Waldrop v. Allen et al (DEATH PENALTY)

Filing 60

MEMORANDUM OPINION AND ORDER DENYING petitioner's Rule 59(e) 59 MOTION to Alter or amend Judgment ; further ORDERING that petitioner's request to expand the limited certificate of appealability already granted by the court is DENIED, as further set out in order. Signed by Chief Judge William Keith Watkins on 2/5/15. (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.

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[WO]
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MEMORANDUM OPINION AND ORDER
Before the court is petitioner’s Motion to Alter or Amend Judgment (Doc.
# 59) pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Petitioner
requests that the court reconsider several portions of its March 31, 2014,
Memorandum Opinion and Order (Doc. # 57) in which it denied his petition for
habeas corpus relief. Alternatively, petitioner seeks expansion of the limited
certificate of appealability granted by the court in the Memorandum Opinion and
Order. For the reasons that follow, the court finds that the motion is due to be denied.
I. STANDARD OF REVIEW
Rule 59(e) authorizes a party to file a motion to alter or amend a judgment
within twenty-eight days of the entry of judgment. The Rule does not provide any

standard to guide the court’s consideration of such a motion. However, the United
States Court of Appeals for the Eleventh Circuit has stated that “‘[t]he only grounds
for granting [a Rule 59(e)] motion are newly-discovered evidence or manifest errors
of law or fact.’” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Furthermore, a party “cannot use a
Rule 59(e) motion to relitigate old matters, raise argument or present evidence that
could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Vill. of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
Petitioner does not predicate his motion to alter or amend judgment on his
discovery of new evidence. Rather, he appears to argue that he is entitled to Rule
59(e) relief because the court has committed manifest errors of law and fact. Pet’r’s
Mot. (Doc. # 59) at 2. The court will discuss each of petitioner’s separately numbered
contentions of error in deciding his motion.
II. DISCUSSION
A.

Petitioner’s contention that the court committed manifest error in
concluding that certain of his claims were not “fairly presented” in
the state courts

Petitioner first argues that the court committed “several errors” in finding that,
pursuant to Castille v. Peoples, 489 U.S. 346, 349 (1989), claims which he presented
for the first and only time in state court during discretionary review in the Alabama
2

Supreme Court were not “fairly presented” in the state courts, and, to the extent such
claims were not considered by that Court, they were not exhausted for purposes of
federal habeas review. See Mem. Op. (Doc. # 57) at 11-25. The court need not
recapitulate all of the reasons why it found several of petitioner’s claims unexhausted
and procedurally defaulted. It is sufficient for present purposes to note that
petitioner’s claim of manifest error rests predominantly on his argument that the court
failed to properly recognize and defer to Alabama’s ordinary appellate review process
in capital cases and that the court’s reliance on Castille was misplaced because there
is a “fundamental difference between certiorari review in Alabama and allocutor
review in Pennsylvania.” Pet’r’s Mot. (Doc. # 59) at 3-6. Petitioner presented these
arguments in his briefing in response to respondents’ assertion of procedural default,
and the court addressed them in its prior order. It is not the purpose of a Rule 59(e)
motion to relitigate matters already decided. Thus, petitioner’s arguments are
unavailing.
Nevertheless, the court notes the following in response to petitioner’s
arguments in the motion. Petitioner maintains that “raising claims for the first time
in a petition for certiorari to the Alabama Supreme Court is ‘a normal, simple, and
established part of the State’s appellate review process[,]’” id. at 5 (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), because “the Alabama Supreme
3

Court has routinely reviewed issues raised for the first time in a petition for writ of
certiorari.” Id. at 4. He also asserts that “Alabama’s appellate rules, unlike the rules
governing allocatur review at issue in Castille,” distinguish Alabama’s capital
appellate review process because there is a “requirement that counsel in a capital case
file a petition for writ of certiorari in the Alabama Supreme Court,” and because “the
Alabama Supreme Court may consider any issue in a death penalty case, whether
raised in the petition or not.” Id. at 5-6 (emphasis in original). According to
petitioner, these differences render Castille inapposite. Id. at 6-7. However, as
discussed in the Memorandum Opinion, the fact that the Alabama Supreme Court
may sometimes consider claims first presented in certiorari proceedings, as well as
the cited provisions of Alabama’s rules, does not alter the fundamentally
discretionary nature of certiorari review by the Alabama Supreme Court. This is the
crux of Castille. See 489 U.S. at 349 (rejecting the premise that “the presentation of
claims to a State’s highest court on discretionary review, without more, satisfies the
exhaustion requirements”) (emphasis supplied).
In Castille, the Supreme Court quite clearly stated 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 and will not satisfy the exhaustion requirement.
4

Id. at 351.

Alabama employs essentially identical language in defining the

circumstances under which the Alabama Supreme Court may grant discretionary
review, even in capital cases. See Ala. R. App. P. 39(a). None of the Rules
provisions cited by petitioner has the effect of rendering the Alabama Supreme
Court’s scope of review in certiorari proceedings anything other than “discretionary.”
Thus, the “more” argued once again by petitioner as distinguishing Alabama’s
discretionary review is immaterial.
In addition to reiterating arguments already rejected, petitioner attacks the
court’s opinion in other respects deserving of a brief response. First, petitioner
accuses the court of misconstruing his citation of Trawick v. Allen, 520 F.3d 1264
(11th Cir. 2008). Pet’r’s Mot. (Doc. # 59) at 5 n.2. In his brief, petitioner cited
Trawick for the proposition 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. This is true even if the petitioner
did not raise the claim at trial or at the Court of Criminal Appeals.” Pet’r’s Br. (Doc.
# 44) at 9 (emphasis in original). The court distinguished Trawick, finding that it
“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.” Mem. Op. (Doc.
5

# 57) at 15. Whatever petitioner intended with his citation to Trawick, the
fundamental point remains unaffected: Trawick is simply inapposite for a host of
reasons. If anything, Trawick recognized – unremarkably, in light of language in
Castille and explicit authority from other circuits, which this court discussed in its
Memorandum Opinion – that claims that were first presented in discretionary review
to the Alabama Supreme Court and that were indeed considered and adjudicated on
the merits by that Court, as happened with the gender-discrimination-in-jury-selection
claim in Trawick, were properly regarded as exhausted by federal courts in habeas
corpus. As the court noted in the Memorandum Opinion, Trawick “did not even
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,” because that question, unlike in this case, was not
before the federal courts in Trawick. Mem. Op. (Doc. # 57) at 15-16.1 And, as the

1

Other important factors regarding the Alabama Supreme Court’s review in Trawick distinguish
it from this case. First, the petition for certiorari review in the Alabama Supreme Court was filed at a time
when such review was mandatory pursuant to Alabama law. Trawick was decided in 1997, before Alabama’s
rules governing certiorari review in the Alabama Supreme Court made such review discretionary. The Court
Comment to Rule 39 of the Alabama Rules of Appellate Procedure states that the Rule was amended in 2000
to remove “the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the
Supreme Court in a case in which the death penalty was imposed would be granted as a matter of right.”
Moreover, as the court noted in the Memorandum Opinion, in Trawick the Alabama Supreme Court stated
that it had considered and rejected all issues raised by Trawick, not just those discussed in its opinion. In
Waldrop, however, the Alabama Supreme Court limited its consideration during certiorari review to only two
issues and did not similarly indicate that it had considered any other issues raised by petitioner. See Mem.
Op. (Doc. # 57) at 16 n.7.

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court further observed in the Memorandum Opinion, in his briefing petitioner did 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.” Id. at 16. Tellingly, for all his insistence about
the court’s manifest error, petitioner still has not done so.
Petitioner next contends that the “Court’s comity concerns are misplaced.”
Pet’r’s Mot. (Doc. # 59) at 7 (citation omitted). In fact, petitioner appears to assert
that the court’s Memorandum Opinion damages comity because it “fails to give the
appropriate deference to Alabama’s chosen appellate review process.” Id. at 8. This
is a curious argument for several reasons. First, Alabama is almost certainly more
concerned with upholding comity than is petitioner, and has urged that petitioner’s
claims were not fairly presented pursuant to Alabama’s ordinary appellate review
process. See, e.g., Resps.’ Br. (Doc. # 41) at 2-8.
Second, and more importantly, petitioner ignores the substance of the court’s
discussion of comity. While it is indisputably true that the Alabama Court of
Criminal Appeals has previously “reversed capital convictions and death sentences,”
Pet’r’s Mot. (Doc. # 59) at 7, petitioner’s apparent argument that a defendant can
forego presenting all of his claims in that court, then raise his omitted claims in
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discretionary review before the Alabama Supreme Court, and, even if those new
claims are not considered by that court, proceed to then raise them in federal
collateral review, presents alternative scenarios for the federal courts’ adjudication,
both of which would pervert comity. If, as urged repeatedly by petitioner, the federal
court construes the Alabama Supreme Court’s denial of certiorari as a “failure to
recognize” the merit of those claims that petitioner omitted in the Court of Criminal
Appeals as a ruling on the merits for purposes of applying 28 U.S.C. § 2254(d), then
the court is treating the Alabama Supreme Court’s denial of certiorari as exactly what
that Court has declared it is not: a ruling on the merits of the issue presented. See
Mem. Op. (Doc. # 57) at 21-22. However, if the federal court properly recognizes
that the Alabama Supreme Court’s denial of certiorari review on a given claim is not
a determination of the merit of that claim, yet that claims not presented in the Court
of Criminal Appeals and denied certiorari review are still somehow exhausted for
federal habeas review, then the petitioner would avoid the deferential standard of
review of § 2254(d), which is itself a product of comity, and would be entitled to de
novo review in federal court precisely because he failed to raise his claims at all levels
of the state’s appellate review process. Comity – respect for the independence and
integrity of the state’s judicial process – could not countenance such a result because
it would establish a clear loophole through which defendants could avoid both
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substantive state court review and the restrictive scope of federal habeas review for
claims decided on their merits in the state courts.
Finally, despite petitioner’s assurance that the court’s concern about
“gamesmanship” or “‘sandbagging’” is unwarranted because the “failure to raise
claims before the Court of Criminal Appeals is more often attributable to the
inadequate representation provided to capital defendants by the State of Alabama[,]”
Pet’r’s Mot. (Doc. # 59) at 7, the court notes that petitioner has not alleged that the
ineffective assistance of his appellate counsel provides “cause” for the default of any
of the claims that this court found procedurally defaulted due to his failure to fairly
present the claims in the Court of Criminal Appeals.
For all of the foregoing reasons, the court finds that petitioner is not entitled
to Rule 59(e) relief with respect to those claims that the court found procedurally
defaulted because petitioner did not fairly present and exhaust the claims in the state
courts. Moreover, while petitioner argues that “reasonable jurists could debate” the
propriety of the court’s procedural ruling, he has failed to identify any instance, be
it a district or appellate court opinion distinguishing Castille in an analogous situation
or even a judge reasonably dissenting from an appellate court’s application of Castille
in an analogous situation, illustrating that, indeed, reasonable jurists could debate this
matter. As the court has discussed, the holding of Castille is clear and the points on
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which petitioner seeks to distinguish that decision do not affect the circumstances
germane to the Supreme Court’s holding. Raising a claim for the first and only time
in state court discretionary review does not fairly present the claim and it will not be
exhausted for purposes of federal habeas review if the state court, in its discretion,
declines to consider the claim. Petitioner is not entitled to an expansion of the
certificate of appealability with respect to the court’s procedural ruling on this issue.
B.

Petitioner’s contention that the court committed manifest error in
finding that two of his sentencing-related claims were unexhausted
because, even if they were not fairly presented, the state appellate
courts decided the claims on their merits

Petitioner next argues that, with respect to two of the claims that the court
found procedurally defaulted pursuant to Castille, “[e]ven if [he] had not fairly
presented his claims to the state courts, he would still be entitled to federal review on
his claims of defects in his sentencing because both the Court of Criminal Appeals
and the Alabama Supreme Court reviewed the sentence and found it to be without
error.” Pet’r’s Mot. (Doc. # 59) at 8 (emphasis in original). Specifically, petitioner
argues that Claims A and B in his petition – that the trial court refused to consider
compelling mitigating evidence and sentenced him to death on the basis of his race
– were considered and denied by the Court of Criminal Appeals when it “examined
the propriety of the sentence, reviewing the resentencing hearing for plain error under

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Ala. R. App. P. 45A and reviewing the sentence under Ala. Code § 13A-5-53.” Id.
at 9; id. at 15. Moreover, petitioner argues, because he specifically presented the
claims in his subsequent petition for discretionary review, the Alabama Supreme
Court was aware of the claims and implicitly reviewed them when it affirmed the
Court of Criminal Appeals’ judgment that petitioner’s sentence was appropriate. Id.
at 10; id. at 15-16. In addition, petitioner claims that, with respect to his claim that
the trial court sentenced him to death on the basis of his race, any procedural default
of the claim is excused by the “fundamental miscarriage of justice” exception to
procedural default. Id. at 13-14.
Rule 45A of the Alabama Rules of Appellate Procedure establishes the scope
of the Court of Criminal Appeals’ review in capital cases. It provides that the court
“shall notice any plain error defect in the proceedings under review, whether or not
brought to the attention of the trial court, and take appropriate appellate action by
reason thereof, whenever such error has or probably has adversely affected the
substantial right of the appellant.” Alabama Code § 13A-5-53 instructs the Court of
Criminal Appeals to “review the propriety” of each death sentence before it, to
include considering “whether an error adversely affecting the rights of the defendant
was made in the sentence proceedings, whether the trial court’s findings concerning
the aggravating and mitigating circumstances were supported by the evidence, and
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whether death was the proper sentence in the case.” § 13A-5-53(a). As part of this
review, the Court of Criminal Appeals must determine, inter alia, whether “the
sentence of death was imposed under the influence of passion, prejudice, or any other
arbitrary factor.” § 13A-5-53(b)(1). Petitioner argues that, in effect, these provisions
establishing the scope of the Court of Criminal Appeals’ review and mandating that
the court make specific determinations prior to affirming a death sentence necessarily
required that it consider, and it therefore implicitly rejected, the sentencing-related
claims that he has conceded he did not specifically present to the Court of Criminal
Appeals.
Petitioner’s argument is problematic for several reasons. First, petitioner did
not present the theory that his claims were addressed by both the Court of Criminal
Appeals and the Alabama Supreme Court, despite any failure to fairly present them,
in his briefing prior to judgment. See Pet’r’s Br. (Doc. # 44) at 9-14 & 19-20.
Indeed, in his brief, petitioner conceded “the fact that the Alabama Supreme Court did
not address the claim.” Id. at 10. Petitioner may not employ a Rule 59(e) motion to
present arguments or theories that could have and should have been presented prior
to judgment. Michael Linet, Inc., 408 F.3d at 763. If petitioner believed that the
Court of Criminal Appeals’ or Alabama Supreme Court’s review of the propriety of
his sentence necessarily encompassed consideration of the issues articulated in
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Claims A and B, nothing prevented him from pressing that argument so that the State
could respond prior to judgment.
Petitioner’s failure to argue prior to judgment that Claims A and B were
considered by the Court of Criminal Appeals, despite his failure to present the claims
to that court, is understandable considering that petitioner provides no compelling,
persuasive authority that the Court of Criminal Appeals’ mandatory review of the
propriety of a death sentence encompasses consideration of specific claims not
presented to that court. Petitioner asserts only that “[d]istrict courts within the
Eleventh Circuit have recognized that a finding that a death sentence was not imposed
‘under the influence of passion, prejudice, or any other arbitrary factor’ . . . is a merits
ruling for federal habeas purposes.” Pet’r’s Br. (Doc. # 59) at 10. However,
petitioner’s authority for this proposition, two federal district court cases out of
Alabama, simply do not establish that the Court of Criminal Appeals’ mandate to
make “specific determinations” about the circumstances of each death sentence it
reviews necessarily entails consideration of specific sentencing-related claims that
could be derived from the record but that are not presented to the Court of Criminal
Appeals.
In Williams v. Alabama, No. 07cv1276, 2012 WL 1339905, at *24 n.20 (N.D.
Ala. Apr. 12, 2012), the district court merely applied § 2254(d) and determined that,
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inasmuch as it must be treated as a merits determination, the Rule 32 court’s finding
that petitioner’s ineffective assistance of counsel claim about counsel’s failure to
request individual voir dire was insufficiently pleaded was not unreasonable because
petitioner had failed to identify “specifically what facts trial counsel would have
discovered through individual voir dire and how those undiscovered facts prejudiced
Williams.” In McGahee v. Campbell, No. 05cv42, 2007 WL 3037451, at *44 (S.D.
Ala. Oct. 15, 2007), rev’d and remanded on other grounds sub nom. McGahee v. Ala.
Dep’t of Corr., 560 F.3d 1252 (11th Cir. 2009), the respective habeas petitioner had
in fact raised on direct appeal in the Court of Criminal Appeals the specific claim that
petitioner posits was disposed of by that court during its review pursuant to § 13A-553. These district court cases do not support the proposition that the Court of
Criminal Appeals’ mandatory review of the propriety of a death sentence entails
review and consideration of all conceivable sentencing-related claims, regardless of
whether they are specifically articulated in the Court of Criminal Appeals. While this
court indeed did recognize, pursuant to authority from another Circuit, that “a claim
is exhausted if the State’s highest court expressly addresses the claim, whether or not
it was fairly presented,” Pet’r’s Br. (Doc. # 59) at 10, in the cases cited by the court
in support of that principle, the claims had at least been “presented” to the respective
state appellate courts, even if not “fairly” so, such that, when those state courts
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exercised discretion to consider those claims, they were exhausted for federal habeas
purposes. Here, there is no doubt that petitioner did not present his specific
sentencing-related claims to the Court of Criminal Appeals.
If the Court of Criminal Appeals’ opinion should not be construed as having
reached specific sentencing-related claims not presented to it, petitioner maintains
that the Alabama Supreme Court’s opinion affirming the Court of Criminal Appeals’
judgment should be treated as having reached those issues because he made that
Court aware of the claims in his petition for discretionary review. However, the
Alabama Supreme Court did not purport to grant certiorari over either of the instant
sentence-related claims. Indeed, in its opinion, the Alabama Supreme Court merely
stated its approval of and quoted verbatim from the Court of Criminal Appeals’
conclusion in its review pursuant to § 13A-5-53. See Ex parte Waldrop, 859 So. 2d
1181, 1193 (Ala. 2002) (stating, “We agree with the conclusion reached by the Court
of Criminal Appeals” and quoting from the lower court’s mandatory findings
pursuant to § 13A-5-53). As discussed above, the Court of Criminal Appeals
(“CCA”) was not confronted with either of the sentencing-related claims petitioner
now presents, and petitioner has not provided any persuasive authority that the CCA’s
statutory review of his sentence should be read to encompass specific challenges that
he did not present to that court. The Alabama Supreme Court’s subsequent verbatim
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“approval” of the CCA’s review, which had been performed without apprisal of
petitioner’s specific claims, similarly should not be construed as having reached the
merits of claims not before the CCA, especially where the Alabama Supreme Court,
in its discretion, specifically declined to grant certiorari review of those claims when
it was “made aware” of them.
Petitioner’s final argument in this portion of his motion is that, “even assuming
that Mr. Waldrop’s race claim was procedurally defaulted, this Court should have
excused the default because imposing the death penalty based on the defendant’s race
constitutes a ‘fundamental miscarriage of justice.’” Pet’r’s Mot. (Doc. # 59) at 13
(quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Petitioner did not present
this argument prior to judgment, and he may not employ a Rule 59(e) motion to do
so after judgment. Michael Linet, Inc., 408 F.3d at 763. Nor has petitioner provided
any authority in support of his contention that the “fundamental miscarriage of
justice” exception may be applied to excuse the procedural default of a claim of
sentencing error like his race claim. Indeed, the “fundamental miscarriage of justice”
exception has historically been reserved for exceedingly rare, “extraordinary” cases
in which the complained-of “fundamental miscarriage of justice” has resulted in the
conviction of one who is actually innocent. See, e.g., Schlup v. Delo, 513 U.S. 298,
321 (1995) (“To ensure that the fundamental miscarriage of justice exception would
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remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same
time ensuring that the exception would extend relief to those who were truly
deserving, this Court explicitly tied the miscarriage of justice exception to the
petitioner’s innocence.”). See also Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170,
1180 (11th Cir. 2010). Petitioner has not attempted to satisfy this standard, and if he
would seek to expand the “extraordinary” class of cases in which this exception might
be applicable to encompass claims like his race claim, he should have made such an
argument in response to respondents’ initial assertion of procedural default so that
respondents could address the argument, and the court could give it appropriate
consideration, prior to judgment.
In any event, upon review of the record, the court is not persuaded that, even
assuming the “fundamental miscarriage of justice” exception applies to a claim that
the defendant was sentenced to death because of his race, the exception would apply
in this instance. The Court of Criminal Appeals remanded to the trial court with
instructions to compose a new sentencing order in which it was to “reweigh the
mitigating and aggravating circumstances and to apply the appropriate weight to each
circumstance,” “clarify its findings by specifically detailing the facts in support of its
findings that the offenses were especially heinous, atrocious or cruel,” “clarify its
consideration of Dr. Tackett’s testimony with regard to the applicable mitigating
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circumstance determinations,” and make “specific written findings pursuant to § 13A5-47(d).” Waldrop v. State, 859 So. 2d 1138, 1152 (Ala. Crim. App. 2000). The trial
court issued a revised sentencing order in response to the Court of Criminal Appeals’
instructions. See R.-69. The revised sentencing order makes no mention of
petitioner’s race as any factor having to do with his death sentence. Instead, it
summarizes the evidence, provides the trial court’s findings about aggravating and
mitigating circumstances, and concludes with the trial court’s judgment that the
aggravating circumstances outweighed the mitigating circumstances. R.-69 at 3-14.
While it is certainly true that, at a hearing ordered by the trial court in response to the
remand, the trial judge alluded to petitioner’s race, it does not necessarily follow that
petitioner was sentenced to death because of his race, much less that his death
sentence was the product of racial “discrimination” or “prejudice” against white
people like petitioner, as he appears to argue. See Pet’r’s Br. (Doc. # 44) at 14-16;
Pet’r’s Mot. (Doc. # 59) at 13.
Petitioner relies on a brief, isolated remark by Judge Segrest at the hearing on
remand in support of his race discrimination claim. However, because petitioner
accuses Judge Segrest of willfully consigning him to be executed because of his race,
the entirety of Judge Segrest’s remarks deserves thorough consideration before a
court should attribute such a motive to him, much less treat his actions as a
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“fundamental miscarriage of justice” on par with convicting someone who is
innocent. In the relevant portion of the hearing, Judge Segrest appeared to be
offering lengthy exposition about the legality and wisdom of Alabama’s judicial
override system. He noted that the United States Supreme Court had previously
approved of Alabama’s judicial override and remarked that the “wisdom of that
position is that judges can be in a position to have a broader range of experience in
dealing with capital cases.” R.-30 at 35. Judge Segrest then transitioned into
discussing his history of presiding over capital cases. He mentioned that he had
imposed a death sentence in five cases, but that one of those cases “came back” and
was subsequently reduced by agreement of the prosecutor to life-without-parole
because, according to Judge Segrest, it was “purely a circumstantial evidence case.”
Id. Judge Segrest then remarked as follows:
So, that left four cases in which I have imposed a death sentence. In two
of those cases I have overridden the jury, and this has to be understood,
it has nothing to do with why you do things, you know. The why is, on
imposing the death sentence, is because the aggravating circumstances
outweigh the mitigating circumstances, and the person did it, and that’s
all you take into account. Nothing else. If I had not imposed the death
sentence, I would have sentenced three black people to death and no
white people. And, that’s the reason that the Supreme Court of the
United States trusts the judgment of judges, perhaps, a little bit more.
Id. at 36. Judge Segrest went on to reaffirm his adamance that, “if there’s going to
be a death penalty in the State of Alabama, and it is going to be judged based on
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weighing the aggravating circumstances against the mitigating circumstances, then
. . . Bobby Waldrop needs to get the death sentence” because the offense “was a cold,
heinous, atrocious, and cruel killing.” Id. at 36-37. He concluded as follows:
We have a sacred trust to enforce the law. I am comfortable with the
decision in this case and it is the right decision if we are going to have
a death penalty in the State based upon statutory circumstances of
aggravation and statutory circumstances of mitigation, and I don’t have
any inclination to change the ruling. I will reword the order to include
those things that may be missing that the Court of Criminal Appeals
wants to see, but I’m not willing to take the responsibility for not
applying the law equally in this case. And, I would not be applying the
law equally to everybody if Bobby Waldrop doesn’t get the death
sentence in this case.
Id. at 38.
As can be seen from a more comprehensive review of the transcript, it is
evident that, notwithstanding Judge Segrest’s brief allusion to petitioner’s race, he
plainly believed that the aggravating circumstances outweighed the mitigating
circumstances in this case and correctly recognized that as the fundamental question
before him. Immediately before the remarks identified by petitioner, Judge Segrest
specifically disclaimed that anything other than the weighing of aggravating and
mitigating circumstances caused him to impose a death sentence. Id. at 36 (emphasis
supplied) (“The why is, on imposing the death sentence, is because the aggravating
circumstances outweigh the mitigating circumstances, and the person did it, and

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that’s all you take into account. Nothing else.”). Certainly, then, Judge Segrest was
aware that petitioner’s race was not a constitutionally cognizable consideration when
determining his sentence. Were it truly his intent to so dramatically subvert the
Constitution and impose a death sentence based upon petitioner’s race rather than his
faithful weighing of aggravating and mitigating circumstances, he surely was more
savvy than to baldly announce that intent in open court, especially considering that
there was no similar mention of petitioner’s race at any prior hearing or in either of
the trial court’s sentencing orders.
Petitioner describes Judge Segrest’s remarks as demonstrating his intent to
“‘balance out’ his record.” Pet’r’s Br. (Doc. # 44) at 16. In other words, according
to petitioner, Judge Segrest believed he needed to sentence a white person to death
because he had already sentenced three African-Americans to death.2 Judge Segrest’s
remarks may certainly be described as inartful, awkward, clumsy, or superfluous.
And, in fairness, in the simplest sense, they may lend themselves to the more sinister

2

Petitioner does not explain why Judge Segrest would be possessed by some need to “balance out
his record” by sentencing a white person to death. It is not as if Judge Segrest had a quota or prescribed ratio
he was required to meet. Rather, petitioner appears to believe that Judge Segrest sentenced him to death
because of nothing but the need to appear “fair.” But, why? So that he could continue disproportionately
sentencing African-Americans to death without exciting widespread attention or outrage or appellate
scrutiny? This rationale is all the more implausible considering the fact that Judge Segrest announced at the
hearing that he was planning to retire a few months later. See R.-30 at 37 (“Now, I’m going out of office in
January.”). The court is not prepared to accept the premise that Judge Segrest would sentence a white person
to die to provide cover for his purported discriminatory sentencing tendencies against African-Americans,
especially where there was no objective reason for Judge Segrest to do so and, as he remarked at the hearing,
he was soon to retire anyway.

21

interpretation that petitioner advances. But the court is not required to accept
petitioner’s interpretation without scrutiny.3 Indeed, in the court’s estimation,
petitioner’s interpretation is not the only, or even most, viable one.4 Given the full
context of Judge Segrest’s remarks, in which he without equivocation repeatedly
states his belief that the balance of aggravating and mitigating circumstances tipped
in favor of death in petitioner’s case, his comment about petitioner’s race relative to
the race of others he had sentenced to death does not compel the conclusion that
Judge Segrest sentenced petitioner to death because of his race. Therefore, the court

3

In Hays v. State of Alabama, 85 F.3d 1492, 1502 (11th Cir. 1996), for example, the habeas
petitioner similarly argued that “the Alabama Supreme Court’s mention of the number of white defendants
on death row in Alabama for the killing of blacks (zero) indicates an intention to ‘balance the books’ by
considering the petitioner’s race in determining sentence, in violation of his right to equal protection.” The
Eleventh Circuit rejected the petitioner’s argument, concluding that the Alabama Supreme Court’s discussion
of petitioner’s race “was only part of an extended discussion of elements favoring the imposition of the death
penalty[,]” and that “even if the Alabama Supreme Court did look at historical statistics, it might just as well
not have been to ‘balance the books’ but to find some motivation to explain the jury’s failure to impose the
death penalty. That is, the Alabama Supreme Court was attributing a racial motive to the jury’s decision,
rather than setting out a racial motive for its own decision to reinstate the sentence imposed by the trial
judge.” Id.
4

Judge Segrest’s remarks are susceptible to other interpretations. On the one hand, they could
reflect a simple, extemporaneous, and innocuous recognition of the races of those he had previously
sentenced to death which occurred to him at the time he uttered it. Or perhaps, as in Hays, Judge Segrest was
trying to “find some motivation to explain the jury’s failure to impose the death penalty[,]” that he was
“attributing a racial motive to the jury’s decision, rather than setting out a racial motive for [his] own
decision[.]” 85 F.3d at 1502. This interpretation dovetails with both Judge Segrest’s repeated, explicit
affirmations that the weighing of aggravating and mitigating circumstances was his only permissible
consideration in capital sentencing and the larger point he had set out to discuss: his belief that Alabama’s
judicial override is not just constitutional, but that it is a worthwhile policy instrument because, given their
experience, judges are more likely than jurors to weigh aggravating and mitigating circumstances without
regard to impermissible considerations like the race of the defendant. Indeed, this appears to be how his
remarks were interpreted by petitioner’s attorneys at the hearing. See R.-30 at 39 (“The court is aware, and
I appreciate the Court wanting to treat, and going out of its way to treat, people fairly, equally, without
deference to race, as far as race and the death penalty, . . . .”).

22

cannot conclude that, even if the “fundamental miscarriage of justice” exception
extended to claims of sentencing error like the instant claim, such a “fundamental
miscarriage of justice” occurred in this case.
For all of the foregoing reasons, the court finds that petitioner is not entitled
to Rule 59(e) relief or an expansion of the certificate of appealability respecting the
court’s disposition of Claims A and B.
C.

Petitioner’s contention that the court committed manifest error in
concluding that his equal protection claim was procedurally
defaulted

In Claim D of his habeas petition, petitioner claimed that it violated his Equal
Protection rights for the trial judge to override the jury’s sentencing recommendation
and sentence him to death because judicial override in Alabama is “standardless,” the
death penalty is “imposed disproportionally on defendants convicted of killing white
people,” and the trial judge based his decision on “inappropriate considerations”
including “personal bias” and “inappropriate personal and political considerations.”
Pet. ¶¶ 53-54. He further alleged that Alabama’s failure to provide trial judges with
a uniform standard for considering the jury’s verdict and failure to adopt a standard
of appellate review in judicial override cases violates the Equal Protection Clause.
Id. at ¶¶ 59-61. Respondents argued that petitioner failed to exhaust Claim D because
he did not fairly present it in the state courts and, accordingly, it was procedurally
23

defaulted. Resps.’ Br. (Doc. # 41) at 10-11. Petitioner countered that he fairly
presented the claim by raising it in his petition for certiorari review on direct appeal
in the Alabama Supreme Court, and that the Court “addressed” his “arguments
pertaining to the unconstitutionality of Alabama’s standardless override system[,]”
thereby exhausting the claim for federal habeas purposes. Pet’r’s Br. (Doc. # 44)
at 45-46. The court found that the claim championed by petitioner as having “fairly
presented” his Equal Protection claim in the state courts was not among the two
claims granted certiorari review by the Alabama Supreme Court and that,
furthermore, the Alabama Supreme Court did not address or decide any of petitioner’s
arguments within Claim D of the habeas petition in its opinion affirming his
conviction and sentence. Mem. Op. (Doc. # 57) at 25-29. Thus, the court found that
the claim was not exhausted in the state courts and was procedurally defaulted in
federal habeas corpus review.
Petitioner now argues that the court misconstrued his claim and the state court
decision, Ex parte Taylor, 808 So. 2d 1215(Ala. 2001), which was at issue in the
Alabama Supreme Court’s adjudication of one of the claims for which it had granted
certiorari. Pet’r’s Mot. (Doc. # 59) at 16-17. He asserts that the Alabama Supreme
Court was “on notice that Mr. Waldrop was raising due process and equal protection
claims regarding the trial court’s override of the jury’s life recommendation[,]” and
24

that it “responded to these claims and addressed the trial court’s override with
reference to Taylor.” Pet’r’s Mot. (Doc. # 59) at 17. However, as the court discussed
in its Memorandum Opinion and again in this order, the mere fact that petitioner put
the state courts “on notice” of a particular claim by raising it in a petition for
discretionary review is not sufficient to “fairly present” the claim for purposes of
exhaustion.
Likewise, petitioner’s assertion that the “Alabama Supreme Court responded
to” the equal protection arguments in Claim D is disingenuous. If any response may
be attributed to the Alabama Supreme Court, it is that the Court specifically declined
to respond to the claim when it did not grant certiorari review of the claim. Again,
the Alabama Supreme Court’s order granting certiorari review succinctly 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[,]” as required by Ex parte Taylor. Petitioner does not
even attempt to argue that this grant of certiorari was not related to Claim XVI of his
petition for certiorari, in which he urged the court to grant certiorari “because the trial
court did not state its reasons for giving the jury’s life without parole
recommendation the consideration that he gave it,” as required by Ex parte Taylor.
R.-38 at 68. The order granting certiorari does not say that the Alabama Supreme
25

Court would consider, in addition to this issue, whether petitioner’s Equal Protection
rights were violated because the trial court’s override “was based on a statute which
does not specify what weight the trial court should have given to the jury’s
recommendation, as petitioner argued in the separate claim, Claim XXVII, which he
proffers as having “fairly presented” Claim D in the state courts. See R.-38 at 78-79.
Petitioner’s brief in support of his petition for certiorari further distinguishes
his two separate challenges to the trial court’s override. Compare R.-39 at 99-100
with R.-39 at 110-115. In support of Claim XVI, upon which the Alabama Supreme
Court would eventually grant certiorari, petitioner argued simply that the trial court
was required by Alabama’s capital sentencing statute to consider the jury’s life
recommendation, but that the judge failed to comply with Ex parte Taylor’s
mechanism for assuring such consideration when he failed to state the specific
reasons he gave the jury’s recommendation the consideration which he gave it. In
contrast, in support of Claim XXVII, petitioner presented a lengthy argument
challenging Alabama’s judicial override on, essentially, the grounds articulated in
¶¶ 52-61 of the federal habeas petition. Because there is no doubt that the Alabama
Supreme Court did not grant certiorari on the latter claim, petitioner’s argument that
the court was “made aware” of his claims and “responded” to them misses the mark.

26

Nor can it be fairly argued that the Alabama Supreme Court decided the Equal
Protection claim he presents in his federal petition on its merits notwithstanding both
his failure to “fairly present” the claim and the state court’s decision not to grant
certiorari on it. As this court explained in its Memorandum Opinion, the Alabama
Supreme Court merely recounted the origin of Ex parte Taylor’s requirement that a
trial judge “state specific reasons for giving the jury’s recommendation the
consideration he gave it,” discussed when Ex parte Taylor was released relative to the
procedural developments in petitioner’s case, and, because remand to correct any
failure to satisfy Ex parte Taylor’s specific requirement was “not an option” due to
Judge Segrest’s retirement, endeavored to “perform its own review of the propriety
of the death sentence” by determining “whether the aggravating circumstances
outweigh the mitigating circumstances.” Ex parte Waldrop, 859 So. 2d at 1191-92.
Thus, although petitioner argues that the “Alabama Supreme Court responded” to his
present Equal Protection claims and “addressed the trial court’s override with
reference to Taylor,” Pet’r’s Mot. (Doc. # 59) at 17, it only addressed his claim about
the trial court’s failure to provide specific written findings regarding the weight it
afforded to the jury’s recommendation, which, the Alabama Supreme Court noted, is
required by Alabama’s capital sentencing statute, not the Eighth Amendment or any

27

United States Supreme Court authority. See Waldrop, 859 So. 2d at 1191 (quoting
Ex parte Taylor, 808 So. 2d at 1218).
The Alabama Supreme Court did not purport to address, much less decide on
its merits, any argument that judicial override violates equal protection because there
is “no consistent standard to guide trial courts in their consideration of a jury’s life
verdict,” Pet. ¶ 54, or because “the death penalty in Alabama is imposed
disproportionally on defendants convicted of killing white people,” id., or because
“the override in this case was based on inappropriate considerations,” id., or because
Alabama’s appellate courts do not evaluate a “judicial override against any objective
measure of propriety and . . . determine whether similarly situated persons [are] being
treated alike,” id. at ¶ 60. Because such claims were not “fairly presented” to the state
courts, were not considered in discretionary proceedings in the Alabama Supreme
Court, and were not decided on their merits by the state courts, they are unexhausted
for federal habeas purposes.
In sum, in his petition for certiorari review, petitioner presented one claim
challenging the trial court’s failure to adhere to Alabama’s statutory requirement, as
construed in Ex parte Taylor, that it render specific written findings detailing what
consideration it afforded the jury’s advisory verdict, and a separate claim consisting
of the Equal Protection arguments presented in his federal habeas petition. It is clear
28

from the Alabama Supreme Court’s order granting certiorari and its subsequent
opinion that the Court considered, and decided, only the former claim. As petitioner
has conceded that he only presented the latter claim in discretionary review before the
Alabama Supreme Court, it was not “fairly presented” in the state courts and thus was
not exhausted for federal habeas purposes. For the reasons given in the Memorandum
Opinion, the claim is therefore procedurally defaulted from federal habeas review.
Likewise, for the reasons discussed in section II.A of this order, petitioner is not
entitled to an expansion of the certificate of appealability on this issue.
D.

Petitioner’s contention that the court committed manifest error in
denying his Ring claim

Petitioner next contends that the court committed manifest error when it denied
his claim that the “trial court’s fact-finding violated Ring v. Arizona, 536 U.S. 584
(2002).” Pet’r’s Mot. (Doc. # 59) at 18-23. He faults the court for relying upon
recent Eleventh Circuit precedent in its decision, overlooking one of his arguments
in conjunction with his Ring claim, and misconstruing another of his related
arguments. The court will address each contention in turn.
Petitioner first argues that the court’s reliance on the Eleventh Circuit’s
decision in Lee v. Commissioner, Alabama Department of Corrections, 726 F.3d
1172 (11th Cir. 2013), was manifest error because, in his estimation, Lee does not

29

“accurately reflect the holding of Ring.” Pet’r’s Mot. (Doc. # 59) at 19. He argues
that Lee’s holding is based upon an “overly narrow reading of Ring and is
inconsistent with Ring itself.” Id. He points to other circuits which he asserts have
rejected the Eleventh Circuit’s interpretation and also asserts that the Eleventh
Circuit’s reasoning has been “superseded by intervening Supreme Court precedent.”
Id. (citing Murdaugh v. Ryan, 724 F.3d 1104, 1115-17 (9th Cir. 2013), and Alleyne
v. United States, 133 S. Ct. 2151, 2158-62 (2013)). Petitioner’s arguments about the
court’s reliance on Lee are unavailing. This court is not in the position to overrule
or ignore Eleventh Circuit precedent that is directly on-point about an issue before
the court. Thus, the court will not ignore Lee because petitioner perceives it as an
“overly narrow reading of Ring.” Likewise, it is irrelevant that the Ninth Circuit or
any other Circuit may have decided this issue differently. This court is required to
apply Eleventh Circuit precedent where it controls. Finally, petitioner’s contention
that “intervening”5 Supreme Court authority has “superseded” Lee is an argument best
presented to the Eleventh Circuit. Petitioner’s objections to the court’s reliance on
Lee do not establish any manifest error on the court’s part.

5

In point of fact, Alleyne is not “intervening” in the sense for which petitioner appears to have
offered it. Alleyne was decided on June 17, 2013. 133 S. Ct. at 2151. Lee was decided later, on August 1,
2013. 726 F.3d at 1172. The court fails to grasp petitioner’s argument that Lee was somehow “superseded”
by a Supreme Court decision that preceded it. Certainly, were Alleyne, which is concerned with judicial factfinding that has the effect of increasing the mandatory minimum sentence applicable to certain federal
offenses, at all relevant to this issue, the Eleventh Circuit was capable of applying it in Lee.

30

Petitioner next argues “the Court largely overlooked an argument raised by Mr.
Waldrop that was not an issue in” Lee. Pet’r’s Mot. (Doc. # 59) at 20. Namely, that
the Alabama Supreme Court’s decision was “contrary to clearly established law
requiring that the jury in a capital case be aware of the impact of its decisions and that
the defendant be given notice of what he must defend against.” Id. Petitioner argues
that, because this argument was not raised by the petitioner in Lee, the court’s
reliance on Lee in denying this portion of his claim was manifest error. But the court
is not persuaded that, even if petitioner more vigorously raised the issue in this court,
the petitioner in Lee did not raise a similar argument that was at least implicitly
rejected by the Eleventh Circuit.
Petitioner cites pages 26-29 of his brief as setting forth the argument that he
faults the court for overlooking. In that portion of his brief, petitioner first argued as
follows:
The Alabama Supreme Court’s decision in this case also violates
the requirements of due process and the Sixth Amendment, as well as
the integrity of the jury’s judgment. Despite the fact that the jury was
essentially performing a sentencing duty, the jury was never informed
of this process, which was invented for the first time by the Alabama
Supreme Court more than three years after the trial judge sentenced Mr.
Waldrop to death. The jury that convicted Mr. Waldrop could not have
known that its first-phase verdict alone would authorize a death
sentence. Indeed, the trial court instructed Mr. Waldrop’s jury at the
first phase that it was not to consider the possible penalty during that
phase. The trial court told the jury that:
31

[A]t this point in time, the purpose of the trial is to
determine whether the defendant is guilty of any offense
. . . . And, only if the defendant is convicted of capital
murder is there a second phase to the trial.
Pet’r’s Br. (Doc. # 44) at 25-26 (citations omitted). Petitioner then argued that the
“Alabama Supreme Court’s decision is contrary to Supreme Court precedent holding
that, where the State puts the issue of whether death is an appropriate sentence in
issue, due process entitles the defendant to inform the jury about the nature and
consequences of that decision.” Id. at 26.
In Lee, the habeas petitioner did argue before the Eleventh Circuit that the jury
was not just uninformed that its “first-phase verdict alone would authorize a death
sentence,” but that it was affirmatively instructed that its first-phase finding would
not be sufficient to render Lee eligible for the death penalty:
In these jury instructions the trial court made clear that the jury would
have to separately find an aggravator during the penalty phase because
Lee’s conviction was not itself a finding of the necessary aggravator.
The jury presumably followed these instructions, and the State never
argues otherwise. United States v. Lopez, 649 F.3d 1222, 1237 (11th
Cir. 2011). The jury’s 7-5 vote against the death penalty means that it
either did not find the aggravator per the instructions, or found that the
minimal mitigating facts that were presented outweighed this
aggravator. The trial court, however, went on to ignore its own jury
instructions and rely on the guilt-phase verdict for the necessary finding
of an aggravator, and then weigh the evidence itself.
...
Here, in effect, the judge instructed the jury that its verdict did not
authorize the death penalty; rather, the jury would have to make
32

additional findings – including finding an aggravator beyond a
reasonable doubt. The jury must be presumed to have found otherwise.
Reply Br. of Appellant at 25-26, Lee v. Thomas, No. 12-14421-P (11th Cir. March
5, 2013) (citations to record omitted) (emphasis in original). Certainly, petitioner’s
instant argument that the jury should have been informed about the potential reach
of its first-phase verdict does not describe a different or greater due process violation
or derogation of the “integrity of the jury’s judgment” than what the petitioner in Lee
argued before the Eleventh Circuit. Thus, the Eleventh Circuit’s decision denying
Lee’s Ring claim must be construed by this court as having embraced, and rejected,
petitioner’s argument that his jury was unconstitutionally left unaware “of the impact
of its decisions.” See, e.g., Lee, 726 F.3d at 1198 (“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.”).
Petitioner also argues that the court “misconstrued the argument that the
Alabama Supreme Court’s reconstruction of the capital statute caused the jury
effectively to determine the sentence at the guilt phase[,]” which, according to
petitioner, “violated longstanding, clearly established Supreme Court precedent

33

requiring that juries considering a death sentence be fully informed of the ‘truly
awesome responsibility’ and nature of that decision.” Pet’r’s Mot. (Doc. # 59) at 20
(quoting Caldwell v. Mississippi, 472 U.S. 320, 329 (1985)). As the court discussed
in the Memorandum Opinion, the difficulty with adjudicating any claim that the
Alabama Supreme Court separately violated petitioner’s constitutional rights by
“retroactively reconstructing” Alabama’s death penalty statute was that no such claim
was clearly delineated in the petition. Instead, this claim was presented within the
subheading of petitioner’s Ring claim titled “The Record Does Not Reliably Establish
a Finding of Penalty Phase Aggravation in Violation of Ring.” See Pet. ¶ 37.1; id.
at ¶¶ 39, 43. However, as discussed in Lee, the jury’s finding of guilt on petitioner’s
capital murder charge “necessarily includes a finding that the aggravating
circumstance in § 13A-5-49(4) is present.” 726 F.3d at 1198. Thus, petitioner’s
larger argument, that there was no reliable jury finding of fact about the existence of
any aggravating circumstance, has been rejected by Circuit precedent.
To the extent petitioner intended a separate claim about the constitutionality
of the Alabama Supreme Court’s “revision” or “reconstruction” of the statute, the
court noted that petitioner “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.” Mem.
34

Op. (Doc. # 57) at 36 n.13.

Petitioner argues that he cited numerous cases

establishing such precedent that the court has ignored “because it has not been
applied to the exact factual scenario at issue in Mr. Waldrop’s case.” Pet’r’s Mot.
(Doc. # 59) at 22. He asserts that this court’s “requirement of factual identity
between clearly established federal law and Mr. Waldrop’s case is at odds with the
Supreme Court’s admonitions and approach to analyzing habeas corpus petitions
under AEDPA.” Id. But, the court’s observation was hardly inappropriate in this
context. Indeed, the Eleventh Circuit said essentially the same thing in Lee, in which
it too was analyzing the petitioner’s claims under the AEDPA. See 726 F.3d at 1198
(“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.”). If there is no Supreme
Court decision that “forbids the use of an aggravating circumstance implicit in a
jury’s verdict,” then the Alabama Supreme Court’s decision effecting such a result
in this instance could not have been contrary to, or an unreasonable application of,
clearly established federal law, at least as interpreted by the Eleventh Circuit.
Petitioner is not entitled to relief from judgment or an expansion of the
certificate of appealability with respect to his Ring claim.
35

E.

Petitioner’s contention that the court committed manifest error in
denying relief on his ineffective assistance of counsel claim

Petitioner next argues that the court committed manifest error in concluding
that the state court’s rejection of his claim that counsel rendered ineffective assistance
in investigating and preparing for the penalty phase of trial was not contrary to, or an
unreasonable application of, clearly established federal law and was not based upon
an unreasonable determination of fact in light of the record before the state courts.
The court will address each of petitioner’s supporting arguments in turn.
Petitioner first argues that, based upon his interpretation of this court’s
“findings,” he is “entitled to de novo review of the prejudice prong because the state
court did not actually reach the merits on that prong.” Pet’r’s Mot. (Doc. # 59) at 23.
Of course, petitioner did not argue prior to judgment that he was entitled to de novo
review of the prejudice prong of his ineffective assistance of counsel claim. Rather,
he spent several pages of his briefing arguing that, pursuant to § 2254(d)(1)’s
standard of review, the state court’s decision that he was not prejudiced by counsel’s
failure to investigate and present mitigating evidence was contrary to, or an
unreasonable application of, Supreme Court precedent. See Pet’r’s Br. (Doc. # 44)
at 88-94. Petitioner bases this new argument on this court’s observation that the state
court decided the prejudice inquiry against him when it concluded that the testimony

36

he offered at the Rule 32 evidentiary hearing was not “particularly credible or
relevant[,]” and that a subsequent portion of the Court of Criminal Appeals’ opinion,
in which it was contrasting counsel’s performance with that of the attorneys in
another case and explaining the strategy undergirding counsel’s performance at the
penalty phase, pertained to the state court’s assessment of the reasonableness of his
attorney’s performance in light of the case petitioner had cited to show that he was
entitled to a new sentencing hearing. According to petitioner, the portion of the Court
of Criminal Appeals’ opinion that this court has construed as, at least in part,
reflecting the state court’s judgment on prejudice does not, in fact, do so because it
does not “address[ ] the prejudice prong” and, instead, “clearly focuses on deficient
performance.” Pet’r’s Mot. (Doc. # 59) at 24.6 However, in his prejudgment briefing,

6

To be clear, the relevant portion of the Court of Criminal Appeals’ opinion includes a lengthy
quotation from the circuit court’s opinion denying petitioner’s Rule 32 petition. In the excerpted portion,
the circuit court determined that Shirley Irelan’s testimony about her father’s abuse was not credible because
it was not corroborated by documentation or another witness alleged to have also been abused, questioned
the relevance of testimony about violence allegedly inflicted on petitioner’s father and aunt which predated
petitioner’s birth and of which he was unaware, questioned the relevance of evidence about Shirley Irelan’s
grandfathers’ alleged bootlegging activities and the drinking habits of petitioner’s father’s aunt and uncle,
found allegations about petitioner’s father’s own drinking “a gross overstatement of the evidence” actually
adduced at the hearing, and speculated that evidence about abuse inflicted on petitioner was “greatly
exaggerated” considering the lack of corroboration from witnesses other than petitioner’s mother and sister.
Waldrop v. State, 987 So. 2d 1186,1197–99 (Ala. Crim. App. 2007). The circuit court summarized its belief
that petitioner’s evidence was not “particularly credible or relevant[,]” and that, had trial counsel presented
the evidence offered at the Rule 32 hearing, “the result of Mr. Waldrop’s trial would not have been
different.” Id. at 1200. The Court of Criminal Appeals then adopted the circuit court’s findings and
remarked that few of petitioner’s witnesses had “offered any negative insight into Waldrop’s upbringing
except his mother[,]” whose testimony mostly “consisted of detailing the abuse that she had suffered at the
hands of her father, one of the victims, and her husband.” Id.

37

petitioner also treated the circuit court’s credibility findings as pertinent to the state
court’s judgment on the prejudice prong. See Pet’r’s Br. (Doc. #44) at 88-90 (arguing
that, “[i]n assessing prejudice, the state court unreasonably discounted mitigating
evidence because it was presented through family member witnesses,” and citing
circuit court’s credibility finding as to Shirley Irelan’s testimony about her father’s
abusive behavior). It is not unusual that this court, and petitioner himself, previously
construed the state court’s discussion of witness credibility, probative value, or
relevance as reflecting its findings on prejudice; federal courts have routinely
recognized that a habeas petitioner cannot show prejudice due to counsel’s failure to
offer incredible, irrelevant, or insufficiently compelling testimony at trial. See, e.g.,
Johnson v. Upton, 615 F.3d 1318, 1341-44 (11th Cir. 2010). Thus, petitioner’s
present contention that the state courts did not reach the prejudice prong is puzzling.
In any event, the court concludes that, where petitioner himself did not previously
argue this point, and where the record does not manifestly support his conclusion, the
court did not commit manifest error in concluding that the state courts decided the
prejudice prong of his claim on the merits and, consequently, in applying § 2254(d)
rather than conducting a de novo review.
Petitioner next contends that, even assuming that the state court did reach the
prejudice prong when it evaluated the evidence introduced at the Rule 32 hearing, the
38

state court’s decision was contrary to, or involved an unreasonable application of,
Strickland, or it rested on an unreasonable determination of the facts in light of the
record before the state courts. Pet’r’s Mot. (Doc. # 59) at 25. For the reasons stated
in the Memorandum Opinion, the court does not agree. Nevertheless, the court will
address petitioner’s discrete supporting arguments in turn. He first argues that “the
state court did not evaluate whether, but for counsel’s deficiency, there was a
reasonable probability that Mr. Waldrop would have received a different sentence.”
Id. Petitioner submits that, although the Court of Criminal Appeals “quoted cases
that recite the proper prejudice standard,” it adopted the circuit court’s use of “a
standard – requiring proof that ‘the result of Mr. Waldrop’s trial would have been
different,’ – that is inconsistent with Strickland.” Id. (citation omitted) (emphasis
petitioner’s). Petitioner thus faults the Court of Criminal Appeals for adopting the
circuit court’s judgment because it failed to incorporate the words “reasonable
probability” in the portion of its prejudice analysis in which it concluded that, had
counsel offered the evidence presented at the Rule 32 hearing, the result of his “trial
would not have been different.” Waldrop, 987 So. 2d at 1200.
Of course, if petitioner believed that the state court did not actually evaluate
prejudice or that, to the extent it did so, it failed to correctly apply the “reasonable
probability” standard, he should have presented such argument prior to judgment.
39

Nevertheless, petitioner concedes, as he must, that the Court of Criminal Appeals
recited and, therefore, was aware of the correct standard. See id. at 1194 (quoting
Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994) (“When the ineffective
assistance claim relates to the sentencing phase of the trial, the standard is whether
there is a reasonable probability that, absent the errors, the sentencer – including an
appellate court, to the extent it independently reweighs the evidence – would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.”) (internal quotation and citation omitted); id. at 1195 (quoting Gaddy
v. State, 952 So. 2d 1149, 1170-71 (Ala. 2006) (“‘In Strickland [the Supreme Court],
made clear that, to establish prejudice, a defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. In assessing prejudice, we
reweigh the evidence in aggravation against the totality of available mitigating
evidence.”) (internal quotation and citation omitted). Thus, it is evident that the
Court of Criminal Appeals was cognizant of the correct standard to be applied in
assessing prejudice.
Likewise, because petitioner bases his charge that the state courts applied an
incorrect standard on the Court of Criminal Appeals’ adoption of offending language
40

from the circuit court’s opinion denying this claim in his Rule 32 petition, it is
worthwhile to review that opinion as well. In its opinion, the circuit court also
correctly set out the Strickland prejudice standard:
The standard articulated by the Strickland Court requires that Mr.
Waldrop show that his trial counsel’s representation fell below an
objective standard of reasonableness (“deficient performance”) and that
there was a reasonable probability that, but for his attorney’s
unprofessional errors, the result of the proceeding would have been
different (“prejudice”). In this Rule 32 proceeding, Mr. Waldrop has
shown neither deficient performance or prejudice.
R.-74 at 1-2.

Thus, although the circuit court later omitted the “reasonable

probability” language when making its prejudice findings, which were then adopted
by the Court of Criminal Appeals, it is evident that the circuit court, too, was aware
of the correct standard to be applied in assessing petitioner’s claim of prejudice.
Petitioner’s argument has less to do with the state court’s application of the correct
standard than with its failure to recite every word of the standard where it is applied.
This insistence on formalistic, mechanical consistency “‘smacks of a ‘grading papers’
approach that is outmoded in the post-AEDPA era.’” Evans v. Sec’y, Dep’t of Corr.,
703 F.3d 1316, 1329 (11th Cir. 2013) (quoting Wright v. Sec’y for Dep’t of Corr., 278
F.3d 1245, 1255 (11th Cir. 2002)). Where it is clear that, at all levels, the state courts
were aware of the correct standard and endeavored to apply it, this court will not
deem the state court’s decision contrary to or an unreasonable application of Supreme
41

Court precedent based only on its failure to fully recite the given standard in every
instance in which it is invoked, and petitioner has not cited any case in which a court
has done so in similar circumstances.
Petitioner next claims that the state court’s decision on the prejudice prong is
contrary to, or involved an unreasonable application of, Strickland because it did not
assess prejudice by “considering the totality of the available mitigation evidence
presented at trial and in postconviction because it considered none of the mitigating
evidence adduced in the Rule 32 proceeding.” Pet’r’s Mot. (Doc. # 59) at 26
(emphasis in original). In support of this argument, petitioner had argued in his brief,
in pertinent part, that the state courts unreasonably failed to credit the testimonies of
his family member witnesses at the Rule 32 hearing because they were family
members and unreasonably failed to find evidence about his background mitigating
because he killed his grandparents. Petitioner apparently now argues that the court
committed manifest error in rejecting these contentions, asserting that the court’s
“analysis leaves no basis for the state court’s wholesale exclusion of the mitigating
evidence presented in Rule 32 except its conclusion that it was not ‘relevant.’” Id.
at 27-28.
To the contrary, all that this court did was address petitioner’s arguments as
they were presented in his briefing. As the court discussed in the Memorandum
42

Opinion, see Doc. # 57 at 66-67, in his brief, petitioner faulted the Court of Criminal
Appeals for adopting the “circuit court’s order refusing to credit the testimony of
family members because they were related to Bobby.” Pet’r’s Br. (Doc. # 44) at 88.
In support of this contention, he cited to a single sentence of the CCA’s opinion in
which the court, quoting from the circuit court’s order, found Shirley Irelan’s
testimony about severe beatings and abuse inflicted on her by her father “incredible”
because of her “interest in the outcome” of the proceeding and, importantly, because
her testimony was not corroborated by reasonably expected sources including medical
documentation or the testimony of other witnesses – in particular, Mrs. Irelan’s sister
– who were alleged to have similarly experienced such violence at the hands of Mr.
Prestridge. See Waldrop, 987 So. 2d at 1198. As this court noted,
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
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.
Mem. Op. (Doc. # 57) at 66-67. The court fails to see how it could have committed
manifest error in demonstrating that the single instance petitioner cited as indicating

43

that the state courts unreasonably discounted his family members’ testimonies
because of their relationship with him did not, in fact, do so.7 It is petitioner’s burden
to support his arguments about the purported actions of the state courts, and, in this
instance, he failed to provide persuasive support for his contention that the state
courts unreasonably failed to credit the testimony of his family member witnesses
because of their familial relationship with petitioner. What is clear from the state
court opinions is that, apart from any explicit credibility or relevance findings by
those courts, the state courts mostly did not find that the evidence introduced at the
hearing reliably established, in number or severity, the myriad allegations of
petitioner’s Rule 32 petition,8 and that the totality of the mitigating evidence

7

Petitioner’s charge that “[t]his Court determined that the only evidence excluded from the state
court’s consideration on the basis of lack of credibility was ‘Mrs. Irelan’s testimony about severe beatings
by her father[,]’” Pet’r’s Mot. (Doc. # 59) at 27, is inaccurate. What the court actually determined was that
the only instance petitioner cited for his proposition did not, in fact, support it, and that, moreover, his related
argument that other witnesses corroborated the testimony of his family members was, for the most part, not
especially probative of that point. See Mem. Op. (Doc. # 57) at 65-71.
8

For example, in portions of the circuit court’s order that were not excerpted in the Court of
Criminal Appeals’ opinion, the circuit court found that the evidence actually introduced at the hearing did
not support petitioner’s allegation that his mother “ever engaged in ‘flagrantly adulterous’ activities,” did
not reliably establish petitioner’s mother’s alleged history of repeatedly attempting suicide, and did not
preponderate in favor of petitioner’s allegations that he was continuously neglected or deprived of food and
clothes. See R.-74 at 4-6. See also Waldrop, 987 So. 2d at 1198-1200 (quoting and adopting circuit court’s
findings that evidence of petitioner’s purported family history of substance abuse was either irrelevant or
insufficient to support his exaggerated allegations, finding evidence of alleged “daily” abuse inflicted on
petitioner unreliable because the sources of such evidence were petitioner’s mother – whom the court found
generally incredible [see R.-#74 at 6] – and his sister – whom, the court noted, had “been convicted of crimes
that affect the credibility of a witness” – and because no witness, including petitioner’s “preacher, teacher,
neighbor, and aunt” testified about observing common indicators of such abuse, and finding evidence offered
to show petitioner’s alleged “promise” in “structured environments” counterbalanced by other evidence in
the record, including that he had to repeat a grade in school and that he was fired from work three times due
to excessive absences).

44

introduced by petitioner at trial and in collateral proceedings simply was not
sufficient to outweigh the aggravating circumstances proven at trial. Petitioner
understandably disagrees with this conclusion. But, having reviewed the subject
opinions and the state court record, this court cannot conclude that the state courts
acted unreasonably in reaching this determination.
Likewise, petitioner’s argument that the court committed manifest error in
concluding that the state courts did not unreasonably discount evidence about his
background because of the identity of his victims is unavailing. As the court noted
in the Memorandum Opinion, by the time the Court of Criminal Appeals speculated
that it was “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[,]” it had already
adopted the circuit court’s findings respecting the credibility, relevance, and
probative value of the childhood and background evidence introduced by petitioner
in Rule 32 proceedings, as well as the lower court’s conclusion that, had the evidence
been introduced, “the result of Mr. Waldrop’s trial would not have been different.”
Waldrop, 987 So. 2d at 1200. Thus, it simply does not follow that the state courts
wholly discounted petitioner’s childhood and background evidence because of the

45

identity of his victims. At most, this was a secondary, supporting reason why the
state courts did not believe that petitioner was prejudiced.9
9

Nor, in this court’s estimation, was it unreasonable for the Court of Criminal Appeals to speculate,
which – in surmising that the described result was “conceivable” – is all that it did, that petitioner’s
background evidence could have been interpreted by the jury or the ultimate sentencer as “double-edged.”
In the Memorandum Opinion, the court acknowledged that, while “evidence of petitioner’s family
background could be generally mitigating and not objectively damaging to his case[,]” “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.” Mem. Op. (Doc. # 57) at 72 n.27. Petitioner now charges the court with
having conflated the deficient performance and prejudice inquiries, improperly requiring that “mitigating
evidence directly ‘connect’ to the crime,” and unreasonably refusing to “find evidence of abuse and domestic
violence mitigating unless it is proportionate to the capital offense.” Pet’r’s Mot. (Doc. # 59) at 27-28 n.8.
However, the court has done none of these things.
First, it was petitioner who argued that his Rule 32 evidence was not simply generally mitigating,
but that 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[.]” Pet’r’s Br. (Doc. # 44) at 91 (emphasis supplied). The court was simply observing that, to the extent
petitioner was analogizing his family members’ alleged violent, stress-induced actions with his own as a
means of explaining those actions, it was not reasonably persuasive because of the overwhelmingly
disproportionate nature of petitioner’s violent actions and the scant evidence that they were the result of any
conflict or stress involving the victims other than that petitioner wanted their money so he could buy drugs.
In any event, the court acknowledged in its order that “evidence of petitioner’s family background could be
generally mitigating and not objectively damaging to his case[,]” and that “[s]uch evidence might even have
“‘help[ed] the jury understand Bobby’” and “sympathize with him as a person.” Mem. Op. (Doc. # 57)
at 72-73 n.27. Thus, the court recognized the potential mitigating value of such evidence and in no way did
it require a connection between mitigating evidence and the crime or impose some proportionality
requirement in order for evidence to achieve some minimal threshold of cognizable mitigation, and nor did
it endorse any perceived similar state court position.
Moreover, the court’s observations pertain also to the potential counterweight of the mitigating
evidence and conclude, ultimately, that the state courts’ speculation in this regard, even if shortsighted or
incorrect, was not unreasonable. The trial evidence showed that petitioner gruesomely butchered his elderly
and infirm grandparents to get money so he could buy drugs. Morever, the trial and post-conviction evidence
showed – in devastating detail, considering the trial evidence of petitioner’s grandmother’s declarations as
she was being attacked – that, whatever hardships petitioner had endured in his life, his grandparents loved
and provided for him up to the very moment that he murdered them. It is not unreasonable to question
whether otherwise ostensibly mitigating evidence of childhood abuse and neglect which, as in this case, is
inextricably intertwined with evidence showing the loving and nurturing nature of the victims toward the
defendant might negate the intended impact of the abuse and neglect mitigating evidence – especially where,
in the state courts’ estimation, evidence of such abuse and neglect is mostly weak, irrelevant, and

(continued...)
46

Given all of the above, petitioner’s argument that “[t]his Court’s analysis
leaves no basis for the state court’s wholesale exclusion of the mitigating evidence
presented in Rule 32 except its conclusion that it was not ‘relevant’” Pet’r’s Mot.
(Doc. # 59) at 28, is problematic. All that the court did was consider whether
petitioner’s sweeping arguments about the state court’s decision were supported by
his citations to the record and decide that, ultimately, they were not. This court’s
analysis did not purport to identify or constrain all of the various bases on which the
state courts might have “excluded,” rejected, or simply not have been persuaded by
the mitigating evidence petitioner presented in Rule 32 proceedings. Certainly, the
state courts questioned the relevance of some of petitioner’s evidence. See Waldrop,
987 So. 2d at 1198 (concerning evidence of “violent acts allegedly perpetrated on
[petitioner’s] father and his father’s sister . . . by the uncle they were raised by”
because “it all happened before Mr. Waldrop’s birth and apparently Mr. Waldrop was
not aware of it”); id (concerning evidence about petitioner’s mother’s grandfathers’
bootlegging activities “or that she had seen an uncle of hers ‘driving drunk’ or that
the aunt and uncle who raised Mr. Waldrop’s father drank, all of whom were
apparently deceased before Mr. Waldrop’s birth or shortly thereafter”). And, in those

(...continued)
unpersuasive – or might otherwise distract from other mitigating evidence that counsel perceived as stronger
and more essential to his defense.

47

limited circumstances, petitioner might rightfully question whether the state courts
unreasonably “excluded” that evidence or otherwise overlooked its mitigating value.
But, as discussed in detail above, in addition to the state courts’ explicit issues with
credibility and relevance, the state courts variously found petitioner’s evidence
largely unpersuasive, insufficient to establish the severity of the allegations in his
Rule 32 petition, and lacking in reasonable corroboration from anticipated sources.
Thus, the state courts did not effect a “wholesale exclusion” of petitioner’s mitigating
evidence premised on either unreasonable credibility findings or an unreasonable
assessment of what constitutes relevant mitigating evidence, and his argument that
it is “patently unreasonable and contrary to Supreme Court precedent to determine
that mitigating evidence of the type presented in this case is not relevant mitigating
evidence,” see Pet’r’s Br. (Doc. # 59) at 28-29, is therefore unavailing.10

10

In a lengthy footnote, petitioner presents what is presumably an argument ancillary to this point
when he contends that the court erroneously denied his requests for an evidentiary hearing. Pet’r’s Mot.
(Doc. # 59) at 29-30 n.9. The court denied petitioner’s request for an evidentiary hearing in a separate order
entered prior to the parties’ briefing on merits and procedural issues. See Order (Doc. # 39). Of course,
because the court was required to apply the provisions of 28 U.S.C. § 2254(d)(1) & (2) to petitioner’s claim
of ineffective assistance of counsel, the court was not permitted to hold an evidentiary hearing – at which,
presumably, petitioner would seek to introduce evidence not presented in the state courts – unless and until
the court determined either that the state court’s decision denying his ineffective assistance claim was
contrary to, or involved an unreasonable application of, clearly established federal law, or that it was based
upon a determination of fact that was unreasonable in light of the record before the state courts. See Cullen
v. Pinholster, U.S. , 131 S. Ct. 1388, 1398 (2011) (“We now hold that review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits.”); id. at 1400
(“evidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court”). Because the court ultimately decided these two
inquiries against petitioner, there was no cause for a federal evidentiary hearing.

48

Petitioner further appears to fault the court for treating his “allegations about
counsel’s failure to obtain adequate expert assistance as separate claims” and finding
that the state courts decided these claims on their merits despite that, with respect to
his allegations about counsel’s failure to hire an independent psychologist, the “state
court did not identify or evaluate whether counsel’s performance fell short of
prevailing professional norms [namely, the ABA Guidelines],” the state court’s
opinion “exclusively addresses expert mental health evidence at the guilt/innocence
phase and renders no determination about counsel’s failure to retain an independent
psychologist for the penalty phase,” and, purportedly, “it unreasonably overlooks”
aspects of trial counsel’s testimony at the Rule 32 hearing. Pet’r’s Mot. (Doc. # 59)
at 29-30 n.9. In the Memorandum Opinion, the court noted the arguably disjointed
manner in which the Court of Criminal Appeals dealt with petitioner’s claim about
counsel’s failure to hire an independent psychologist for use at the guilt and penalty
phases of his trial. See Mem. Op. (Doc. # 57) at 53 n.23 (noting that the Court of
Criminal Appeals “may have conflated petitioner’s separate guilt and penalty phase
ineffective assistance claims concerning counsel’s failure to retain a psychological
expert.”). As to the penalty phase aspect of the claim, the court determined that the
state court decided the claim on the merits of Strickland’s deficiency prong. Id.
at 112-16. Although it appears petitioner now contends that the Court of Criminal
49

Appeals did not intend to render any merits determination about his claim as to the
penalty phase, it is indisputable that the Court of Criminal Appeals was aware that his
claim concerned the exclusion of his mental health expert’s penalty-phase-related
testimony. See Waldrop, 987 So. 2d at 1192-93 (quoting Rule 32 hearing transcript
discussion of petitioner’s expert’s anticipated testimony about “statutory mitigating
circumstances,” including that he “suffered from a mental disease or defect at the time
of the offense”). Thus, when, in the next paragraph, the Court of Criminal Appeals
reasoned that trial counsel was not ineffective for failing to locate an independent
psychological expert because the pretrial report available to counsel indicated
petitioner “was not suffering from a mental disease at the time he committed the
murders,” id. at 1193, it does not follow that the Court of Criminal Appeals was
addressing petitioner’s claim only as it related to the guilt phase.11 Furthermore, the
Court of Criminal Appeals’ failure to address whether the ABA Guidelines supported
counsel’s decision or counsel’s own musings in hindsight do not compel the
conclusion that the state court did not decide the claim on its merits, or that any merits
determination was contrary to, or an unreasonable application of, clearly established
federal law.
11

Indeed, the fact that the Court of Criminal Appeals separately recognized and discussed
petitioner’s claim that counsel failed to adequately investigate mental health evidence for use at the guilt
phase, see Waldrop, 987 So. 2d at 1206, strongly suggests that the state court intended its earlier discussion
in pages 1192-93 of its decision to apply to petitioner’s penalty phase claim.

50

In affording this level of deference to the state court’s decision, the court is not
unmindful of the Eleventh Circuit’s very recent decision in DeBruce v.
Commissioner, Alabama Department of Corrections, 758 F.3d 1263 (11th Cir. 2014),
and the extent to which it could be argued that decision counsels against conferring
such deference in this instance. However, critical distinctions between the instant
case and DeBruce limit that case’s utility here and, in any event, do not illustrate any
manifest error in this court’s judgment that the state courts did not act unreasonably
in denying petitioner’s claim that his counsel was ineffective in failing to investigate
mental health evidence or procure expert assistance for the penalty phase of his trial.
In DeBruce, the habeas petitioner alleged that his trial counsel rendered
ineffective assistance in their investigation and preparation for the penalty phase of
his trial. Specifically, he argued “that a pre-trial report created by a social worker at
[one of his counsel’s] request, which assessed DeBruce’s competence to stand trial,
should have alerted [counsel] of the need to make further inquiry into DeBruce’s
mental health and background.” 758 F.3d at 1271. This report indicated, inter alia,
that DeBruce had attempted suicide four times, that he had “refused special
education,” that he “had dropped out of school at the age of sixteen,” that his
“intelligence was in the ‘low average’ range,” and that he had a history of substance
abuse. Id. at 1271-72. In pertinent part, the majority of the panel in DeBruce found
51

that counsel had no strategic reason to fail to further investigate DeBruce’s mental
health and background considering the leads suggested in the pretrial report. Id.
at 1272. Moreover, the panel found that the Court of Criminal Appeals denied
DeBruce’s claim because counsel had testified that “the information he received did
not lead him to question DeBruce’s competence to stand trial or to consider defending
DeBruce based upon a lack of mental capacity.” Id. at 1273. Thus, the panel held
that the Alabama Court of Criminal Appeals’ “determination that [counsel] acted
strategically in failing to conduct a mitigation investigation” was unreasonable
because it was “based upon its erroneous conflation of the issues of guilt-phase
mental health defenses and competence to stand trial with the separate issue of
whether to conduct a mitigation investigation.” Id.; see also id. at 1274 (“Because
no lawyer could reasonably have made a strategic decision to forego the pursuit of
mitigation evidence based on the results of the pre-trial report governing competency
to stand trial, the Alabama Court of Criminal Appeals’ conclusion to the contrary
constitutes an unreasonable application of Strickland’s performance prong.”). In
short, then, the majority in DeBruce held that, as to deficient performance, given the
troubling information in the pretrial report and several inconsistencies between the
report and information conveyed by DeBruce and his mother, DeBruce’s attorneys
unreasonably abandoned any further investigation into DeBruce’s mental health and
52

background and the Court of Criminal Appeals unreasonably endorsed this failure to
conduct further investigation as a strategic choice worthy of deference under
Strickland.
In this case, apart from the arguably similar and disjointed manner in which the
Court of Criminal Appeals addressed petitioner’s claim about counsel’s failure to
investigate mental health evidence for use at the penalty phase,12 it is clear that the
competency report counsel reviewed prior to trial simply did not contain the sort of
“troubling leads,” DeBruce, 758 F.3d at 1275, upon which the majority of the
DeBruce panel based its decision that no reasonable attorney could have justified a
strategic decision to forego further investigation into petitioner’s mental health. As
discussed in the Memorandum Opinion (see Doc. # 57 at 48-49), the pretrial
competency report in this case revealed that the clinical psychologist’s impressions
of petitioner – apart from apparent substance abuse and addiction concerns – were
overwhelmingly ordinary. Petitioner described himself, his mother, his father, and
his siblings as, essentially, “free of physical and psychiatric problems.” R. 31 at 2.
12

DeBruce at least superficially suggests that, to the extent the Court of Criminal Appeals indeed
conflated petitioner’s guilt and penalty phase ineffective assistance claims in ruling that counsel did not
perform deficiently in his investigation of petitioner’s mental health for penalty phase purposes, the state
court erred in doing so. 758 F.3d at 1272-73. However, even if the Court of Criminal Appeals erred in its
analysis, for the reasons discussed in this Order, the circumstances of the respective pretrial competency
reports so materially distinguish this case and DeBruce that, even in light of that decision, this court cannot
conclude that the state court’s ultimate judgment – that Waldrop’s counsel did not perform deficiently in
failing to further investigate petitioner’s mental health for penalty phase purposes–is contrary to, or an
unreasonable application of, Supreme Court precedent.

53

His “[m]ental status examination” was uniformly normal. Id. He was alert,
demonstrated excellent memory, was properly oriented as to “person, place, and
time,” was able to concentrate and engage in abstract thought, and he denied
“hallucinations, delusions, depersonalization, . . . derealization” and “current or past
suicidal or homicidal ideation or intent.” Id. Indeed, the pretrial report, which noted
petitioner’s “lengthy history of dependence on crack cocaine and marijuana as well
as narcotics” and surmised that he was “voluntarily intoxicated” at the time of the
offense, see id. at 4, likely had the effect of confirming counsel’s prevailing theory
of defense based upon his interviews with petitioner and review of the available
evidence. That is, the pretrial report would have only reinforced how imperative it
would be for counsel to illustrate to the jury how petitioner’s addiction caused him
to commit the crimes, both to challenge the intent element of the crime and, in the
event of a conviction, lessen his moral culpability.
Considering all of the above, not only did counsel not ignore or fail to followup on any “troubling leads” in the report, as did counsel in DeBruce, he quickly
focused his defense on the only “troubling lead” reliably suggested in the report:
petitioner’s “lengthy” history of substance abuse and addiction. Accordingly, as
described in the Memorandum Opinion (Doc. # 57) at 49-50 &112-14, counsel then
set about mining that aspect of the case for value at both the guilt phase and penalty
54

phase by consulting with the Southern Center for Human Rights, retaining Dr.
Tackett, and offering Dr. Tackett’s testimony at both the guilt and penalty phases of
the trial. Counsel did not unreasonably choose to cease any further investigation into
petitioner’s mental health and background after his review of the report, as did
counsel in DeBruce, and the state court’s judgment denying that counsel did not
perform deficiently therefore is not contrary to, or an unreasonable application of,
Supreme Court precedent as it is interpreted in DeBruce.
Petitioner next argues that the court committed manifest error in addressing his
claim that the state court unreasonably “failed to consider the jury’s 10-2 verdict for
life in assessing the totality of mitigating circumstances.” Pet’r’s Mot. (Doc. # 59)
at 30-32. In doing so, petitioner ignores precedent that does not support his
argument13 and mischaracterizes the court’s findings.14
13

As the court discussed in the Memorandum Opinion, see Doc. # 57 at 73-74, there plainly exists
authority in this circuit that conflicts with petitioner’s argument that a jury’s life recommendation necessarily
weighs in favor of a finding of sentencing phase prejudice under Strickland. See Lee, 726 F.3d at 1196
(“Indeed the fact that the jury recommended life imprisonment counsels against a determination that Lee was
prejudiced under Strickland.”). Petitioner makes no mention of this authority in the instant motion. Instead,
he continues to cite Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008), as “[w]ell-established precedent in
this circuit,” which he asserts mandates that, where a jury recommended a life sentence without the benefit
of the mitigating evidence subsequently introduced in postconviction proceedings, a finding of prejudice is
especially justified. However, as this court previously noted, Williams is distinguishable because, unlike in
this case, the finding of prejudice in Williams was predicated in significant part on the Court of Appeals’
conclusion that the case was not “highly aggravated.” 542 F.3d at 1343. Petitioner argues that, in
distinguishing Williams, the court has “overlooked the reasoning” of Williams because the “relative weight
of the aggravating circumstances in Williams went to the reasonableness of the ultimate finding of prejudice,
not to the necessity of including the jury’s life verdict on the mitigating side of the scale in the prejudice
analysis.” Pet’r’s Mot. (Doc. # 59) at 31-32 n.10.
Even if the Eleventh Circuit determined in Williams that the jury’s life recommendation “weighs
heavily in favor of a finding of prejudice,” nothing in that case establishes that, as a matter of “necessity,”
(continued...)

55

The court’s Memorandum Opinion adequately addresses petitioner’s
underlying claim, and petitioner has failed to show any manifest error of law in this
regard.
Petitioner next argues that, “[r]ather than evaluate the reasonableness of the
state court’s failure to assess the reasonable probability of a different sentence by

13

(...continued)
a jury’s life recommendation must always be treated that way. To suggest such an absolute position is
counterintuitive at best. If anything, the value of a jury’s life recommendation in a reviewing court’s
prejudice analysis should be determined on a case-by-case basis. In a case like Williams, where the trial
attorneys’ only discernible strategy at sentencing was to offer a presentation of mitigating evidence about
the defendant’s background that was revealed in postconviction proceedings to be overwhelmingly thin and,
in some vital respects, contradictory, it was perhaps reasonable to conclude that the jury’s life
recommendation supports a finding of prejudice. However, in other cases, such as Lee, where the
postconviction evidence was found to be “simply too general and conclusory” and “cumulative” of evidence
introduced at trial, a court is perhaps justified in concluding that the jury’s life recommendation does not
necessarily support a finding of prejudice. Likewise, as in this case, where trial counsel ably presented a
penalty phase defense focused on showing the effects of petitioner’s drug addiction on his actions, the jury’s
life recommendation may very well speak to the effectiveness of counsel’s strategy, not necessarily what
would have been the utility of presenting more of the sort of background mitigating evidence eventually
introduced in postconviction proceedings.
In any event, even if Williams should be read as petitioner proposes, he points to no Supreme Court
authority establishing that a jury’s life recommendation necessarily supports a finding of prejudice or that
it otherwise establishes that “the State’s case for the death penalty was ‘only weakly supported by the
record.’” Pet’r’s Mot. (Doc. # 59) at 31. Certainly, nothing in Strickland requires such a conclusion. To
the extent petitioner’s argument is therefore dependent on language in Williams that appears contradicted
by language in Lee, the court believes that the Eleventh Circuit is better left to resolve any ambiguity in this
area of the law.
14

Contrary to petitioner’s belief, this court did not find “that the state court did not consider the
jury’s life verdict for purposes of prejudice.” Pet’r’s Mot. (Doc. # 59) at 30-31. Instead, what the court did
was conclude that the lone citation petitioner offered in his brief in support of his contention that the “state
court’s decision weighed against a finding of prejudice the jury’s 10-2 verdict for life,” Pet’r’s Br. (Doc.
# 44) at 92, did not, in fact, conclusively support his argument. See Mem. Op. (Doc. # 57) at 74-77. The
most that can be said of the state courts’ actual weighing of the jury’s life recommendation is that state courts
explicitly found it to be “significant,” but “not controlling” of the prejudice analysis. See Waldrop, 987 So.
2d at 1199-1200 (quoting, and adopting, the circuit court’s order finding no prejudice). If Lee is to be taken
at face value, this was not error on the state court’s part. Nevertheless, because, as set forth above, petitioner
has not shown that clearly established federal law requires a reviewing court to treat a jury’s life
recommendation as a substantial factor in favor of a finding of prejudice, petitioner failed to show any
unreasonable action on the part of the state courts.

56

considering the totality of the mitigating circumstances and aggravating
circumstances, this Court conducted a different analysis that contains critical factual
and legal mistakes.” Pet’r’s Mot. (Doc. # 59) at 33. Petitioner first accuses the court
of using “the wrong legal standard” because, “[r]ather than ‘consider the totality of
the available mitigation evidence – both that adduced at trial, and the evidence
adduced in the habeas proceeding – and reweig[h] it against the evidence in
aggravation’ to assess the probability of a different outcome under Strickland, this
Court found ‘there is little for the court to do but compare the cases cited by petitioner
with his own.’” Pet’r’s Mot. (Doc. # 59) at 33 (internal quotations and citations
omitted).
However, the court did not purport to apply any “standard” other than that of
§ 2254(d)(1) & (2). The court reviewed the CCA’s decision denying petitioner’s
ineffective assistance claim, specifically discussing the state court’s findings on
prejudice. See Mem. Op. (Doc. # 57) at 60-62. The court addressed each of
petitioner’s discrete arguments that the state court unreasonably decided the prejudice
inquiry against him. Id. at 65-79. Then, in response to petitioner’s claim that the
state court unreasonably failed to evaluate the totality of the mitigation evidence, this
court summarized the mitigating evidence introduced at both trial and in Rule 32
proceedings, id. at 80-92, reviewed the aggravating evidence relied upon by the state
57

courts, id. at 93-94, and decided that, ultimately, “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.” Id. at 95. Only then, in response to the
abundant citations in petitioner’s briefing to several Supreme Court cases which, he
argued, established that the state court’s decision was contrary to, or involved an
unreasonable application of, Supreme Court precedent, did this court explain why, in
its view, those cases, as well as others decided by the Eleventh Circuit, did not require
such a conclusion in this case. Id. at 96-110.
Thus, the court plainly sought only to apply § 2254(d) review to the state
court’s decision denying petitioner’s claim of prejudice because this court was not
charged with conducting a de novo review of petitioner’s ineffective assistance claim.
Rather, the court was only concerned with the reasonableness of the state court’s
decision finding no prejudice. See Harrington v. Richter, 131 S. Ct. 770, 785 (2011)
(“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 from if, for example, this Court were adjudicating a Strickland
58

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.”). To the extent petitioner therefore faults the court for conducting some
flawed version of a de novo review, his argument misses the mark. And, to the extent
petitioner would argue that this court somehow committed manifest error or applied
the wrong legal standard in comparing his case to those in which the Supreme Court
has found Strickland prejudice both within and without the confines of AEDPA, the
court would again direct petitioner to the court’s citation of numerous Eleventh
Circuit cases performing a similar exercise. See Mem. Op. (Doc. # 57) at 97 (citing
Lee, 726 F.3d at 1194 (“A comparison of Lee’s allegations of childhood poverty and
his parents’ fights to the types of ‘powerful’ mitigating evidence that the Supreme
Court has found sufficient to establish prejudice under Strickland is instructive as
Lee’s evidence pales in comparison.”); Rose v. McNeil, 634 F.3d 1224, 1245-46 (11th
Cir. 2011) (explaining that “[i]n any event, Rose’s 3.850 testimony falls far short of
the powerful evidence that has been held sufficient to satisfy the prejudice prong in
a brutal murder case” and reviewing pertinent Supreme Court cases); Boyd v. Allen,
592 F.3d 1274, 1299-1300 (11th Cir. 2010) (“Moreover, while we do not seek to
minimize the adversities Boyd has faced, the record, including the evidence
introduced at his post-conviction hearing, does not reveal the kind of abuse or
59

deprivation inherent in other cases where Strickland prejudice actually has been
found.”). The court’s purpose in reviewing the pertinent evidence in each of the
relevant Supreme Court cases was merely to show that, by comparison, the evidence
petitioner adduced in support of his allegations of abuse and neglect was not on par
with those cases in which the Supreme Court or Court of Appeals has found
prejudice.
At the heart of petitioner’s argument in this regard appears to be an assumption
– not even an argument or a position considered worthily of debate – that the state
court did not actually consider the totality of the mitigating evidence when it
concluded that he was not prejudiced by counsel’s alleged deficient performance. See
Pet’r’s Br. (Doc. # 59) at 33 (“Rather than evaluate the reasonableness of the state
court’s failure to assess the reasonable probability of a different sentence by
considering the totality of the mitigating circumstances and aggravating
circumstances, this Court conducted a different analysis . . . .”). It seems, according
to petitioner, that this court was not to assess the reasonableness of the state court’s
evaluation of the totality of mitigating evidence, but instead was to assess the
reasonableness of the state court’s failure to do so. But petitioner’s “proof” that this
actually occurred in the state court was unpersuasive. He first argued that the state
“court’s unreasonable failure to consider the evidence adduced in post-conviction
60

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.” Pet’r’s Br. (Doc. # 44) at 93. But
this supposition fails to credit the very reasonable likelihood that the strategy
employed by counsel – to focus on presenting expert opinion evidence about crack
cocaine’s effects on petitioner’s behavior – was successful before the jury. It simply
does not follow, indeed, it strains credulity to posit, that the jury’s life verdict was the
product of counsel’s presentation of “just a small amount of the available mitigating
evidence,” especially where petitioner has so vehemently assailed counsel’s efforts
in this regard throughout state post-conviction and federal proceedings.
Petitioner also argued that the Court of Criminal Appeals “unreasonably failed
to weigh entire categories of powerful mitigating evidence, including evidence of the
extreme physical abuse and neglect Bobby suffered at the hands of his parents,
because witnesses who were not privy to what happened inside the Waldrop
household ‘never saw anyone hit or strike him.’” Pet’r’s Br. (Doc. # 44) at 93-94.
But the state court’s assessment of testimony about abuse, neglect, and violence
inflicted on petitioner was more nuanced than is portrayed by petitioner. The state
61

court observed that several of petitioner’s own witnesses, persons who had sustained,
sometimes daily interactions with him over a period of years, “never saw any marks
or bruises on Mr. Waldrop, never saw anyone hit or strike him, and never observed
Mr. Waldrop appear to be hungry or without proper clothing.” Waldrop, 987 So. 2d
at 1199. Thus, the state court based its overall impression that petitioner’s abuse and
neglect evidence “appears to be greatly exaggerated” on more than just his failure to
produce a witness – outside of his mother, sister, or brother – who actually saw him
being hit or struck. The court reasonably expected that there would be some
indication of the “extreme physical abuse and neglect Bobby suffered” such that
witnesses like his teachers, pastor, aunt, or a lifelong neighbor would be able to
support the testimony of his family members. See id. (“If there had been ‘daily fights’
between Mr. Waldrop and his father involving hitting with fists and hands and
choking or being hit with belt buckles someone would have noticed something.”).
But these witnesses uniformly testified that they did not see signs of abuse, neglect,
violence, or privation in their interactions with petitioner. The state court’s judgment
about the value of this evidence was plainly based on more than just petitioner’s
failure to produce a witness who did not live in petitioner’s home yet still witnessed
instances of violence against petitioner in the home.

62

At bottom, and as discussed above, petitioner’s evidence was in the record
before the state court. The state court indisputably reviewed the evidence but, in
several instances, found it to be lacking credibility, relevance, or probative value.
Just because the state court did not accept without scrutiny every detail of every
witness’s testimony and did not catalogue every item of testimony or evidence in its
opinion does not mean that the state courts “did not consider or unreasonably
discounted the mitigation evidence adduced in the postconviction hearing.” Pet’r’s
Br. (Doc. # 44) at 94. Nor does it follow that this court was required to assume that
the state court did so and then proceed to evaluate the reasonableness of the state
court’s failure to consider the evidence, as petitioner has argued the court failed to do
in this instance.
Petitioner next argues that the court “employed the wrong standard with respect
to aggravating circumstances by deciding that the trial court’s finding of the ‘heinous,
atrocious, or cruel’ aggravating circumstance makes it virtually impossible to
establish prejudice in this case.” Pet’r’s Mot. (Doc. # 59) at 34.15 Petitioner then
imputes to the court some “assertion that a reviewing court may decline to give full
weight and consideration to mitigating circumstances and instead base its prejudice

15

Petitioner concedes that the court identified the proper standard, but insists that it nevertheless
failed to “‘correctly conceptualize how that standard applies to the circumstances of this case.’” Pet’r’s Mot.
(Doc. # 59) at 34 n.12 (quoting Sears v. Upton, 561 U.S. 945, 952 (2010) (per curiam)).

63

determination on the aggravating circumstances alone,” which, he argues “is contrary
to established precedent.” Id. However, as with numerous of petitioner’s other
representations about the content of the court’s Memorandum Opinion, the court did
not say this. In fact, all the court did was note the state court’s obligation, in
assessing prejudice, “to weigh the mitigating evidence adduced by the petitioner at
trial and in collateral proceedings against the aggravating circumstances.” Mem. Op.
(Doc. # 57) at 93. The court then cited and discussed relevant Eleventh Circuit
authority that instructs that the heinous, atrocious, or cruel aggravating circumstance
applicable in this case is a “particularly powerful” and “immense” factor to be
weighed against the mitigating evidence. Id. The court then reviewed the trial
court’s basis for applying the heinous, atrocious, or cruel aggravator and simply
concluded that, “while it is certainly possible that a habeas petitioner can show
prejudice even in a case involving the heinous, atrocious, or cruel aggravator . . . , it
is clear that petitioner’s burden in overcoming the powerful aggravating
circumstances in this case is substantial.” Id. at 93-94.
Nowhere did the court intimate that it is “virtually impossible to establish
prejudice” where this aggravator applies. The court explicitly said it is “certainly
possible.” Likewise, the court in no way “asserted” that the state court in this case
was free to “decline to give full weight and consideration to mitigating circumstances
64

and instead base its prejudice determination on the aggravating circumstances.”
Thus, petitioner’s attempt to recast the court’s assessment of the relative weight of the
heinous, atrocious, and cruel aggravating circumstance is unavailing.
Petitioner next argues that, even if the “approach” he erroneously attributes to
the court “were condoned by Supreme Court precedent, this case is not so uniquely
aggravated relative to other capital murder cases that a reviewing court could
rationally find that no amount of mitigation would have made a difference in the
outcome.” Pet’r’s Mot. (Doc. # 59) at 34. In support, petitioner cites a number of
Supreme Court cases in which prejudice was found despite the gruesome nature of
the underlying murders. Id. at 34-35. However, as discussed above, the court did not
intimate “that a reviewing court could rationally find that no amount of mitigation
would have made a difference in the outcome,” and petitioner’s citation to Rompilla,
Wiggins, and Williams v. Taylor is not helpful because, as the court discussed
extensively in its Memorandum Opinion, the mitigating evidence that outweighed the
aggravating evidence and established prejudice in those cases was far more
compelling than that adduced by petitioner in Rule 32 proceedings.
Petitioner next contends that “this Court’s factual findings with respect to
mitigating circumstances are incomplete, inconsistent, and inaccurate.” Pet’r’s Br.

65

(Doc. # 59) at 35. He appears to fault the court for failing to make certain findings
of fact based on evidence that was produced during state postconviction proceedings.
The Court provides no explanation for failing to find that Bobby was
traumatized and shamed by his mother’s neglect, abandonment, suicidal
behavior, and reputation for infidelity; that his family history and early
exposure to substance abuse left him vulnerable to addiction; that . . . he
showed promise in structured environments and was not only loved by
his grandparents but loved and caringly nursed them; that Bobby’s crack
cocaine addiction was precipitated by traumatic events with which he
could not otherwise cope; and that Bobby is loved and valued by his
family and members of the community. These mitigating circumstances
are amply supported by the unrebutted evidence adduced and proffered
in Rule 32 but despite purporting to “credit[ ] the evidence as true,” this
Court overlooked them.
Pet’r’s Mot. (Doc. # 59) at 35-36 (internal citation omitted). The short answer to
petitioner’s charge of manifest error in this regard is that this court was not required
to make any specific findings of fact about his mitigating evidence in conducting its
review under § 2254(d). See Harrington, 131 S. Ct. at 785. Rather, the court was
required only to assess the reasonableness of the state court’s weighing of
aggravating and mitigating evidence when it concluded that he was not prejudiced by
the errors he attributed to his counsel. Thus, the court was not obliged to make
factual findings about whether petitioner’s evidence supported his allegations, and
certainly was not required to provide an “explanation” for its failure to make such
unnecessary factual findings.

66

To provide context for the court’s assessment of the reasonableness of the state
court’s judgment, the court set out in the Memorandum Opinion a streamlined recital
of the totality of the mitigating evidence adduced at trial and in Rule 32 proceedings.
Mem. Op. (Doc. # 57) at 80-92. After discussing the aggravating evidence before the
state courts, the Memorandum Opinion continued with a couple summary paragraphs
acknowledging the mitigating nature of some of petitioner’s evidence, but also
discussing some of the inherent limitations of that evidence. Id. at 94-96. These
paragraphs are not intended, and should not be construed, as specific “findings of
fact” about the existence or nonexistence of mitigating circumstances. Petitioner has
failed to show manifest error due to any failure of the court to make specific factual
findings regarding his mitigating evidence.16
Petitioner next argues that the court’s observation that “evidence about the
severity and frequency of any violence inflicted on petitioner by his family members
is mostly vague,” Mem. Op. (Doc. # 57) at 95, and is “inconsistent” with the court’s
recital of the mitigating evidence in pages 80-92 of the Memorandum Opinion. See
Pet’r’s Mot. (Doc. # 59) at 36-37. As an initial matter, the court emphasizes that,
although it still considers “evidence about the severity and frequency of any violence

16

Moreover, the court’s recital of the totality of the mitigating evidence recounts the testimonies
of the various witnesses petitioner offers to substantiate the mitigating circumstances that he accuses the
court of having “overlooked.”

67

inflicted on petitioner” to be “mostly vague,” the court’s larger point should not be
ignored: The court expressly acknowledged that “it appears clear that petitioner was
sometimes the target of violent actions by his parents.” Mem. Op. (Doc. # 57) at 95.
Thus, petitioner appears to be quibbling over semantics. At any rate, a fair review of
the evidence indicates that most of the testimony about violence inflicted on
petitioner is indeed general and vague as to frequency and severity. With a few
exceptions, there is little testimony about specific incidents of violence involving
petitioner or specific injuries inflicted on him.17 There is no evidence about petitioner
needing or seeking medical attention as a result of any of this violence. Nor is there
appreciable specific testimony about how often petitioner was subjected to violence
by his mother or father.18 Thus, the court did not commit manifest error in observing
that “evidence about the severity and frequency of any violence inflicted on petitioner
by his family members is mostly vague.”

17

Petitioner’s mother testified that petitioner’s father would hit petitioner with his fist, that she had
seen him choke petitioner, and that “several times” she also hit him with a broom handle. R.- 60 at 332-33.
Notably, although she testified that being beaten and choked by her husband often left her with visible marks
and bruises, see id. at 329, as set forth above, witnesses did not observe similar markings on petitioner
despite his mother’s testimony that he too was often hit and choked by his father.
18

Petitioner’s mother testified that it seemed like “it was on a daily basis” that petitioner and his
father would have some sort of altercation. R.- 60 at 332. But she did not testify that, specifically, petitioner
was hit, choked, or otherwise physically abused on a daily, or even regular, basis. Petitioner’s brother only
testified, without specifics as to frequency or severity, that he had seen their mother hit petitioner. Id. at 366.
Likewise, petitioner’s sister only testified, without specifics as to time or frequency, that she had seen
petitioner’s mother hit petitioner with various items, and that she had seen her father also hit and choke
petitioner. Id. at 374, 378.

68

Petitioner also asserts that “this Court’s determination that Mr. Waldrop’s
claim of prejudice is undercut by the fact that his siblings grew up in the same
circumstances and have not resorted to criminal behavior is refuted by the state court
decision itself,” Pet’r’s Mot. (Doc. # 59) at 37, which notes that his sister “has been
convicted of crimes that affect the credibility of a witness.” See Waldrop, 987 So. 2d
at 1199. As with many other instances in his motion, petitioner misrepresents what
the court actually said in the Memorandum Opinion. The court simply observed, with
citation to relevant Eleventh Circuit authority that petitioner has ignored, that his
claim of prejudice was undercut because his “two younger siblings grew up in the
same circumstances [which he stridently described as ‘nightmarish’] 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.” Mem. Op. (Doc. # 57) at 95 (emphasis
supplied). The court plainly did not determine that neither of petitioner’s siblings had
ever “resorted” to any “criminal behavior” as petitioner appears to suggest. Thus,
while it is certainly true that petitioner’s sister testified that she had been “convicted
of negotiating a worthless negotiable instrument,” R.-60 at 389, the court fails to see
how such a conviction could in any way be construed as “similar” to, or in the same
universe of criminal behavior as, capital murder. See, e.g., Reed v. Sec’y, Fla. Dep’t
69

of Corr., 593 F.3d 1217, 1247 (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”) (emphasis supplied). Petitioner’s contention that the
court’s “determination” in this regard is “refuted by the state court decision itself” is
inaccurate.
For all of the foregoing reasons, the court finds that petitioner has failed to
demonstrate any manifest error of law in the Memorandum Opinion’s adjudication
of his ineffective assistance of counsel claim. Consequently, he is not entitled to Rule
59(e) relief.19
F.

Petitioner’s contention that the court committed manifest error in
denying his claim challenging the trial judge’s failure to recuse
himself on the basis of personal bias

Petitioner’s final argument that the court has committed manifest error
warranting altering or amending the court’s judgment concerns the court’s disposition
of his claim of judicial bias. He first argues that, for the reasons he presented in the
first portion of his motion, the court should reconsider that portion of its judgment
19

The court has already granted a certificate of appealability respecting petitioner’s claim that he
received ineffective assistance of counsel at the penalty phase of his trial. As none of petitioner’s guilt phase
ineffective assistance claims is the subject of the instant motion, the court has not been asked to, and does
not hereby, expand the certificate of appealability already granted on petitioner’s ineffective assistance claim.

70

that found several of his allegations of judicial bias procedurally defaulted because
they were not fairly presented and exhausted in the state courts. Pet’r’s Mot. (Doc.
# 59) at 38. However for the reasons discussed by the court in section II.A of this
order, the court finds that petitioner has not shown manifest error in the court’s
application of the relevant procedural default principles. Thus, petitioner is not
entitled to Rule 59(e) relief.
Turning to the portion of petitioner’s judicial bias claim that the court did not
find procedurally defaulted and proceeded to review pursuant to the AEDPA,
petitioner presents a number of sub-arguments that the court will address in turn. By
way of review, petitioner claimed in his habeas petition that the trial judge
“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.” Pet. ¶ 96.20 The court
rejected respondents’ assertion of procedural default as to this claim and reviewed the
state court’s merits determination pursuant to § 2254(d). In his brief, petitioner
20

Petitioner’s blunt account of Judge Segrest’s alleged conduct was similarly damning in his brief:
“During that meeting, Judge Segrest entered the room and assisted the District Attorney in securing the
testimony of Mrs. Fortenberry by threatening her with the prospect of jail time.” Pet’r’s Br. (Doc. # 44)
at 97.

71

specifically argued that the state court’s determination that this claim lacked merit
“‘was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding’” pursuant to § 2254(d)(2). Pet’r’s Br. (Doc.
# 44) at 100. After reviewing the state court record, the court concluded otherwise.
Mem. Op. (Doc. # 57) at 134-39.
Petitioner first argues that the Court of Criminal Appeals found that the trial
judge had no contact with Mrs. Fortenberry, and that such finding is unreasonable in
light of the record. See Pet’r’s Mot. (Doc. # 59) at 42-43 (“The Court of Criminal
Appeals’ decision that ‘relief was properly denied on this claim’ because Judge
Segrest had no contact with Kristy ‘was based on an unreasonable determination of
the facts’ . . . [because] the record shows Judge Segrest was present and had contact
with Kristy at the meeting.”). But the Court of Criminal Appeals did not find that
there was “no contact” between Judge Segrest and Mrs. Fortenberry. Rather, the
Court of Criminal Appeals simply determined that Mrs. Fortenberry’s testimony
about the matter did not indicate “that Judge Segrest had unlawful contact with Mrs.
Fortenberry, much less that he coerced Fortenberry to testify.” Waldrop, 987 So. 2d
at 1204. The court need not once again parse Mrs. Fortenberry’s testimony about the
meeting in search of the version petitioner divines, and it may not favor his
interpretation of the plainly ambiguous testimony of his sister at the expense of the
72

presumption of correctness owed to the Court of Criminal Appeals’ factual findings
without the benefit of clear and convincing evidence rebutting the state court’s
findings.21 For the reasons stated in the Memorandum Opinion, the court concludes
that this determination was not unreasonable in light of the record before the Court
of Criminal Appeals, see Mem. Op. (Doc. # 57) at 136-39, and that petitioner has not
shown that the court committed manifest error.

21

Petitioner’s only substantive response to the court’s previous analysis of the reasonableness of
the state court’s factual findings in light of the record is to essentially “double-down” on his contention that
the record supports his allegations. That is, where the court finds ambiguity in Mrs. Fortenberry’s use of
plural pronouns in her testimony, petitioner finds sufficient certainty to render the state court’s contrary
interpretation unreasonable. He “maintains that, fairly read in the context of her testimony, ‘they’ refers to
Mr. Clark and Judge Segrest – not to persons who were not at the meeting or conversations that did not
‘happen[ ] at that meeting.’” Pet’r’s Mot. (Doc. # 59) at 45. Even if such an interpretation could be “fairly
read” into Mrs. Fortenberry’s testimony, that does not entail that the state court’s contrary interpretation,
even if improbable or incorrect, was unreasonable within the meaning of § 2254(d)(2). In any event, Mrs.
Fortenberry used “they” three separate times when asked what happened at the meeting. It is clear that, with
respect to the first two times she used it – specifically, when she referred to persons who “tricked” her into
testifying by making promises about how the letter she provided the prosecution would be used – she had
previously testified that investigator James Bailey had engaged in that conduct toward her by assuring her
that the letter would only be used against petitioner’s co-defendant and that it would not be known that she
had provided him with the letter. Thus, when she used it a third time in testifying that “they told me if I
didn’t [testify] I could go to jail,” R.-60 at 397, it was not at all clear that Mrs. Fortenberry was referring to
Judge Segrest, especially in light of the fact that, up to that point, she had only testified that she had “seen”
Judge Segrest during the course of her meeting with the prosecutor. Indeed, Mrs. Fortenberry never testified
about any specific words or actions on the part of Judge Segrest. If the court understands petitioner’s
position correctly, in order for Mrs. Fortenberry’s testimony about her conversations regarding the letter and
her testimony to have been limited only to persons who he alleges were at the meeting and conversations that
occurred at that time, that would mean that when Mrs. Fortenberry testified that she felt like “they tricked
[her] into [testifying] any way because of the letter . . . they ensured [her] about the letter[,]” that she was
stating that the prosecutor and Judge Segrest were making assurances to Mrs. Fortenberry at the same time
that they were breaking them by forcing her to testify against her brother’s benefit about her own actions in
securing the letter. Such an interpretation makes little sense. Thus, accepting, as a reasonable reader must,
that Mrs. Fortenberry’s use of “they” in the key part of her testimony when she was referring to persons who
made her promises is at least ambiguous, the state court’s factual findings simply are not unreasonable in
light of the record. This ambiguity could have easily been cured, but Mrs. Fortenberry was not asked any
of the imminently reasonable follow-up questions that would have clarified her testimony.

73

Petitioner next argues that the court failed to consider his argument that the
Court of Criminal Appeals’ judgment was contrary to, or an unreasonable application
of, Supreme Court precedent. Pet’r’s Mot. (Doc. # 59) at 43. He further accuses the
court of having “imposed on petitioner a heavy burden to present specific testimony
‘that Judge Segrest directly pressured [Kristy] into testifying.’” Id.22 He argues that
this “standard” is not supported by law and that it indeed “contravenes Supreme Court
precedent that a defendant shows that his due process rights were violated by
establishing the facts that indicate a likelihood of bias against him or in favor of the
prosecution.” Id. at 43-44. As an initial matter, even if the court could fairly be
described as having failed to consider whether petitioner’s claim entitled him to relief
pursuant to § 2254(d)(1), such failure was a consequence of petitioner’s own
discussion of his claim. In the portion of his brief in which he challenged the state
court’s decision on the merits of his judicial bias claim related to the trial judge’s
alleged pressuring of Fortenberry, petitioner only argued that the Court of Criminal
Appeals’ “assertion” that there was no indication of “unlawful contact” “‘was based
22

Of course, it was petitioner who alleged that “after the District Attorney and Judge Segrest
threatened her with jail time, she felt pressured and ultimately took the stand at trial.” Pet. ¶ 96 (emphasis
supplied). See also Pet’r’s Br. (Doc. # 44) at 97 (“During that meeting, Judge Segrest entered the room and
assisted the District Attorney in securing the testimony of Mrs. Fortenberry by threatening her with the
prospect of jail time.”); id. at 99 (“Judge Segrest’s pretrial conduct in pressuring Kristy Fortenberry to testify
. . . .”). Thus, it was petitioner who presented his claim as one predicated on his ability to show that Judge
Segrest assisted the prosecutor by “threatening” Mrs. Fortenberry and that his “pretrial conduct” “pressured”
her. Petitioner does not explain why the court should not reasonably expect the evidence actually adduced
in state court proceedings to correspond with the substance and tenor of his allegations and argument.

74

on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’” See Pet’r’s Br. (Doc. # 44) at 99-100.
Nevertheless, petitioner has not demonstrated manifest error because the Court
of Criminal Appeals’ decision is not contrary to, or an unreasonable application of,
Supreme Court precedent.23 His argument appears to be predicated on his contention
that, “even if Judge Segrest uttered no words at all, his presence during this ex parte
meeting required his recusal under Murchison” because “the purpose and effect of the
judge’s presence during this meeting was to benefit the State” and “the judge’s
participation in the ex parte meeting gave him personal knowledge of disputed
evidentiary facts concerning the proceeding.” Pet’r’s Mot. (Doc. # 59) at 45, 47.
However, in making this new argument in support of his claim pursuant to
§ 2254(d)(1), petitioner’s reasoning suffers from the same flaw that precluded his
claim for relief under § 2254(d)(2): He makes assumptions that are unsupported by
the meager evidence in the record and, consequently, falls short of demonstrating the

23

The relevant Supreme Court precedent relied upon by petitioner in his prejudgment brief and in
the instant motion is In re Murchison, 349 U.S. 133 (1955). In that case, the Supreme Court addressed a
peculiar provision of Michigan law which empowered the judges of Michigan courts “to act as a so-called
‘one-man grand jury.’” Id. at 133. The question before the Court was whether due process permitted a judge
to preside over a contempt hearing where the judge “had also served as the ‘one-man grand jury’ out of
which the contempt charges arose.” Id. at 134. The Court held that such contempt proceedings violated the
due process rights of the petitioners. Id. at 139. In reaching this result, the Court espoused generalized
principles about how due process is concerned not just that a trial be fair, but with eliminating the
“probability of unfairness” and maintaining “‘the appearance of justice.’” Id. at 136 (quoting Offutt v. United
States, 348 U.S. 11, 14 (1954)). Thus, the court observed, “no man can be judge in his own case and no man
is permitted to try cases where he has an interest in the outcome.” Id.

75

sort of “likelihood of bias” which he argues is forbidden by Murchison, much less
that the Court of Criminal Appeals’ judgment denying this claim is contrary to, or an
unreasonable application of, that decision.
For example, petitioner argues that “the purpose and effect of the judge’s
presence during this meeting was to benefit the State.” Pet’r’s Mot. (Doc. # 59) at 45.
He asserts that Judge Segrest “lent the credibility of his office to the prosecutor’s
threats, and by failing to contradict the prosecutor when he told Kristy she could go
to jail if she did not testify against her brother, Judge Segrest endorsed and magnified
those threats” when he acted as a “silent partner in the prosecutor’s ethically
questionable efforts to obtain evidence critical to the State’s case.” Id. at 47. But, as
this court discussed in the Memorandum Opinion, the record is simply too slight to
presume that Judge Segrest participated in any meaningful way in the meeting Mrs.
Fortenberry described in her testimony, that he was a willing “silent partner” to the
prosecutor’s alleged threats and intimidation, or even that he knowingly relinquished
an opportunity to “contradict” the prosecutor’s alleged threats. The most that Mrs.
Fortenberry definitively stated in her testimony about Judge Segrest is that she saw
him during her meeting with the prosecutor, and she later affirmed that he “came
into” the meeting and was “present.” R.-60 at 392, 394, 396. She simply does not
describe any circumstances of the meeting and Judge Segrest’s presence within it
76

with sufficient detail to compel the sinister conclusions about Judge Segrest reached
by petitioner.24 It is not the fault of the Court of Criminal Appeals that the record is
not clear on this matter. As much as petitioner would argue that Mrs. Fortenberry’s
testimony was “circumscribed . . . through no fault of petitioner,” Pet’r’s Mot. (Doc.
# 59) at 44, petitioner voluntarily ceased his questioning of Mrs. Fortenberry without
asking any question about what, specifically, Judge Segrest did that caused her to feel
threatened or intimidated or what was his role in the meeting that allegedly left her
feeling that way. See R.-60 at 397. Without even appreciably diminishing the
possibility of some innocent contact, interaction, or other happenstance, petitioner has
not shown that the state court’s implicit conclusion that he failed to demonstrate a

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A multitude of reasonably anticipated questions could have established at least some of the factual
basis necessary to support the assumptions inherent in petitioner’s allegations. Mrs. Fortenberry does not
describe where the meeting occurred. Did it occur in a place Judge Segrest would not ordinarily have visited
during trial? Would it have required a concerted effort on his part to “come into” the meeting? Or, was it
in a hallway or other room through which he was passing? Other than her testimony that she had been
meeting with the prosecutor for “awhile” before she saw Judge Segrest (R.- 60 at 394), she does not
temporally relate Judge Segrest’s alleged presence to any of the threats or intimidation she described. When
did Judge Segrest appear in the course of the meeting? Was it before, during, or after the prosecutor
allegedly threatened Mrs. Fortenberry? Most significantly, there is no testimony about the specifics of any
actions by Judge Segrest. Did Judge Segrest expressly threaten or intimidate Mrs. Fortenberry? Did he nod
solemnly while the prosecutor issued his threats? Did he say or do anything? Did he start to enter a room
and retreat when he saw the prosecutor speaking with Mrs. Fortenberry? Did he step into a room looking
for something or someone else? Did he approach the two as their meeting appeared to be concluding so that
he could speak with the prosecutor about some extrajudicial matter? Any of these actions – the good and
the bad – could lead to him being “seen” by Mrs. Fortenberry and could also fairly be described as him
“coming into” or being “present” at some point during the meeting. Petitioner’s failure to ask these and
numerous other reasonably conceivable questions about the circumstances of the meeting and Judge Segrest’s
actions before he voluntarily ceased questioning Mrs. Fortenberry leaves the record substantially ambiguous
on the essential points of his claim and begs the question whether that resulting ambiguity was indeed the
desired result.

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constitutionally unacceptable “likelihood of bias” is contrary to, or an unreasonable
application of, Murchison.
Likewise, petitioner’s argument that “the need for recusal here meets or
exceeds that in Murchison because the judge’s participation in the ex parte meeting
gave him personal knowledge of disputed evidentiary facts concerning the
proceeding” is similarly unavailing. Because the record does not establish when
Judge Segrest was present during the meeting, that he participated in any meaningful
way, or even that he knew anything about what purportedly happened at the meeting,
it simply does not follow that he was aware of “disputed evidentiary facts”
concerning the letter. The court cannot conclude, therefore, that the state court’s
decision was contrary to, or an unreasonable application of, Murchison or any other
Supreme Court precedent.
Petitioner’s final contention with respect to the court’s adjudication of this
portion of his judicial bias claim is that “this Court should reconsider its
characterization of the state court’s language at page 1204 as an ‘alternative merits
ruling on the claim’ and find that the Court of Criminal Appeals affirmed the circuit
court’s ruling that the claim was procedurally barred without adjudicating the claim
on the merits[ ]” because “it cited no law and engaged in no analysis that would
support a merits determination on the substantive claim challenging the trial judge’s
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unconstitutional failure to recuse himself on the basis of personal bias.” Pet’r’s Mot.
(Doc. # 59) at 48-49 (citation omitted). Thus, he asserts, the court should find “its
review is not limited to the record before the state court because the state court did
not adjudicate the federal habeas claim on the merits and, accordingly, it is not
subject to § 2254(d).” Id. at 49. Petitioner did not present this argument in his
prejudgment briefing. Indeed, he argued the opposite, contending that the state court
did address the merits of his claim, but that its adjudication was based upon an
unreasonable determination of the facts. See Pet’r’s Br. (Doc. # 44) at 99-100 (“In
addressing the merits of this claim, the Court of Criminal Appeals . . . .”); id. at 100
(“As the State asserts, aside from addressing the issue on the merits . . . .”). Petitioner
will not now be heard to complain that the state court failed to address his claim on
its merits, and instead only decided it on state procedural grounds.
Petitioner also argues that, minimally, he is “entitled to a federal hearing on this
claim because he did not receive a full and fair hearing in state court and was diligent
in his attempts to present this evidence.” Pet’r’s Mot. (Doc. # 59) at 49. However,
as discussed previously in this order, because petitioner presented this claim and, as
he has acknowledged, the state court decided it on the merits, a federal habeas court
is constrained in review under § 2254(d) by the factual record that was before the
state court. See Cullen, 131 S. Ct. at 1398 (“We now hold that review under
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§ 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.”); id. at 1400 (“evidence introduced in federal court has no
bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1)
on the record that was before that state court”); id. at n.7 (explaining that review
under § 2254(d)(2) is even more clearly limited to the state court record). Thus, there
was no cause for a federal evidentiary hearing on this claim unless and until petitioner
demonstrated that the state court’s decision denying his claim was contrary to, or
involved an unreasonable application of, clearly established federal law, or was based
upon an unreasonable determination of fact in light of the record before the state
court. Because the court has determined that petitioner has not satisfied this burden,
he is not entitled to an evidentiary hearing.
Finally, the court finds that petitioner is not entitled to a certificate of
appealability on this claim. It is perhaps conceivable that reasonable jurists could
interpret to varying degrees whether petitioner demonstrated any likelihood of bias
with his ambiguous evidence about Judge Segrest’s involvement in some meeting
between the prosecutor and a witness. However, given the highly deferential standard
of the AEDPA, and the presumption of correctness owed to the state court’s fact
finding, reasonable jurists would not dispute whether, on the record before the state
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court, “the petition should have been resolved differently,” Slack v. McDaniel, 529
U.S. 473, 483-84 (2000), because reasonable jurists would not debate whether the
state court’s decision was contrary to, or involved an unreasonable application of,
clearly established law, or was based upon an unreasonable determination of fact.
III. CONCLUSION
For the foregoing reasons, it is ORDERED that petitioner’s Rule 59(e) motion
to alter or amend judgment (Doc. # 59) is DENIED. It is further ORDERED that
Petitioner’s request to expand the limited certificate of appealability already granted
by the court is DENIED.
DONE this 5th day of February, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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