compel the conclusion that the juror had a “special relationship” with the victims
or, for that matter, any other party, or was otherwise closely connected to the circumstances of the
case.56 Likewise, petitioner claims that juror M.S. failed to “disclose that he knew several members
of victim Irene Prestridge’s family[, from whom] he had purchased moonshine . . . on numerous
occasions.” Id. at ¶ 147. Petitioner does not more fully describe these members of Irene Prestridge’s

56

Petitioner contends that “[t]rial counsel struck both jurors who disclosed during voir dire that they
knew one or both of the victims.” Pet. ¶ 145. Even if true, this does not resolve the court’s inquiry. The
withheld information must be sufficient to support a for-cause strike. Greenwood, 464 U.S. at 556. Trial
counsel did not lodge a for-cause challenge to all jurors who knew the victims. For example, potential juror
C.H. testified that she knew Mr. Prestridge from his having purchased auto insurance at her place of
employment. Trial Tr. (R.-4) at 113-14. She was not challenged for cause by trial counsel.

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family so that a court could attempt to discern whether M.S. even arguably could have had a “special
relationship” with the victim or was otherwise closely connected with the circumstances of the case.
Nor is the court persuaded that M.S.’s purported purchasing of moonshine from these family
members could establish any such “special relationship” were the family members better described
in the petition.57 Finally, petitioner claims that juror D.C. failed to disclose that she had “heard of
the Prestridge and Waldrop families” because she had grown up near where they lived.” Id. at 150.
This allegation is plainly inadequate, as it does not indicate a relationship of any sort with the
victims, petitioner, or any of their close family members.
Petitioner claims that juror L.W. failed to disclose that her brother had multiple run-ins with
the Randolph County Sheriff’s Department and had recently been convicted of DUI in Randolph
County. Pet. ¶ 148. During voir dire of the panel that included L.W., the prosecutor asked, “Have
you, or any member of your family, ever been prosecuted by me personally or member of my staff?”
Trial Tr. (R.-4) at 76. A follow-up question was whether “any member of your immediate family,
that is, mother, father, brother, sister, or children, ever been charged with or convicted of a crime?
. . . I will be interested in knowing if you, or some immediate member of your family, has been
arrested for DUI, for example.” Id. As an initial matter, the court struggles to perceive how L.W.’s
alleged failure to disclose information concerning her brother’s conviction could have prejudiced
petitioner, considering that any implicit bias resulting from the conviction would most logically be
directed at the State. This is why it was the prosecutor, not petitioner’s counsel, who asked the
question during voir dire in hopes of discovering potential sources of bias against his office. In any

57

In addition, as will be discussed below, M.S. was an alternate juror and was dismissed prior to
deliberations. See Trial Tr. (R.-15) at 988-89. Petitioner has not shown, or even alleged, that the jury’s
deliberations could have been affected by M.S.’s alleged “misconduct.”

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event, had L.W. fully disclosed her brother’s legal entanglements or conviction during voir dire, she
would not have revealed any information establishing ground for a for-cause challenge.58 Petitioner
does not allege that L.W. was somehow biased against him as a result of her brother’ conviction,
such that she was unable to impartially consider the evidence and make findings of fact. Thus, at
most, had L.W. fully responded to the prosecutor’s voir dire examination, she would have provided
additional information for petitioner to consider in using his peremptory challenges. However, “it
ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory
challenge process because counsel lacked an item of information which objectively he should have
obtained from a juror on voir dire examination.” Greenwood, 464 U.S. at 555. Because L.W.’s
failure-to-disclose did not result in actual or even suggested bias to petitioner, the state court’s
conclusion that this claim is insufficient and without merit is not contrary to or an unreasonable
application of Supreme Court precedent.
Petitioner also faults juror S.N. for failing to respond to “counsel’s question whether any of
the prospective jurors thought the gore of the crime scene and autopsy pictures would preclude them
from fairly considering the evidence.” Pet. ¶ 149. He claims that S.N. “was so disturbed by the
pictures that she discussed them with another juror at night and felt like the pictures were out of a
horror movie.” Id. He asserts that none of the prospective jurors who suggested that they might be
unable to fairly consider the evidence due to the photographs actually served on the jury. During
voir dire examination, petitioner’s trial counsel repeatedly asked the juror panels whether

58

Indeed, other potential jurors disclosed their or their family members’ criminal convictions and
were not challenged for cause. For example, prospective juror A.Y. disclosed her own conviction for “a bad
check” and her father’s assault conviction in Randolph County, while prospective juror L.T. disclosed his
grandsons’ drug charges in Randolph County. See Trial Tr. (R.-4) at 261-64. Neither was challenged for
cause by petitioner or the State.

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photographs depicting the gory results of his client’s actions might so affect the jurors that they
would not be able to consider all of the evidence introduced at trial. Of course, at this point, none
of the jurors had actually seen the photographs. During examination of the panel that included S.N.,
panel two, trial counsel again attempted to query the jurors about the photographs. Trial Tr. (R.-4)
at 137. The trial court interjected that counsel was “asking them to judge the evidence in advance”
and asked that counsel rephrase his question. Id. at 137-38. Trial counsel rephrased the question
and the prosecutor requested a sidebar at which he argued that the pictures were important evidence
that the jury should consider. Id. at 138. Trial counsel then attempted again to probe the jury on
whether they would be so “inflamed” by the pictures that they would be unable to consider other
evidence. Id. No member of the panel responded. The trial judge then queried the jury as follows:
If you see a picture of two elderly people with their throats cut and a puddle of blood,
gory pictures, horrible pictures, would that inflame your passions so much that you
would not consider the other evidence, corroborating evidence, being so angry and
upset about those pictures that you wouldn’t require the full measure of proof that
you would have required in the absence of [the] gory picture[s]?
Id. at 139. At this point, it appears that prospective juror M.L. responded to the judge’s questions
but was not further examined by counsel before moving on to his next question for the entire panel.
Id.
Petitioner’s claim about the alleged misconduct of S.N. is problematic in several respects.
First, it is difficult to fault S.N. for purportedly failing to truthfully answer a question about how
affecting certain gory pictures might be without her having been afforded the opportunity to actually
view the pictures. In effect, S.N. is accused of “misconduct” for failing to accurately anticipate her
reaction to visceral stimuli that she had not yet experienced. Even being asked to assume the worst
by the trial judge may not have prepared her for what was depicted in the photographs. Second,
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given the back-and-forth that occurred between the attorneys and the judge when this question was
put to S.N.’s panel, any confusion about the question and how to answer is perhaps understandable.
Third, other prospective jurors who suggested some uncertainty about their ability to dispassionately
consider the evidence despite the photographs were not challenged for cause. For example,
prospective juror M.L. responded to the trial judge’s question about the photographs but was not
challenged for cause on that basis. Instead, she was challenged-for-cause by the State because her
answers to certain questions indicated that she could not participate in a decision resulting in a death
sentence. See Trial Tr. (R.-4) at 163-64. In panel one, L.W. (not the L.W. who eventually served
on the jury), H.T., and C.S. (who served as an alternate juror) all initially indicated that the
photographs might affect their ability to impartially and dispassionately consider the evidence. Id.
at 87-89. After the trial judge elicited their assurances that they could fairly consider the evidence
at trial, none of these prospective jurors were challenged for cause by counsel. Finally, petitioner’s
allegations with respect to S.N. are simply insufficient. Petitioner states that S.N. was “preoccupied”
with the photographs because she found them “disturbing,” and that she discussed them with another
juror and felt like they were something “out of a horror movie.” Petitioner does not allege that S.N.
was unable to fairly and impartially consider other evidence introduced at trial when deliberating on
a verdict. Thus, petitioner alleges nothing more substantial than that S.N. was very understandably
affected by the gore depicted in the photographs of his dead grandparents, and that she likely
remained so whenever she discussed the matter with persons acting on petitioner’s behalf years later.
Because petitioner does not allege that S.N. was unable to fairly perform her role as a juror due to
her purported preoccupation with crime scene photographs, the state court’s judgment that this

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allegation of juror misconduct is insufficient and without merit is not contrary to, or an unreasonable
application of, Supreme Court precedent.
Petitioner alleges that juror D.C. failed to disclose that she “had heard about the crime before
she was called for jury service.” Pet. ¶ 150. Petitioner alleges only that D.C. had “heard” of the
crime, not that her pretrial exposure to information about the crime rendered her biased against
petitioner or otherwise affected her ability to fairly and impartially consider the evidence at trial.
Petitioner does not even provide specific allegations about the form or depth of D.C.’s pretrial
knowledge of the crime. Most of the prospective jurors across all four panels disclosed some
familiarity with the crime from local newspaper accounts or through conversations with others in
the community. Overwhelmingly, these prospective jurors were not challenged for cause on this
basis. Thus, had D.C. disclosed that she had simply “heard” of the crime during voir dire, she would
not have revealed any information that would have supported a for-cause challenge. Moreover, for
the reasons discussed above, petitioner’s argument that “[h]ad trial counsel been aware of Juror
D.C.’s knowledge, counsel would have been able to ask follow up questions to determine the extent
to which Juror D.C. could fairly and impartially apply the law” is unavailing. Because D.C.’s failure
to disclose at most then deprived trial counsel of “an item of information which objectively he
should have obtained” for purposes of considering peremptory strikes, but did not deny counsel the
opportunity to challenge D.C. for cause, the state court’s judgment that this claim is insufficient and
lacks merit is not contrary to, or an unreasonable application of, Supreme Court precedent.
Greenwood, 464 U.S. at 555.
Petitioner’s final allegation of juror misconduct concerns alternate juror M.S., whom, he
alleges, in addition to the allegations discussed above with respect to M.S.’s relationships with the
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victims’ family, A.D.A. Baldwin, and Sheriff Fuller, failed to disclose his motive for wanting to
serve on the jury, failed to disclose his rejection of the presumption of innocence and petitioner’s
right to remain silent, failed to disclose his apparent belief that the trial was a “waste” “‘since Bobby
plead guilty[,]’” and failed to disclose a prior conviction for DUI. Pet. ¶ 147. Petitioner’s
allegations with respect to M.S. are similarly insufficient. First, petitioner does not explain why
M.S.’s purported motive to serve on the jury would have rendered him biased or subject to a forcause strike. He also does not indicate when or how M.S. should have disclosed his supposed
motive. There was no question in voir dire for which such disclosure would have been expected.
As for M.S.’s feelings about the presumption of innocence, petitioner’s right to remain silent, and
the “waste” of holding a trial, petitioner fails to show how these views affected his trial considering,
as the state courts noted, that M.S. was an alternate juror who did not participate in deliberations.
See Trial Tr. (R.-15) 988-89. Petitioner does not allege that M.S.’s views somehow influenced the
jurors who did serve on the jury. Ultimately, the Constitution is concerned only that the jury which
decides the defendant’s fate be “impartial and indifferent to the extent commanded by the Sixth
Amendment.” Morgan, 504 U.S. at 727. While M.S.’s alleged failure to disclose several important
beliefs, relationships, or a prior conviction could be concerning in some contexts, any constitutional
concerns are mitigated by the fact that M.S. did not participate in the jury’s deliberations and
petitioner has made no allegation that M.S.’s alleged “misconduct” somehow influenced the jury or
otherwise deprived him of a fair trial. Accordingly, the state court’s conclusion that this aspect of
petitioner’s juror misconduct claim is insufficient and without merit is not contrary to, or an
unreasonable application of, Supreme Court precedent.

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In sum, each of petitioner’s claims of juror misconduct concerning jurors who actually
participated in deliberations is insufficient because it faults the juror for failing to disclose some item
of information that would not have alone supported a for-cause challenge of the juror but, rather,
would have at most only provided an item of information for consideration in making peremptory
challenges. Petitioner does not allege that the items of information withheld by the jurors
represented actual biases held by those jurors against petitioner. Rather, he only argues that he was
prevented “from challenging them for cause or using a peremptory challenge to remove them from
the venire.” Pet’r’s Br. (Doc. # 44) at 144. However, as shown above, with respect to each category
of withheld information, petitioner did not challenge for cause other prospective jurors with similar
disclosures and, as to any restriction on his ability to make peremptory challenges, the Constitution
does not require a new trial “simply to recreate the peremptory challenge process because counsel
lacked an item of information which objectively he should have obtained from a juror on voir dire
examination.” Greenwood, 464 U.S. at 555-56. Accordingly, the court concludes that the state
court’s judgment that petitioner’s juror misconduct claim is insufficient and without merit is not
contrary to, or an unreasonable application of, Supreme Court precedent.
F.

Claim P
Claim P is petitioner’s claim that the State failed to disclose exculpatory evidence to him at

trial. Specifically, he alleges that the State failed to turn over the investigator’s notes which were
later used in composing his statement, as discussed in conjunction with Claim M, supra, and that
the State failed to disclose “evidence that Bobby Waldrop’s mother had been arrested.” Pet. ¶ 156.
As the court has already concluded that petitioner is not entitled to habeas corpus relief with respect
to the Brady component of Claim M, Claim P will be denied to the extent that it relies upon the same
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allegations already addressed in the disposition of Claim M. Thus, the remainder of the court’s
discussion of Claim P will concern only petitioner’s Brady claim about the State’s alleged
suppression of the records of contacts, arrests, and/or convictions of his mother.
According to petitioner, information about his mother’s arrests “would have led to a wealth
of mitigation evidence, including information relating to her incessant adultery, maternal
abandonment, and all-around inadequate parenting skills[,]” and ultimately would have “prompted
more jurors to vote for life and tipped the scales in favor of preventing the trial judge from
overriding.” Pet’r’s Br. (Doc. # 44) at 147, 149. He contends that the State’s actions denied “his
rights to due process, a fair trial and a reliable sentencing proceeding in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution.” Id. at 149. Respondents
maintain that the state courts addressed this claim on the merits, and that the Court of Criminal
Appeals’ decision is not contrary to, or an unreasonable application of, clearly established federal
law, and is not based upon an unreasonable determination of the facts in light of the record before
the state courts. Resps.’ Br. (Doc. # 50) 80-82.
Petitioner first raised this claim in his Rule 32 petition, in which he claimed that the State
violated his due process rights by withholding “exculpatory information favorable to the defense,
including facts about Shirley Irelan’s prior dealing with the prosecutor’s office.” R.-52 at 57-58.
The Rule 32 court denied the claim, concluding that information pertaining to the arrests of
petitioner’s mother was not exculpatory: “Ms. Irelan testified as a defense witness in the guilt phase
of the trial. During the cross examination of Ms. Irelan, the State did not bring out any ‘prior
dealings with the prosecutor’s office.’ Therefore no harm befell Waldrop at the trial.” R.-73 at 20.
Thus, the Rule 32 court held that petitioner had failed, pursuant to Ala. R. Crim. P. 32.7(d), to show
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that a material issue of fact or law existed that would entitle him to relief. Id. On appeal, petitioner
challenged the summary nature of the Rule 32 court’s denial of his claim, faulting the Rule 32 court
for accepting the “State’s assumptions” that the withheld material was not exculpatory and arguing
that his Brady claim could not be denied “based on assumptions about what the withheld material
contains.” R.-63 at 74-75. The Court of Criminal Appeals affirmed, citing its own previous holding
that “‘a defendant is not entitled to the general disclosure of the criminal records of the state’s
witnesses.’” Waldrop, 987 So. 2d at 1204 (quoting Hardy v. State, 804 So. 2d 247, 286 (Ala. Crim.
App. 1999)). Petitioner subsequently raised this claim in his petition for certiorari to the Alabama
Supreme Court, see R.-67 at 63-64, which was denied. See R. 76.
In this court, petitioner contends that, in denying the claim, the state courts
“misapprehend[ed] the nature” of the claim, thereby resulting in a decision that is “contrary to and
an unreasonable application of Brady.” Pet’r’s Br. (Doc. # 44) at 148-49. He maintains that his
Brady claim about the withholding of information about his mother’s arrests “pertains to the
sentencing phase,” in that it supposedly would have provided insight about petitioner’s dysfunctional
upbringing, not any need to impeach petitioner’s mother during her guilt phase testimony. Id.
Respondents contend that any misapprehension of petitioner’s claim is his own fault, not that of the
state courts.59 In any event, even assuming that petitioner “fairly presented” and thus exhausted this
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Notably, petitioner did not articulate at all levels of the state courts the rationale he now argues
in support of this claim. In his Rule 32 petition, he did not plead that information about his mother’s prior
arrests was essential to his preparation for the sentencing phase of his trial. See R.-52 at 57-58. Even after
the State asked that the Rule 32 court summarily dismiss this claim as insufficiently specific because, in part,
the Rule 32 petition did not “contain any information about . . . how this information would have been
helpful to Waldrop[,]” R.-55 at 18, petitioner still failed to argue that such information was material to his
preparation for the sentencing phase. See R.-56 at 15-16. In the portion of his brief before the Court of
Criminal Appeals which concerned this claim, petitioner again failed to describe how the supposedly
suppressed information would have been helpful to him. Instead, petitioner argued only that summary
(continued...)

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claim in the state courts, the claim is due to be denied because the Court of Criminal Appeals’
decision is not contrary to or an unreasonable application of Brady, as argued by petitioner.
The Eleventh Circuit recently recited the burden to be carried by a habeas petitioner alleging
a Brady violation:
To prove a Brady violation, a defendant must establish three elements: (1) the
evidence at issue is “favorable to the accused, either because it is exculpatory, or
because it is impeaching”; (2) this favorable evidence was “suppressed by the State,
either willfully or inadvertently”; and (3) the defendant suffered prejudice as a result.
Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 745–46 (11th Cir. 2010) (internal
quotation marks omitted). To establish prejudice (also referred to as materiality), a
defendant must demonstrate “‘a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’”
Id. at 746 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” Parker v. Allen, 565 F.3d 1258, 1277 (11th Cir. 2009) (internal quotation
marks omitted).
Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 258 (11th Cir. 2013). As a preliminary matter,
the court finds that petitioner has failed to sufficiently describe the evidence that he accuses the State
of unlawfully suppressing. Petitioner alleges only that the State suppressed “evidence that Bobby
Waldrop’s mother had been arrested.” Pet. ¶ 156. In his brief, he alludes to “evidence of his
mother’s convictions” and other evidence of her contacts with law enforcement, “including that she
had been arrested or had the authorities called on her when Bobby was a child[.]” Pet’r’s Br. (Doc.
# 44) at 148. However, the habeas petition does not provide the particulars of these various arrests,

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(...continued)
dismissal of his claim was inappropriate, and that he was entitled to “full process,” including presenting
evidence in support of the claim, in the lower court. R.-63 at 74-75. It was only in his subsequent petition
for certiorari review in the Alabama Supreme Court that petitioner finally argued that the purportedly
suppressed material was pertinent to his effort to investigate mitigation evidence for the sentencing phase.
See R.-67 at 63-64. Thus, it is apparent that much of the state courts’ “misapprehension” of petitioner’s
claim in the relevant state court decision is attributable to petitioner’s own failure to properly describe the
contours of his claim, even when the State’s arguments and the lower court’s ruling implored him to do so.

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contacts, or convictions, including their number, the circumstances of any such event, or how any
of them might have uniquely caused or influenced the dysfunctional home environment that they are
purported to have evidenced.60 However, even if the court assumes that evidence about petitioner’s
mother’s arrests was indeed “favorable” to his mitigation case, and that such information was also
“suppressed” by the State61, petitioner’s claim still must fail. Because petitioner cannot satisfy the
prejudice or materiality requirement, he cannot show that the state court’s conclusion that
information about his mother’s arrests or convictions was not Brady material is contrary to or an
unreasonable application of Brady.
Petitioner cannot show that, had he been privy to information about his mother’s law
enforcement contacts, arrests, or convictions–and it strains credulity to suggest that he was not aware
of at least some this information anecdotally or through his own observation, independent of the
prosecution–there is a reasonable probability that the outcome of his trial and sentencing would have
been different. First, it is not reasonably probable that evidence about petitioner’s mother’s

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In his Rule 32 petition, petitioner described frequent law enforcement contacts at his home for
“domestic violence calls” and also alleged that, during her marriage to his father, petitioner’s mother “was
repeatedly arrested for disorderly conduct and disturbing the peace.” R.-52 at 12, 13. He also alleged that
his mother was arrested, in separate incidents, for throwing a sledgehammer at her sister’s boyfriend and
“shooting into an occupied vehicle,” the latter of which resulted in criminal charges, a guilty plea, and a
probationary sentence for his mother. Id. at 14-15.
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This assumption is made for the purposes of argument. As with his omission of specific
allegations about the information allegedly suppressed, petitioner also omits any allegations in the petition
indicating that prosecutors knew or should have known about each and every of his mother’s various
“contacts,” “arrests,” or “convictions.” This alone is a basis for denying this claim. See Parker, 565 F.3d
at 1277-78. Furthermore, petitioner’s extensive allegations about counsel’s ineffective pretrial investigation
describe several of his mother’s “contacts” with law enforcement as events which counsel should have
discovered and presented as mitigation at the penalty phase. See Pet. ¶ 77; Pet’r’s Br. (Doc. # 44) at 62. To
the extent counsel indeed should have uncovered evidence of these events in his pretrial investigation, the
court fails to see how the State could have violated Brady in failing to disclose evidence which could have
been obtained by counsel with reasonable diligence. Ponticelli, 690 F.3d at 1292.

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interactions with law enforcement or convictions would have, on its own, seriously mitigated the
aggravating evidence admitted at trial. Petitioner himself concedes this point when he argues that
evidence of his mother’s arrests was critical to his case not because it was uniquely momentous but,
rather, because it would have “led to a wealth of mitigation evidence, including information relating
to her incessant adultery, maternal abandonment, and all-around inadequate parenting skills.” Pet’r’s
Br. (Doc. # 44) at 147; id. at 148-49 (“Evidence of law enforcement contact with family members
and particularly Shirley Irelan (Bobby’s mother), including that she had been arrested or had the
authorities called on her when Bobby was a child, would have provided critical insight into the type
of dysfunctional familial environment in which Bobby was reared.”).
However, information about Shirley’s Irelan’s “inadequate parenting skills” and petitioner’s
“dysfunctional familial environment” was available to petitioner through far more immediate,
profound, and affecting sources, including his own recollection and that of his family members. Any
of these sources would have provided the sort of “leads” or “insight” of which petitioner complains
he was deprived due to the purported suppression of his mother’s arrest records. Petitioner
substantiates this point when he faults counsel for failing to contact family members, excepting his
mother, as well as “friends, neighbors, [petitioner’s] minister, teachers, or employers,” all of whom
could have “testified about his violent and impoverished upbringing . . . .” Pet. ¶ 67. Even without
the arrest records, or, apparently, sufficient contacts with other potential mitigation witnesses,
petitioner alleges that his counsel nevertheless “obtained leads about mitigating evidence that any
competent attorney would pursue, including cues about physical abuse, domestic violence, and
neglect.” Id. at ¶ 73. Thus, even according to petitioner, counsel had other means of gaining the sort
of “insight” that could have been provided by the records, and indeed he apparently succeeded in
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uncovering some of the “leads” that he believes the records would have provided for the punishment
phase. At most, then, the records would have served as a gateway to more substantial information
that was already known or available to petitioner or, on their own, as a small and mostly
inconsequential piece of petitioner’s larger sentencing phase presentation. In either respect, any
assumed failure to disclose the records simply does not undermine confidence in the outcome of
petitioner’s sentencing.
In addition, as this court has discussed in conjunction with petitioner’s claim that he was
prejudiced by his counsel’s failure to investigate and present mitigating evidence at the penalty
phase, it is not reasonably likely that, had the information about petitioner’s mother’s arrests been
disclosed, the outcome of petitioner’s sentencing would have been different. Petitioner opines that
the “critical insight into the type of dysfunctional familial environment” provided by the arrest
records “would have prompted more jurors to vote for life and tipped the scales in favor of
preventing the trial judge from overriding.” Pet’r’s Br. (Doc. # 44) at 149. Of course, the trial judge,
or any presumed “reasonable sentencer,” was not prevented by Alabama law from overriding the
jury’s sentencing recommendation, and imposing a death sentence, even if the jury unanimously
recommended life imprisonment. For all of the foregoing reasons, the court concludes that the state
court’s decision denying petitioner’s Brady claim related to records detailing his mother’s arrests
and/or convictions is not contrary to, or an unreasonable application of, clearly established federal
law, and is not based upon an unreasonable determination of the facts in light of the record before
the state courts.

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V. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” As this court has determined that petitioner is not entitled to
habeas corpus relief, the court must now consider whether petitioner is entitled to a certificate of
appealability.
In a habeas corpus case involving a state prisoner, the district court may issue a certificate
of appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). If the petitioner seeks a certificate of appealability
concerning a district court’s procedural ruling on a given claim, he must show that “jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). If the district court grants a certificate of appealability, it
“shall indicate which specific issue or issues satisfy” the required showing. § 2253(c)(3).
Upon review of the record, the court concludes that, for good cause shown, petitioner is
entitled to a certificate of appealability on the following claims or issues alleged in the petition:
Claim E, petitioner’s ineffective assistance of counsel claim, but only to the extent he alleges that
he was denied the effective assistance of counsel due to counsel’s allegedly deficient investigation
and preparation for the penalty phase of trial, including counsel’s failure to adequately investigate

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mental health evidence for mitigation purposes and failure to hire or retain an independent
psychologist for use at the penalty phase of trial (see Pet. ¶¶ 69-84).
VI. CONCLUSION
For all of the foregoing reasons, petitioner is not entitled to habeas corpus relief.
Accordingly, it is ORDERED that the petition for habeas corpus relief (Doc. # 1) is DENIED. It is
further ORDERED that Petitioner is GRANTED a limited certificate of appealability as described
in this order.
An appropriate judgment will be entered separately.
DONE this 31st day of March, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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