Smith v. Thomas (DEATH PENALTY)
Filing
36
MEMORANDUM OPINION AND ORDER: it is ORDERED that Petitioner Corey Shirod Smith's 1 federal habeas corpus petition is DENIED without an evidentiary hearing and this case is DISMISSED with prejudice, as further set out in order; Because reasonable jurists would not find the denial of Petitioner's 2254 petition debatable, a certificate of appealability is DENIED. Signed by Honorable Judge R. Austin Huffaker, Jr on 1/12/2023. (bes, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
COREY SHIROD SMITH,
Petitioner,
v.
JOHN Q. HAMM1,
Respondent.
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3:13-cv-437-RAH
(WO)
MEMORANDUM OPINION AND ORDER
Petitioner Corey Shirod Smith (hereinafter “Smith”), an inmate in the custody
of the Alabama Department of Corrections, filed this habeas corpus petition,
pursuant to 28 U.S.C. § 2254, challenging the death sentence he received following
his conviction for capital murder in the Circuit Court of Tallapoosa County in
September 1995.2 Smith claims that his death sentence was obtained in violation of
his rights under the United States Constitution. Smith does not challenge his capital
murder conviction. He claims that he received ineffective assistance of counsel in
1
Pursuant to Federal Rule of Civil Procedure 25(d)(1), John Q. Hamm, the present Commissioner of the
Alabama Department of Corrections, is automatically substituted in his official capacity as a party to this
action, replacing the former Commissioner.
2
When filed, this case was originally assigned to District Judge Mark E. Fuller. (Doc. 1.) On August 21,
2014, this case was reassigned to then-Chief District Judge W. Keith Watkins (Doc. 28), and on December
17, 2019, this case was reassigned to the undersigned, (Doc. 32).
violation of his Sixth Amendment rights at the penalty phase of his trial, resulting in
a death sentence.
I.
A.
BACKGROUND
The Arrest, Confession, and Initial Proceedings
On February 26, 1995, Smith was arrested on a criminal complaint charging
him with the capital murder of Kimberly Brooks, Smith’s former girlfriend.3 (Doc.
15-1 at 7-8.) While detained in the Tallapoosa County Jail, Smith confessed in a
detailed, handwritten statement to the police that he had killed Brooks. In this
confession, Smith explained the series of events culminating in her murder as
follows:
Kim came to the house around 7:30 a.m. Wednesday
morning with Labreasha Main. We was talking about getting
married later on. My brother Reginald came and Main left. After
awhile, Reginald left.
When my mamma got off work, me and Kim got into an
argument about another girl calling me. We went outside. I
pulled my gun on her. Sanjay [Brooks] and Shontai [Smith]
pulled up. I forced her into the van. I told Sanjay to go to Bibb
Town, which he did. And, when we got there, Kim and I got out,
continuing arguing.
I told her I love her, and if I couldn't have her, no one
could. She told me she loved me but things weren't the same. I
kissed her on the forehead and pushed her off me and shot her in
References to page numbers are to those generated by the Court’s electronic CM/ECF filing
system.
3
2
the chest. And then she fell to the ground, and I shot her again
toward her head.
Shontai got out and helped me drag her into the bushes.
We left. Sanjay dropped us off into the soft sands. When he
returned, we got James Shealey['s] car and got some gas and went
back where I left her. When we got there, she was standing up,
and she got in the car and sat beside me. I was scared.
Sanjay rode from Bibb Town to Reeltown looking for a
place to set her on fire and bury her. I asked her what would she
say if I took her to the hospital. She sa[id], “I'm going to say
Corey shot me.” We returned back to Bibb Town, and Sanjay
drop us off—dropped us off. He told us to go ahead and finish
her and he'll be back.
We put a trash bag over her face until she died. I poured
the gas on her, and Shontai lit the lighter. Sanjay never returned.
We left there and walked back to my house. Shontai spent
the night. The next [day] he left and I never saw him again.
Smith v. State, 122 So. 3d 224, 226 (Ala. Crim. App. 2011) (quoting Smith v. State,
797 So. 2d 503, 509 (Ala. Crim. App. 2000) (cleaned up).
Following a preliminary hearing, on May 12, 1995, Smith, Sanjay Brooks,
and Shontai Smith were charged in a two-count indictment with the murder of
Kimberly Brooks during the course of a kidnapping in violation of Alabama Code
§ 13A-5-40(a)(1) (1975). (Doc. 15-1 at 9-10.)4 The co-defendants pleaded guilty to
4
The two counts in the indictment charged variations of Kidnapping in the First Degree as the
basis for the capital offenses. During the trial, on the State’s motion, the trial court dismissed one
count of the indictment. (See Doc. 15-52 at 2.)
3
murder and kidnapping and received life sentences.5 During the guilt phase of trial,
both co-defendants testified for the prosecution and corroborated statements
contained in Smith’s confession. Smith, 797 So. 2d at 510.
B.
Guilt Phase of Trial
Jury selection began August 28, 1995, and the trial began on August 30, 1995.
1. Prosecution’s Evidence
For its case-in-chief, the prosecution presented evidence from: (1) Stacy
Brown, a friend of the victim; (2) Emily Williams, a friend of the victim; (3) Toney
Brown, the victim’s boyfriend at the time of her death; (4) Carl Stewart, Assistant
Principal at Tallassee High School; (5) Sanford McQueen, the victim’s neighbor; (6)
Emma Forte, Smith’s mother; (7) Larry Butler, Smith’s cousin; (8) James Bo
Shealey; (9) Sanjay Brooks; (10) Shontai Smith; (11) Lakecia Corbitt; (12) Mattie
Brooks, the victim’s mother; (13) Wilbur Terrell, Deputy Sheriff, Tallapoosa
County; (14) Richard Lucas, Deputy Sheriff, Tallapoosa County; (15) Lamar
Powell, Deputy Sheriff, Tallapoosa County; (16) Gloria Waters, latent fingerprint
expert; (17) Tellis Hudson, forensic scientist; (18) Bill Landrum, forensic serologist;
(19) Mary Holt, forensic scientist; (20) Katherine McGheehan, forensic scientist in
biology; (21) Jim Sparrow, forensic investigator; (22) Jim Lauridson, forensic
5
Sanjay Brooks received concurrent life sentences on each count; Shontai Smith received two
consecutive life sentences. Smith, 797 So. 2d at 510.
4
pathologist; (23) Joe Saloom, firearms expert; and (24) William J. Hough, III,
investigator, Tallapoosa County Sheriff’s Department.
2.
Defendant’s evidence
Smith did not testify at trial or present any evidence in his defense.
3.
The Verdict
On September 1, 1995, the jury returned a verdict finding Smith guilty of
capital murder. (Doc. 15-19 at 37-38.)
C.
Penalty Phase of Trial
The trial court proceeded with the penalty phase of Smith’s trial on September
2, 1995.
1. The Evidence
Smith presented evidence from (1) Reginald Smith, his older brother; (2)
Annie Butler, his aunt; (3) Marrell Hayes, his cousin; (4) Larry Butler, Sr., his uncle
by marriage to Annie Butler; (5) Herbert J. Woodruff, store manager, Wal-Mart; (6)
Arlene Hooks, Smith’s brother’s girlfriend; (7) Katrina Smith, Smith’s half-sister;
(8) Chowon Smith, Smith’s half-brother; (9) Latrice Smith, Smith’s half-sister; (10)
Jelma Smith, Smith’s step-mother; (11) James Coan, Smith’s Youth Baseball coach;
(12) Rebecca Taunton, Smith’s teacher at Reeltown High School; (13) Latasha
Butler, Smith’s cousin; (14) Jerry Terrell, his uncle by marriage; (15) Casbie Forte,
his step-father; and (16) Emma Forte, his mother. In rebuttal, the prosecution called
5
Mattie Brooks to testify.
Ms. Brooks is Kimberly Brooks’s mother and the
grandmother of Labreshea, the infant daughter of Kimberly Brooks, the victim, and
Smith. (Doc. 15-20 at 66-68.)
2. The verdict
On September 2, 1995, the trial court instructed the jury on aggravating and
mitigating circumstances. The jury voted 12-0 in favor of a death sentence. (Doc.
15-20 at 122, 124-32.)
3. Sentencing hearing
The trial court conducted a sentencing hearing on September 14, 1995. For
the reasons stated in the Sentencing Order, consistent with the jury’s
recommendation, the trial court sentenced Smith to death. (Doc. 15-52 at 2-20.)
D.
Direct Appeal
Smith, represented by his trial counsel, Lee Sims and Palmer Singleton,
appealed his conviction and death sentence to the Alabama Court of Criminal
Appeals (“ACCA”). On appeal, Smith asserted numerous claims challenging the
guilt and penalty phases of trial.6 On August 25, 2000, the ACCA affirmed Smith’s
6
On direct appeal before the ACCA, Smith claimed that, during the guilt phase, the trial court (1) erred in
not quashing the indictment because there was gender discrimination in the selection of the grand jury
foreperson; (2) erred in denying his motion to dismiss the indictment because it was vague, duplicitous,
multiplicitous, and improperly drawn under Alabama Code § 15-8-50 (1975); (3) denied him a fair and
impartial trial by rulings made during voir dire examination; (4) erred in denying his motion for a
continuance; (5) erred in denying his motion to suppress a statement he made to police (a) after being
subjected to a truth verification/voice stress analysis machine, (b) after being held in custody for eight hours,
and (c) after the police failed to re-administer his Miranda rights; (6) committed reversible error by
interrogating one of the State’s witnesses and Smith’s co-defendant, Sanjay Brooks; (7) erred in allowing
6
conviction and death sentence. Smith v. State, 797 So. 2d 503 (Ala. Crim. App.
2000), rehrg. den., October 20, 2000. The Alabama Supreme Court denied Smith’s
petition for a writ of certiorari the following year. Ex parte Smith, 797 So. 2d 549
(Ala. 2001). The United States Supreme Court also denied Smith’s petition for a
writ of certiorari. Smith v. Alabama, 534 U.S. 962 (2001).
E.
State Post-Conviction Proceedings
1. Procedural History
On June 7, 2002, Smith, represented by new counsel, Jerry Kristal and
Stephen R. Glassroth, filed a state post-conviction petition pursuant to Rule 32 of
the Alabama Rules of Criminal Procedure (“Rule 32 Petition”) in the Circuit Court
of Tallapoosa County.7 (Doc. 15-34 at 40-86.) On September 19, 2002, Smith filed
the First Amended Rule 32 Petition. (Id. at 131-82.)
On April 1, 2005, the Rule 32 court set Smith’s Rule 32 Petition, as amended,
for a final hearing on July 25, 2005. (Doc. 15-35 at 67.) On July 18, 2005, one week
before this hearing, Smith filed a Second Amended Rule 32 Petition. (Id. at 147-95;
the admission of a prior consistent out-of-court statement by Shontai Smith; (8) erred in allowing evidence
of what, he alleged, were vague threats Smith had made to the victim; (9) erred in admitting photographs
of the autopsy, which denied him a fair trial; and (10) erred in allowing evidence of the public disturbance
outside the victim’s residence, which Smith alleged was not admissible at the guilt phase of the trial. Smith
also claimed during the penalty phase that (1) the trial court erred in excluding evidence that related to
mitigating circumstances surrounding Smith’s childhood; (2) the trial court erred by interrupting his closing
argument in the penalty phase; and (3) the prosecutor committed reversible error on four separate occasions
during closing argument.
7
When discussing the state post-conviction proceedings, this Court will refer to the Tallapoosa Circuit
Court as “the Rule 32 court.”
7
Doc. 15-36 at 4-71.) The State objected to the filing of Smith’s Second Amended
Rule 32 Petition on the grounds of undue delay by Smith and undue prejudice to the
State; the State moved to strike the filing. (Id. at 72-75.) After oral argument on the
matter, the Rule 32 court granted the State’s motion to strike Smith’s Second
Amended Rule 32 Petition. (Doc. 15-37 at 114.)
On July 25-26, 2005, the Rule 32 court held an evidentiary hearing on Smith’s
First Amended Rule 32 Petition. (Doc. 15-37 at 106-205; Doc. 15-38 at 3-202; Doc.
15-39 at 3-95.) On March 3, 2006, the Rule 32 court denied Smith’s First Amended
Rule 32 Petition. On appeal, the ACCA held that the Rule 32 court abused its
discretion in striking Smith’s Second Amended Rule 32 Petition, reversing the
court’s decision and remanding for a hearing on the second state post-conviction
petition. Smith v. State, 961 So. 2d 916 (Ala. Crim. App. 2006).
On December 10, 2007, the Rule 32 court conducted an evidentiary hearing
on Smith’s Second Amended Rule 32 Petition. (Doc. 15-46 at 135-204; Doc. 15-47
at 3-202; Doc. 15-48 at 3-71.) On December 11, 2008, the Rule 32 court denied
Smith’s Second Amended Rule 32 Petition. (Doc. 15-46 at 5-134; Doc. 15-52 at 99228.) On September 30, 2011, the ACCA affirmed the denial of Smith’s Second
Amended Rule 32 Petition.8 Smith v. State, 122 So. 3d 224 (Ala. Crim. App. 2011),
8
On appeal of the denial of the Second Amended Rule 32 Petition, Smith raised similar claims of ineffective
assistance of counsel, including claims challenging counsels’ failure to investigate or present mitigating mental
health evidence and failure to object to the “Especially Heinous, Atrocious or Cruel” aggravated circumstance.
Smith v. State of Alabama, No. CR-08-0638, WL 5256959 (Ala.Crim.App. April 1, 2009).
8
rehrg. den., December 9, 2011. (Id.) On February 22, 2013, the Alabama Supreme
Court denied Smith’s petition for a writ of certiorari and issued a Certificate of
Judgment. Smith v. State, No. 1110366 (Ala. Feb. 22, 2013).
2. Mitigation and Rebuttal Evidence
a. Clinical Social Worker Testimony
Smith’s counsel presented testimony from Marjorie B. Hammock, MSW,
LISW, a clinical social worker in Columbia, South Carolina. (Doc. 15-48 at 7.) At
the time of the Rule 32 hearings, Ms. Hammock was licensed in independent level
social work and had been in social work practice for forty-seven years. (Id. at 9.)
She worked in the correctional system for fifteen years and as an assistant professor
of social work at Benedict College for at least eight years. (Id.) Additionally, Ms.
Hammock held a diploma in clinical social work from the National Association of
Social Workers, and she was a member of the Academy of Certified Social Workers.
(Id. at 10.)
Ms. Hammock prepared a biopsychosocial assessment of Smith.
She
explained that a biopsychosocial assessment is a standardized assessment tool used
in social work, both in private practice and in clinical settings. (Id. at 13.) She
collected information concerning the biological or physical, the psychological or
behavioral, and the social history of Smith. (Id.)
9
As part of this project, she interviewed twenty-seven people who knew Smith
(family, friends, educators, and those who had pertinent information about his life).
She also visited Smith’s home and reviewed Smith’s school records, medical
records, criminal records, Youth Offender Report, and various DHR records
regarding child support applications. (Id. at 17-18.) Ms. Hammock spent about
eighty hours working on Smith’s case. (Id. at 36.)
Ms. Hammock testified about Smith’s life history, determining as follows:
The biopsychosocial assessment reveals a history of considerable
violence, deprivation, family patterns of violence toward each other and
others, considerable poverty, lack of resources for the family to survive,
and a generational pattern of difficulties in meeting basic needs and
taking care of the siblings as they came along. It also indicates that
there is a very - - was and is a very close involvement of family
members. They are related to each other. They are physically close to
each other in many instances. And they share considerable - - shared
problems that all participated in.
(Id. at 19-20.)
b. Expert mental health evidence
Three mental health experts testified during the state post-conviction
proceedings. Dr. Charles Josh Golden and Dr. Michael Scott Maher testified for
Smith and Dr. Glen D. King testified for the State.
i. Charles Josh Golden
During the second Rule 32 hearing, Smith’s counsel presented the testimony
of Dr. Charles Josh Golden, a board-certified clinical psychologist and
10
neuropsychologist. (Doc. 15-47 at 90-91.) At the time of the hearing, Dr. Golden
had practiced for more than thirty-two years, with a specialty in neuropsychology
and assessment.9 (Doc. 15-47 at 88-89.)
Dr. Golden evaluated Smith in November 2003. 10 (Id. at 98.) He gave Smith
“a series of psychological and neuropsychological tests aimed at evaluating the main
areas of attention, memory and executive function, as well [as] personality
functioning in Mr. Smith.” (Id. at 98-99.) In preparation for the hearing, Dr. Golden
also reviewed (1) the 2005 tests administered to Smith by the State’s expert, Dr.
Glen D. King and Dr. King’s interview notes; (2) Marjorie Hammock’s interview
notes; and (3) some of Smith’s records. (Id. at 100.)
Dr. Golden testified that Smith’s brain is functioning at the borderline
intelligence level, i.e., “someone who is not normal, but also does not fall in the
retarded range.”11
(Id. at 100-01.)
Dr. Golden opined that Smith’s brain
impairment––the executive functioning problems and the borderline skills––existed
9
Dr. Golden taught psychology at the university level since 1975, beginning as an assistant professor, then
promoted to associate professor and then later to full professor of psychology. (Id. at 93.) Dr. Golden
wrote twenty-four books in the field of neuropsychology or psychological assessment. (Id. at 95.)
10
Dr. Golden estimated that he had spent about 30-40 hours on Smith’s case. (Id. at 139.)
Although courts formerly employed the term “mental retardation,” courts now use the term “intellectual
disability” to describe the same condition. See Ledford v. Warden, Georgia Diagnostic and Classification
Prison, 818 F.3d 600, 608 n.1 (11th Cir. 2016) (citing Brumfield v. Cain, 576 U.S. 305, 308 n. 1 (2015)).
However, on occasion, courts use the terms “mental retardation” and “mentally retarded” when quoting or
discussing earlier judicial opinions, court orders, trial testimony, or medical reports because those terms
were used at the time. Ledford, 818 F.3d at 608 n.1.
11
11
as of 1995. (Id. at 102.) In Dr. Golden’s opinion, Smith’s brain dysfunction affected
his judgment, his ability to conform his conduct to the requirements of law, his
impulse control, and his ability to recognize the consequences of his actions. (Id. at
102-03.)
Dr. Golden testified that he and Dr. King did not administer the same tests to
Smith.12 (Doc. 15-47 at 125.) Upon reviewing the results of Dr. King’s testing, Dr.
Golden concluded that the test results “fell well into the brain injured range and
pointed to frontal lobe injury . . .” and that his own test results were similar to Dr.
King’s test results. (Id. at 126-27.)
ii. Michael Scott Maher, M.D.
At the time of the hearings, Dr. Maher, a psychiatrist in Tampa, Florida, was
board-certified in general and forensic psychiatry by the American Board of
Psychiatry and Neurology. Dr. Maher met with Smith once in June 2002 and
interviewed him for approximately 2.5 hours. (Doc. 15-37 at 205; Doc. 15-38 at
50.) Dr. Maher administered a psychiatric exam, a mental status exam, a brief
neurological exam, and interviewed Smith. (Doc. 15-38 at 3.)
During the 2005 Rule 32 hearing, Dr. Maher testified that, upon considering
Smith’s self-reported history, his examination of Smith, and his review of records
12
For example, Dr. Golden gave Smith the WAIS-III (Doc. 15-47 at 143), while Dr. King gave
Smith the older version of that test, the WAIS, (Doc. 15-46 at 174).
12
provided by counsel,13 he diagnosed Smith as suffering from chronic and severe Post
Traumatic Stress Disorder (“PTSD”)14 and Poly Substance Abuse in Remission due
to his incarceration. (Doc. 15-38 at 3, 6-7.) Dr. Maher opined that Smith suffered
from these two conditions at the time of the offense. (Id. at 4.) Dr. Maher further
These records included Smith’s Community Medical Arts Center records; school records;
Alabama Department of Corrections and Tallapoosa County Jail records; Mount Meigs records;
Lee County Youth Development Records; a Wal-Mart employment application; Alabama
Department of Human Resources and Protective Services records; and Alabama Department of
Human Resources Public Assistance records. (Doc. 15-38 at 7-10.)
13
Dr. Maher opined that Smith’s PTSD resulted from the physical abuse to which he was subjected
as a child, testifying as follows:
14
. . . Smith described being brought up in a household where domestic violence
was a chronic and continuing way of life. It was present all the time to some
degree or another. It was present upon various different family members. He
had no perspective or opportunity as a child to understand that the – what he
described as whuppings [sic] that he sustained as a child were in fact child
abuse. They were beatings and they were not an acceptable part of family
discipline in raising a child. He had the outlook that those things were simply
a normal part of his background. . . . he described a very clear and consistent
and rather terrible pattern of child abuse. He was hit with various different
items, including a switch, a bottle, shoes. He described that almost anything
her mother could get her hands on he would be hit with. He would be hit for
various different reasons. Sometimes he understood those reasons, sometimes
he didn’t, sometimes he thought that those reasons were good reasons. If he
got hit for fighting, he thought that was a fair reason to be hit. On the other
hand, if he was hit and he didn’t understand why he was being hit or if he broke
something and it was accidental, he didn’t really think that was quite right, but
he simply accepted it. . . .
He describes being hit by his mother, by his older brother Reggie, by
his step-fathers or men who were in the role of step-fathers, . . . and he
describes being the constant witness of various different men hitting and beating
and abusing his mother.
All of those things are a part of the foundation of trauma that he
experienced which created this Post Traumatic Stress Disorder.
(Id. at 16-17.)
13
opined that at that time, Smith was under the influence of extreme mental and
emotional disturbance.
He also concluded that in February 1995, Smith was
psychologically and emotionally immature for his age. Although Smith was age 18,
Dr. Maher surmised that he was functioning more like he was age 12 or 14 at that
time. (Id. at 5, 44.)
In summary, Dr. Maher testified that, at the time of the offense, Smith was
acting under extreme duress (Id. at 91) and that his capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
substantially impaired (Id. at 90-91).
Dr. Maher testified again at the hearing in December 2007. He reviewed the
tests administered by Dr. Golden in 2003 and he reviewed the neuropsychological
evaluations the State’s expert, Glen D. King, performed in 2005. Dr. Maher
reiterated his opinion that, in 1995, Smith was suffering from a variety of brain
impairments that were present at birth, viz., frontal lobe or executive functioning
impairment, which affected his judgment and impulse control and impaired his
ability to conform his behavior to the requirements of the law. (Doc. 15-47 at 18182.)
iii. Glen D. King
Dr. Glen D. King, a board-certified clinical psychologist with almost thirty
years of experience, testified as a mental health expert for the State in both the 2005
14
and 2007 Rule 32 hearings. 15 (Doc. 15-39 at 70-71; Doc. 15-46 at 142, 156.) On
May 10-11, 2005, Dr. King evaluated Smith at Holman for 4.5 to 5 hours each day.
(Doc. 15-46 at 156, 168.) Dr. King conducted a mental status examination and
administered several tests.16 (Doc. 15-46 at 165, 168, 192, 194, 195, 197.) Based on
the test results and his interview with Smith, Dr. King placed Smith in the highborderline to low-average range of ability and concluded that Smith is not mentally
retarded. (Id. at 177.) With respect to the neuropsychological findings, Dr. King
found that Smith “has probably a learning disability involving reading[, but] [t]hat
otherwise he is normal.” (Doc. 15-46 at 204.) Dr. King also found “no evidence to
indicate frontal or temporal lobe damage or any kind of brain damage.” (Doc. 15-46
at 204.)
Dr. King agreed and disagreed in part with the opinions of Smith’s experts,
Drs. Maher and Golden. For example, he agreed that Smith suffered from borderline
to low-average range of intellectual ability, neuropsychological impairments,
difficulty with abstract reasoning, some learning disabilities, and auditory
processing deficit. (Doc. 15-46 at 200; Doc. 15-47 at 25, 58-61.) In addition, he
15
Dr. King also taught psychology at Auburn University for twelve years. (Id. at 74.) In addition,
he is trained to conduct court evaluations for the State to determine (1) if one is competent to stand
trial, (2) mental state at the time of offense, and (3) if one is competent to waive Miranda rights,
to waive counsel, etc. (Id. at R-73.) Dr. King has completed about 2,500 forensic assessments.
(Id. at 71.)
16
The tests were: Halstead-Reitan Neuropsychological Test Battery; Wide Range Achievement
Test (WRAT) III; Wechsler Adult Intelligence Scale (WAIS). (Doc. 15-46 at 168, 177.)
15
agreed that Smith suffered from alcohol and drug abuse at the time of the offense.
(Doc. 15-47 at 25, 27.) He further agreed that Smith was “immature for his age,
probably,” but that he could not agree with certainty that Smith was “psychologically
and emotionally immature for his age.” (Doc. 15-47 at 25-26.)
Dr. King disagreed with Dr. Maher’s diagnosis that Smith was suffering from
PTSD at the time of the offense. Dr. King found that Smith did not meet the specific
criteria set forth in the Diagnostic and Statistical Manual for PTSD. (Doc. 15-47 at
21-23.) He also testified that records from Smith’s confinement in the Lee County
Youth Development Center and Mt. Meigs Campus of the Alabama Department of
Youth Services two years before the incident do not include any findings or
diagnoses from health officials noting any symptoms or signs of PTSD. (Doc. 1547 at 23-25.)
Dr. King also disagreed with Dr. Maher’s opinion that Smith was suffering
from extreme emotional distress at the time of the incident and that he was unable
to appreciate the wrongfulness of his actions at the time of the crime. Dr. King did
acknowledge that Smith may have been under “some distress” at the time of the
incident. (Doc. 15-47 at 26.) He found, however, that Smith was able to appreciate
the wrongfulness of his actions at the time of the crime. (Doc. 15-47 at 26-27.)
c.
Lay testimony
16
Smith’s older brother, Reginald Smith, testified at the penalty phase of
Smith’s trial. He also testified at the post-conviction hearing about the abuse Smith
experienced as a child and the violence to which he and Smith were exposed in their
household.
F.
§ 2254 Habeas Petition
On June 21, 2013, Smith initiated this habeas action by filing a § 2254 petition
asserting the following claims:
1. The ACCA’s denial of his claim of ineffective assistance of counsel is an
unreasonable application of clearly established Supreme Court precedent
since the facts show counsel’s performance was deficient.
2. The ACCA’s denial of his claim of ineffective assistance of counsel is
unreasonable because clearly established Supreme Court precedent holds
on facts equivalent to those here that a failure to investigate relevant mental
health evidence is neither “strategic” nor “reasonable.”
3. The ACCA’s decision is an unreasonable application of established
Supreme Court precedent under Strickland’s prejudice prong and an
unreasonable determination of the facts.
(Doc. 1 at 13-65.)
17
For the reasons that follow, this Court concludes that Smith’s § 2254 petition
should be denied without an evidentiary hearing and this case dismissed with
prejudice.
II. DISCUSSION
A.
The AEDPA Review Standard
Because Smith filed this action after the effective date of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), this Court’s review of his
claims for federal habeas relief, which were resolved on the merits by the state
courts, is governed by the AEDPA. See Pope v. Sec’y for Dep’t of Corr., 680 F.3d
1271, 1281 (11th Cir. 2012); Penry v. Johnson, 532 U.S. 782, 792 (2001). Under
AEDPA, this Court cannot grant Smith habeas relief with respect to any claim that
was adjudicated on the merits in state court proceedings, unless the adjudication of
that claim either: (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
United States Supreme Court, or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor,
529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
“Clearly established federal law” in § 2254(d)(1) “refers to the holdings, as
opposed to the dicta,” of the United States Supreme Court’s cases at the time of the
18
relevant state court decision. Williams, 529 U.S. at 412. “Contrary to” means the
state court applied “a rule different from the governing law set forth in [Supreme
Court] cases, or [ ] it decide[d] a case differently than [the Supreme Court] ha[s]
done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002) (alterations added).
An “unreasonable application” under § 2254(d)(1) occurs when a state court
decision (1) “identifies the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the particular state prisoner’s case,”
or (2) “either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Williams, 529 U.S. at
407.
An “unreasonable application” of federal law occurs “if the state court
correctly identifies the governing legal principle from [the Supreme Court's]
decisions but unreasonably applies it to the facts of the particular case.” Bell v. Cone,
535 U.S. 685, 694 (2002). “[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Williams, 529 U.S. at 410 (emphasis
in original). “Indeed, ‘a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.’” Renico
19
v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411). Rather, the
state court's application of federal law “must be ‘objectively unreasonable.’ This
distinction creates ‘a substantially higher threshold’ for obtaining relief than de novo
review.” Id. (quotations omitted); White v. Woodall, 572 U.S. 415, 419 (2014)
(explaining that, for purposes of § 2254(d)(1), the state court's application of clearly
established federal law must be “objectively unreasonable, not merely wrong; even
clear error will not suffice” (quotation omitted)). “[W]hen the last state court to
decide a prisoner's federal claim explains its decision on the merits in a reasoned
opinion ... a federal habeas court simply reviews the specific reasons given by the
state court and defers to those reasons if they are reasonable.” Wilson v. Sellers, ––
– U.S. ––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018).
A state court's decision is reasonable “so long as ‘fairminded jurists could
disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
“[E]ven a strong case for relief does not mean the state court's contrary conclusion
was unreasonable.” Harrington, 562 U.S. at 102. Rather, a petitioner must show that
the state court's ruling “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103.
20
Further, “review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the prisoner’s claim on the merits.” Greene v. Fisher,
565 U.S. 34, 38 (2011). Section 2254(d)(1) requires federal courts to “focus[ ] on
what a state court knew and did” and to evaluate the reasonableness of the state
court’s decision “against [the Supreme] Court’s precedents as of the time the state
court render[ed] its decision.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(quotation omitted).
When evaluating whether a state court’s decision “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding” under § 2254(d)(2), the federal court “may not characterize . . .
state-court factual determinations as unreasonable ‘merely because [the federal
court] would have reached a different conclusion in the first instance.’” Brumfield
v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301
(2010)). Section 2254(d)(2), like § 2254(d)(1), requires that federal courts afford
the state court “substantial deference.” Id. If “[r]easonable minds reviewing the
record might disagree about” the state court factfinding in question, “on habeas
review that does not suffice to supersede” the state court’s factual determination.
Rice v. Collins, 546 U.S. 333, 341–42 (2006). Additionally, a federal habeas court
must presume that findings of fact made by state courts are correct, unless a
petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. §
21
2254(e)(1). “When considering a determination of a mixed question of law and fact,
such as a claim of ineffective assistance of counsel, the statutory presumption of
correctness applies to only the underlying factual determinations.” Tanzi v. Sec’y,
Fla. Dep’t of Corr., 772 F.3d 644, 651 (11th Cir. 2014) (citations omitted).
In sum, AEDPA “erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” White v. Wheeler, 577
U.S. 73, 77 (2015) (per curiam) (quotation omitted). But the Supreme Court has
explained, “[e]ven in the context of federal habeas, deference does not imply
abandonment or abdication of judicial review.” Miller–El v. Cockrell, 537 U.S. 322,
340 (2003). “Deference does not by definition preclude relief.” Id. “[I]f a convicted
state criminal defendant can show a federal habeas court that his conviction rests
upon a violation of the Federal Constitution, he may well obtain a writ of habeas
corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 569
U.S. 413, 421 (2013).
If a federal court determines that a state court decision is unreasonable under
§ 2254(d), “[the federal court is] unconstrained by § 2254’s deference and must
undertake a de novo review of the record.” Adkins v. Warden, Holman CF, 710 F.3d
1241, 1255 (11th Cir. 2013) (quotation omitted).
B.
The Ineffective Assistance of Counsel Claims
1. The § 2254 Standard as Applied to the Strickland Standard
22
Smith asserts that the ACCA’s and Rule 32 court’s determination that defense
counsel was not ineffective for failing to investigate his mental health problems and
additional family history and failing to present this evidence in mitigation at the
penalty phase is based on an unreasonable application of clearly established federal
law and an unreasonable determination of the facts. He also contends that counsel
was ineffective for failing to object to the aggravating circumstance that the capital
offense was especially heinous, atrocious, or cruel as compared to other capital
murders.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court
established the constitutional standard for determining whether a criminal defendant
has been denied the effective assistance of trial counsel:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable.
Strickland, 466 U.S. at 687. See Cullen, 563 U.S. at 189 (“There is no dispute that
the clearly established federal law here [in an ineffective-assistance case] is
23
Strickland v. Washington.”); Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)
(quoting Strickland, supra at 687).17
To satisfy the first prong of Strickland, i.e., establish that counsel’s
performance was constitutionally deficient, a convicted defendant must show that
counsel’s representation “fell below an objective standard of reasonableness.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams, 529 U.S. at 390–91;
Strickland, 466 U.S. at 688. The defendant has the burden of proof and must
overcome a strong presumption that the conduct of his trial counsel falls within a
wide range of reasonable professional assistance. Strickland, 466 U.S. at 687–91.
Courts are extremely deferential in scrutinizing the performance of counsel and
make every effort to eliminate the distorting effects of hindsight. See Wiggins, 539
U.S. at 523 (holding the proper analysis under the first prong of Strickland is an
objective review of the reasonableness of counsel’s performance under prevailing
professional norms, which includes a context-dependent consideration of the
challenged conduct as seen from the perspective of counsel at the time). “No
particular set of detailed rules for counsel’s conduct can satisfactorily take account
of the variety of circumstances faced by defense counsel or the range of legitimate
17
See also Hinton v. Alabama, 571 U.S. 263, 264 (2014) (per curiam) (citing Strickland, supra at
687).
24
decisions regarding how best to represent a criminal defendant.” Strickland, 466
U.S. at 688-89; Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam).
To satisfy the second prong of Strickland, “the defendant must show that the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
Prejudice occurs when there is a reasonable probability that “but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. In the capital sentence context, “the question is whether there is a reasonable
probability that, absent the errors, the sentencer—including an appellate court, to the
extent it independently reweighs evidence—would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.” Id. at 695. “The
likelihood of a different result must be substantial, not just conceivable.”
Harrington, 562 U.S. at 112. In determining whether there is a reasonable
probability of a different result, a court must “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.’” Porter
v. McCollum, 558 U.S. 30, 41 (2009) (quoting Williams, 529 U.S. at 397–98).
“[B]ecause the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Renico, 559
U.S. at 776 (“Because AEDPA authorizes federal courts to grant relief only when
25
state courts act unreasonably, it follows that ‘[t]he more general the rule’ at issue—
and thus the greater the potential for reasoned disagreement among fair-minded
judges—‘the more leeway [state] courts have in reaching outcomes in case-by-case
determinations.’” (quoting Yarborough, 541 U.S. at 664)).
Importantly, “whether defense counsel's performance fell below Strickland’s
standard” is not the question before a federal habeas court reviewing a state court's
decision under § 2254. Harrington, 562 U.S. at 101.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two questions are
different ... [for] [a] state court must be granted a deference and latitude
that are not in operation when the case involves review under the
Strickland standard itself.
Id. Accordingly, where, as here, Ҥ 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. at 105.
Consequently, “[f]ederal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).” Id.
2. The Presentation of Mitigating Evidence
a. Deficient Performance
Smith claims that his counsel performed deficiently at the penalty phase
because they failed to investigate his mental health issues for mitigating evidence,
26
failed to have him evaluated by a mental health professional, and failed to present
the mitigating evidence through medical expert testimony to the jury at the penalty
phase. Smith avers that, in the absence of a mental health evaluation, counsel had
no expert testimony to present in mitigation at the penalty phase and could offer
nothing more than a request for mercy and lay testimony, predominantly from his
family members, to humanize him.
During the 2005 Rule 32 hearing, Attorney Singleton stated that he decided
not to investigate or present any mental health evidence or obtain the services of a
mental health expert because he was preoccupied with keeping other crimes
evidence out of the case. Singleton explained the rationale for his decision:
. . . It wasn’t tactical, wasn’t strategic, there’s no excuse for our
failure to develop it. Both those omissions, which are glaring, stem
from the third point to which this testimony could have been used,
and I think, shows our misread of the case.
We didn’t use expert testimony at the penalty phase before
the jury for one simple reason. I misread the delay [sic] of the
government’s case to what it’s evidence and aggravators were going
to be.
I knew early on in the case. And, I don’t know if I knew from
the DA, the Assistant DA, I could have gotten a phone call from
another defense attorney, that Mr. Smith had another active pending
felony case in an adjacent jurisdiction. The case testified [sic] me.
Why? Because the facts all too closely paralleled what the charged
case was in Tallapoosa County.
. . .
27
. . . So to prevent - - my misread was overestimating the
potential devastating [e]ffect of that thing that never materialized. It
just wasn’t a problem. But it dominated my thinking. I let it tie our
hands. As a result I let it cripple the defense of Mr. Smith in the
penalty phase of the case.
So, did I have a reason for not developing mental health
testimony at the penalty phase? You betcha, but it was a reason that
was faulty. It was [not]18 based on investigation. It wasn’t based on
seeing what was out there and developing as best we could potential
mental health. It totally reflected a unilateral decision by me, not by
Mr. Sims, that it was a road that we couldn’t even take a step down
much less go the whole distance because of the risk that we would
open the door to this other assault, and that was wrong. It was a
mistake.
(Doc. 15-38 at 115-17.)
Singleton further explained that he made this decision without conducting any
investigation:
Q.
And so when you looked at the Other Acts Evidence that you
had become aware of and looked at the possibility of mental health
The word “not” does not appear in the transcript of Singleton’s testimony at Doc. 15-38 at 116.
However, attached to Petitioner Corey Smith’s Post-Rule 32 Evidentiary Hearing Brief (Doc. 1536 at 102-34) is the affidavit of Palmer Singleton dated August 29, 2005, which states that the
transcript of his testimony should have included the word “not” in the subject sentence.
Specifically, Singleton explains:
18
4. I have reviewed pages 212-215 of the transcript of my July 25 testimony.
At page 214, lines 21 – 22, the transcript reads that my decision to not develop
or present expert mental health evidence on Mr. Smith’s behalf “was based on
investigation.” This is not accurate, not correct, and not my testimony. To be
accurate, correct and reflect my testimony, the transcript needs to be corrected
by adding the word “not” before “based on investigation.” Without this
correction, the transcript is in error and misrepresents the facts and my
testimony.
(Doc. 15-36 at 134.)
28
expert testimony, is it a fair statement to say you made a choice not
to put on the mental health expert testimony?
A.
Not any meaningful choice because I never did the
background work, roll up my sleeves and got into it to see what was
available, what the potential was. Instead I made this categorical
decision in the abstract that nothing could offset the risks of opening
the door to tainting the jury with evidence about these other violent
episodes.
(Id. at 134 (emphasis added).)
In rejecting the claim that Smith’s counsel were constitutionally ineffective
for not investigating his mental health issues, the Rule 32 court stated:
. . . Based on this Court’s review of the record and this Court’s
understanding of his counsel’s testimony of the evidentiary hearing
in 2005, this Court finds that his counsel’s penalty phase strategy
was to humanize Smith by presenting evidence through sixteen
witnesses about his troubled childhood, his young age at the time of
the crime, his exposure to violence in the home, his relationship with
his daughter, and his efforts to better himself so that he could care
for his daughter. . . .
In sum, this Court finds that Smith’s counsel decided to
present evidence to the jury that would humanize him and focus the
jury’s attention on the impact of a death sentence on his family.
Their decision was reasonable and strategic, and this Court will not
“second-guess” it. See, Crawford, 311 F.3d at 1312 . . . .
(Id. at 119-20 (emphasis in original).)
Smith asserts that he is entitled to habeas relief pursuant to § 2254(d) because
Strickland and its progeny, including Wiggins, 539 U.S. at 534, and Rompilla v.
Beard, 545 U.S. 374 (2005), hold on facts indistinguishable from those here that a
failure to investigate relevant mental health evidence is neither “strategic” nor
29
“reasonable.” (Doc. 25 at 48.) Specifically, he contends that counsels’ decision not
to investigate his mental health was based solely on the fear of opening the door to
a serious pending felony charge and, therefore, was not a “strategic decision.” (Id.)
“[S]trategic choices made [by trial counsel] after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91. This means “counsel has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691.
In this case, however, it unnecessary to assess whether the decision by Smith’s
counsel not to pursue a mental health investigation was the product of a reasoned
strategic choice, because, upon careful review of the record, the Court finds that the
ACCA’s determination that Smith did not satisfy the prejudice prong was neither
contrary to, nor an unreasonable application of, Strickland.
b. Prejudice
On appeal of the denial of the Rule 32 petition, the ACCA determined Smith
failed to make the requisite showing of prejudice. Unless a petitioner satisfies the
showings required in both prongs of the Strickland inquiry, relief should be denied.
Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings
30
has not been made, it need not decide whether the other one has been. Id. at 698;
see Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998). See also Jennings v.
Secretary, Florida Dep’t of Corr., 55 F.4th 1277 (11th Cir. 2022) (a capital habeas
case wherein the court decided “not [to] address [the petitioner’s] arguments related
to the performance prong because the Florida Supreme Court’s determination that
[the petitioner] failed to establish prejudice was not contrary to, or an unreasonable
application of, Strickland or based on an unreasonable determination of the facts.”);
Pye v. Warden, Georgia Diagnostic Prison, 50 F.4th 1025, 1033-34 (11th Cir. 2022)
(a capital habeas case wherein the court assumed counsel’s performance was
deficient and evaluated only the state court’s conclusion that the petitioner was not
prejudiced by the alleged deficiencies).
The ACCA denied Smith’s ineffective assistance claim on prejudice grounds.
Smith challenges the ACCA’s determination that he failed to meet the prejudice
prong of Strickland, specifically asserting:
(1) The ACCA’s decision unreasonably applied Strickland and is based on an
unreasonable determination of the facts in finding that the evidence from
Smith’s post-conviction mental health experts was “largely controverted”
since the State’s sole expert confirmed the existence of numerous
mitigating factors (Doc. 25 at 64-66);
(2) The ACCA’s decision is based on an unreasonable determination of the
facts in finding that the opinions of Smith’s post-conviction mental health
experts were “largely controverted” by the opinion of the State’s sole
expert since the evidence showed the clear lack of qualifications of the
State’s expert when compared to those of Smith’s experts (Id. at 66-68);
31
(3) The ACCA’s decision unreasonably applied the law and is based on an
unreasonable determination of the facts in finding that the mitigating
evidence which would have been presented by Smith’s post-conviction
mental health experts was “cumulative” of the testimony of the previous
lay witnesses (Id. at 68-71);
(4) The ACCA unreasonably applied established law in finding it is confident
Smith’s mental health evidence would have had no impact on the results
in the penalty phase (Id. at 72-75); and
(5) The ACCA’s decision unreasonably applied Strickland’s prejudice prong
and is based on an unreasonable determination of the facts because the
totality of the mitigating evidence, when weighed against the aggravating
evidence, shows there is a reasonable probability the sentence would have
been different (Id. at 76-83).19
As explained previously, in assessing prejudice under Strickland in a capital
case, “the question is whether there is a reasonable probability that, absent the errors,
the sentencer—including an appellate court, to the extent it independently reweighs
evidence—would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695.
It was reasonable for the ACCA to conclude that counsels' failure to present
the mitigation evidence in question was not prejudicial. In assessing the reasonable
probability of a different result, the state court's task was to determine whether there
was a substantial likelihood that the outcome would have been different by weighing
the aggravating evidence and totality of the mitigating evidence—both that adduced
at trial and during the habeas proceeding. Porter, 558 U.S. at 41; see also
19
This Court will address Smith’s assertions out of order.
32
Harrington, 562 U.S. at 112 (“The likelihood of a different result must be
substantial, not just conceivable.”). This Court does not know precisely which
aggravating and mitigating factors the jury may have implicitly found before
unanimously recommending a sentence of death, 12-0.20 At sentencing, the trial
court found two statutory aggravating factors: (1) the kidnapping of the victim, see
Ala. Code § 13A-5-49(4); and (2) the capital offense was particularly heinous,
atrocious, and cruel (“HAC”) when compared to other capital offenses, see id. §
13A-5-49(8). The trial court also found three statutory mitigating circumstances:
(1) Smith had no significant history of prior criminal activity, see id. § 13A-5-51(1);
(2) the capital offense was committed while Smith was under the influence of
extreme mental or emotional disturbance,21 see id. § 13A-5-51(2); and (3) Smith was
18 years old at the time of the crime, see id. § 13A-5-51. In addition, the trial court
found some non-statutory mitigating circumstances, including:
(1) Smith’s
“environment had a role in making [Smith] what he is,” noting there was “never an
appropriate male figure in his household,” that he knew that his father had abused
his mother, and that at least one of his brothers had a criminal history; (2) Smith had
Under Alabama law, the jury’s recommendation for a sentence of death must be based on the vote of at least ten
jurors. Ala. Code § 13A-5-46(f). At the time of Smith’s trial, Alabama’s judicial override scheme allowed a
sentencing judge to reject a jury’s recommendation of life imprisonment and sentence a defendant to death in a capital
case. See Madison v. Comm’r, 677 F.3d 1333, 1336 (11th Cir. 2012). Therefore, the trial court, based on its
independent determination and weighing of the aggravated circumstances, made the final decision as to the appropriate
sentence. See Ala. Code § 13A-5-47(d)-(e) (1995). Alabama has since amended its capital sentencing scheme, and a
judge can no longer override the jury’s sentence. See Ala. Code § 13A-5-47(a).
21
The trial court accorded little weight to this factor. (Doc. 15-52 at 14-15.) The trial court suggested that Smith’s
“emotional distress [had] a great deal more to do with his relationship to Kimberly Brooks than with his daughter,
Labreasha.” (Id. at 16.)
20
33
a speech impediment and was teased as a child; (3) Smith gave helpful information
to authorities within 24 hours of the offense; and (4) Smith’s family and friends care
about him. Thus, the question for the Rule 32 court and the ACCA was whether the
mitigation evidence presented at trial considered with the additional mitigation
evidence presented in the postconviction Rule 32 proceedings would have
outweighed the aggravating factors found by the trial court.
The Rule 32 court answered the question by concluding that “‘there is no
reasonable probability that the presentation of evidence regarding Smith’s alleged
mental health problems would have altered the jury’s unanimous recommendation
of a death sentence or the trial court’s finding that the aggravating circumstances
“far outweigh” the mitigating circumstances.’” Smith, 122 So. 3d at 231 (quoting the
Rule 32 court’s order, Doc. 15-46). The ACCA also concluded as follows:
We are confident, as was the postconviction court, that presenting
evidence of Smith’s mental health, which was in large part disputed by
the State’s expert, and even more evidence of his upbringing, would
have had no impact on the results in the penalty phase of Smith’s
capital-murder trial.
Smith, 122 So. 3d at 239. This Court will now address Smith’s specific claims
challenging the ACCA’s determination that he was not prejudiced by counsels’
omission of evidence of mental health and additional evidence of his upbringing
with the ACCA’s conclusion in mind.
i. The Lay Witness Finding
34
Smith asserts that the ACCA’s finding that “the testimony of [] Smith’s
mental experts at the post-conviction hearing was merely ‘cumulative’ of the lay
witnesses who testified during the penalty phase” (Doc. 25 at 77) is an unreasonable
determination of the facts. Smith misreads the ACCA’s opinion. The ACCA did not
find that the mental health experts’ opinions regarding his mental health conditions
were cumulative of lay witness testimony presented during the penalty phase.
Rather, on appeal of the denial of the Rule 32 petition, the ACCA specifically found
that “[t]he vast majority of the testimony concerning Smith’s family and his
upbringing that was presented at the 2005 and 2007 evidentiary hearings had been
presented by the 16 witnesses who testified during the penalty phase of Smith’s
trial.” Smith, 122 So. 3d at 224 (emphasis added). “[A] petitioner cannot satisfy the
prejudice prong of the Strickland test with evidence that is merely cumulative of
evidence already presented.” Rose v. McNeal, 634 F.3d 1224, 1243 (11th Cir. 2011).
Therefore, to the extent Smith challenges this finding, this Court will discuss
whether the ACCA’s finding was an unreasonable application of the facts as applied
to Strickland.
In general, “mitigating evidence presented in postconviction proceedings is
cumulative ‘when it tells a more detailed version of the same story told at trial or
provides more or better examples or amplifies the themes presented to the jury.’”
Dallas v. Warden, 964 F.3d 1285, 1308 (11th Cir. 2020) (quoting Holsey v. Warden,
35
Georgia Diagnostic Prison, 694 F.3d 1230, 1260-61 (11th Cir. 2012)); Boyd v.
Allen, 592 F.3d 1274, 1297–98 (11th Cir. 2010) (finding that much of the evidence
presented by the petitioner during postconviction proceedings “was in some measure
cumulative” of the trial evidence because “much (although not all) of the ‘new’
testimony introduced at the post-conviction hearing would simply have amplified
the themes already raised at trial”); Rhode v. Hall, 582 F.3d 1273, 1287 (11th Cir.
2009) (“At best, the evidence would have been cumulative, providing more
information about [the petitioner]'s bad childhood and early exposure to drugs and
alcohol.”).
Testimony concerning Smith’s family life and his childhood was presented
during both the penalty phase of trial and during the Rule 32 hearings. The ACCA
found that, during the penalty phase, Smith “present[ed] evidence through sixteen
witnesses about his troubled childhood, his young age at the time of the crime, his
exposure to violence in the home, his relationship with his daughter, and his efforts
to better himself so that he could care for his daughter” and that twelve of those
witnesses were family members who “testified as to their love for him and his
importance to their family and asked the jury for mercy.” Smith, 122 So. 3d at 229
(quoting Tallapoosa Rule 32 court order, Doc. 15-46 at 119) (emphasis omitted).
During the 2007 Rule 32 hearing, Marjorie Hammock testified that, as part
of her biopsychosocial assessment, she interviewed twenty-seven people, including
36
family, friends, and educators.
The interview summaries were admitted into
evidence. (Doc. 15-43 at 221- 247; Doc.15-47 at 28, 47.) Based on the interviews
of these lay people, as well as other evidence, including educational and juvenile
records gathered during her assessment, Ms. Hammock found that Smith’s past was
filled with family patterns of violence, considerable poverty, and very close
involvement of family members with shared problems. (Doc. 15-48 at 19-20.) In
addition, the mental health experts reviewed and testified about information derived
from the witness summaries. During the 2005 Rule 32 hearing, Smith’s brother,
Reginald Bernard Smith (“Reginald”), also testified about drug usage, as well as
instances of domestic violence in the home, including occasions when his mother
was threatened or assaulted by her ex-husband, when he assaulted Smith, and when
he struck his girlfriend in front of Smith.
This Court recognizes that Reginald’s testimony and the information in the
witness summaries prepared by Marjorie Hammock and presented during the Rule
32 proceedings are more detailed than the witness testimony presented during the
penalty phase and present a sad story. Nonetheless, to the extent the ACCA found
that the brother’s testimony and the testimony from the experts (when referencing
information derived from the summaries of lay persons) concerning Smith’s family
and his upbringing that was presented during the Rule 32 hearings had been
presented by the lay witnesses who testified during the penalty phase of trial, this
37
Court cannot conclude that the finding is an unreasonable determination of the
facts.22
Importantly, as found by the ACCA, the aggravating factors were
overwhelming. This Court accords deference to the ACCA’s determination that
adding Reginald’s testimony and the statements of lay witnesses interviewed by Ms.
Hammock would not have sufficiently changed the balance of those factors,
especially in light of the facts demonstrating the heinous, atrocious, and cruel
circumstances.
ii.
The Mental Health Experts
Smith challenges the ACCA’s finding that the evidence from Smith’s mental
health experts was “largely controverted” because (1) his mental health experts were
more qualified than the State’s expert, and (2) the State’s expert agreed with some
of the defense experts’ findings. 23
22
In his reply brief, Smith argues that it was error for the Rule 32 court and ACCA to find the evidence
was cumulative under Rule 403 of the Alabama Rules of Evidence. (Doc. 27 at 36-39.) The state courts,
however, did not specifically state that the evidence was cumulative on this basis.
23
Buried within his claim challenging the ACCA’s finding that his mental health experts’ opinions were
“largely controverted” is a separate assertion that the ACCA unreasonably applied Strickland by adopting
verbatim the Rule 32 court’s order (which was substantially similar to the State’s proposed order). He
contends the ACCA’s recitation of the Rule 32 court’s order establishes that the ACCA failed to conduct
their own independent assessment of the totality of the evidence in mitigation. The Court recognizes
there are limited circumstances in which a state habeas court’s adoption verbatim of the State’s proposed
order is not accorded deference. For example, in Jefferson v. GDCP Warden, 941 F.3d 452, 455-45 (11th
Cir. 2019), the Eleventh Circuit determined that the state habeas court’s fact-finding was not entitled to
deference pre-AEDPA because the state habeas court adopted the State’s proposed order without allowing
the petitioner to challenge or propose an alternative order and, apparently, without reviewing the proposed
order itself. Such limited circumstances, however, are not applicable here.
Smith filed this action after AEDPA became effective and he was given an opportunity to present
the facts in a state post-conviction proceeding and on appeal. The Eleventh Circuit has held that a state
court's verbatim adoption of a state's proposed order is an “adjudication on the merits” and is entitled to
38
1. The Challenge to Dr. King’s Opinions
Smith asserts the ACCA’s finding that his mental health experts’ opinions
were “largely controverted” by the State’s expert, Dr. King, is an unreasonable
determination of the facts because, he says, the evidence shows Dr. King has less
qualifications than those of the defense experts. (Doc. 25 at 66-68.) In other words,
Smith asserts the state courts should not have relied on Dr. King’s testimony and
opinions because Dr. Maher, Dr. Golden, and Ms. Hammock have more academic
achievements and professional experience.
Drs. King, Golden, and Maher were all found qualified to testify as experts.
At the time of the Rule 32 hearings, Dr. King was a board-certified clinical
psychologist with almost thirty years of experience. Dr. Golden was a boardcertified clinical psychologist and neuropsychologist with thirty-two years of
AEDPA deference when both the petitioner and the State had an opportunity to present their version of
facts to the court. See Jones v. GDCP Warden, 753 F.3d 1171, 1182–83 (11th Cir. 2014) (“Considering
that a summary disposition of a Strickland claim qualifies as an adjudication on the merits, ..., we can
discern no basis for saying that a state court's fuller explanation of its reasons—albeit reasons drafted for
the court by the State—would not be entitled to AEDPA deference.”); Brownlee v. Haley, 306 F.3d 1043,
1067 n.19 (11th Cir. 2002) (upholding the use of proposed orders adopted verbatim by trial judges “as
long as they were adopted after adequate evidentiary proceedings and are fully supported by the
evidence”) (citations omitted); Rhode v. Hall, 582 F.3d 1273, 1281-82 (11th Cir. 2009) (both parties had
the opportunity to present the state habeas court with their version of the facts).
In Smith’s case, the determinations of the Rule 32 court were made after conducting a hearing in
which both parties were allowed to submit briefing and present their case. Likewise, the determinations
of the ACCA were made after each party submitted extensive briefing. Therefore, the ACCA’s
determinations are entitled to AEDPA deference. To the extent Smith argues the ACCA unreasonably
applied Strickland by quoting the Rule 32 court’s order which adopted the State’s proposed order, he is
entitled to no relief.
39
experience. The Rule 32 court accepted Dr. King and Dr. Golden as mental health
experts. Dr. Maher, a psychiatrist, was certified in general and forensic psychiatry
by the American Board of Psychiatry and Neurology. The Rule 32 court accepted
Dr. Maher as an expert in the fields of psychiatry and forensic psychiatry. (Doc. 1537 at 205.) In addition, the state court found Ms. Hammock, MSW, LISW, a clinical
social worker licensed in independent level social work with forty-seven years of
experience, including fifteen years of work in the correctional system, eight years as
an assistant college professor, and several years conducting biosocial assessments,
qualified to testify as an expert.
Faced with conflicting expert testimony, the ACCA found the defense
experts’ testimony was to a large extent controverted by Dr. King’s testimony. The
ACCA determined that presenting the conflicting evidence of Smith’s mental health
and even more evidence of his upbringing would have had no impact on the results
in the penalty phase and, therefore, he failed to meet the prejudice prong of
Strickland. In determining the facts, it was not unreasonable for the state court to
view the evidence of Smith’s alleged brain damage or other mental health
impairments as conflicting and to question the severity of his condition based on the
evidence presented. See Pye, 50 F.4th at 1050 (determining in a case with conflicting
expert testimony, including Dr. King’s testimony, regarding the petitioner’s alleged
brain damage, it would have been reasonable for the state court to find that the
40
petitioner had cognitive deficits but not frontal-lobe impairment or fetal-alcohol
syndrome).
This Court cannot conclude that the ACCA’s determination was
unreasonable in light of the evidence before the state court.
2. The Experts’ Agreement
Smith asserts that the ACCA’s determination that the opinions of his mental
health experts were “to a large extent controverted” by the State’s expert is an
unreasonable determination of the facts as applied to Strickland because Dr. King
did not disagree with some of the defense experts’ opinions. (Doc. 25 at 73.) Smith
contends a jury should have an opportunity to consider several factors agreed upon
by his experts and the State’s expert at the penalty phase because Dr. King expressly
agreed with the other mental health experts’ opinions that he suffered from brain
impairment in the form of difficulties with abstract reasoning and concept formation;
lower intellectual functioning; learning disabilities; dyslexia; auditory processing
defect; substance abuse; childhood physical abuse; and immaturity for his
chronological age. (Id. at 65-66.)
The fact that Dr. King may have agreed with both Dr. Golden and Dr. Maher
about some matters does not establish that the ACCA unreasonably determined that
the opinions of the defense experts were “to a large extent controverted.” The
experts’ opinions about Smith’s alleged major mental health diagnoses were
conflicting. The ACCA provided several examples in which Dr. King disagreed with
41
Smith’s experts. For example, the ACCA pointed to Dr. King’s opinion that Smith
had a full-scale IQ score of 90 and functioned at the “high-borderline to low-average
range” of intellectual ability, that Smith did not meet the criteria for PTSD, that there
was no evidence indicating frontal or temporal lobe damage, and that there was no
evidence suggesting Smith had any serious psychiatric or psychological disorder.
Smith, 122 So. 3d at 235-36. The ACCA also discussed Dr. King’s disagreement
with Dr. Golden’s method of intelligence testing, specifically noting his concern that
Dr. Golden did not record some of Smith’s responses. Id. at 236. This Court cannot
conclude that the ACCA’s determination that the defense experts’ opinions were
largely controverted was an unreasonable determination of the facts as applied to
Strickland.
iii.
Application of Clearly Established Law
Importantly, after summarizing the testimony of the mental health and
mitigation experts and applying clearly established federal law as determined by the
United States Supreme Court in Strickland and its progeny, the ACCA determined
that presenting evidence of Smith’s mental health would have had no impact on the
results in the penalty phase of the trial. Smith asserts that the ACCA unreasonably
applied Strickland, supra, and its progeny in determining that he was not prejudiced
by counsels’ failure to investigate and present mental health evidence during the
penalty phase of trial. (Doc. 25 at 72-75.) He asserts the Supreme Court’s decision
42
in Porter v. McCollum, 558 U.S. 30 (2009), establishes that counsels’ failure to
investigate and present mental health evidence constitutes prejudice under the
Strickland standard.
In Porter, the Supreme Court, reviewing the element of deficiency de novo,
held that counsel representing defendant, a Korean war veteran who murdered his
former girlfriend, provided deficient representation in penalty phase of a capital
murder case by failing to uncover and present any mitigating evidence regarding
defendant's mental health, family background, or military service. 558 U.S. at 3940. During the state postconviction hearing, evidence established that the defendant
served heroically during traumatic battles of the Korean war. In addition, an expert
in neuropsychology testified that the defendant suffered from brain damage that
could manifest in impulsive and violent behavior, and the defendant's siblings
offered deposition testimony regarding defendant's alcohol abuse and his abusive
childhood. The Court also determined that the Florida Supreme Court unreasonably
applied Strickland in holding the defendant was not prejudiced by that deficiency.
Id., 558 U.S. at 40.
The circumstances of Smith’s case, however, are distinguishable. In Pye v.
Warden, Georgia Diagnostic Prison, the Eleventh Circuit recently discussed the
Porter decision, specifically noting that Porter “didn’t create a per se rule that the
failure to present evidence of brain damage or cognitive deficits is always
43
prejudicial; rather, it held only that in that case, given that particular petitioner’s
brain damage, the failure to present mental-health evidence was prejudicial.” 50
F.4th 1025 (11th Cir. 2022) (citing Porter, 558 U.S. at 43–44; see also Richter, 562
U.S. at 101 (explaining that in evaluating whether a state court's application of
federal law was unreasonable, “[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations”); Knowles, 556 U.S. at
123 (noting that Strickland is a “general standard”)). And the petitioner in Porter, in
contrast to Smith, presented largely unrebutted evidence that he had PTSD from his
military service that could manifest in impulsive and violent behavior. 558 U.S. at
36. Moreover, the Florida Supreme Court rejected the aggravating circumstance that
the murder was especially heinous, atrocious, or cruel. Porter, 558 U.S. at 42.
Therefore, Smith’s case is significantly different.
In a footnote, Smith also cites to other cases in which the Supreme Court
found counsel was ineffective for failing to investigate mitigating evidence. The
Court notes that in several of the cases on which Smith relied—Wiggins, Rompilla,
and Williams—AEDPA deference did not apply to the prejudice prong. See Wiggins,
539 U.S. 510, 534 (2003) (explaining that because the state court never addressed
the prejudice prong, the Supreme Court's “review [was] not circumscribed by a state
court conclusion with respect to prejudice”); Rompilla v. Beard, 545 U.S. 374, 390
(2005) (reviewing the prejudice prong de novo because the state court “never
44
reached the issue of prejudice”); Williams, 529 U.S. at 391, 395, 398; see also
Pinholster, 563 U.S. at 202 (explaining that it “did not apply AEDPA deference to
the question of prejudice in [Williams and Rompilla]”). Smith also cites to Brownlee
v. Haley, 306 F.3d at 1071-75, a pre-AEDPA case in which the Eleventh Circuit
found a defendant was prejudiced by counsel’s failure to investigate mitigating
mental health evidence. As the Supreme Court has cautioned, because it “did not
apply AEDPA deference to the question of prejudice in those cases,” they “offer no
guidance with respect to whether a state court has unreasonably determined that
prejudice is lacking”—which is the question we must answer in this case. Pinholster,
563 U.S. at 202 (emphasis in original).
In short, the balance of aggravating and mitigating factors is significantly
different in Smith's case than in the precedent he cites. And no Supreme Court
precedent applying AEDPA to state-court prejudice determinations compels a
different result. The Court concludes that the ACCA's determination that Smith
failed to establish prejudice “was not so obviously wrong as to be beyond any
possibility of fairminded disagreement.” Gavin, 40 F.4th 1247, 1270 (11th Cir.
2022) (quoting Shinn v. Kayer, ––– U.S. –––, 141 S. Ct. 517, 526, 208 L.Ed.2d 353
(2020)).
3. The Heinous, Atrocious, and Cruel Aggravating Factor
45
Smith asserts the ACCA “unreasonably applied Strickland’s prejudice prong
and unreasonably determined the facts under 28 U.S.C. §2254(d)(1) and (2)
respectively by . . . uncritically accepting the circuit court’s findings regarding Mr.
Smith’s claim that his counsel were ineffective in failing to object to §13A-5-49(8),
Ala. Code 1975 (“The capital offense was especially heinous, atrocious, or cruel
when compared to other capital offenses”). . . .” (Doc. 25 at 85.) Smith raised the
ineffectiveness claim in his state post-conviction petition and on collateral appeal to
the ACCA, and it was denied on the merits. See Smith, 122 So. 3d at 239-242.
Smith’s assertion that the ACCA “uncritically accepted” the Rule 32 court’s
findings by quoting extensively from the Rule 32 court’s order is unavailing. The
Court recognizes that the ACCA cited to sections of the state courts’ orders and
opinions when discussing whether counsel was ineffective for failing to object to
certain facts related to the HAC finding. See Smith, 122 So. 3d at 239-241. The
ACCA, however, also found that the Rule 32 court’s findings were supported by the
record and by caselaw, id. at 241, and conducted its own critical analysis, specifically
finding:
. . . In determining the application of this aggravating
circumstance “we must consider whether the violence involved in
achieving the killing went beyond what was necessary to cause death,
whether the victims experienced appreciable suffering after a swift
assault, and whether there was psychological torture.” Brownfield v.
State, 44 So. 3d 1, 41 (Ala. Crim. App.2007).
46
“One factor this Court has considered particularly
indicative that a murder is ‘especially heinous, atrocious
or cruel’ is the infliction of psychological torture.
Psychological torture can be inflicted where the victim is
in intense fear and is aware of, but helpless to prevent,
impending death. Such torture ‘must have been present for
an appreciable lapse of time, sufficient enough to cause
prolonged or appreciable suffering.’ Norris v. State, 793
So.2d 847, 861 (Ala. Crim. App. 1999).”
Ex parte Key, 891 So. 2d 384, 390 (Ala.2004). See Ex parte Rieber, 663
So. 2d 999, 1003 (Ala. 1995). “[E]vidence as to the fear experienced by
the victim before death is a significant factor in determining the
existence of the aggravating circumstance that the murder was heinous,
atrocious, or cruel.” Ex parte Rieber, 663 So. 2d 999, 1003 (Ala. 1995).
See also Chavez v. State, 832 So.2d 730, 765 (Fla. 2002) (“‘In
numerous cases the Court has held that this aggravating factor [that the
offense was heinous, atrocious, or cruel] could be supported by
evidence of actions of the offender preceding the actual killing,
including forcible abduction, transportation away from possible sources
of assistance and detection, and sexual abuse.’” (quoting Swafford v.
State, 533 So.2d 270 (Fla. 1988))).
By anyone's definition, Kimberly Brooks's murder was
especially heinous, atrocious, or cruel as compared to other capital
murders. Smith and his two codefendants, Sanjay Brooks and Shontai
Smith, forced Brooks into their vehicle and drove her to an isolated
area. Smith shot Brooks once in the chest and then in the head. They
left her for dead. When they returned to dispose of her body they found
Brooks standing by the road in a daze. They put Brooks in their vehicle
and drove around discussing among themselves how they would kill
her and then dispose of her body. Brooks begged to be taken to a
hospital to get medical attention. Eventually they stopped the vehicle
and Sanjay Brooks told Smith and Shontai Smith to “finish her off.”
Smith poured gasoline over her and they put a bag over her head until
she lost consciousness and then they set her body on fire. After the
initial gunshots rendered Smith helpless to prevent her death she
suffered great psychological torture as she listened to her abductors
discuss how they were going to kill her and dispose of her body while
she begged for medical attention. The violence inflicted on Brooks far
47
exceeded that necessary to cause her death, and she suffered for an
appreciable period of time. Counsel was not ineffective for failing to
argue that the murder was not especially heinous, atrocious, or cruel as
compared to other capital murders. . . .
Smith, 122 So. 3d at 241–42.
Smith challenges the ACCA’s findings of fact, specifically asserting the
ACCA unreasonably determined: (a) the victim was burned alive; and (b) the victim
was subjected to psychological torture.24 (Doc. 25 at 87.)
a. The Timing of Death
Smith argues that, “[i]n its determination of Strickland’s prejudice prong, the
ACCA failed to address that the trial court erred in applying the ‘especially heinous,
atrocious or cruel’ aggravating factor on the grounds that the victim was ‘burned
alive’ when, in fact, the controlling issue is whether the victim was conscious or
aware and where the trial court admitted having ‘no way of knowing’ she was even
conscious.” (Doc. 25 at 80.) Smith mischaracterizes the trial court’s findings. When
discussing the HAC factor, the trial court found:
In sentencing Smith to death, the trial court found that the
aggravating circumstances ‘far outweigh all the mitigators that can be
compiled in favor of him.’ In explaining why the two aggravating
circumstances outweighed the statutory and nonstatutory mitigating
circumstances, the trial court stated:
After giving full measure and weight of each of the
aggravating and mitigating circumstances, and taking into
24
To the extent Smith attempts to challenge the sufficiency of the evidence with respect to the HAC aggravating
circumstance, this claim is procedurally defaulted and therefore not before this Court.
48
account the recommendation of the jury contained in its
advisory verdict, it is the judgment of the court that [the]
aggravating circumstances outweigh [the] mitigating
circumstances shown by the evidence in this case. The
aggravating circumstances speak for themselves and carry
great weight in the mind of any reasonable and rational
person. It is clear that the murder that was committed in
this case was deliberately and intentionally planned and
carried out. When Corey Schirod Smith found the victim
standing beside the road after he shot her, he was given the
opportunity to display his humanity. Instead, he
unequivocally displayed a savage intention to kill. He
ignored pleas for help, and the murder was carried out in a
torturous fashion. First, he led her to the place of her death;
and she no doubt had full knowledge of the fact that she
was about to be killed. Then he deprived her of the very
breath of life. Even though the fire was lit to dispose of the
remains, its real effect was to complete the execution by
use of gasoline and fire. There is no mistake about the
tremendously evil intent of this defendant.
When the court weighs the aggravating
circumstances against the mitigating circumstances in the
manner the law requires, there is absolutely no question
and can be no question in the mind of any reasonable
human being that the aggravating circumstances far
outweigh the mitigating circumstances.
Smith, 122 So. 3d at 230–31 (quoting Rule 32 court order, Doc. 15-46, which
discusses trial court order). Although the trial court speculated about Smith’s intent
in effectuating the fire, the trial court clearly stated that “the fire was lit to dispose
of the remains.” Moreover, the Rule 32 court and ACCA were careful not to
consider post-mortem circumstances in their analysis. In fact, the Rule 32 court’s
order, which the ACCA found to be supported by the record, emphasized that the
49
court had “no way of knowing, of course, whether the victim had completely lost
consciousness before she was doused with gasoline and set on fire” and that “only
pre-mortem circumstances are taken into account in determining whether a killing is
heinous, atrocious, and cruel.” Id. at 240. It is clear the state courts did not rely on
any post-mortem factors when determining the murder was especially heinous,
atrocious or cruel.
More importantly, even assuming the trial court misstated facts related to the
burning of the body, it is clear from the record, including Smith’s confession, that
there are numerous other facts to support the state court’s HAC finding, such as
circumstances demonstrating the psychological torture of the victim. “Depending on
the importance of the factual error to the state court’s ultimate ‘decision,’ that
decision might still be reasonable ‘even if some of the state court’s individual factual
findings were erroneous – so long as the decision, taken as a whole, doesn’t
constitute an “unreasonable determination of the facts” and [is not] “based on” any
such determination.’” Pye, 50 F.4th at 1035 (citing Hayes v. Sec'y, Fla. Dep't of
Corr., 10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J., concurring) (quoting
28 U.S.C. § 2254(d)(2)); see also Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)
(noting that subsections (e)(1) and (d)(2) are “independent requirements”)).
b.
Psychological Torture
50
With respect to Smith’s argument challenging the ACCA’s finding that she
was subjected to psychological torture, the Court agrees there is no direct evidence
demonstrating that, while they were in the car, the victim overheard Smith and his
co-defendants discuss among themselves how they were going to dispose of her
body. The facts, however, do demonstrate the victim was present when the codefendant directed Smith to “finish her off.” And, as discussed below, there are
numerous other facts demonstrating psychological torture.
Consequently, any
misstatement by the state courts regarding what the victim may have overheard while
inside the car is of little importance. See Pye, 50 F.4th at 1035.
As discussed by the ACCA, there are several facts which support a finding of
the HAC aggravating circumstance, including those demonstrating psychological
torture. The ACCA found that, after Smith kissed and then shot the victim once in
the chest and once toward her head, he and a co-defendant dragged her into the
bushes and left the area. She clearly was not dead at that point. Upon returning and
finding the victim was alive and standing up, Smith and the co-defendants
transported her away from possible sources of medical assistance by driving her
around in a car for an extended period while she asked to be taken to a hospital.
Smith questioned her about what she would say if they took her to the hospital.
After the long ride and the return to Bibb Town, a co-defendant directed Smith to
“finish her off” and the victim was required to walk to her place of doom. Smith then
51
placed a trash bag over her head until it appeared she was no longer breathing. Thus,
the ACCA’s finding that the victim was subjected to psychological torture is
reasonable. Taken as a whole, the ACCA’s decision, therefore, does not constitute
an unreasonable determination of the facts.
This Court presumes the ACCA’s findings of fact are correct, 28 U.S.C. §
2254(e)(1), and there is nothing to suggest that the state court’s decision regarding
the HAC aggravating factor was contrary to or involved an unreasonable application
of clearly established federal law or that the decision was based on an unreasonable
determination of the facts in light of the evidence presented, 28 U.S.C. § 2254(d).
4. The Weighing of Factors
Smith’s final argument is that he is entitled to habeas relief because the ACCA
“fail[ed] to properly weigh the totality of the mitigating factors against the
aggravating factors.”
(Doc. 25 at 76.) He asserts that, when weighing the
aggravating factors which “are not entitled to as much weight as they were accorded
by the Court of Criminal Appeals . . . against the mitigating mental health evidence
which should have been but was not heard by the jury at the sentencing hearing, and
which has been ignored and incorrectly discounted by the Court of Criminal Appeals
as ‘cumulative’ and ‘largely controverted,’ the facts instead show there was a
reasonable probability the sentence would have been different had the available
mitigation evidence been presented, and the ‘heinous, atrocious, and cruel’
52
aggravating factor had been properly discounted.” (Doc. 25 at 83.) This Court has
considered and addressed Smith’s arguments separately and together. This Court
cannot conclude that the ACCA’s determination, that presenting evidence of Smith’s
mental health and even more evidence of his upbringing would not result in a
different outcome at the penalty phase of Smith’s capital-murder trial, is contrary to
or involved an unreasonable application of Strickland or other clearly established
federal law or that the decision was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings.
VI. CONCLUSION
Accordingly, it is
ORDERED that Petitioner Corey Shirod Smith’s federal habeas corpus
petition (Doc. 1) is DENIED without an evidentiary hearing and this case is
DISMISSED with prejudice.
Furthermore, a certificate of appealability will not be issued. For a petitioner
to obtain a certificate of appealability, he must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing requires that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (citation and internal quotation marks omitted). And, where a
53
petition is denied on procedural grounds, he “must show not only that one or more
of the claims he has raised presents a substantial constitutional issue, but also that
there is a substantial issue about the correctness of the procedural ground on which
the petition was denied.” Gordon v. Sec’y, Dep’t of Corrs., 479 F.3d 1299, 1300
(11th Cir. 2007) (citations omitted). “A ‘substantial question’ about the procedural
ruling means that the correctness of it under the law as it now stands is debatable
among jurists of reason.” Id.
Because reasonable jurists would not find the denial of Petitioner’s § 2254
petition debatable, a certificate of appealability is DENIED.
DONE, on this the 12th day of January 2023.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE
54
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