Davis v. Allen

Filing 50

MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 5/26/2016. (AHI)

FILED
2016 May-26 PM 02:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JIMMY DAVIS, JR.,
Petitioner,
vs.
RICHARD F. ALLEN,
Commissioner, Alabama
Department of Corrections,
Respondent.

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Civil Action No. CV 07-S-518-E

MEMORANDUM OF OPINION
The petitioner, Jimmy Davis, Jr. (“Davis”), seeks habeas corpus relief from his
state court capital murder conviction and death sentence. See 28 U.S.C. § 2254.
Table of Contents
I.

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II.

THE OFFENSE OF CONVICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III.

THE SENTENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV.

INTRODUCTION TO A DISCUSSION OF DAVIS’S SUBSTANTIVE CLAIMS:
The Scope of Federal Habeas Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A.

Exhaustion of State Court Remedies: the First Condition Precedent
to Federal Habeas Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B.

The Procedural Default Doctrine: the Second Condition Precedent
to Federal Habeas Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.

General principles.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2.

Overcoming procedural default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
a.

The “cause and prejudice” standard. . . . . . . . . . . . . . . . . . . . 28
i.
ii.

b.
C.

“Cause”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
“Prejudice”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

The “fundamental miscarriage of justice” standard. . . . . . . . 31

The Statutory Overlay: The Effect of “the Antiterrorism and
Effective Death Penalty Act of 1996” on Habeas Review . . . . . . . . . . . . . . . . 32
1.

28 U.S.C § 2254(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2.

28 U.S.C § 2254(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
a.

The meaning of § 2254(d)(1)’s “contrary to” clause . . . . . . . 36

b.

The meaning of § 2254(d)(1)’s “unreasonable application”
clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

c.

The meaning of § 2254(d)(2)’s clause addressing an
“unreasonable determination of the facts in light of
the evidence presented in the state court proceeding” . . . . . . 41

d.

Evaluating state court factual determinations under
28 U.S.C. §§ 2254(d)(2) and (e)(1) . . . . . . . . . . . . . . . . . . . . . 42

D.

The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

E.

Introduction to Ineffective Assistance of Counsel Claims. . . . . . . . . . . . . . 46
1.
2.

The prejudice prong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

3.

V.

The performance prong.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Deference accorded state court findings of historical
fact, when evaluating ineffective assistance of counsel
claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

DAVIS’S CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

2

A.

Ineffective Assistance of Counsel During Guilt Phase of Trial. . . . . . . . . . 56
1.

Failure to adequately investigate the capital murder
charge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
a.

Time spent in preparation for trial. . . . . . . . . . . . . . . . . . . . . . 57

b.

Scope of investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

c.

Failure to transcribe preliminary hearing. . . . . . . . . . . . . . . . 60

2.

3.

Failure to challenge the state’s investigation and
presentation of its case-in-chief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

4.

Failure to present, argue adequately, and seek
favorable rulings on pre-trial motions.. . . . . . . . . . . . . . . . . . . . . . . . 72

5.
B.

Failure to locate, interview, and present exculpatory
witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Failure to present additional substantive evidence. . . . . . . . . . . . . . . 79

Ineffective Assistance of Counsel During Penalty Stage. . . . . . . . . . . . . . . 82
1.

Failure to obtain mitigation evidence relating to
childhood trauma and depravity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
a.

Conclusions of the trial court.. . . . . . . . . . . . . . . . . . . . . . . . . 90

b.

Alabama Court of Criminal Appeals’ initial opinion (dicta). . 100

c.

Opinion of Alabama Court of Criminal Appeals on remand. . 104

d.

Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
i.
ii.

2.

Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Failure to obtain or present any testimony regarding
Davis’s mental health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

3

— and —
3.

Failure to obtain mental health evidence relating to
mental/psychological dysfunction and brain damage. . . . . . . . . . . . 120
a.

Evidence presented in state court. . . . . . . . . . . . . . . . . . . . . 121

b.

Rule 32 court’s order of denial. . . . . . . . . . . . . . . . . . . . . . . 123

c.

Decision of Alabama Court of Criminal Appeals. . . . . . . . . . 126

d.

Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

4.

5.

C.

Failure to discover and present mitigation evidence
about prior felony conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Failure to object to the submission of the penalty
phase case to the jury on a Friday at 4:30 p.m.. . . . . . . . . . . . . . . . 140

Counsel Was Ineffective for Not Objecting to Prosecutorial Misconduct
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
1.

Implying that Davis had been involved in a gang prior
to his arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

2.

Improperly telling the jury that one purpose of
convicting was to decrease crime in general. . . . . . . . . . . . . . . . . . . 149

3.

Misstating the law and arguing facts not in evidence . . . . . . . . . . . . 151

4.

Improperly vouching for the veracity and quality of
state witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

5.

Improperly commenting on Davis’s failure to testify. . . . . . . . . . . . . 159

6.

Improperly arguing that the jury could not consider
mercy in reaching a verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

7.

Improperly instructing the jury that it was their duty
to impose death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

8.

Improperly arguing nonstatutory aggravating
circumstances in support of conviction and sentence. . . . . . . . . . . . 174

4

9.

Improperly denigrating Davis’s right to an attorney. . . . . . . . . . . . . 178

D.

Counsel were Ineffective for Failing to Preserve Investigation
Records and Files for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

E.

Brady Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
1.

2.

The state suppressed and/or mishandled material
evidence recovered by police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

3.

F.

The state failed to disclose Alphonso Phillips’s known
gang involvement and prior adjudications of
delinquency charges against both Phillips cousins. . . . . . . . . . . . . . 190

The state failed to disclose death threats against
Davis and his mother and the existence of a
confidential informant who feared for his life. . . . . . . . . . . . . . . . . . 196

The Admission of Highly Prejudicial Hearsay Testimony . . . . . . . . . . . . . 199
1.

Willie Smith .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

2.

Shannon Hardy Wilson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

G.

Admission of a Note Found in the Pocket of Davis’s Clothing. . . . . . . . . 208

H.

Improper Consideration Through the Pre-Sentencing Report of
Davis’s Juvenile Record and Allegations of Gang Involvement. . . . . . . . 213

I.

Conviction and Sentence Obtained Through the Us e of
Uncorroborated Accomplice Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . 217

J.

The State Court Violate d Davis’s Constitutional Rights by
Applying a Blanket Rule That Hearsay Evidence Is Inadmissible
in Rule 32 Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

K.

The State Court Violated Davis’s Constitutional Rights When it
Excluded the Te s tifying Expert’s Social History Exhibit as
Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

L.

The State Court Violated Davis’s Constitutional Rights By
Adopting Verbatim the State’s Proposed Factual Findings and
Legal Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

5

M.

The State Failed to Meet its Burden of Proving Capital Murder
During the Course of a Robbery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

N.

Double Counting of Robbery as an Element of the Underlying
Offense and as an Aggravating Circumstance at Sentencing
Violated the Fifth, Sixth, Eighth, and Fourteenth Amendments. . . . . . . . 236

O.

The Trial Court’s Failure to Conduct Individual Sequestered
Voir Dire Deprived Davis of His Rights to Due Process and a Fair
Trial by an Impartial Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

P.

Davis’s Rights to Due Process, a Fair Trial, and a Reliable
Verdict From a Fair and Impartial Jury Were Violated When
the Trial Court failed to “Life Qualify” the Veniremembers in
Accordance with Morgan v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

Q.

The Trial Court Erred By Granting the State’s Motions to Strike
for Cause Potential Jurors Elaine Thomas and Sandra Tilley. . . . . . . . . . 243

R.

The Trial Court’s Failure to Strike for Cause Jurors Who
Demonstrated Bias Against Davis Deprived Him of His Rights to
Due Process and a Fair Trial by an Impartial Jury. . . . . . . . . . . . . . . . . . . 254

S.

The Use of Improper Jury Instructions Deprived Davis of His
Fifth, Sixth, Eighth, and Fourteenth Amendment Rights. . . . . . . . . . . . . . 262
1.

Reasonable doubt .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

2.

Aggravating circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

T.

The Trial Court’s Instructions on Accomplices and
Corroboration Constituted Reversible Error. . . . . . . . . . . . . . . . . . . . . . . 272

U.

The Penalty Phase Jury Instructions Implied That Aggravating
Circumstances Did Not Have to Be Found Unanimously. . . . . . . . . . . . . 278

V.

Misconduct by Jurors Deprived Davis of His Constitutional Right
to Be Tried by an Impartial Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

W.

Alabama’s Fee Cap Foreclosed Effective Representation. . . . . . . . . . . . 286

X.

Davis’s Death Sentence Was Improperly Sought and Imposed
Pursuant to a Pattern of Racial Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

6

Y.

Z.

VII.

The Manner of Execution Used by the State of Alabama
Constitutes Cruel and Unusual Punishment. . . . . . . . . . . . . . . . . . . . . . . . 292
The Execution of Mentally Retarded Persons With Borderline
I.Q. levels and Brain Damage is Cruel and Unusual . . . . . . . . . . . . . . . . . 294

EVIDENTIARY HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

VIII. CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

I. PROCEDURAL HISTORY
Jimmy Davis, Jr., was indicted in the Circuit Court of Calhoun County,
Alabama, on May 17, 1993, for the capital offense of murder committed during a
robbery in the first degree,1 arising from the March 17, 1993 shooting death of Johnny
Hazle, a fifty-year old service station attendant at Direct Oil, in Anniston, Alabama.2
Davis was represented at trial by Steven D. Giddens and Jonathan L. Adams. The
guilt phase of trial commenced on December 6, 1993, and Davis was convicted as
charged on December 10, 1993.3 After the penalty phase of the trial,4 the jury
1

See Alabama Code § 13A-5-40(a)(2) (1975).

2

C.R. Vol. 1, Tab 1, at C-2. The court will utilize the following method of citation to the
record. References to specific pages of the court record on direct appeal are designated “C.R.___,”
and references to the transcript on direct appeal are designated “R.___.” References to the court
record of the Rule 32 proceedings are designated “Rule 32 C.R. ___,” and references to the
transcript of the Rule 32 hearing are designated “Rule 32 R. ___.” The court will strive to list any
page number associated with the court records by reference to the numbers at the bottom of each
page of a particular document, if said numbers are the most readily discoverable for purposes of
expedient examination of that part of the record. Otherwise, the page numbers shall correspond with
those listed at the upper right hand corner of the record. Additionally, if there is an easily
identifiable tab number close to any cited material, the court has made reference to that for the
reader’s benefit.
3
4

R. Vol. 1, Tab 2, at 11 - R. Vol. 7, Tab 16, at 1289.
R. Vol. 7, Tab 16, at 1289 - R. Vol. 8, Tab 25, at 1380.

7

recommended by a vote of 11-1 that Davis be sentenced to death.5 At the March 4,
1994 sentencing hearing,6 the trial court followed the jury’s recommendation and
sentenced Davis to death.7 Trial counsel were permitted to withdraw following
sentencing.8
The trial court appointed H. Wayne Love to represent the Davis on direct
appeal. Five issues were raised.9 The case was remanded twice to the trial court.
Davis v. State, 718 So. 2d 1148 (Ala. Crim. App. 1995). On the first remand, the trial
court was directed to prepare and enter a formal sentencing order “encompassing all
of the requirements of [Alabama Code] § 13A-5-47(d)[ (1975)].” Id. at 1152
(alterations supplied). On return from remand, but due to “intervening caselaw,” the
appellate court remanded the case a second time with instructions for the trial court
“to enter additional findings of fact regarding its denial of Davis’s Batson motion and,
if necessary, to conduct a new hearing on the issue.” Id. On the second return from
remand, the Alabama Court of Criminal Appeals addressed the merits of Davis’s
5
6

R. Vol. 8, Tab 25, at 1377-80.
R. Vol. 8, Tab 26, at 1381 - R. Vol. 8, Tab 28, at 1429.

7

R. Vol. 8, Tab 28, at 1427.

8

C.R. Vol. 1, Tab 1, at C-28.

9

Davis claimed that: 1) the trial court erred in denying his motion to prohibit deathqualification of prospective jurors or for separate juries for the guilt and penalty phases of the trial;
2) the trial court erred in denying his Batson claim; 3) the trial court erred in allowing testimony
regarding the autopsy of the victim’s body without establishing the proper chain of custody; 4) the
trial court erred in sentencing him to death without entering a written finding as required by statute;
and 5) the death sentence was improper in his case. C.R. Vol. 9, Tab 31, at 4.

8

claims, and on March 21, 1997, affirmed the conviction and sentence of death. Id.
at 1153-66.
Davis filed a petition for writ of certiorari with the Supreme Court of Alabama
and reasserted three of the issues he had raised on direct appeal.10 Thereafter, Davis
obtained new counsel, Ellen L. Wiesner, and she filed a second brief in support of the
petition for writ of certiorari, raising many additional claims for the first time on
direct appeal.11 The Alabama Supreme Court affirmed the ruling of the Alabama
Court of Criminal Appeals on February 13, 1998. Ex parte Davis, 718 So. 2d 1166
(Ala. 1998).
Davis filed a petition for writ of certiorari with the United States Supreme
Court, but the petition was denied on March 1, 1999. Davis v. Alabama, 525 U.S.
1179 (1999).
Davis then sought postconviction relief pursuant to Rule 32 of the Alabama
Rules of Criminal Procedure.12 An evidentiary hearing was held from August 26-29,
2002. Davis called nineteen witnesses in an effort to prove a variety of ineffective

10

C.R. Vol. 9, Tab 34, at 3.

11

C.R. Vol. 10, Tab 35.

12

The second amended petition was the operative petition during state court collateral
proceedings. Rule 32 C.R. Vol. 14, Tab 52, at 1-49.

9

assistance of counsel claims, as well as other claims.13 Neither Davis nor his trial
attorney, Jonathan L. Adams, testified.
The Rule 32 court issued a “Stipulated Post-Trial Briefing Order” on
December 1, 2003, giving the parties deadlines for submitting proposed findings of
fact and conclusions of law, and responses thereto.14 Davis submitted his Proposed
Findings of Fact and Conclusions of Law on January 20, 2004.15 The State submitted
its proposed findings of fact and conclusions of law on March 10, 2004, in a
document entitled “Proposed Order.”16 Davis submitted an opposition to the State’s
proposed order on March 22, 2004.17
The trial court denied Davis’s Rule 32 petition on August 3, 2004.18 Davis
filed “Objections to Court’s Adoption of the State’s Proposed Order Denying his Rule
32 Petition.”19 He then appealed.20 The Alabama Court of Criminal Appeals affirmed
the trial court’s judgment on March 3, 2006. That court found, sua sponte, that the
13

The transcript of the evidentiary hearing is located at Rule 32 R. Vol. 18, Tab. 58, at 1-144
and Rule 32 R. Vols. 19 - 24.
14

Rule 32 C.R. Vol. 17, at 1004.

15

Id. at 1034-1113.

16

The state court record does not include a copy of the state’s proposed order. Evenso,
references were made to its existence and date of filing in Davis’s objection to the court’s adaption
of the state’s proposed order. See Id. at 1197.
17

Id. at 1115-1131.

18

Rule 32 C.R. Vol. 62, Tab 80.

19

Rule 32 C.R. Vol. 17, at 1197-1205.
Rule 32 C.R. Vol. 57, Tab. 60, at 1-80.

20

10

vast majority of Davis’s claims, including his claims for ineffective assistance of trial
counsel, were procedurally barred because they had not been raised on direct appeal.
Davis v. State, 9 So. 3d 514 (Ala. Crim. App. 2006). Although the court denied
relief, it discussed the ineffective assistance of trial counsel claims in detail, most
notably with regard to counsels’ preparations for the penalty phase. The court
concluded that:
Davis’s most troubling claim is that counsel failed to investigate and
present mitigation evidence at the penalty phase. The evidence Davis
alleges should have been discovered and presented is powerful. Had
this issue not been procedurally barred we would be compelled to grant
relief and order a new sentencing hearing.
Davis v. State, 9 So. 3d 514, 522 (Ala. Crim. App. 2006) (emphasis supplied).
Davis moved for rehearing21 but the Alabama Court of Criminal Appeals
denied the application on August 25, 2006. Davis, 9 So. 3d 514. Davis then pursued
a petition for writ of certiorari,22 but it was denied by the Alabama Supreme Court
on February 16, 2007. Even so, on May 4, 2007, the Alabama Supreme Court
withdrew its certificate of judgment and granted Davis’s petition for certiorari23 in
light of the rule announced in Ex parte Clemons, 55 So. 3d 348 (Ala. 2007).24
21

Rule 32 C.R. Vol. 58, Tab 64.

22

Rule 32 C.R. Vol. 59, Tab 67, at 1-107.

23

Doc. no. 14-1, at 2; doc. no. 14-2, at 2.

24

In Ex parte Clemons, the Alabama Supreme Court held “that the procedural bars to
postconviction relief contained in Rule 32.2(a), Ala. R. Crim. P., were not jurisdictional and

11

The Alabama Supreme Court reversed the procedural bar ruling against Davis
on August 3, 2007, and remanded the case to the Court of Criminal Appeals “for that
court to consider all of Davis’s ineffective-assistance-of-counsel claims on their
merits.” Ex parte Davis, 9 So. 3d 537, 539 (Ala. 2007). The Alabama Court of
Criminal Appeals affirmed the Circuit Court’s denial of Davis’s Rule 32 petition on
April 4, 2008, holding that, “upon further research and review of the record we have
reconsidered our comments in dicta in our previous opinion, and we now conclude
that the circuit court did not abuse its discretion in denying Davis relief on his claims
of ineffective assistance of trial counsel at the penalty phase.” Davis v. State, 9 So.
3d 539, 553 (Ala. Crim. App. 2008) (emphasis supplied). Davis filed an application
for rehearing on May 9, 2008,25 but it was denied on June 13, 2008. Id. at 539. Davis
again petitioned the Alabama Supreme Court for a writ of certiorari,26 but the petition
was denied on November 26, 2008. Ex parte Davis, 9 So. 3d 571 (Ala. 2008).
Davis, through counsel, filed an amended § 2254 petition in this court on
February 20, 2009.27

For its consideration of this petition, the court has the

therefore could be waived, abrogating the Court of Criminal Appeals’ holding in this case.” Ex parte
Davis, 9 So. 2d 537, 538 (Ala. 2007).
25
Rule 32 C.R. Vol. 60, Tab. 71. Davis’s federal habeas petition was filed on March 22,
2007, but was stayed after the Alabama Supreme Court withdrew its certificate of judgment and
granted Davis’s petition for certiorari to reconsider the Clemons question.
26
27

Rule 32 C.R. Vol. 61, Tab. 72.
Doc. no. 33.

12

respondent’s response to an order to show cause with multiple exhibits comprising
the underlying state court record,28 the petitioner’s reply and attachment, 2 9 and the
petitioner’s notices of supplemental authority in support of his petition.30
II. THE OFFENSE OF CONVICTION
The Alabama Supreme Court set out the facts, quoting from the Court of
Criminal Appeals’ March 21, 1997 opinion:
The state’s evidence showed that on March 17, 1993,
the appellant[ petitioner Jimmie Davis, Jr.], Alphonso
Phillips, and Terrance Phillips made plans to rob the Direct
Oil Station, a gasoline service station in Anniston.
According to the plan, the appellant, who possessed a .25
caliber semiautomatic pistol, would point the pistol at the
station operator, Alphonso would grab the money, and
Terrance would act as a lookout. The state’s evidence
supports the conclusion that the appellant was the principal
actor in the conspiracy. He conceived the idea to rob the
station and he recruited the others to help him. As the trio
approached the station, Terrance changed his mind,
abandoned the conspiracy, and walked away. Alphonso
and the appellant approached the station; the appellant
confronted the operator, Johnny Hazle, in the doorway of
the station, pointed the pistol at him, and said, “Give it up,
fuck-nigger.” The appellant almost immediately fired two
shots from the pistol, which struck Hazle in the chest and
abdomen. Terrance testified that he was about a block
from the station, walking toward his home, when he heard
two or three shots fired. After the shooting, the appellant
28

Doc. nos. 35, 36, 37.

29

Doc. no. 39.
Doc. nos. 40, 41.

30

13

and Alphonso ran from the scene. Hazle died from these
wounds shortly thereafter. Three empty .25 caliber shell
casings were recovered at the scene, and two bullets of the
same caliber were recovered from Hazle’s body. The pistol
was subsequently recovered. The ballistics evidence
showed that the two bullets recovered from Hazle’s body
and the three empty shell casings found at the scene had
been fired from the appellant’s pistol. Alphonso and
Terrance entered into agreements with the state pursuant to
which in return for their testimony against the appellant
they would be permitted to plead guilty to conspiracy to
commit robbery in the first degree.
Alphonso, testifying for the state, stated that as he
and the appellant reached the door of the station, the
appellant pointed the pistol at Hazle and said, “Give it up,
fuck-nigger”; that Hazle looked inside the store and
smiled; and that the appellant shot Hazle when he smiled.
Several witnesses for the state testified that the appellant
told them shortly after the shooting that he had shot the
Direct Oil Station operator. In his testimony, Terrance
described his conversation with the appellant as follows:
He [petitioner Jimmie Davis, Jr.] said he had told
him [the operator], “Give it up, fuck-nigger.” And then he
said the man had smiled or something at him, laughed or
something. And then he said he had shot and the man had
kicked the door. And then he shot again. I don’t know —
I can’t remember how many times he said he shot. And
then he said they ran.
Alphonso testified as follows: “[petitioner, Jimmie Davis,
Jr.] said, ‘Man, I shot that fuck-nigger, I shot him.’ And
then he said, ‘The second time felt even better than the first
time.’” Willie James Smith, an acquaintance of the
appellant, testified, “[petitioner Jimmie Davis, Jr.] . . . told
me he had shot someone. . . [a]nd told me he had robbed
14

Direct and shot someone.” Smith also testified that the
appellant told him that Alphonso and Terrance were with
him and that the appellant “said that the man wouldn’t give
up the money, so he shot him three times.” Shannon Hardy
Wilson, another acquaintance of the appellant, testified as
follows about his conversation with the appellant:
Before they got in there, he said they
pulled up their bandannas and they went in
there. And when he got to the door
[petitioner Jimmie Davis, Jr.] said, “Give it
up.” And that Mr. Hazle laughed at him and
that Alphonso ran. And then he said he told
him to give it up again. And he said Mr.
Hazle laughed at him and then he shot him.
Wilson further testified that the appellant said he “wasn’t
going to let no cracker laugh at him.”
718 So. 2d at 1155.
Davis did not give a confession to the police and, as the foregoing
statement of facts indicates, much of the evidence against him consisted
of testimony from Terrance Phillips, Alphonso Phillips, Willie James
Smith, and other acquaintances. Davis did not testify at trial, and his
primary trial strategy was to attempt to discredit the testimony of the
state’s witnesses through cross-examination and arguments to the jury
and the trial court.
Ex parte Davis, 718 So. 2d 1166, 1169-70 (Ala. 1998) (third and sixth alterations in
original, other alterations supplied).
III. THE SENTENCE

15

The following excerpt is taken from the sentencing court’s written order on
remand.31
In accordance with the mandate of § 13A-5-47, Code of Alabama,
1975, the Court proceeded to determine sentence in this cause. The
Court received a written pre-sentence investigation report by Probation
Officer Feehan. The report was made a part of the record and the Court
noted several objections and denials made by the Defendant to matters
stated therein.
The Court make[s] the following findings in regard to the
aggravating circumstances set out by § 13A-5-49:
1.

That the capital offense was not committed by a
person under sentence of imprisonment;

2.

That the defendant has not been previously
convicted of another capital offense, but that the
defendant was previously convicted of a felony
involving the use or threat of violence to the person,
namely, robbery in the third degree;

3.

That the defendant did not knowingly create a great
risk of death to many persons;

4.

That the capital offense was committed while the
defendant was engaged in the commission of, or an
attempt to commit robbery, specifically robbery in
the first degree.

31

On October 20, 1995, the Alabama Court of Criminal Appeals held that the trial court had
failed to comply with the requirements of § 13A-5-47(d), and remanded the case to the trial court
for the preparation of a formal sentencing order. See Davis v. State, 718 So. 2d 1148 (Ala. Crim.
App. 1995). The Sentencing Order was entered pursuant to the appellate court’s remand order.

16

5.

That the capital offense was not committed for the
purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody;

6.

That the capital offense was not committed for
pecuniary gain;

7.

That the capital offense was not committed to
disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws;
and

8.

That the capital offense was not especially heinous,
atrocious or cruel as compared to other capital
offenses.

The Court makes the following findings under § 13A-5-51 Code
of Alabama, 1975, in regard to mitigating circumstances:
1.

That the defendant in fact does have a significant
history of prior criminal activity. The written presentence investigation report reflects that since 1982
the Defendant’s Juvenile Court history reflects
adjudications of delinquency for theft, receiving
stolen property and trespass. The Defendant’s
misdemeanor history since 1987 reflects
adjudications of guilt for theft, resisting arrest,
assault, and trespass. The defendant was, in
addition[,] convicted of the felony robbery 3rd
degree in 1992.

2.

That the Defendant was not under the influence of
extreme mental or emotional disturbances during the
commission of the capital offense charged in this
case;

17

3.

That the victim, Johnny Hazel [sic], was not a
participant in the Defendant’s conduct and did not
consent to it;

4.

That the defendant was not merely an accomplice in
the capital offense committed by another and that his
participation was not relatively minor;

5.

That the defendant did not act under extreme duress
or under the substantial domination of another
person;

6.

That the Defendant did have the capacity to
appreciate the criminality of his conduct and to
conform his conduct to the requirement of the law.
This finding is made even though the defense
presented evidence that the defendant’s intellectual
quotient was 77 and in the borderline range;

7.

That the defendant’s age at the time of sentencing is
23 years of age, and that while he is an adult that his
age is a mitigating factor or circumstance in this
case.

In addition to the above, the Court has considered all testimony
and evidence presented to the jury and to the Court in regard to the
defendant’s background, character, education achievement level, and
circumstances as the same pertain to the mitigating circumstances that
should be properly considered by the Court.
After due consideration of all matters that were presented to the
Court during this hearing, both in mitigation and aggravation, and taking
into consideration all other matters that are properly before the Court as
herein above stated in this Order, this Court does now find and is
convinced beyond a reasonable doubt that the aggravating circumstances
as shown above and brought before the Court far outweigh the
mitigating circumstances shown to the Court, that the said aggravating
18

circumstances outweigh the said mitigating circumstances in all regards
and that they are sufficient in both quantity and quality to more than
uphold the jury’s verdict recommending the death penalty in this case.
It is therefore the Judgment of this Court that the Defendant,
Jimmy Davis, be sentenced to death by electrocution.
C.R. Vol. 62, Tab 76, at 17-20 (alterations supplied, underlined emphasis in original).
IV. INTRODUCTION TO A DISCUSSION OF
DAVIS’S SUBSTANTIVE CLAIMS:
The Scope of Federal Habeas Review
“The habeas statute unambiguously provides that a federal court may issue the
writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S.
1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s review of claims
seeking habeas relief is limited to questions of federal constitutional and statutory
law. Claims that turn solely upon state law principles fall outside the ambit of this
court’s authority to provide relief under § 2254. See Alston v. Department of
Corrections, 610 F.3d 1318, 1325-26 (11th Cir. 2010) (holding that a claim
addressing either “an alleged defect in a collateral proceeding,” or a state court’s
“interpretation of its own law or rules,” does not provide a basis for federal habeas
relief) (citations omitted).
A.

Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review
19

A habeas petitioner is required to present his federal claims to the state court,
and to exhaust all of the procedures available in the state court system, before seeking
relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666
(2005) (holding that a petitioner “can seek federal habeas relief only on claims that
have been exhausted in state court”). That requirement serves the purpose of
ensuring that state courts are afforded the first opportunity to address federal
questions affecting the validity of state court convictions and, if necessary, correct
violations of a state prisoner’s federal constitutional rights. As explained by the
Eleventh Circuit:
In general, a federal court may not grant habeas corpus relief to
a state prisoner who has not exhausted his available state remedies. 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State. . . .”).
“When the process of direct review . . . comes to an end, a presumption
of finality and legality attaches to the conviction. . . . The role of federal
habeas proceedings, while important in assuring that constitutional
rights are observed, is secondary and limited. Federal courts are not
forums in which to relitigate state trials.” Smith v. Newsome, 876 F.2d
1461, 1463 (11th Cir. 1989) (quoting Barefoot v. Estelle, 463 U.S. 880,
887 (1983)).
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t][32] federal claims to the state courts in order to give the
32

The phrases “fairly presented” and “properly exhausted” are synonymous. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999) (observing that the question is “not only whether a prisoner has
exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e.,

20

State the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)
(citing Picard v. Connor, 404 U.S. 270, 275-76 (1971) (internal
quotation marks omitted). The Supreme Court has written these words:
[T]hat the federal claim must be fairly presented to the state
courts . . . . it is not sufficient merely that the federal
habeas applicant has been through the state courts. . . .
Only if the state courts have had the first opportunity to
hear the claim sought to be vindicated in a federal habeas
proceeding does it make sense to speak of the exhaustion
of state remedies.
Picard, 404 U.S. at 275, 92 S. Ct. at 512. See also Duncan, 513 U.S. at
365, 115 S. Ct. at 888 (“Respondent did not apprise the state court of his
claim that the evidentiary ruling of which he complained was not only
a violation of state law, but denied him the due process of law
guaranteed by the Fourteenth Amendment.”).
Thus, to exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal constitutional
issues. “It is not enough that all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar
state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6, 103
S. Ct. 276, 277, 74 L. Ed. 2d 3 (1982) (citations omitted).
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (alterations and ellipses
in original) (footnote supplied).
B.

The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review
1.

General principles

whether he has fairly presented his claims to the state courts”) (“properly” emphasized in original,
all other emphasis supplied).

21

It is well established that, if a habeas petitioner fails to raise his federal claim
in the state court system at the time and in the manner dictated by the state’s
procedural rules, the state court can decide that the claim is not entitled to a review
on the merits. Stated differently, “the petitioner will have procedurally defaulted on
that claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2009) (emphasis
supplied).

This so-called “procedural default” doctrine was explained by the

Supreme Court in Woodford v. Ngo, 548 U.S. 81 (2006), as follows:
In habeas, the sanction for failing to exhaust properly (preclusion of
review in federal court) is given the separate name of procedural default,
although the habeas doctrines of exhaustion and procedural default “are
similar in purpose and design and implicate similar concerns,” Keeney
v. Tamayo–Reyes, 504 U.S. 1, 7 (1992). See also Coleman v. Thompson,
501 U.S. 722, 731–732, 111 S. Ct. 2546 (1991). In habeas, state-court
remedies are described as having been “exhausted” when they are no
longer available, regardless of the reason for their unavailability. See
Gray v. Netherland, 518 U.S. 152, 161, 116 S. Ct. 2074, 135 L. Ed. 2d
457 (1996). Thus, if state-court remedies are no longer available
because the prisoner failed to comply with the deadline for seeking
state-court review or for taking an appeal, those remedies are technically
exhausted, ibid., but exhaustion in this sense does not automatically
entitle the habeas petitioner to litigate his or her claims in federal court.
Instead, if the petitioner procedurally defaulted those claims, the
prisoner generally is barred from asserting those claims in a federal
habeas proceeding. Id., at 162, 116 S. Ct. 2074; Coleman, supra, at
744–751, 111 S. Ct. 2546.
Woodford, 548 U.S. at 92-93.

22

Generally, if the last state court to examine a claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
and, and that procedural bar provides an adequate and independent state ground for
denying relief, then federal review of the claim also is precluded by federal
procedural default principles. See Cone v. Bell, 556 U.S. 449, 465 (2009) (“[W]hen
a petitioner fails to raise his federal claims in compliance with relevant state
procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies
as an independent and adequate state ground for denying federal review.”) (citing
Coleman, 501 U.S. at 731) (alteration supplied).
The federal courts’ authority to review state court criminal
convictions pursuant to writs of habeas corpus is severely restricted
when a petitioner has failed to follow applicable state procedural rules
in raising a claim, that is, where the claim is procedurally defaulted.
Federal review of a petitioner’s claim is barred by the procedural
default doctrine if the last state court to review the claim states clearly
and expressly that its judgment rests on a procedural bar, Harris v.
Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308
(1989), and that bar provides an adequate and independent state
ground for denying relief. See id. at 262, 109 S. Ct. at 1042-43;
Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100
L. Ed. 2d 575 (1988). The doctrine serves to ensure petitioners will first
seek relief in accordance with state procedures, see Presnell v. Kemp,
835 F.2d 1567, 1578-79 (11th Cir. 1988), cert. denied, 488 U.S. 1050,
109 S. Ct. 882, 102 L. Ed. 2d 1004 (1989), and to “lessen the injury to
a State that results through reexamination of a state conviction on a
ground that a State did not have the opportunity to address at a prior,
appropriate time.” McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454,
1470, 113 L. Ed. 2d 517 (1991).
23

Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (emphasis supplied).33
Federal deference to a state court’s clear finding of procedural default under
its own rules is so strong that:
“[A] state court need not fear reaching the merits of a federal claim in an
alternative holding. Through its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law.” Harris, 489 U.S.
at 264 n.10, 109 S. Ct. 1038 (emphasis in original). See also Alderman
v. Zant, 22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia
habeas corpus court found that the petitioner’s claims were procedurally
barred as successive, but also noted that the claims lack merit based on
the evidence, “this ruling in the alternative did not have an effect . . . of
blurring the clear determination by the [Georgia habeas corpus] court

33

“When the last state court rendering judgment affirms without explanation, [the federal
court will] presume that it rests on the reasons given in the last reasoned decision.” Mason v. Allen,
605 F.3d 1114, 1118 n.2 (11th Cir. 2009) (alteration supplied). As the Supreme Court observed in
Ylst v. Nunnemaker, 501 U.S. 797 (1991):
The problem we face arises, of course, because many formulary orders are not
meant to convey anything as to the reason for the decision. Attributing a reason is
therefore both difficult and artificial. We think that the attribution necessary for
federal habeas purposes can be facilitated, and sound results more often assured, by
applying the following presumption: Where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same ground. If an earlier
opinion “fairly appear[s] to rest primarily upon federal law,” we will presume that no
procedural default has been invoked by a subsequent unexplained order that leaves
the judgment or its consequences in place. Similarly where, as here, the last reasoned
opinion on the claim explicitly imposes a procedural default, we will presume that
a later decision rejecting the claim did not silently disregard that bar and consider the
merits.
Id. at 803 (first emphasis and alteration in original, second emphasis supplied) (citation
omitted).

24

that the allegations was procedurally barred”), cert. denied, 513 U.S.
1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (alterations and emphasis in
original).
The Supreme Court defines an “adequate and independent” state court decision
as one that “‘rests on a state law ground that is independent of the federal question
and adequate to support the judgment.’” Lee v. Kemna, 534 U.S. 362, 375 (2002)
(quoting Coleman, 501 U.S. at 729) (emphasis in Lee). The questions of whether a
state procedural rule is “independent” of the federal question and “adequate” to
support the state court’s judgment, so as to have a preclusive effect on federal review
of the claim, “‘is itself a federal question.’” Id. (quoting Douglas v. Alabama, 380
U.S. 415, 422 (1965)).
To be considered “independent” of the federal question, “the state court’s
decision must rest solidly on state law grounds, and may not be ‘intertwined with an
interpretation of federal law.’” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
(quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). An example of
intertwining would be when “the State has made application of the procedural bar
depend on an antecedent ruling on federal law, that is, on the determination of
whether federal constitutional error has been committed.” Ake v. Oklahoma, 470 U.S.

25

68, 75 (1985). Stated differently, if “the state court must rule, either explicitly or
implicitly, on the merits of the constitutional question” before applying the state’s
procedural rule to a federal constitutional question, then the rule is not independent
of federal law. Id.
To be considered “adequate” to support the state court’s judgment, the state
procedural rule must be both “‘firmly established and regularly followed.’” Lee, 534
U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In other words,
the rule must be “clear [and] closely hewn to” by the state for a federal court to
consider it as “adequate.” James, 466 U.S. at 346 (alteration supplied). That does not
mean that the state’s procedural rule must be rigidly applied in every instance, or that
occasional failure to do so will render the rule “inadequate.” “To the contrary, a
[state’s] discretionary [procedural] rule can be ‘firmly established’ and ‘regularly
followed’ — even if the appropriate exercise of discretion may permit consideration
of a federal claim in some cases but not others.” Beard v. Kindler, 558 U.S. 53, 60-61
(2009) (alterations supplied). Rather, the “adequacy” requirement means only that
the procedural rule “must not be applied in an arbitrary or unprecedented fashion.”
Judd, 250 F.3d at 1313 (emphasis supplied).
In summary, if the procedural rule is not firmly established, or if it is applied
in an arbitrary, unprecedented, or manifestly unfair fashion, it will not be considered
26

“adequate,” and the state court decision based upon such a rule can be reviewed by
a federal court. Card, 911 F.2d at 1517. Conversely, if the rule is deemed
“adequate,” the decision will not be reviewed by this court.
2.

Overcoming procedural default

There are three circumstances in which an otherwise valid state-law ground
will not bar a federal habeas court from considering a constitutional claim that was
procedurally defaulted in state court: i.e., (i) where the petitioner demonstrates that
he had good “cause” for not following the state procedural rule, and, that he was
actually “prejudiced” by the alleged constitutional violation; or (ii) where the state
procedural rule was not “firmly established and regularly followed”; or (iii) where
failure to consider the petitioner’s claims will result in a “fundamental miscarriage
of justice.” Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J., concurring)
(citations omitted); see also, e.g., Coleman, 501 U.S. at 749-50 (holding that a state
procedural default “will bar federal habeas review of the federal claim, unless the
habeas petitioner can show cause for the default and prejudice attributable thereto, or
demonstrate that failure to consider the federal claim will result in a fundamental
miscarriage of justice”) (citations and internal quotation marks omitted); Murray v.
Carrier, 477 U.S. 478, 496 (1986) (“[W]here a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may
27

grant the writ even in the absence of a showing of cause for the procedural default.”)
(alteration supplied); Davis v. Terry, 465 F.3d 1249, 1252 n.4 (11th Cir. 2006) (“It
would be considered a fundamental miscarriage of justice if ‘a constitutional violation
has probably resulted in the conviction of one who is actually innocent.’”) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995) (in turn quoting Murray, 477 U.S. at 496)).
a.

The “cause and prejudice” standard

“A federal court may still address the merits of a procedurally defaulted claim
if the petitioner can show cause for the default and actual prejudice resulting from the
alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)
(citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis supplied). This
so-called “cause and prejudice” standard is clearly framed in the conjunctive;
therefore, a petitioner must prove both parts.
i.

“Cause”

To show “cause,” a petitioner must prove that “some objective factor external
to the defense impeded counsel’s efforts” to raise the claim in the state courts.
Murray, 477 U.S. at 488; see also Amadeo v. Zant, 486 U.S. 214, 221-22 (1988).
Objective factors that constitute cause include “‘interference by
officials’” that makes compliance with the State’s procedural rule
impracticable, and “a showing that the factual or legal basis for a claim
was not reasonably available to counsel.” In addition, constitutionally
“[i]neffective assistance of counsel . . . [on direct review] is cause.”
28

Attorney error short of ineffective assistance of counsel [on direct
review], however, does not constitute cause and will not excuse a
procedural default.
McCleskey, 499 U.S. at 493-94 (citations omitted) (first alteration in original, all other
alterations supplied).
While “[a]ttorney error [on direct review] that constitutes ineffective assistance
of counsel” has long been accepted as “cause” to overcome a procedural default, the
constitutional ineffectiveness of post-conviction counsel on collateral review
generally will not support a finding of cause and prejudice to overcome a procedural
default. Coleman, 501 U.S. at 753-54 (alterations supplied). That is because “[t]here
is no constitutional right to an attorney in state post-conviction proceedings.” Id. at
752 (alteration supplied) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray
v. Giarratano, 492 U.S. 1 (1989)).
Even so, in three recent landmark cases, the Supreme Court extended its prior
decision in Coleman when it decided that, as a matter of equity, and, under specific,
limited circumstances, errors by counsel on post-conviction, collateral review could
establish the necessary “cause” to overcome a procedurally defaulted claim. In the
first such case, Maples v. Thomas, — U.S. —, 132 S. Ct. 912 (2012), the Supreme
Court found that post-conviction counsel’s gross professional misconduct (e.g.
abandonment of the petitioner) severed the agency relationship between counsel and
29

the petitioner and, thus, established the necessary “cause” to overcome a procedural
default. Id. at 922-23.
In the second case, Martinez v. Ryan, 569 U.S. —, 132 S. Ct. 1309 (2012), the
Supreme Court held that post-conviction counsel’s failure to raise an ineffective
assistance of trial counsel claim at an initial review collateral proceeding could serve
as the necessary “cause” to overcome the procedural default of that type of claim
when the state prohibits it from being raised during the direct review process. Id. at
1317.
Finally, in Trevino v. Thaler, – U.S. – , 133 S. Ct. 1911 (2013), the Supreme
Court extended the exception carved out in Martinez to situations in which a state’s
procedural framework, by reason of its design and operation, makes it highly unlikely
in a typical case that a defendant will have a meaningful opportunity to raise a claim
of ineffective assistance of trial counsel on direct appeal. Trevino, 133 S. Ct. at 1921.
ii.

“Prejudice”

In addition to proving the existence of “cause” for a procedural default, a
habeas petitioner must show that he was actually “prejudiced” by the alleged
constitutional violation. He must show “not merely that the errors at his trial created
a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
30

United States v. Frady, 456 U.S. 152, 170 (1982); see also McCoy v. Newsome, 953
F.2d 1252, 1261 (11th Cir. 1992) (per curiam). If the “cause” is of the type described
in the Supreme Court’s 2012 decision in Martinez v. Ryan, supra, then the reviewing
court should consider whether the petitioner can demonstrate “that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S. Ct.
at 1318-19 (citing for comparison Miller-El v. Cockrell, 537 U.S. 322 (2003)
(describing standards for certificates of appealability to issue)).
b.

The “fundamental miscarriage of justice” standard

In a “rare,” “extraordinary,” and “narrow class of cases,” a federal court may
consider a procedurally defaulted claim in the absence of a showing of “cause” for
the default if either: (a) a fundamental miscarriage of justice “‘has probably resulted
in the conviction of one who is actually innocent,’” Smith, 477 U.S. at 537-38
(quoting Carrier, 477 U.S. at 496); or (b) the petitioner shows “‘by clear and
convincing evidence that[,] but for a constitutional error, no reasonable juror would
have found the petitioner eligible for the death penalty.’” Schlup, 513 U.S. at 323
(quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (emphasis in Schlup, alteration
supplied).

31

C.

The Statutory Overlay: The Effect of “the Antiterrorism and Effective Death
Penalty Act of 1996” on Habeas Review
The writ of habeas corpus “has historically been regarded as an extraordinary

remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true
when federal courts are asked to engage in habeas review of a state court conviction
pursuant to 28 U.S.C. § 2254.
Direct review is the principal avenue for challenging a conviction.
“When the process of direct review . . . comes to an end, a presumption
of finality and legality attaches to the conviction and sentence. The role
of federal habeas proceedings, while important in assuring that
constitutional rights are observed, is secondary and limited. Federal
courts are not forums in which to relitigate state trials.”
Id. (emphasis and redaction supplied) (quoting Barefoot, 463 U.S. at 887). “Those
few who are ultimately successful [in obtaining federal habeas relief] are persons
whom society has grievously wronged and for whom belated liberation is little
enough compensation.” Fay v. Noia, 372 U.S. 391, 440-41 (1963), overruled on
other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977) (alteration supplied).
“Accordingly, . . . an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634
(citations, quotation marks, and footnote omitted). That is due to the fact that, under
the federal system of governments created by the United States Constitution,

32

[t]he States possess primary authority for defining and enforcing the
criminal law. In criminal trials they also hold the initial responsibility
for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitutional rights.
Engle v. Isaac, 456 U.S. 107, 128 (1982) (alteration supplied).34
These principles were reinforced by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which amended preexisting habeas law.35 Among
other things, several provisions of the AEDPA require federal courts to give greater
deference to state court determinations of federal constitutional claims than before.
1.

28 U.S.C. § 2254(e)(1)

Section 2254(e)(1) requires district courts to presume that a state court’s factual
determinations are correct, unless the habeas petitioner rebuts the presumption of
correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also,
e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that §
34

“The reason most frequently advanced in our cases for distinguishing between direct and
collateral review is the State’s interest in the finality of convictions that have survived direct review
within the state court system.” Brecht, 507 U.S. at 635 (citing Wright v. West, 505 U.S. 277, 293
(1992); McCleskey, 499 U.S. at 491; and Wainwright, 433 U.S. at 90).
35

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) was signed into law by
President Clinton on April 24, 1996. See Pub. L. No. 104-132, 110 Stat. 1214 (1996). The present
petition was filed after that date. Accordingly, the habeas statutes as amended by AEDPA apply to
the claims asserted in this case. See id. § 107(c), 110 Stat. at 1226; McNair v. Campbell, 416 F.3d
1291, 1297 (11th Cir. 2005) (applying AEDPA to habeas petitions filed after Act’s effective date);
Hightower v. Schofield, 365 F.3d 1008, 1013 (11th Cir. 2004) (same). Cf. Lindh v. Murphy, 521
U.S. 320, 327 (1997) (holding that AEDPA’s amendments do not apply to habeas petitions filed
prior to the Act’s effective date); Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir. 2001) (same);
Thompson v. Haley, 255 F.3d 1292, 1295 (11th Cir. 2001) (same).

33

2254(e)(1) provides “a highly deferential standard of review for factual
determinations made by a state court”). Section 2254(e)(1) “modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams
v. Taylor, 529 U.S. 362, 403-04 (2000)).
The deference that attends state court findings of fact pursuant to Section
2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus,
a presumption of correctness must be afforded to a state court’s factual findings, even
when the habeas claim is being examined de novo. See Mansfield v. Secretary,
Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012) (acknowledging
the federal court’s obligation to accept a state court’s factual findings as correct, if
unrebutted by clear and convincing evidence, and proceeding to conduct a de novo
review of the habeas claim)
The presumption of correctness also applies to habeas claims that were
adjudicated on the merits by the state court and, therefore, are subject to the standards
of review set out in 28 U.S.C. §§ 2254(d)(1) and (d)(2), discussed in the following
section.
2.

28 U.S.C. § 2254(d)
34

“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the
merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington v. Richter, 562 U.S. 86, 98 (2011). It does not matter whether the state
court decision contains a lengthy analysis of the claim, or is a summary ruling
“unaccompanied by explanation.” Id.
Further, the “backward-looking language” of the statute requires an
examination of the state-court decision on the date it was made. Cullen v. Pinholster,
563 U.S. 170, 182 (2011). That is, “[s]tate court decisions are measured against [the
Supreme] Court’s precedents as of ‘the time the state court renders its decision.’” Id.
(alterations supplied) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
Finally, “review under §[§] 2254(d)(1) [and (d)(2)] is limited to the record that
was before the state court that adjudicated the claim on the merits.” Id. at 181
(alterations and emphasis supplied). Therefore, a federal habeas court conducting
2254(d) review should not consider new evidence “in the first instance effectively de
novo.” Id. at 182.
A closer look at the separate provisions of 28 U.S.C. § 2254(d)(1) and (d)(2)
reveals that, when a state court has made a decision on a petitioner’s constitutional
claim, habeas relief cannot be granted, unless it is determined that the state court’s
adjudication of the claim either:
35

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d) (emphasis supplied).36
The “contrary to” and “unreasonable application of” clauses of § 2254(d) have
been interpreted as “independent statutory modes of analysis.” Alderman v. Terry,
468 F.3d 775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07).37 When
considering a state court’s adjudication of a petitioner’s claim, therefore, the habeas
court must not conflate the two inquiries.
a.

The meaning of § 2254(d)(1)’s “contrary to” clause

36

Section 2254(d)(1)’s reference to “clearly established federal law, as determined by the
Supreme Court of the United States” has been interpreted by the Supreme Court as referencing only
“the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams, 529 U.S. at 412 (O’Connor, J., majority opinion) (emphasis
and alteration supplied); see also, e.g., Carey v. Musladin, 549 U.S. 70, 74 (2006) (same); Osborne
v. Terry, 466 F.3d 1298, 1305 (11th Cir. 2006) (same); Warren v. Kyler, 422 F.3d 132, 138 (3rd Cir.
2005) (“[W]e do not consider those holdings as they exist today, but rather as they existed as of the
time of the relevant state-court decision.”) (internal quotation marks and citation omitted) (alteration
supplied).
37

See also Williams, 529 U.S. at 404 (O’Connor, J., majority opinion) (“Section 2254(d)(1)
defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect
to a claim adjudicated on the merits in state court. Under the statute, a federal court may grant a writ
of habeas corpus if the relevant state-court decision was either (1) ‘contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an
unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court
of the United States.’”) (emphasis and ellipses in original).

36

A state-court determination can be “contrary to” clearly established Supreme
Court precedent in at least two ways:
First, a state-court decision is contrary to this Court’s precedent if the
state court arrives at a conclusion opposite to that reached by this Court
on a question of law. Second, a state-court decision is also contrary to
this Court’s precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to ours.
Williams, 529 U.S. at 405 (emphasis supplied). See also, e.g., Brown v. Payton, 544
U.S. 133, 141 (2005) (same); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)
(same); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (same).
The Eleventh Circuit has observed that the Supreme Court’s majority opinion
in Williams does not limit the construction of § 2254(d)(1)’s “contrary to” clause to
the two examples set forth above.38 Instead, the statutory language “simply implies
38

Indeed, as one commentator has observed, the possible permutations are not just two, but
at least four in number:
The word “contrary” denotes incompatibility or logical inconsistency. Two
propositions are incompatible with one another if both cannot be true or correct.
Thus, a state court decision is contrary to federal law if that decision and the
applicable federal law cannot both be true or correct. Given this premise, there
appears to be four possible combinations of state court adjudications and resulting
decisions that are pertinent to this textual inquiry:
•

the state court applies the correct federal standard and arrives at a correct
outcome;

•

the state court applies an incorrect federal standard and arrives at an incorrect
outcome;

•

the state court applies an incorrect federal standard and arrives at a correct

37

that ‘the state court’s decision must be substantially different from the relevant
precedent of [the Supreme] Court.’” Alderman, 468 F.3d at 791 (quoting Williams,
529 U.S. at 405) (alteration supplied).
b.

The meaning of § 2254(d)(1)’s “unreasonable application”
clause

A state court’s determination of a federal constitutional claim can result in an
“unreasonable application” of clearly established Supreme Court precedent in either
of two ways:
First, a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing legal
rule from this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court decision also
involves an unreasonable application of this Court’s precedent if the
state court either unreasonably extends a legal principle from our
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 (emphasis supplied). See also, e.g., Putman, 268 F.3d at
1240-41 (same).

outcome; and,
•

the state court applies the correct federal standard and arrives at an incorrect
outcome.

Allan Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary on Statutory
Text and Supreme Court Precedent, 60 WASH. & LEE L. REV. 677, 685 (2003) (footnotes omitted).

38

It is important to notice that “an unreasonable application of federal law is
different from an incorrect application.” Williams, 529 U.S. at 410 (emphasis in
original). 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. Rather, that application
must also be unreasonable.” Id. at 411 (emphasis supplied).
In other words, the question that should be asked is not whether the state court
“correctly” applied Supreme Court precedent when deciding the federal constitutional
issue, but whether the state court’s determination was “unreasonable.” Id. at 409
(“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”) (alteration supplied). See also, e.g., Bell, 535 U.S. at 694 (observing
that the “focus” of the inquiry into the reasonableness of a state court’s determination
of a federal constitutional issue “is on whether the state court’s application of clearly
established federal law is objectively unreasonable,” and stating that “an
unreasonable application is different from an incorrect one”); Harrington v. Richter,
562 U.S. 86, 101-04 (2011) (same).39
39

The Eleventh Circuit has observed that § 2254(d)(1)’s “unreasonable application”
provision is the proper statutory lens for viewing the “run-of-the-mill state-court decision applying
the correct legal rule.” Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006).

39

In order to demonstrate that a state court’s application of clearly established
federal law was “objectively unreasonable,” the habeas petitioner “must show that
the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 103 (emphasis
supplied). Stated another way, if the state-court’s resolution of a claim is debatable
among fairminded jurists, it is not “objectively unreasonable.”
“By its very language, [the phrase] ‘unreasonable application’ refers to mixed
questions of law and fact, when a state court has ‘unreasonably’ applied clear
Supreme Court precedent to the facts of a given case.” Neelley v. Nagle, 138 F.3d
917, 924 (11th Cir. 1998), abrogated on other grounds by Williams, 529 U.S. at 413
(citation and footnote omitted) (alteration supplied).

Mixed questions of

constitutional law and fact are those decisions “which require the application of a
legal standard to the historical-fact determinations.” Townsend v. Sain, 372 U.S. 293,

In other words, if the state court identified the correct legal principle but
unreasonably applied it to the facts of a petitioner’s case, then the federal court
should look to § 2254(d)(1)’s “unreasonable application” clause for guidance. “A
federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”
Id. (quoting Williams, 529 U.S. at 409) (emphasis in original).

40

309 n.6 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992).
c.

The meaning of § 2254(d)(2)’s clause addressing an
“unreasonable determination of the facts in light of the evidence
presented in the state court proceeding”

“28 U.S.C. § 2254(d)(2) imposes a ‘daunting standard — one that will be
satisfied in relatively few cases.’” Cash v. Maxwell, — U.S. —, 132 S. Ct. 611, 612
(2012) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010) (internal quotation
marks omitted in original)).
As we have observed in related contexts, “[t]he term
‘unreasonable’ is no doubt difficult to define.” Williams v. Taylor, 529
U.S. 362, 410, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). It suffices to
say, however, that a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different
conclusion in the first instance. Cf. id., at 411, 120 S. Ct. 1495.
Wood v. Allen, 558 U.S. 290, 301 (2010) (alteration in original). Therefore, “even if
‘[r]easonable minds reviewing the record might disagree’ about the finding in
question, ‘on habeas review that does not suffice to supersede the trial court’s . . .
determination.” Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (alteration
and ellipses in original). Conversely,
when a state court’s adjudication of a habeas claim result[s] in a
decision that [i]s based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding, this Court

41

is not bound to defer to unreasonably-found facts or to the legal
conclusions that flow from them.
Adkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249 -1250 (11th
Cir. 2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en
banc) (alterations in original) (quotation marks and citations omitted in original)).
d.

Evaluating state court factual determinations under 28 U.S.C. §§
2254(d)(2) and (e)(1)

As set out in the previous parts of this opinion, 28 U.S.C. § 2254(d)(2)
regulates federal court review of state court findings of fact by limiting the
availability of federal habeas relief on any claims by a state prisoner that are
grounded in a state court’s factual findings, unless those findings were “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2).
It also must be remembered that 28 U.S.C. § 2254(e)(1) affords a presumption
of correctness to factual determinations made by a state court, and that the habeas
petitioner bears the burden of rebutting that presumption “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1) (emphasis supplied); see also Ward, 592 F.3d at
1155-56 (holding that the presumption of correctness attending a state court’s
findings of fact can be overcome only by clear and convincing evidence).

42

The Eleventh Circuit has observed that the relationship between subsections
2254(d)(2) and(e)(1) remains an open question.

See Cave v. Secretary for

Department of Corrections, 638 F.3d 739, 744-46 (11th Cir. 2011) (“‘[N]o court has
fully explored the interaction of § 2254(d)(2)’s ‘unreasonableness’ standard and §
2254(e)(1)’s ‘clear and convincing evidence’ standard.”) (quoting Gore v. Secretary
for Department of Corrections, 492 F.3d 1273, 1294 n.51 (11th Cir. 2007))
(alteration supplied). Even so, the Eleventh Circuit’s earlier opinion in Ward v. Hall,
592 F.3d 1144 (2010), clearly held that federal habeas courts “must presume the state
court’s factual findings to be correct unless the petitioner rebuts that presumption by
clear and convincing evidence.” Id. at 1177 (citing § 2254(e)(1); Parker v. Head, 244
F.3d 831, 835-36 (11th Cir. 2001)) (emphasis supplied). That same opinion also
observed that “28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the
state court made an ‘unreasonable determination of the facts,’ the petitioner must
rebut ‘the presumption of correctness [of a state court’s factual findings] by clear and
convincing evidence.’” Ward, 592 F.3d at 1155-56 (alteration in original).
D.

The Burden of Proof and Heightened Pleading Requirements for Habeas
Petitions
Habeas review “exists only to review errors of constitutional dimension.”

McFarland v. Scott, 512 U.S. 849, 861 (1994) (O’Connor, J., concurring); see also

43

28 U.S.C. § 2254(a).40 “When the process of direct review . . . comes to an end, a
presumption of finality and legality attaches to the conviction and sentence.”
Barefoot, 463 U.S. at 887 (ellipses supplied). Two consequences flow from those
fundamental propositions.
First, the habeas petitioner bears the burden of overcoming the presumption
of “legality” that attaches to the state court conviction and sentence, and of
establishing a factual basis demonstrating that federal post-conviction relief should
be granted. See, e.g., 28 U.S.C. §§ 2254(d) and (e)(1);41 Hill v. Linahan, 697 F.2d
1032, 1036 (11th Cir. 1983) (“The burden of proof in a habeas proceeding is always
on the petitioner.”) (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).

40

The statute cited in text provides that: “The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(emphasis supplied). It follows that claims pertaining solely to questions of state law fall outside the
parameters of this court’s authority to provide relief under § 2254.
41

As discussed in Part IV.C. supra, Section 2254(d) provides that the state courts’
adjudication of a habeas petitioner’s claims can be overturned only if the petitioner carries the
burden of demonstrating that a particular determination either (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) that
the ruling “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.” Further, § 2254(e)(1) provides that:
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.

44

Second, the habeas petitioner must meet “heightened pleading requirements.”
McFarland, 512 U.S. at 856 (citations omitted); Borden v Allen, 646 F.3d 785, 810
(11th Cir. 2011) (Section 2254 requires “fact pleading,” and not merely “notice
pleading”). The mere assertion of a ground for relief, without concomitant allegation
of sufficient factual detail, does not satisfy either the petitioner’s burden of proof
under 28 U.S.C. § 2254(e)(1), or the requirements of Rule 2(c) of the Rules
Governing Section 2254 Cases in the United States District Courts, which provides
that a state prisoner must “specify all the grounds for relief available to the
petitioner,” and to then “state the facts supporting each ground.” 28 U.S.C. § 2254
app. Rule 2(c), Rules Governing Section 2254 Cases in the United States District
Courts (emphasis supplied).42 See also 28 U.S.C. § 2242 (stating that an application
for writ of habeas corpus “shall allege the facts concerning the applicant’s
commitment or detention”) (emphasis supplied).
In short, a habeas petitioner must include in his statement of each claim
sufficient supporting facts to justify a decision for the petitioner if the alleged facts
are proven true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)
(observing that a habeas petition must “state facts that point to a ‘real possibility of
constitutional error’”) (quoting Advisory Committee Notes to Rule 4 of the Rules
42

Accord Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts.

45

Governing Section 2254 Cases in the United States District Courts). Cf. Diaz v.
United States, 930 F.2d 832, 835 (11th Cir. 1991) (holding in a case premised upon
28 U.S.C. § 2255 that, despite the liberal construction due a pro se petitioner’s
allegations, dismissal was appropriate because the movant did not allege “facts that,
if proven, would entitle him to relief”).43
In addition, “[c]itation of the controlling constitutional, statutory, or other bases
for relief for each claim also should be stated.” 1 Randy Hertz & James S. Liebman,
Federal Habeas Corpus Practice and Procedure § 11.6, at 654 (5th ed. 2005)
(alteration supplied). As another district judge has stated:
It is not the duty of federal courts to try to second guess the meanings of
statements and intentions of petitioners. Rather the duty is upon the
individual who asserts a denial of his constitutional rights to come forth
with a statement of sufficient clarity and sufficient supporting facts to
enable a court to understand his argument and to render a decision on
the matter.
Nail v. Slayton, 353 F. Supp. 1013, 1019 (W.D. Va. 1972).
E.

Introduction to Ineffective Assistance of Counsel Claims
An introduction to ineffective assistance of counsel claims is included here

because of the relationship between such claims — which are governed by a highly
43

Cf. Hill v. Lockart, 474 U.S. 52, 60 (1986) (“Petitioner did not allege in his habeas petition
that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not
guilty and insisted on going to trial. He alleged no special circumstances that might support the
conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not
to plead guilty.”) (emphasis supplied).

46

deferential standard of constitutional law — and 28 U.S.C. § 2254(d), which itself
requires the exercise of deference. A general discussion also provides a central
reference point, because Davis has divided his allegations that trial counsel provided
ineffective assistance into several separate habeas claims.
With the sole exceptions of the situations discussed in the Supreme Court’s
Martinez and Trevino decisions,44 ineffective assistance of counsel claims are
specifically limited to the performance of attorneys who represented a state prisoner
at trial, or on direct appeal from the conviction. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.”).

See also Coleman, 501 U.S. at 752 (“There is no

constitutional right to an attorney in state post-conviction proceedings. . . .
Consequently, a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.”) (citations omitted).
The Supreme Court’s “benchmark” standard for judging any claim that a trial
or appellate attorney provided representational assistance to a state prisoner that was
so professionally incompetent as to create issues of federal constitutional proportions
is the question of “whether counsel’s conduct so undermined the proper functioning
44

See supra, page 30.

47

of the adversarial process that the trial cannot be relied upon as having produced a
just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). If an objective
answer to that question is “yes,” then counsel was constitutionally ineffective. Even
so, Strickland requires that the issue be approached in two steps: i.e.,
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. Unless a
defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687 (emphasis supplied); see also, e.g., Williams, 529 U.S. at 390 (quoting
strickland); Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001) (same).
Both parts of the Strickland standard must be satisfied: that is, a habeas
petitioner bears the burden of proving, by “a preponderance of competent evidence,”
both that the performance of his trial or appellate attorney was deficient; and, that
such deficient performance prejudiced his defense. Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus, a federal court is not required to
address both parts of the Strickland standard when the habeas petitioner makes an

48

insufficient showing on one of the prongs. See, e.g., Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied in order
to show a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, . . . or vice
versa.”) (citation to Strickland omitted).
1.

The performance prong

“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler,
218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a
defendant must prove that counsel made errors so serious that he or she was not
functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S.
at 687. The standard for gauging attorney performance is “reasonableness under
prevailing professional norms.” Id. at 688. “The test for reasonableness is not
whether counsel could have done something more or different,” but whether
counsel’s performance “fell within the broad range of reasonable assistance at trial.”
Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d at 1313). Furthermore, courts
must “recognize that omissions are inevitable. B ut, the issue is not what is possible
or what is prudent or appropriate, but only what is constitutionally compelled.” Id.
49

(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)) (internal quotation marks
omitted). The Sixth Amendment does not guarantee a defendant the very best counsel
or the most skilled attorney, but only an attorney who performed reasonably well
within the broad range of professional norms. “The test has nothing to do with what
the best lawyers would have done. Nor is the test even what most good lawyers
would have done. We ask only whether some reasonable lawyer at the trial could
have acted, in the circumstances, as defense counsel acted at trial.” White v.
Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective
of the attorney at the time of the alleged error, and in light of all the circumstances.
See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (giving lawyers
“the benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v.
Singletary, 161 F.3d 1273, 1286 (11th Cir. 1998) (noting that Strickland performance
review is a “‘deferential review of all of the circumstances from the perspective of
counsel at the time of the alleged errors’”) (quoting Baldwin v. Johnson, 152 F.3d
1304, 1311 (11th Cir. 1998)).
Under this standard, there are no “absolute rules” dictating what
reasonable performance is or what line of defense must be asserted.
[Chandler, 218 F.3d] at 1317. Indeed, as we have recognized,
“[a]bsolute rules would interfere with counsel’s independence — which
is also constitutionally protected — and would restrict the wide latitude
50

counsel have in making tactical decisions.” Putman v. Head, 268 F.3d
1223, 1244 (11th Cir. 2001).
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (first alteration supplied,
second alteration in original). Judicial scrutiny of counsel’s performance must be
“highly deferential,” because representation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another. See Strickland,
466 U.S. at 697.
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. There are countless
ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the
same way.
Strickland, 466 U.S. at 689 (emphasis supplied) (citations and internal quotation
marks omitted); see also, e.g., Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)
(“When reviewing whether an attorney is ineffective, courts should always presume

51

strongly that counsel’s performance was reasonable and adequate.”) (internal
quotation marks omitted).
“Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d
at 1209 (quoting Chandler, 218 F.3d at 1315) (emphasis supplied). “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can
be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer,
in the circumstances, would have done so.” Rogers, 13 F.3d at 386 (emphasis
supplied).
2.

The prejudice prong

“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). See also, e.g., Gilreath v. Head, 234 F.3d 547,
551 (11th Cir. 2000) (holding that a habeas petitioner “must affirmatively prove
prejudice, because ‘[a]ttorney errors come in an infinite variety and are as likely to
be utterly harmless in a particular case as they are to be prejudicial.’”) (quoting
Strickland, 466 U.S. at 693)) (alteration in original). “It is not enough for the [habeas
petitioner] to show that the errors had some conceivable effect on the outcome of the
52

proceeding.” Strickland, 466 U.S. at 693 (alteration supplied); see also Harrington,
562 U.S. at 112 (citing Strickland, 466 at 693) (“The likelihood of a different result
must be substantial, not just conceivable.”)) (emphasis supplied).
Instead, to prove prejudice, the habeas petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see
also Williams, 529 U.S. at 391 (same). When that standard is applied in the context
of the death sentence itself, “‘the question is whether there is a reasonable probability
that, absent the errors, the sentencer [i.e., in Alabama, the trial court judge] . . . would
have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695)
(alteration supplied).
That is a high standard, and in order to satisfy it a petitioner must present
competent evidence proving “that trial counsel’s deficient performance deprived him
of ‘a trial whose result is reliable.’” Brown v. Jones, 255 F.3d 1273, 1278 (11th Cir.
2001) (quoting Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice
requires proof of unprofessional errors so egregious that the trial was rendered unfair
and the verdict rendered suspect.” Johnson, 256 F.3d at 1177 (quoting Eddmonds v.
53

Peters, 93 F.3d 1307, 1313 (7th Cir. 1996) (in turn quoting Kimmelman v. Morrison,
477 U.S. 365, 374 (1986))) (internal quotation marks omitted) (alteration supplied).
3.

Deference accorded state court findings of historical fact, when
evaluating ineffective assistance of counsel claims

State court findings of historical fact made in the course of evaluating a claim
of ineffective assistance of counsel are subject to a presumption of correctness under
28 U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292,
1297 (11th Cir. 2001). To overcome a state-court finding of fact, the petitioner bears
a burden of proving contrary facts by “clear and convincing evidence.”
Additionally, under the AEDPA, a federal habeas court may grant relief on a
claim of ineffective assistance of counsel only if the state-court determination
involved an “unreasonable application” of the Strickland standards to the facts of the
case. Strickland itself, of course, also requires an assessment of whether counsel’s
conduct was professionally unreasonable.

Those two assessments cannot be

conflated into one. See Harrington, 562 U.S. at 101-12. Thus, habeas relief on a
claim of ineffective assistance of counsel can be granted with respect to a claim
actually decided by the state courts only if the habeas court determines that it was
“objectively unreasonable” for the state courts to find that counsel’s conduct was not
“professionally unreasonable.” The Harrington Court explained:

54

“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L.
Ed. 2d 284 (2010). An ineffective-assistance claim can function as a
way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity
of the very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo
review, the standard for judging counsel’s representation is a most
deferential one. Unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge. It
is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also
Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L.
Ed. 2d 180 (1993). The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom.
Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” Id.,
at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117
S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles [v. Mirzayance], 556 U.S. [111,
125], 129 S. Ct. at 1420 [(2009)]. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 556 U.S., at
[123], 129 S. Ct. at 1420. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question

55

is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Harrington, 562 U.S. at 105 (alterations supplied); see also Premo v. Moore, 562
U.S. 115, 121-22 (2011).
V. DAVIS’S CLAIMS
A.

Ineffective Assistance of Counsel During Guilt Phase of Trial
Davis contends that, by abdicating their “Constitutionally mandated

responsibility to subject the State’s case to meaningful adversarial testing,” and by
committing errors so serious that they deprived him of a fair trial, trial counsel
provided ineffective assistance under the framework established by Strickland v.
Washington, 466 U.S. 668 (1984).45 Davis divides this claim into five subclaims of
ineffective assistance based on his trial counsel’s alleged: (1) failure to conduct an
adequate investigation; (2) failure to present alibi witnesses; (3) failure to challenge
the State’s investigation and presentation of the case; (4) failure to present, argue
adequately, and seek favorable rulings on numerous pre-trial motions; and (5) failure
to present additional substantive evidence in his defense.46 He raises numerous

45
46

Doc. no. 33, at 7.
Id. at 7-23.

56

factual allegations in support of each subclaim. Even so, the majority of those factual
allegations were raised and rejected in state court.47
The trial court found that Davis had not met his burden of establishing
ineffective assistance of counsel,48 and the Alabama Court of Criminal Appeals
affirmed that finding. Davis v. State, 9 So. 3d 539, 546-52 (Ala. Crim. App. 2008).
Davis now argues that the Court of Criminal Appeals failed to properly apply the
Strickland test and its progeny, including Rompilla v. Beard, 545 U.S. 374 (2005);
Wiggins v. Smith, 539 U.S. 510 (2003); and Williams v. Taylor, 529 U.S. 362
(2000).49 Each of Davis’s five subclaims will be addressed, in turn.
1.

Failure to adequately investigate the capital murder charge

Davis asserts that his trial counsel failed to undertake a timely and substantive
investigation prior to trial, and he argues that, had they done so, they would have
discovered relevant evidence that would have aided his defense. He challenges the
amount of time counsel spent on his case, the scope of counsel’s investigation, and
counsel’s failure to transcribe the preliminary hearing.
a.

Time spent in preparation for trial

47

Any claim that was not raised in state court will be identified below. Otherwise, the claims
were raised in Davis’s Second Amended Rule 32 Petition. Rule 32 C.R. Vol. 14, Tab 52.
48

Rule 32 C.R. Vol. 62, Tab 80, at 5-26.

49

However, the court notes that many of Davis’s claims were not presented to the Alabama
Court of Criminal Appeals.

57

Davis contends that the amount of time counsel spent preparing for trial and
investigating was grossly inadequate for a capital case.50 He complains that he first
met attorney Steven Giddens on April 9, 1993, and then only for a few minutes prior
to the preliminary hearing.51 Thereafter, neither Giddens nor co-counsel Jonathan
Adams performed any meaningful work to prepare for trial until just two weeks
before the trial at the end of November. Davis asserts that Giddens’ time sheets
reflect that Giddens met with him only twice after their initial meeting, on June 11,
1993, and November 12, 1993, and for only an hour each time.52
The generalized assertion that counsel did not spend adequate time preparing
for trial, standing alone, does not entitle Davis to relief. First, it should be noted that
this “claim” was not specifically raised in state court. Instead, within the section of
his Rule 32 petition entitled “Statement of the Case,” Davis complained that the time
records submitted to the court by one of his trial lawyers showed that he did not begin
working on the case until November 24, 1993, just eleven days before trial
commenced.53

At the conclusion of the evidentiary hearing, Davis argued that

counsel should have spent more than two hours with him,54 but conceded: “the case
50

Doc. no. 33, at 8-13.

51

Id. at 8-9.

52

Id.

53

Rule 32 C.R. Vol. 14, Tab. R-52, at 3.
He complained that Giddens first met with him in June, 1993, three months after the crime

54

58

law requires me to point to specific errors that were made by defense attorneys and
not just say, well, they only spent two weeks investigating this case and so that’s not
enough.”55 The alleged lack of sufficient time spent investigating, standing alone,
does not warrant further discussion56 as the claim was effectively waived by counsel
in state court. The amount of time involved in preparation is, however, discussed
below in conjunction with specific alleged deficiencies.
b.

Scope of investigation

Davis complains that counsel failed to take the following actions during the
months prior to trial: request a continuance of the preliminary hearing because he had
conducted no pre-hearing interviews; request funds to obtain an investigator; file
motions to obtain mental health or social history evaluations, and subpoenas for
police, school, DHR, or other family public assistance records; conduct an
investigation into drug or alcohol use by Davis or members of his family; elicit
exculpatory or mitigating information from Davis; interview Davis’s mother until one
week before trial; interview any other family members or friends of Davis; interview
key witnesses closer in time to the event; interview or investigate the backgrounds of
was committed, and noted that the time sheets reflect that Adams met with Davis only one time and
that nothing was done on the case until November. Rule 32 R. Vol. 24, at 1153.
55

Id. at 1155.

56

To the extent that the Respondent argues that Davis has added new factual support for this
claim, the state court record reveals that essentially the same arguments were made. Id. at 11531155.

59

Shannon Hardy Wilson or the Phillips cousins, the centerpieces of the State’s case
against Davis; pursue an alibi defense; take notes of important interviews; conduct
meaningful interviews of the co-defendants or Willie Smith; investigate the burglary
of the firearm that was used in the offense; attempt to identify and interview the
informant; and prepare a coherent defense.57
Davis has not, however, described how or why he was prejudiced by counsel’s
alleged deficiencies. Accordingly, he has failed to satisfy the heightened pleading
requirements for habeas cases. See McFarland, 512 U.S. at 856. To the extent that
certain allegations are repeated elsewhere within this claim or petition, with fullydeveloped arguments regarding prejudice, the assertions will be addressed there. To
the extent that they are not, the allegations are due to be dismissed as conclusory.
c.

Failure to transcribe preliminary hearing

Davis argues that his trial counsel were ineffective for failing to take notes
during the preliminary hearing, or request that the hearing be recorded.58

The

Alabama Court of Criminal Appeals addressed this claim in its opinion affirming the
denial of Davis’s Rule 32 petition:
Davis argues that counsel was ineffective for failing to ensure that the
record of the proceedings in the lower court was fully recorded.
57
58

Doc. no. 33, at 8-13.
Id. at 9.

60

Specifically, he asserts that counsel erred in failing to have his
preliminary hearing recorded and for not ensuring that sidebar
conferences were recorded.
The circuit court made the following findings on this claim:
In paragraph 38, Davis alleges [ineffective assistance
of counsel] based on trial counsel’s failure to move for full
recordation of all proceedings in his capital murder trial.
Davis failed to prove that he was prejudiced by the lack of
transcription of certain sidebars during the course of trial.
Although Giddens testified, the subject of whether any
controversial rulings or prejudicial comments were made
during these sidebars was not addressed. This Court,
which presided over Davis’s capital murder trial, cannot
recall anything discussed during sidebars that would have
prejudiced Davis due to their lack of transcription.
Because Davis did not put forth evidence to support this
claim, it is denied.
(R. 1151-52.)
At the Rule 32 hearing, Davis asked Giddens why he did not
move to have the preliminary hearing transcribed. The following
occurred:
[Rule 32 counsel]: Do you make a strategy decision not to
make that motion or have you just never thought about
making that motion?
[Giddens]: When the only witness really is going to be the
investigating officer, you find out what you need to know,
I mean, he’s charged with killing a man at a gas station,
Direct Oil here in Anniston. And that was pretty much the
testimony. And I believe the officer testified what the
codefendants had told him.

61

(R. 31-32.) Davis made no attempt to show how he was prejudiced by
counsel’s failure to have the preliminary hearing or certain sidebar
conferences recorded. There are no allegations that the officer’s
testimony at the preliminary hearing was inconsistent with his trial
testimony or that the sidebar conferences contained omitted information
that prejudiced Davis. “It is incumbent upon [petitioner] to show some
prejudice from the failure to transcribe the preliminary hearing
testimony before it may be claimed to be ineffective assistance of
counsel. Spilman v. State, 633 P.2d 183 (Wyo. 1981).” Jennings v.
State, 806 P.2d 1299, 1307 (Wyo. 1991). The circuit court correctly
denied relief on this claim.
Davis v. State, 9 So. 3d 539, 551 (Ala. Crim. App. 2008) (alterations in original).
Davis has not shown that the state court’s rejection of this claim was contrary
to, or an unreasonable application of, clearly established federal law. Although Davis
argues that a transcript of the preliminary hearing could have been important because
it might have contained testimony that conflicted with trial testimony,59 he has not
demonstrated that the trial testimony actually conflicted with the testimony at the
preliminary hearing, or that he was prejudiced because the police officer’s testimony
was not transcribed. Finally, although he claims that the state court unreasonably
required him to allege prejudice with greater specificity, he offers no legal support for
that contention.60
2.

59
60

Failure to locate, interview, and present exculpatory
witnesses
Id.
Id. at 22.

62

Davis complains that his trial counsel’s inadequate investigation prevented
them from locating, interviewing, and presenting additional exculpatory witnesses,
including alibi witnesses. 6 1 Davis faults counsel for interviewing only one potential
exculpatory witness, his proffered alibi witness, Tonya Heard.62 He argues that
counsel should have sought out and interviewed other “people in Davis’s extended
family and social network,”63 and contends that a sufficient investigation would have
uncovered many other exculpatory witnesses, such as his “aunt” Betty Jacobs and her
daughter Cynthia Denise Jacobs, both of whom could have provided a different, more
persuasive alibi than that of Tonya Heard.64
Review of the underlying state court record reveals that the facts in support of
this claim were presented to the state court. While Davis did not name Betty Jacobs
or Cynthia Denise Jacobs in his Rule 32 petition, or assert that counsel should have
61

Id. at 13-16.

62

In his Rule 32 petition, Davis alleged counsel was ineffective for failing to call Tonya
Heard as an alibi witness. Rule 32 C.R. Vol. 14, Tab 52, at 10. This is not the claim he raises in this
court. However, it is worth noting that at the evidentiary hearing, Giddens testified that he decided
not to call Ms. Heard as a witness because he felt her testimony would be damaging. Rule 32 R. Vol.
18, Tab 58, at 68-70. This was based on her statement to Giddens that Davis had been at her house
on the night of the murder, but left, then later returned, acted nervous, and instructed her to tell
people that he had been with her all night. Id. The Alabama Court of Criminal Appeals found that
counsel made a sound strategic decision and was not ineffective for failing to call her as an alibi
witness. Davis v. State, 9 So. 3d at 548-549.
63

Doc. no. 33, at 16.

64

Id. at 14-15. Giddens testified at the Rule 32 hearing that Davis told him Ms. Heard could
provide him with an alibi, but he did not mention Betty Jacobs or Cynthia Denise Jacobs. Rule 32
R. Vol. 19, at 149.

63

presented their testimony at trial, he did call them as witnesses during the Rule 32
evidentiary hearing.65 They testified that, on the night of the murder, Davis was at
their home in Anniston, a thirty-minute walk, or an eight-to-ten-minute drive, from
Direct Oil, between 7:00 and 8:00, the time the murder was committed.66 They also
testified that they had not previously informed anyone that Davis was with them
because no one had asked.67 Meanwhile, Giddens testified that Davis had never
informed him that Betty or Cynthia Denise Jacobs might be able to offer testimony
on his behalf.68
The Alabama Court of Criminal Appeals affirmed the trial court’s denial of this
claim. That court noted that “[t]rial counsel’s performance cannot be deemed
ineffective for failing to locate alibi witnesses whose existence was not brought to his
attention,” Davis v. State, 9 So. 3d 539, 548 (Ala. Crim. App. 2008) (quoting Adkins
v. State, 632 S.E. 2d 650, 653 (Ga. 2006) (in turn quoting Escobar v. State, 620 S.E.
2d 812 (2005)) (alteration supplied), and held that “counsel was not ineffective for
failing to conduct further investigation into Davis’s alibi defense and to locate
Cynthia Jacobs, a witness whose testimony was inconsistent with Davis’s own

65

Rule 32 R. Vol. 19, at 241-324.

66

Id. at 242-244, 260-261, 264-265, 281-282, 295-297, 309, 315-316.

67

Id. at 245, 256, 295-299.
Id. at 148-149.

68

64

statements to his attorneys.” Davis v. State, 9 So. 3d 539, 548 (Ala. Crim. App.
2008). Davis argues that he should not be blamed for failing to bring this information
to counsels’ attention, given the paucity of time counsel actually spent with him. It
is not reasonable to believe, however, that a criminal defendant facing a capital
murder charge would not inform his attorneys of a legitimate alibi defense, if one
existed, regardless of how much or how little time he spent meeting with those
attorneys. Moreover, the Court of Appeals made the factual determination that the
testimony of Davis’s aunt and her daughter was inconsistent with that of Davis’s
other alleged alibi witness, as well as with Davis’s own statements to trial counsel.
That determination is reasonable.

Counsels’ failure to search for multiple,

inconsistent potential alibis in the hope of finding one that might stick cannot be
deemed deficient performance. Davis is entitled to no relief.
3.

Failure to challenge the state’s investigation and
presentation of its case-in-chief

Davis asserts that his trial counsels’ failure to investigate compromised his
ability to challenge the State’s case during the trial.69 He argues that counsel failed
to adequately cross-examine State witnesses, and object to “irrelevant and
prejudicial” evidence introduced by the State.70 Specifically, he contends that counsel
69
70

Doc. no. 33, at 16-19.
Id. at 16.

65

should have: (1) argued that the Phillips cousins were not credible because they
received reduced sentences for their testimony, and gave their statements only after
they were threatened with capital punishment if they refused to do so; (2) challenged
Shannon Wilson’s testimony because she failed to establish it was actually Davis she
heard boasting about committing the crime; (3) taken adequate steps to ensure no
gang-related references or innuendo were made during the trial; (4) objected to the
admission of a note found in the pocket of a pair of shorts alleged to have been worn
by Davis;71 (5) argued that the clothing descriptions given by the disinterested
witnesses matched clothing worn by the Phillips cousins, not Davis; (6) emphasized
to the jury that Davis was taller than 6 feet, whereas Dewey Waites’ identification of
the shooter included an estimation that he was approximately 5 feet, 8 inches.72
Davis unsuccessfully raised these allegations in his Rule 32 petition,73 and the
Alabama Court of Criminal Appeals affirmed the trial court’s denial of relief:
Second, Davis argues that counsel was ineffective for failing to
challenge the State’s case against him. The circuit court made the
following findings of fact on this claim:

71

This allegation is one basis of Claim G, that Davis’s first, fifth, sixth, eighth and fourteenth
amendment rights were violated by the admission into evidence of a note allegedly found in the
pocket of Davis’s clothing, and will be discussed in greater detail in Section V.G., infra.
72
73

Doc. no. 33, at 16-19.
Rule 32 C.R. Vol. 14, Tab 52, at 11-14.

66

Davis failed to carry his burden of proof as to this
allegation in his second amended petition. The record
shows that trial counsel challenged the State’s
investigation and preparation of this case, including
reviewing witness statements, discovery, visiting the crime
scene, and speaking with Davis. In fact, this preparation
paid off at trial when defense counsel prepared a defense
that attempted to cast doubt on the veracity of the Phillips
brothers [sic] [his codefendants] and on Willie Smith.
That this defense was not successful does not lessen its
validity. The closing arguments of defense counsel at the
guilt phase demonstrate how effective they were in
preparing a defense. The use of Alphonso Phillips’s
allocution against him — suggesting he was the triggerman
— is the stuff good defenses are made of. (R. 1210-1211.)
Trial counsel also used the State’s evidence of the
descriptions of the participants in the Direct Oil shooting
in an attempt to establish a reasonable doubt as to Davis’s
innocence. This defense strategy included calling a police
officer to the stand to recount a physical description given
immediately after the crime that was someone different
from Davis’s description. This testimony, combined with
the efforts to discredit the Phillips brothers [sic], allowed
defense counsel to argue that Willie Smith and the Phillips
brothers [sic] were conspiring to frame Davis.
As to paragraphs 24-29 in the second amended
petition, Davis offered no evidence or argument that would
be sufficient to meet his burden of proof in this case. As
Davis has not established deficient performance or
prejudice in this regard, this claim is denied.
(C.R. 1147-48.) The circuit court’s findings are supported by the record.
We have reviewed the record of Davis’s trial. Davis’s
codefendants Alphonso Phillips and Terrance Phillips testified that the

67

three made plans to rob the Direct Oil gasoline station in Anniston and
that Davis was carrying a .25 caliber semiautomatic pistol. FN.
FN. In exchange for their testimony at Davis’s trial,
Alphonso and Terrance Phillips pleaded guilty to
conspiracy to commit robbery. Alphonso was sentenced to
20 years’ imprisonment, and Terrance was sentenced to 10
years’ imprisonment.
Alphonso testified that when they went into the gasoline station Davis
pointed the gun at Johnny Hazle and fired two shots at him. Terrance
said that he was supposed to be the lookout but that he walked away
before they got to the gas station. He testified that he heard gunshots as
he was walking away. Willie Smith testified that Davis told him that he
had robbed and shot someone at the Direct Oil station. Still other
witnesses testified that Davis had made statements to them concerning
his involvement in the robbery/murder. The evidence against Davis was
overwhelming.
Giddens testified at the Rule 32 hearing that “our strategy was [to]
discredit the people who were there, show the jury the discrepancies in
the height, weight, and actually try to establish a reasonable doubt that
perhaps a co-defendant who had a motive to lie did it, not Mr. Davis.”
(R. 150.) The record shows that counsel did an admirable job of
attempting to discredit the State’s witnesses. As this Court stated on
direct appeal:
The appellant’s defense strategy consisted mainly of trying
to discredit or to cast doubt upon the testimony of the
state’s witnesses through cross-examination and arguments
to the jury and to the trial court. By these means, he
attempted to exploit differences as to some details in their
testimony, attempted to persuade the jury that under the
facts it was more likely that Alphonso did the shooting,
argued to the jury and to the trial court that the facts
surrounding the commission of the crime better fit the
elements of the lesser included offense of felony-murder
68

rather than with the offense of capital murder, and
attempted to cast doubt upon the veracity of Alphonso,
Terrance, and Smith (who was involved with the
authorities in an unrelated case) by emphasizing the deals
they had made with the state for lenient treatment in return
for their testimony.
Davis v. State, 718 So.2d at 1156. The record also shows that counsel
made numerous objections and was able to secure a ruling excluding any
reference to “gang activity.” Counsel vigorously attacked the State’s
overwhelming evidence against Davis. That counsel was unsuccessful
in failing to obtain an acquittal is not sufficient to find that counsel’s
performance was ineffective.
The fact that a particular defense was unsuccessful does
not prove ineffective assistance of counsel. Chandler v.
United States, 218 F.3d [1305] at 1314 [(11th Cir. 2000)].
“[C]ounsel cannot be adjudged incompetent for performing
in a particular way in a case, as long as the approach taken
‘might be considered sound trial strategy.’” Chandler, 218
F.3d at 1314 (quoting Darden v. Wainwright, 477 U.S.
168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)).
Brown v. Crosby, 249 F. Supp. 2d 1285, 1321 (S.D. Fla. 2003). The
circuit court did not abuse its discretion in denying relief on this claim.
Third, Davis argues that his attorneys were ineffective for failing
to object to what Davis says was irrelevant and prejudicial evidence. He
argues that counsel should have objected to the admission of a letter
found in Davis’s pocket that referred to gang activity and to Shannon
Wilson’s testimony. Wilson testified that she overheard a conversation
between Davis and Willie Smith in which Davis said that he shot and
killed Hazle.
The circuit court found that Davis failed to meet his burden of
proof on this claim because no evidence was introduced at the

69

evidentiary hearing concerning this issue. We agree. Counsel was not
questioned concerning this evidence.
This court has held that “[o]bjections are a matter of
trial strategy, and an appellant must overcome the
presumption that ‘conduct falls within the wide range of
reasonable professional assistance,’ that is, the
presumption that the challenged action ‘might be
considered sound trial strategy.’” Moore v. State, 659
So.2d 205, 209 (Ala.Cr.App. 1994), citing Strickland [v.
Washington], 466 U.S. [668] at 687-88, 104 S.Ct. [2052] at
2064-65 [ (1984) ].
Lane v. State, 708 So.2d 206, 209 (Ala. Crim. App. 1997). As we stated
in Brooks v. State, 456 So.2d 1142, 1145 (Ala. Crim. App. 1984),
“effectiveness of counsel does not lend itself to measurement by picking
through the transcript and counting the places where objections might
be made. Effectiveness of counsel is not measured by whether counsel
objected to every question and moved to strike every answer.” Davis
failed to meet his burden of proof on this claim; therefore, the trial court
correctly denied him relief.
Davis v. State, 9 So. 3d 539, 549-551 (Ala. Crim. App. 2008) (alterations in original)
(footnote omitted).
Davis now argues that the state court’s “refusal to find ineffective assistance
in trial counsels’ complete failure to conduct an independent investigation sufficient
to enable them to effectively challenge the State’s factual and legal theories resulted
in a decision that was contrary to and involved an unreasonable application of

70

Strickland and its progeny.”74 However, because Davis has not established that the
state court’s denial of the claim was unreasonable, the claim itself is without merit.
Further, review of the trial transcript reveals that counsel actually made many
of the arguments Davis faults him for not making. Counsel argued that the Phillips
cousins were not credible witnesses because of their own self interests,75 secured a
ruling prohibiting the admission of any gang related references,76 and emphasized the
discrepancies in height and clothing descriptions of Davis and that of the shooter as
reported by the witness.77 Moreover, Davis cannot establish that he was actually
prejudiced as a result of counsel’s failure to make the other arguments he complains
were not made. There is no reasonable likelihood that counsel would have succeeded
had he challenged Shannon Wilson’s testimony on the grounds that she failed to
establish it was actually Davis she heard boasting about committing the crime. There
were no gang-related references or innuendo during the trial that prejudiced Davis
and should have prompted an objection. Finally, as discussed in Section V.G., infra,
Davis was not prejudiced by the admission of the redacted letter. This claim is due
to be denied.

74

Doc. no. 33, at 19.

75

R. Vol. 7, Tab 13, at 1177-78.

76

R. Vol. 1, Tab 4, at 17.
R. Vol. 1, Tab 10, at 625, 627-28, 630, 632-33.

77

71

4.

Failure to present, argue adequately, and seek favorable
rulings on pre-trial motions

Davis asserts that counsel failed to file pretrial motions that were necessary to
his receipt of a constitutionally effective defense.78 Specifically, he claims that
counsel: (a) failed to timely file four pre-trial motions that would have challenged the
validity of his arrest;79 (b) failed to file motions that would have helped to achieve a
non-biased and fair panel of jurors;80 (c) failed to file a motion for full recordation of
all proceedings, including sidebar communications;8 1 and (d) failed to object to him
being shackled before the jury.82

78

Doc. no. 33, at 20-22.

79

Davis claims that the following motions should have been filed: (1) an “Ex Parte
Application for Investigative Expenses”; (2) a “Motion for Discovery of State and Local Health,
School, Medical, Custodial, Institutional and Related Documents Involving Davis’s Family
Members”; (3) a “Motion to Reveal the Identity of Informants and Reveal Deals, P romises or
Inducements Relating to Testimony and Information”; and (4) an “Ex Parte Application for a
Forensic Psychologist, a Social Worker and for a Neuropsychologist to Address Mitigation Factors
in Sentencing.” Id. at 20.
80

Davis claims that counsel should have filed: (1) a “Motion for Order for Access to,
Inspection of, and Copying of All Jury System Records”; (2) “Motions for Funds for Expert
Assistance to Investigate Petit Jury Venires”; (3) a “Motion for a Jury Questionnaire”; and (4) a
“Motion for Disqualification from the Jury Venire of All Potential Jurors who Would Automatically
Vote for the Death Penalty if They Found Davis Guilty of Capital Murder.” Id. He further claims
that counsel failed to seek a fully sequestered voir dire; failed to make an adequate showing of why
individual voir dire was necessary; and failed to adequately litigate Davis’s right to a juror
questionnaire. Id. at 21.
81
82

Id. at 21-22.
Id. at 22.

72

Davis raised each of these claims in his Rule 32 petition,83 but he did not raise
parts (a), (b), and (d) on appeal from the denial of that petition.84 Therefore, the
motions referenced in parts (a), (b), and (d) are procedurally defaulted, and Davis has
offered nothing to excuse the procedural default of the claims.
Additionally, the Rule 32 court denied these claims on the merits, and Davis
has not established that the state court’s determination on parts (a), (b), or (d) of this
claim was unreasonable. In part (a) of his claim, Davis claims that his defense would
have been significantly improved if his trial counsel had filed motions to challenge
the validity of his arrest, specifically: (1) an “Ex Parte Application for Investigative
Expenses”; (2) a “Motion for Discovery of State and Local Health, School, Medical,
Custodial, Institutional and Related Documents involving Davis’s Family Members”;
(3) a “Motion to Reveal the Identity of Informants and Reveal Deals, Promises or
Inducements Relating to Testimony and Information”; and (4) an “Ex Parte
Application for a Forensic Psychologist, a Social Worker and for a Neuropsychologist
to Address Mitigation Factors in Sentencing.”85

83

Rule 32 C.R. Vol. 14, Tab 52, at 17-20. The court notes that page 20 of the Second
Amended Rule 32 petition is missing from this record. However, in its opinion denying the petition,
the trial court noted that part (c) of this claim was raised in paragraph 38 of the petition, and part (d)
of the claim was raised in paragraph 40 of the petition. Rule 32 C.R. Vol. 62, Tab 80, at 18-19.
Paragraphs 38 and 40 would have been on page 20.
84
85

Rule 32 C.R. Vol. 57, Tab 60, at 39-40.
Doc. no. 33, at 20.

73

The trial court held that, to the extent the motions pertained to the guilt phase
of the trial,86 Davis had failed to establish prejudice.87
The first such motion asserted in support of this [ineffective
assistance of counsel] claim is styled by Davis as an Ex Parte
Application For Investigative Expenses. As for the guilt phase,
Petitioner failed to offer any new evidence that resulted from his
employment of at least two private investigators and a number of
attorneys working on his behalf. Thus, Davis did not establish prejudice
as to this claim. Davis’s extensive investigation for his evidentiary
hearing produced no new evidence that would have impacted his guilt
phase. FN.
FN. Further, this Court heard no testimony from any
investigator as to work performed investigating guilt phase
issues. This Court cannot even be certain that the multiple
investigators employed by Davis in this proceeding did any
investigation of guilt-phase claims, with the exception of
portions of testimony by the Jacobs and Sharon
Christopher. Davis has not proved prejudice as to this
guilt-phase claim.
Further, the few witnesses called by Petitioner on guilt phase
issues (Sharon Christopher, Betty Jacobs, and Cynthia Jacobs) all had
the same problems with their testimony as that of Tonya Heard, who was
interviewed by Giddens prior to Davis’s trial. These witnesses did not
provide an alibi, and provided stories inconsistent with the story given
by Davis to his trial counsel. For this reason, Davis cannot establish
prejudice in this regard. Competent trial counsel could have wisely
chosen to stay away from these witnesses — one of whom trial counsel

86

The trial court noted that the second and fourth of these motions deal “primarily with the
penalty phase of Davis’s trial,” and denied claims related to those motions later in its opinion. Rule
32 C.R. Vol. 62, Tab 80, at 17, 27-58. Similarly, this court will address the portions of this claim
relating to the penalty phase of Davis’s trial in Claim B.
87
Rule 32 C.R. Vol. 62, Tab 80, at 16-18.

74

located without the assistance of an investigator — due to the harm that
their inconsistent stories could have caused. FN.
FN. Further, the Court notes that Betty and Cynthia Jacobs
— who gave alibi stories vastly different than those
ascribed to Heard and Christopher — were not even names
as alibi witnesses in the Davis’s petition.
....
Thus, the only remaining motion to be resolved . . . is the Motion
to Reveal the Identity of Informants and Reveal Deals, Promises or
Inducements Relating to Testimony and Information. Davis has again
failed to establish prejudice as to this claim. First, Davis has not shown
that any deals, promises or inducements were made to any witnesses in
this matter other than those revealed by the State prior to Davis’s capital
murder trial. Second, Davis failed to prevail on the issue of the State’s
assertion of privilege as to its confidential informant in this Rule 32
proceeding. Thus, Davis failed to prove prejudice as to that issue. FN.
FN. In addition, because the identity of the confidential
informant has not been linked to any relevant issue in this
case, competent trial counsel could have chosen not to
waste their time chasing this issue down a rabbit hole. For
all the time and court hearings collateral counsel spent on
litigating this issue, Petitioner has not been able to
articulate any impact the identity of this CI would have had
on Davis’s case.
Rule 32 C.R. Vol. 62, Tab 80, at 16-18 (alteration and ellipses supplied, emphasis in
original).
In part (b) of this claim, Davis argues that counsel should have filed, and
obtained favorable rulings on: (1) a “Motion for Order for Access to, Inspection of,

75

and Copying of All Jury System Records”; (2) “Motions for Funds for Expert
Assistance to Investigate Petit Jury Venires”; (3) a “Motion for a Jury Questionnaire”;
and (4) a “Motion for Disqualification from the Jury Venire of All Potential Jurors
who Would Automatically Vote for the Death Penalty if They Found Davis Guilty of
Capital Murder.”88 He also argues that counsel failed to seek a fully sequestered voir
dire, and failed to make an adequate showing of why individual voir dire was
necessary.89 Davis maintains that these steps would have ensured an impartial jury.90
The trial court found Davis had failed to carry his burden of proof as to these
claims:
Davis asserts [ineffective assistance of counsel] based on trial counsel’s
failure to file motions on issues concerning the jury selection in this
case. Davis failed to carry his burden of proof as to these claims. The
Court cannot remember hearing any evidence at the evidentiary hearing
that would support a finding of prejudice or deficient performance in
regard to these claims.
Likewise, Davis did not carry his burden of proof in regard to his
argument that trial counsel failed to argue for fully sequestered voir dire.
The trial court in Alabama is given great discretion as to how to conduct
voir dire, even in capital cases. This Court is very reluctant to employ
the time consuming method of individual, sequestered voir dire, and
would have denied such a motion in this case. Davis did not prove or
establish any evidence that would have led this Court to conclude that

88

Doc. no. 33, at 20.

89

Id. at 21.
Id.

90

76

individual voir dire was required in order to ensure a fair trial in this
case. Further, Davis did not prove prejudice in this regard.
Rule 32 C.R. Vol. 62, Tab 80, at 18 (alteration supplied).
In part (d) of this claim, Davis contends that counsel should have objected to
Davis being shackled in front of the jury.91 The trial court denied the claim, finding
that Davis had offered no evidence to support a finding that he was shackled in view
of the jury, and noting that it had no recollection of Davis being shackled in view of
the jury.92
Davis has not established that the denial of parts (a), (b), and (d) of this claim
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme Court of the United
States, or a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
In part (c) of this claim, Davis asserts that counsel should have moved for full
recordation of all proceedings, including sidebar communications and the preliminary
hearing.93 The trial court denied the claim,94 and — as previously discussed in

91

Doc. no. 33, at 22.

92

Rule 32 C.R. Vol. 62, Tab 80, at 19.

93

Doc. no. 33, at 21-22.
Rule 32 C.R. Vol. 62, Tab. 80, at 18-19.

94

77

Section V.A.1.c. of this Opinion, supra — the Alabama Court of Criminal Appeals
affirmed the denial.95
95

Specifically, the intermediate state appellate court held:

Davis argues that counsel was ineffective for failing to ensure that the record of the
proceedings in the lower court was fully recorded. Specifically, he asserts that
counsel erred in failing to have his preliminary hearing recorded and for not ensuring
that sidebar conferences were recorded.
The circuit court made the following findings on this claim:
In paragraph 38, Davis alleges [ineffective assistance of
counsel] based on trial counsel’s failure to move for full recordation
of all proceedings in his capital murder trial. Davis failed to prove
that he was prejudiced by the lack of transcription of certain sidebars
during the course of trial. Although Giddens testified, the subject of
whether any controversial rulings or prejudicial comments were made
during these sidebars was not addressed. This Court, which presided
over Davis’s capital murder trial, cannot recall anything discussed
during sidebars that would have prejudiced Davis due to their lack of
transcription. Because Davis did not put forth evidence to support
this claim, it is denied.
(R. 1151-52.)
At the Rule 32 hearing, Davis asked Giddens why he did not move to have
the preliminary hearing transcribed. The following occurred:
[Rule 32 counsel]: Do you make a strategy decision not to make that
motion or have you just never thought about making that motion?
[Giddens]: When the only witness really is going to be the
investigating officer, you find out what you need to know, I mean,
he’s charged with killing a man at a gas station, Direct Oil here in
Anniston. And that was pretty much the testimony. And I believe the
officer testified what the codefendants had told him.
(R. 31-32.) Davis made no attempt to show how he was prejudiced by counsel’s
failure to have the preliminary hearing or certain sidebar conferences recorded. There
are no allegations that the officer’s testimony at the preliminary hearing was
inconsistent with his trial testimony or that the sidebar conferences contained omitted

78

Davis makes only a very general argument that the intermediate state appellate
court failed to properly apply Strickland and its progeny to this claim, and that the
decision was contrary to or an unreasonable application of clearly established federal
law.96 His only specific assertion is that the appellate court “created a classic catch22” by “unreasonably” requiring him to “challenge with greater specificity the
prejudicial content contained in the unrecorded proceedings,” when he was “deprived
of any record or transcript” from which to glean the allegedly prejudicial content.97
However, Davis has not demonstrated that he suffered any prejudice as a result of this
failure, so this claim cannot succeed.
5.

Failure to present additional substantive evidence

Davis contends that counsel should have obtained evidence about his alleged
low IQ and psychological profile in a more timely manner.98 He maintains that, if
counsel had done so, they could have argued that he did not “fit the

information that prejudiced Davis. “It is incumbent upon [petitioner] to show some
prejudice from the failure to transcribe the preliminary hearing testimony before it
may be claimed to be ineffective assistance of counsel. Spilman v. State, 633 P.2d
183 (Wyo. 1981).” Jennings v. State, 806 P.2d 1299, 1307 (Wyo. 1991). The circuit
court correctly denied relief on this claim.
Davis v. State, 9 So. 3d 539, 551 (Ala. Crim. App. 2008) (alterations in original).
96

Doc. no. 33, at 7-8; doc. no. 39, at 15-17.

97

Doc. no. 33, at 22.
Id.

98

79

mental/psychological model of a young criminal conspiracy leader as alleged by the
State.”99

Davis also asserts that counsel should have introduced his mother’s

testimony that she and Davis both knew and were on friendly terms with the victim,
to support an argument that Davis had no motive to shoot him.100
Both of these claims were raised by Davis in his Rule 32 petition101 and denied
by the trial court. With respect to the claim that Davis’s low IQ was inconsistent with
his being the leader of a conspiracy, the trial court found:
Davis alleges [ineffective assistance of counsel] based on defense
counsel’s failure to argue that Davis’s IQ and psychological makeup
were inconsistent with him being the leader of any criminal conspiracy.
Once again, Davis failed to carry his burden of proof in this regard.
While Davis offered expert and layperson testimony on his mental status
and personality, this testimony did not exclude the potential for Davis
to be the leader of the criminal enterprise which led to the death of
Hazle.
The evidence at the hearing indicates that Davis had participated
in a previous robbery involving numerous participants. Thus, Davis had
prior experiences which may have led him to believe it was worth trying
again with different collaborators. Certainly, the fact that the crime was
performed in such a haphazard fashion may have something to do with
Davis’s poor leadership and planning abilities, but it does not offer any
reasonable basis on which to question the State’s theory. In any event,
Davis failed to prove his claim . . . .

99

Id. at 23.

100
101

Id.
Rule 32 C.R. Vol. 14, Tab 52, at 23-24.

80

Rule 32 C.R. Vol. 62, Tab 80, at 25-26 (alteration and ellipsis supplied). Although
Davis presented this claim on appeal from the denial of the Rule 32 petition, 1 0 2 the
Alabama Court of Criminal Appeals did not address it. Even so, Davis has not met
his burden of establishing that the trial court’s decision was either contrary to or an
unreasonable application of clearly established federal law.
With respect to the claim pertaining to Davis’s alleged lack of motive to rob
or shoot the victim because he and his mother had known the victim for years, the
trial court found:
Davis alleges [ineffective assistance of counsel] because trial counsel
did not call Davis’s mother to testify that Davis had no motive to shoot
the victim. Because Davis did not call his mother to testify [at the Rule
32 evidentiary hearing], no evidence was offered in support of this
contention. As such, Davis failed to carry his burden of proof as to this
claim. This claim, then, is denied.
Further, because the State alleged a murder during the course of
a robbery, evidence that Davis had no personal reason to kill Hazle
would be of little or no benefit to the Petitioner. The motive, according
to the State’s theory, was a robbery attempt. Davis, apparently offended
by Hazle’s laughter or failure to comply with demands to produce
money from the register, shot Hazle before the robbery could be
completed. Thus, Davis’s motive was connected to the robbery attempt.
Further, testimony that Davis was personally known by the victim would
increase his motive to kill, as he would have to eliminate the witness.
This claim lacks merit despite Davis’s failure to put forth evidence on
this issue.

102

Rule 32 C.R. Vol. 57, Tab 60 at 40-41.

81

Rule 32 C.R. Vol. 62, Tab 80, at 25 (alterations supplied, emphasis in original).
Despite Davis’s contrary assertion,103 he did not raise this claim in his brief on
collateral appeal.104 Thus, this claim is procedurally defaulted, and Davis has offered
nothing to excuse the procedural default of the claim. Furthermore, Davis offers
nothing to establish that the trial court’s denial of this claim was contrary to, or an
unreasonable application of, clearly established federal law.
B.

Ineffective Assistance of Counsel During the Penalty Stage
Davis argues that his trial counsel were ineffective in the investigation,

preparation and presentation of mitigation evidence during the penalty phase of
trial.105 He contends that he was entitled to have all aspects of his background, family
life, medical history, environment, school records, and any other life experience that
may be considered mitigating evidence presented to the jury and, but that such
evidence was not presented because counsel relied only on the information provided
by him and his mother.106 He argues that trial counsel unreasonably and inexplicably
failed to obtain school, social service agency, health, employment, correctional, and

103

Doc. no. 39, at 8. Davis contends that he raised the claim on pages 40-41 of his appellate
brief (Rule 32 C.R. Vol. 57, Tab 60). Doc. no. 39-1, at 2.
104

Rule 32 C.R. Vol. 57, Tab 60.

105

Doc. no. 33, at 23-42.
Id. at 23.

106

82

religious records and, thus, failed to discover and present compelling mitigating
evidence.107
As with all ineffective assistance of counsel claims, Davis must show both
deficient performance and resultant prejudice. To satisfy the deficient performance
prong, counsels’ representation must have fallen below “an objective standard of
reasonableness,” which is measured against the “prevailing professional norms” at
the time. Strickland, 466 U.S. at 688. “That standard is necessarily a general one,”
as “‘[n]o 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 decisions regarding how best to represent a criminal defendant.’” Bobby
v. Van Hook, 558 U.S. 4, 7 (2009) (quoting Strickland, 466 U.S. at 688-689) (finding
the Court of Appeals erred by treating the ABA’s guidelines “not merely as evidence
of what reasonably diligent attorneys would do, but as inexorable commands with
which all capital defense counsel ‘must fully comply’”) (alteration supplied).
When evaluating trial counsels’ investigation and preparation for the penalty
phase of a capital trial, there is no checklist of tasks counsel must complete in order
to perform in a constitutionally effective manner. It is, nonetheless, well-settled that
trial counsel has an “‘obligation to conduct a thorough investigation of the
107

Id. at 24.

83

defendant’s background’” when preparing for a capital sentencing.

Porter v.

McCollum, 558 U.S. 30, 39 (2009) (holding that counsel’s obligation was
“unquestioned” under prevailing professional norms at the time of trial) (quoting
Williams, 529 U.S. at 396); Wiggins, 539 U.S. 510; Strickland, 466 U.S. at 691
(counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary). See also Sears v. Upton,
561 U.S. 945, 1032 (2010) (noting that it was “unsurprising” that the state
postconviction court found that “the cursory nature of counsel’s investigation into
mitigation evidence — ‘limited to one day or less, talking to witnesses selected by
[the defendant’s] mother’ — was ‘on its face . . . constitutionally inadequate’”)
(alteration provided); Williams v. Allen, 542 F.3d 1326, 1339-40 (11th Cir. 2008)
(investigation of mitigating evidence in capital defendant’s background fell short of
prevailing professional norms); Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.
2001) (noting that a “failure to investigate can be deficient performance in a capital
case when counsel totally fails to inquire into the defendant’s past or present behavior
or life history”).
Even so, the court must consider “‘counsel’s perspective at the time’
investigative decisions are made,” and a “‘heavy measure of deference’” must be
afforded to counsel’s judgments. DeYoung v. Schofield, 609 F.3d 1260, 1284 (11th
84

Cir. 2010) (quoting Rompilla v. Beard, 545 U.S. 374, 380-81 (2005)). Thus, even
when, in hindsight, an investigation might be viewed as less than adequate, counsel’s
performance will not always be deemed constitutionally deficient, especially when
the defendant contributed in some way to counsel’s perspective. See, e.g., Bobby v.
Van Hook, 558 U.S. 4, 12-13 (2009) (because counsel had uncovered significant
mitigating evidence from the defendant’s background, the decision not to seek more
fell well within the range of professionally reasonable judgments); Strickland, 466
U.S. at 691 (“When a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unreasonable.”); Johnson v.
Upton, 615 F.3d 1318, 1331-33 (11th Cir. 2010) (an attorney does not perform
deficiently by not discovering mitigating evidence that his client did not mention to
him); Reed v. Secretary, Florida Dept. of Corrections, 593 F.3d 1217, 1240 (11th Cir.
2010) (“The defendant’s own words and deeds play a role in assessing the
reasonableness of counsel’s conduct.”); Cummings v. Secretary for Dept. of
Corrections, 588 F.3d 1331, 1357-58 (11th Cir. 2009) (although counsel may not
“blindly follow” his client’s instructions not to look for or use mitigation evidence,
a mentally competent defendant’s instruction not to investigate or not to present
mitigation evidence may make counsel’s decision not to do so reasonable); McClain
85

v. Hall, 552 F.3d 1245, 1251-52 (11th Cir. 2008) (whether defendant informed his
trial counsel about his abusive childhood is “‘extremely important’” to determining
reasonableness of counsel’s performance); Newland v. Hall, 527 F.3d 1162, 1202-09
(11th Cir. 2008) (defense attorney’s investigation prior to penalty phase of the trial
was reasonable due to the information provided by the defendant); Stewart, 476 F.3d
at 1210-14 (counsel’s failure to present evidence of defendant’s alleged abuse was
not deficient because defendant did not inform counsel of this abuse); Henyard v.
McDonough, 459 F.3d 1217, 1245-46 (11th Cir. 2006) (counsel’s failure to discover
evidence of sexual abuse was not deficient given defendant’s repeated denials of
abuse).
To satisfy the prejudice prong, a petitioner must show that, “but for his
counsel’s deficiency, there is a reasonable probability he would have received a
different sentence.” Porter, 558 U.S. at 41. When evaluating a claim of ineffective
assistance in the context of a penalty phase mitigation investigation, courts must
undertake a “probing and fact-specific analysis” that considers the totality of the
available mitigation evidence, both that adduced at trial and in any postconviction
proceedings, in order to assess whether there is a reasonable probability that
defendant would have received a different sentence after a constitutionally sufficient

86

mitigation investigation. Sears, 561 U.S. at 955-56; Porter, 558 U.S. at 41; Wong v.
Belmontes, 558 U.S. 15, 20 (2009).
This analysis includes an assessment of whether the newly unearthed
mitigating evidence is merely cumulative or simply additional details about a
defendant’s background that would have “barely altered the sentencing profile
presented to the sentencing judge,” or whether it would have been the only evidence
that could have “humanized” the defendant, allowing the jury or the sentencing judge
to “accurately gauge his moral culpability.” Porter, 558 U.S. at 41. The court also
should consider whether the missing mitigation evidence might have been viewed
unfavorably, or opened doors for the prosecution to bring in damaging rebuttal
evidence, Cook v. Upton, No. 5:09-CV-25 (CAR), 2010 WL 1050404, at *11 (M.D.
Ga. Mar. 18, 2010) (counsel’s failure to introduce evidence concerning the
petitioner’s mental health did not prejudice the petitioner since the records contained
many details that were potentially harmful to the petitioner), or whether the
aggravating circumstances of the crime are such that they would outweigh any
prejudice caused by the failure to present mitigating evidence, Dobbs v. Turpin, 142
F.3d 1383, 1390-91 (11th Cir.1998).
Davis faults counsel for failing to investigate and present four types of
mitigating evidence: i.e., (1) evidence relating to childhood trauma and depravity; (2)
87

testimony regarding his

mental health; (3) evidence relating to

his

mental/psychological dysfunction and brain damage; and (4) mitigation evidence
about the prior felony conviction. 1 08 These claims were raised in Davis’s Rule 32
petition,109 and denied on the merits by the trial court.110 The Alabama Court of
Criminal Appeals affirmed the denial, but based its decision on a procedural bar.
Davis v. State, 9 So. 3d 514, 521-22 (Ala. Crim. App. 2006). The court nonetheless
discussed the claim in significant detail, and commented in dicta that, if not for the
procedural bar, it would have been compelled to grant relief and order a new
sentencing hearing. Id. at 522-26. Even so, when the Court of Criminal Appeals reexamined the claim after remand from the Alabama Supreme Court, it concluded that
Davis was not entitled to relief. Davis v. State, 9 So. 3d 539 (Ala. Crim. App. 2008).
Davis asserts that the denial of this claim was contrary to and an unreasonable
application of clearly established federal law, and based on an unreasonable
determination of the facts in light of the evidence presented.
1.

Failure to obtain mitigation evidence relating to childhood trauma and
depravity

108

Davis also raises a fifth subclaim, that counsel was ineffective for failing to object to the
submission of the penalty phase case to the jury on a Friday at 4:30 p.m. That claim will be
addressed at the conclusion of the discussion of the claims regarding mitigating evidence.
109
110

Rule 32 C.R. Vol. 14, Tab 52, at 26-35.
Rule 32 C.R. Vol. 62, Tab 80, at 27-58.

88

Davis asserts that he endured horrific physical and emotional abuse throughout
his childhood, and argues that his attorneys could have uncovered this abuse and
presented it as mitigating evidence if they had conducted an adequate investigation
by speaking with potential witnesses and consulting with qualified experts.111
Specifically, he asserts that,
had trial counsel consulted with qualified experts on a timely basis,
counsel could have established that Davis had been exposed to in utero
trauma and abuse; extensive physical, psychological and sexual abuse;
domestic violence; rejection and abandonment by mother and father;
poverty and neglect; mentally and emotionally unstable care-givers; and
an unstable, unsafe, and unpredictable home life.
Doc. no. 33, at 25. He contends that his lawyers should have asked him and his
mother more probing questions, spoken to other family members, and obtained and
reviewed DHS, school, medical, and judicial records.112
Because of the unusual procedural posture of this claim, and in order to
conduct a “probing and fact-specific analysis,” this court will: (1) identify the
relevant factual determinations and rulings made by the trial court; (2) quote what the
Alabama Court of Criminal Appeals stated in dicta; (3) provide the final analysis of
the merits by the Alabama Court of Criminal Appeals when it ultimately denied the
claims; and (4) review the reasonableness of the state court’s decision and identify
111
112

Doc. no. 33, at 25-34.
Id. at 25-34.

89

the arguments made by Davis in support of his contention that the state court
misapplied the controlling federal law on both the performance and prejudice prongs
of the Strickland analysis.
a.

Conclusions of the trial court

In its 63-page order denying this claim in Davis’s Rule 32 petition, the trial
court essentially found that the failure of Davis and his family to be forthcoming
about his childhood abuse absolved counsel for failing to dig deeper in order to
uncover it.113 The court also found that Davis had not been prejudiced by the
omission of the additional evidence during the sentencing hearing.114 The trial judge
reasoned as follows:
In this claim, Davis has alleged that his trial counsel were
ineffective in regard to the penalty phase of his trial. Quite simply, this
claim can only be described as bizarre, based on the fact that [Davis’s]
own family seems to have concealed important information from trial
counsel. Having considered the petition, having carefully reviewed the
evidence presented at this hearing, as well as at the trial, and following
the law governing Sixth Amendment claims — including the recent
decision in Wiggins v. Smith , 123 S. Ct. 2527 (2003) — the court finds
that this claim is due to be denied.
This finding is not meant to imply that the Court did not find
compelling some of the mitigation evidence presented by Petitioner
during the [Rule 32] evidentiary hearing. Much of the evidence
presented at the Rule 32 hearing focused on abuse inflicted on Davis by
113
114

Rule 32 C.R. Vol. 62, Tab 80, at 27-48.
Id.

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his mother, Lillie Bell Davis. The Court finds that Davis was abused by
his mother to an extent that would have rendered it relevant to the issue
of the appropriate penalty determination in this case under existing law,
though the Court, as explained below, finds that this evidence is
insufficient to establish prejudice.
The Court’s major concern, however, is that if this Court used this
evidence to find the existence of deficient performance the Court would
be engaging in the inappropriate activity of judging the performance of
trial counsel through the use of hindsight. Further, the Court would be
passing judgment on Attorney Adams without the benefit of his
testimony. Even worse, this Court would be inappropriately shifting the
blame for the inexcusable actions of Davis’[s] family, particularly his
mother, to his trial counsel. This Court must judge trial counsel’s
performance through their perspective at the time. That being the case,
the Court does not find that trial counsel’s performance was deficient.
To the contrary, Jimmy Davis’[s] family — and to a very large
extent his mother — bears a heavy burden in this case for their role in
this matter. Because Adams did not testify, this Court does not know
what Adams did or did not do in preparation for this case. The Court
presumes, however, that Adams acted reasonably in the questions he
asked his client and his client’s mother and in preparing for the penalty
phase. Further, the testimony of Giddens establishes that at no time did
Davis ever mention to his attorneys the abuse suffered at the hands of
his mother or the intervention of DHR in the Davis home.
....
Further, the record establishes, by the Petitioner’s own admission,
that trial counsel did talk to two of Davis’[s] siblings. (RR. 863.)
Further, even in the time frame immediately before the evidentiary
hearing, Davis did not speak in detail of the abuse inflicted on him as a
child, instead generalizing that his background “wasn’t rosy” and that
he didn't have any privileges, only “every day survival.” (RR. 863.)
When specifically questioned about abuse, Davis only acknowledged
that he was disciplined with a switch, in stark contrast to the evidence
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that Davis was, in fact, hit with belts, electrical cords, and with an open
hand. (RR. 863-864.) As noted by Dr. King, “he was not – he was not
too forthcoming. I had to ask a number of questions about that.” (RR.
863-864.) Thus, the record supports a finding that even Davis continued
to participate in the family’s conspiracy of silence, even on the eve of
his evidentiary hearing.
The Court also takes notice of the Petitioner’s request, via motion
to the Court, to keep the documents and evidence concerning
Petitioner’s abuse sealed. As noted by counsel for the Petitioner, this
was done out of the family’s concern for their privacy. (RR. 161-163)
It was this desire by the family to keep this matter private — in addition
to their fear of Lillie Bell Davis — that the witnesses before this Court
during the evidentiary hearing noted was the reason behind their years
of silence. Although the Petitioner’s motion to keep these records
private is not “evidence” in the formal sense of the word, it does allow
this Court to once again view the family machinery that trial counsel
were up against in this case, machinery that even collateral counsel had
to deal with in this matter.
Further, this Court noted during the evidentiary hearing that Lillie
Bell Davis failed to make an appearance during the entire week this
matter was heard. Although Lillie Bell Davis attended Davis’[s] capital
murder trial, she was noticeably absent as a witness or a spectator during
the entire week of the evidentiary hearing. Although the Court can infer
why Ms. Davis would choose not to come into court once this secret was
made public, it certainly sheds light on the type of person Ms. Davis is
and the type of person trial counsel were misled by. In any event, it is
difficult for this Court to view the preparation of trial counsel through
their eyes when the very people (Lillie Bell and the two, unnamed
siblings) who were giving trial counsel information — apparently
misleading information — were not called to recount their conversations
with Giddens and Adams.
Giddens testified that he felt that he had a family history from
talking to the mother. The Court assumes that additional information
was obtained from the two siblings interviewed by trial counsel.
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Counsel learned where Davis had gone to school, that he received his
GED from Tuskegee, how he grew up, that Davis’[s] father had died, the
parents had been divorced. (RR. 97) Davis’[s] friends, that trial counsel
were aware of, were the same people who testified against Davis at his
capital murder trial: Alphonso Phillips, Terrance Phillips, and Willie
Smith. Other acquaintances included Tonya Heard, who was not a good
witness due to the fact that Davis had attempted to manufacture an alibi
story with her, something she refused to participate in.
Looking at the witnesses who testified at the evidentiary hearing,
namely Cynthia and Betty Jacobs and Geneva Davis, there is nothing to
suggest that the above-named individuals were not Davis’[s] friends at
the time of his arrest. The others in Davis’s life, including his sisters
Mary Nell and Hortense, had been out of Davis’[s] life for some time
before this murder and would not be considered close friends or
acquaintances in the sense of people who spent a good deal of time with
Davis on a day-to-day basis in the year or so leading up to Hazle’s
murder. Thus, trial counsel had a distinct disadvantage in that Davis’[s]
friends made up the potential witnesses against him.
Further, as noted above, these friends do not appear to have had
knowledge of Davis’[s] upbringing. Instead, the abuse information was
a closely held secret kept within the family by a manipulative Lillie Bell
Davis. Thus, not only was trial counsel’s decision not to call Davis’[s]
friends a reasonable one under the circumstances, Davis has not been
prejudiced in regards to this abuse information by counsel’s failure to
call them on his behalf.
According to Wiggins v. Smith , 123 S. Ct. 2527, 2536 (2003), this
Court has to make a determination of whether the background
investigation — which includes “a context-dependent consideration of
the challenged conduct . . . from counsel’s perspective at the time” —
was reasonable. Based on the factors facing trial counsel, most notably
Lillie Bell Davis, this Court finds that trial counsel acted reasonably,
and were misled by the Petitioner’s own family.

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Trial counsel felt they had a reasonable idea of Davis’[s]
background from their interaction with the Petitioner’s mother.
Generally speaking, mothers are the best advocates a son could have in
difficult times. If you want to phrase it as judicial notice, this Court
takes judicial notice that ordinarily there are few bonds stronger than a
mother’s love for her child. There has been nothing presented to this
Court that suggests that Sigler, Davis’[s] siblings, or Davis himself ever
alerted trial counsel to the fact that Lillie Bell Davis was not a typical
loving mother.
Davis did not help his counsel, either. As the United States
Supreme Court noted in Strickland:
The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.
In particular, what investigation decisions are reasonable
depends critically on such information. For example, when
the facts that support a certain potential line of defense are
generally known to counsel because of what the defendant
has said, the need for further investigation may be
considerably altogether diminished or eliminated.
Id., 466 U.S. at 691. See also, [sic] Chandler, 218 F.3d at 1319 n. 24
(“when the circumstances of a claim make these conversations relevant,
the petitioner can rarely (if ever) satisfy his burden to disprove the
presumption of effective assistance without disclosing the substance of
these attorney-client conversations.”). Giddens’[s] testimony was that
Davis did not speak of any sexual abuse. Petitioner did not question
Giddens about what Davis precisely told his trial counsel concerning his
background, but there is no evidence that Davis, his mother, or his
siblings in Anniston, Alabama, did anything to put his attorneys on
notice of the existence of any abuse. See, [sic] Williams v. Head, 185
F.3d 1223, 1235 (11th Cir. 1999) (“Given the lack of clarity of the
record, we presume that [Attorney] Allen talked with [Client] Williams
94

as part of his effort to ascertain whether there was any mitigating
circumstance evidence that Collins had failed to present. We are
comfortable with doing so because Allen is an experienced criminal
defense attorney . . . . There is no reasonable possibility that Allen . . .
would have neglected to talk with his client about mitigating
circumstances.”).
Looking at Giddens’[s] testimony and the trial testimony of Lillie
Bell Davis, much of the background information given by Davis’s
family was true, but given with Ms. Davis’[s] personal “spin” on it,
omitting the important portions of Davis’s life in which he was beaten
by a belt or switch. The information concerning Davis’[s] participation
in the job corps, obtaining his GED at Tuskegee, the death of his father,
his parents’ marital difficulties, are all items that Lillie Bell told counsel
about and was willing to testify about. Thus, trial counsel did obtain
much of this information through the most obvious source: Davis’[s]
mother.
Although Davis faults trial counsel for not subpoenaing his DHR
records, there is absolutely no evidence before this Court that
reasonably competent counsel would have been on notice that such
records existed. There are no constitutionally required checklists for
mitigation investigations. Trial counsel are faced with the realities of
limited time and limited resources. Those resources have to be managed
in an efficient manner. Thus, this Court does not find that attorneys are
expected to subpoena agency records ‘just in case.’ Had Lillie Bell
Davis, Davis’[s] siblings, or Davis himself told his trial counsel that this
issue needed to be investigated — that DHR had been involved in the
Davis home — this Court would absolutely find ineffective assistance
of counsel for failure to investigate, discover and/or develop this
evidence, depending on the strategic decisions made by counsel
following their investigation. But that is not what happened here.
Davis is asking this Court to declare two competent trial lawyers
incompetent due to the fact that they were manipulated by Lillie Bell
Davis, the Davis family, and Davis himself due to the family’s
conspiracy of silence. Quite simply, it is not trial counsel’s fault, it is
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the fault of Petitioner, of his mother, of Andre Sigler, and of the Davis
family as a whole; a family that apparently sought collateral counsel’s
assistance in keeping these facts private, even during the time leading
up to the evidentiary hearing in this matter.
....
Finally, this Court finds that the substantive evidence presented
at the evidentiary hearing does not establish prejudice under Strickland.
Although it is clear that Davis suffered some abuse as a child, he was
never hospitalized, DHR did not remove him from the home, and the
abuse by Lillie Bell was remote in time to the murder of Hazle. This
evidence, when considered with the facts of this crime, do not rise to the
level necessary to establish prejudice.
This Court found the existence of two aggravating circumstances:
prior conviction of a crime involving use or threat of force against the
person and murder committed during the course of a robbery. In
mitigation, this Court found the existence of only one statutory
mitigating circumstance: the age of the defendant at the time of the
crime. Having reviewed the evidence presented at the evidentiary
hearing, this Court does not find that the substantive evidence from the
evidentiary hearing, if presented at Davis’[s] sentencing[,] would have
altered these statutory findings.
The substantive mitigation evidence presented during the
evidentiary hearing in support of the [ineffective assistance of counsel]
claims was of the non-statutory type. The Court does not find that this
evidence changes the original finding that Davis had the capacity to
appreciate the criminality of his conduct and to conform his conduct to
the requirements of the law and that he did not act under the influence
of extreme mental or emotional disturbances during the commission of
the crime.
Not only does the evidence offered at the evidentiary hearing fail
to support a finding of either of these statutory mitigating circumstances,
the evidence presented at the trial disproves the existence of these
96

circumstances. The evidence shows that this crime was planned in
advance and not the product of behavioral aberration. Further, the
evidence supports a finding that Davis’[s] motive was to seek money
from the Direct Oil station, and not the result of a mental or emotional
breakdown or disturbance. Further, the evidence shows that the victim
was shot when he failed to hand over the money fast enough and instead
smiled at the Petitioner. Petitioner has not shown a direct link between
the proffered mitigating evidence and the commission of this offense.
Instead, this evidence is of the sort consisting of “any aspect of a
defendant’s character or record . . . that the defendant offers as a basis
for a sentence of life imprisonment without parole instead of death.”
Ala. Code § 13A-5-52 (1975). Had Davis’[s] family revealed this
information to trial counsel, rather than concealing it, this information
would have been properly introduced as non-statutory mitigation.
Further, it would have been entitled to some weight in the consideration
of the proper sentence in this case.
It’s [sic] weight, however, would not be sufficient to create a
reasonable probability as to the outcome of Petitioner’s sentence. The
abuse suffered by Davis was remote in time, about five or six years, to
the commission of this offense. (RR. 512) Further, this offense was
committed after Davis had just previously committed a robbery in the
third degree. The abuse was of the sort that Davis’[s] family hid it from
the outside world for years, even going so far as to hide it from Davis’[s]
counsel. The petitioner himself participated in the family’s silence.
Even immediately before the evidentiary hearing, Davis had to be
prodded for information about the prior abuse. (RR. 863-864) The
extent of Davis’[s] commentary on this abuse was “he felt that
sometimes . . . he was disciplined too much.” (RR. 864)
Another aspect of these facts that decreases the weight this
mitigation evidence would have is the fact that the abuse DID NOT lead
any of Davis’[s] family members to report Lillie Bell’s actions to
authorities, to tell people outside of the family, or otherwise remedy the
situation. Further, in the one formally documented case of abuse before
the Court, DHR made a decision to leave Davis in the home. Regardless
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of the hindsight and speculation offered by various DHR employees at
the evidentiary hearing, the fact remains that as of 1993 the evidence
would have been that DHR never actually took measures to have Davis
removed from the home due to abuse. This decision has a direct impact
on the weight to be afforded this evidence.
When combined with the fact that Davis’[s] family members were
comfortable with keeping this information secret, this abuse becomes
much less powerful as evidence. Davis’[s] family must not have thought
his life was in danger during his adolescence, as they did nothing to
protect him from further abuse. Instead, they let family pride, fear of
Lillie Bell, or other factors preclude them from coming forward. Even
at the hearing, these witnesses were still hesitant to come forward and
discuss these issues. The abuse of Davis obviously did not impact
Davis’[s] own family to a degree great enough where they were
motivated to seek assistance from authorities in dealing with the issue.
This Court, as well as a jury, would have to consider such factors in
determining the weight to be given this evidence.
Based on the testimony of Storey at the original sentencing
hearing, this Court considered the difficulty of Davis’[s] upbringing and
his below-average intellect. While this new evidence puts this
information in a new perspective, it does not change the fact that the
facts of this crime and the two aggravating circumstances proven by the
State far outweighed the one statutory mitigating factor and these
non-statutory mitigating factors.
Likewise, some of the evidence presented by the Petitioner falls
into the category of “double-edged sword” type evidence referenced by
Giddens. (RR. 156, 158) For example, some of the evidence indicated
that Davis had good role models in his life. One of Davis’[s] own
witnesses noted that his violent behavior did not begin until the
commission of the Robbery III offense prior to the Direct Oil murder.
(RR. 994-995, 1006) This information leads to an inference that
Davis’[s] violence was a product of some factor other than his
upbringing, considering the testimony that throughout Davis’[s]
childhood (when the abuse occurred) he was not a violent person.
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Instead, he became violent when he committed the Robbery III of a
Domino’s Pizza employee and began fighting in jail and became
aggressive and disrespectful. (RR. 1006) Such testimony does not
suggest that the abuse suffered by Davis was of any great mitigation
significance as his violent criminal behavior does not begin until years
later after he is away from his mother and her influence.
This Court does not accept that the behavior of Lillie Bell Davis
in abusing the Petitioner or misleading his trial counsel was appropriate.
The Court’s finding of no [ineffective assistance of counsel] is not an
approval of such behavior. Instead, it is a recognition that no matter how
wrong her behavior was, trial counsel were not responsible for the
family’s (and Davis’[s]) silence on this issue and the abuse inflicted by
Lillie Bell — while wrong — does not serve as mitigation evidence that
would have created a reasonable probability that the outcome of Davis’s
penalty phase would have been different. Accordingly, in addition to
finding that counsel’s performance was reasonable under the
circumstances, the Court further finds that Davis did not prove prejudice
in any event.
....
For the foregoing reasons, the Court denies this claim. Although
the Court acknowledges that this abuse evidence should have been
brought out at Davis’[s] trial, the fault for it not coming out rests with
Davis and his family, and not his counsel. It would pervert Sixth
Amendment jurisprudence to punish lawyers for deliberate misdeeds by
their client and client’s families. The record before the Court establishes
a family that is coming to terms with their past. The problem is that they
chose to do so only after the Petitioner was sentenced to death. That this
secret was more valuable to them than the potential risk of their silence
to Davis at his capital murder trial is disturbing, but it is not the result
of ineffective assistance of counsel. This claim, in its entirety, is
denied.”

99

Rule 32 C.R. Vol. 62, Tab. 80 at 27-29, 33-40, 51-57 (emphasis in original; footnotes
omitted; seventeenth and eighteenth alterations in original, other alterations supplied;
first, fifth, and eighth ellipses supplied, other ellipses in original).
b.

Alabama Court of Criminal Appeals’ initial opinion (dicta)

The Alabama Court of Criminal Appeals described the “powerful” mitigation
evidence and the actions of counsel, whom it believed “failed to conduct the type of
investigation sanctioned by the guidelines developed by the American Bar
Association for attorneys representing defendants in death-penalty cases as endorsed
by the United States Supreme Court in Wiggins v. Smith[, 532 U.S. 510 (2003)]”:
At the Rule 32 hearing, Davis presented the testimony of two
sisters, an aunt, and several social workers. Davis’s sisters testified that
their mother regularly beat Davis with switches, extension cords, and
brooms. Mary Nell Davis testified that she remembered one instance
when Davis was in the second grade and their mother beat Davis so
badly with a broom that his head swelled up and his ear was almost
“severed.” She also said that when her mother was beating Davis he
[sic] would call him a “black bastard.”
Beverly Boggs, a social worker with the Calhoun County
Department of Human Resources (“DHR”), testified that her first
contact with Davis was when he was about 10 years old. A report had
been filed with DHR that Davis was being abused and neglected.
Davis’s mother admitted to Boggs that she beat Davis because he was
a bed wetter. The social worker recommended counseling for the child
and mother.
Another social worker, Theresa Peebles, testified that she
investigated a complaint that alleged that Davis was being abused when
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Davis was about 10 years old. Davis admitted to her that his mother
beat him because he was a bed wetter. Peebles said that she observed
the extent of Davis’s injuries on this occasion and that Davis had
between 25 and 30 marks on his back. She said, “I’ve never seen a back
that looked worse than Jimmy’s did.” Peebles made photographs of his
injuries, and those photographs were introduced at the Rule 32 hearing.
....
Giddens testified to the following concerning mitigation evidence:
Q [Davis’s attorney]: But in your practice of
defending capital cases, would you agree that an
individual’s educational background, family situation and
employment status are some of the few things that should
be taken into consideration at the mitigation phase?
A [Giddens]: I think you need to take into
consideration whatever evidence you can offer to a jury.
Mitigation is simply that, to mitigate the sentence down to
life [imprisonment] without parole and a lot of things to go
into it. Educational background. I mean, lack of
significant criminal history is one that you can offer. Many
things are taken into mitigation. But simply asking for life
without parole is asking to spare the death penalty, spare
the defendant’s life. And that’s ultimately for the jury to
make a recommendation. But I mean, you can offer, under
the nonstatutory mitigation in Alabama, you can offer
virtually anything.
Q: And prior to becoming the District Attorney,
when you’re defending these cases, how would you go
about investigating that “virtually anything” that you could
put before a jury?
A: Well, the “virtually anything” is putting family
members on, “Please spare my son’s life”; “Please spare
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my brother’s life”; “Please spare my mother’s life.” “He
was a good child. He played ball, he did this.” And
showing a picture of the defendant that maybe they didn’t
get to see. And that’s — that’s what I’m talking about, the
non-statutory mitigation is anything. Anything that they
have ever done.
....
Q: Have you ever offered evidence of physical child
abuse?
A: No.
Q: If you found evidence of physical child abuse in
a defendant’s life, would you offer that in a mitigation
stage?
A: If it was somehow related to the crime or if it —
I mean, under nonstatutory mitigation, I’m sure it’s
admissible. I’m sure you can get it in, but I personally did
not ever do that. FN.
FN. Evidence that a defendant was a victim
of child abuse is a classic example of
mitigating evidence; its admittance is not
affected by whether the abuse directly related
to the crime.
(R. 75-76.) Giddens further testified that he spoke only with Davis’s
mother and that he did not speak with any of Davis’s siblings. He did
not attempt to get any of Davis’s school records or any records from
DHR. Giddens was never questioned about Adams’s preparation for the
penalty phase. Indeed, the State’s cross-examination of Giddens failed
to elicit any information that would bolster the State’s position that a
reasonable investigation was conducted in this case. Moreover, the

102

record shows that most of the preparation was conducted two weeks
before Davis’s trial.
We have also reviewed the transcript of the penalty phase.
Counsel called Lillie Davis, Davis’s mother, to testify at the penalty
phase. She told the jury that Davis’s father had left them when Davis
was approximately one year old, that Davis did not have a father figure
in his life, that Davis started giving her trouble when he was around 9,
that Davis went to live with his father in New York when he was 15
years old, that Davis moved back after about two months because his
father had died, and that Davis dropped out of school when he was 16
years old. She also said that Davis ran with a bad crowd, that he had
never been involved in any violent behavior — just stealing — and that
when he reached the age of 17 she asked him to leave her house because
she could not control him. Last, she asked the jury to spare her son’s
life.
Andrew Lamont Sigler, Davis’s first cousin, also testified at the
penalty phase. FN.
FN. Sigler testified at the Rule 32 hearing that Davis’s
attorneys had not contacted him before Davis’s trial but
that on the day of sentencing he was in the courthouse and
one of the attorneys asked him to testify.
Sigler testified: “I think Jimmy was missing a lot as he was coming up.
People to rely on, people to talk to, people who could understand him
and try and help him out. A lot of things that we all have had, more
successful people have had.” (Trial record at p. 1322.) Sigler also
asked the jury to spare Davis’s life.
....
After the penalty-phase jury deliberated for 40 minutes, it returned
with a question. The question was whether the trial court could accept
a recommendation of death if seven jurors voted for death and five for

103

life. The trial court sent the jury back to deliberate and gave the
following instruction:
The Court has heard the responses both by the State
and by the defendant to this question. Appears I have
unanimity from each side of the case and no objections to
the Court answering this question in the negative that no,
the Court cannot accept the numbers as they state them.
And further state there must be 10 votes for
recommendation of death or there must be at least 7 votes
for a recommendation of life without parole.
(Record of trial, p. 1375-76.) After this instruction, the jury returned
with a recommendation of 11 for death and 1 for life imprisonment
without parole. Certainly, it is reasonable to conclude that the evidence
of Davis’s child abuse could very well have tipped the scales in the other
direction.
....
. . . In this case counsel failed to conduct the type of investigation
sanctioned by the guidelines developed by the American Bar
Association for attorneys representing defendants in death-penalty cases
as endorsed by the United States Supreme Court in Wiggins v. Smith.
Davis v. State, 9 So. 3d 514, 522-525 (Ala. Crim. App. 2006) (alterations in original;
first ellipses in original, other ellipses supplied; footnote omitted).
c.

Opinion of Alabama Court of Criminal Appeals on remand

Upon reexamining the claim on remand, the Alabama Court of Criminal
Appeals rejected its previous comments, and concluded that Davis was not entitled
to relief:

104

We stated in our previous opinion affirming the circuit court’s denial of
Davis’s Rule 32 petition that if this issue had been properly before us we
would direct that a new sentencing hearing be conducted. Davis v.
State, 9 So. 3d at 526. However, upon further research and review of the
record we have reconsidered our comments in dicta in our previous
opinion, and we now conclude that the circuit court did not abuse its
discretion in denying Davis relief on his claims of ineffective assistance
of trial counsel at the penalty phase.
Davis v. State, 9 So. 3d 539, 553 (Ala. Crim. App. 2008).
The Court held that the findings of the circuit court, as set out above, were
supported by the record, adopted them as part of its opinion, and affirmed the trial
court’s denial of this claim:
First, Davis argues that counsel should have discovered and
presented evidence from family members and the Department of Human
Resources (“DHR”) records to show that he had been abused as a child.
At the penalty phase, counsel called Davis’s mother, his first
cousin, and a counselor who had evaluated Davis’s IQ. On direct appeal
we stated the following about the mitigating evidence that was
presented:
[Davis] called three witnesses: his mother, Lillie Bell
Davis; his first cousin, Andre Lamont Sigler; and a
counselor, Annie M. Storey. His mother testified generally
about [Davis’s] background and family life. She stated that
she and her husband, who was [Davis’s] father, separated
when [Davis] was one year old, and that [Davis] never had
the benefit of a father in the home when he was growing
up. She stated that [Davis] went to Detroit to live with his
father when he was 15 years of age, but that his father died
shortly thereafter and that his death was devastating to
[Davis]. She further testified that she began to have
105

trouble with [Davis] when he was about 9 years old; that he
would misbehave at school and at home; that he dropped
out of school when he was 16; that he would not work,
would stay out at night, and was frequently in trouble; that
after he turned 17, she could not handle him; and that he
left home when he was 19. She asked the jury to spare her
son’s life. Sigler also testified about [Davis’s] background
and home life. He stated that [Davis] missed not having a
father in the home; that because of his circumstances he
“missed a lot” when he was growing up; that when he was
growing up he had no one to rely on, to talk to, or to help
him; that when his father died he was noticeably affected
and his appearance and attitude changed; and that he had
not had the advantages that Sigler had had. Sigler also
asked the jury to recommend a sentence of life
imprisonment without parole.
Storey, a counselor
employed by the Calhoun-Cleburne Mental Health Center
and the Oxford city school system, testified that she
administered intelligence and diagnostic educational tests
to [Davis] before his trial; that he had a full-scale IQ of 77,
which placed him at the 6th percentile, i.e., 94% of the
people in his age group scored higher; that an IQ of 77 is
considered within the borderline range of intelligence; that
he is functioning “between where we would consider an
individual who is mentally retarded and one who is low
average”; and that he functions at the 5th grade level
academically. [Davis] called only one witness at the
second sentencing hearing before the trial court, his
mother, who testified again about her son’s general
background and family life, and asked the court for mercy.
Davis v. State, 718 So.2d at 1156.
Giddens testified at the Rule 32 hearing that Davis did not tell him
that he had been abused as a child. Cocounsel Adams did not testify
concerning his dealings with Davis or the extent of his investigation into
Davis’s upbringing. We have reviewed the record of Davis’s trial and
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find that Adams’s involvement in the case was not minor. Adams
conducted opening and closing statements and cross-examined the
majority of the state witnesses. Also, Adams spoke with two of Davis’s
siblings – though we do not know the identity of those siblings. We are
troubled that Adams was not called to testify at the Rule 32 hearing
when it is clear that he had a significant role in preparing for Davis’s
trial. FN.
FN. As we stated above: “An ambiguous or silent record
is not sufficient to disprove the strong and continuing
presumption [of effective representation]. Therefore,
‘where the record is incomplete or unclear about
[counsel’s] actions, we will presume that he did what he
should have done, and that he exercised reasonable
professional judgment.’” Chandler v. United States, 218
F.3d 1305, 1314 n. 15 (11th Cir. 2000) (en banc) (quoting
Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)).”
Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir.
2001).
However, Giddens testified at the Rule 32 hearing as follows:
There was a lot of preparation. Mr. Adams and I —
I had asked Judge Street if he would appoint me cocounsel
since it was a capital murder case and that involved a lot of
work. And I asked him to appoint a cocounsel. And he
appointed Mr. Adams at my request. And Mr. Adams and
I did a lot of preparation.
We came into Anniston, interviewed a lot of
witnesses, did a lot of research.
(R. 36-37.) In preparing mitigation evidence, Giddens stated:
[Giddens]: As I said, at the same time as you begin
to assess the evidence. You begin to think about in the
event that he’s convicted or she’s convicted of capital
107

murder, what are you going to do in the sentence hearing.
You have to be prepared for all of its [sic].
Q [Rule 32 counsel]: So when you started to prepare
the guilt/innocence part of Mr. Davis’s case in November
of 1993, that’s about the same time you began to prepare
the mitigation case?
[Giddens]: Well, I mean, we had spoken with his
mother sometime during that time and knew that she was
going to be a witness in that event. And also got an order
signed for a mental evaluation to use as mitigation if, you
know, it if [sic] came out favorable or something you
would want to offer mitigation for the defendant. I mean,
during the time frame of preparing for the case, you have
to prepare for the sentence hearing as well because it will
be immediately after the trial.
(R. 72-73.) Giddens said that Davis provided him with little information
except that he was with Heard at the time of the robbery/murder.
Counsel have a duty to investigate but this duty is
confined to reasonable investigation. See Strickland, 466
U.S. at 691, 104 S.Ct. at 2066. In Funchess v. Wainwright,
772 F.2d 683, 689 (11th Cir. 1985), this Court found
counsel reasonably investigated despite the fact that he had
not investigated his client’s psychological problems
because the client never told him of any problems and the
competency evaluation did not suggest any problems
existed. The client also acted competently while assisting
counsel in preparing his case. See id. Thus the court held
that counsel was not put on notice of any problems and
could not be faulted for not pursuing the matter. See id.;
cf. Collins v. Francis, 728 F.2d 1322, 1349 (11th Cir.
1984) (determining that counsel who failed to investigate
witnesses that the defendant did not tell him about was not
ineffective).
108

Reliance upon some family members statements [sic]
that other mitigation witnesses did not exist was considered
permissible in Singleton v. Thigpen, 847 F.2d 668, 670
(11th Cir. 1988). Rejecting a per se rule of ineffective
assistance where counsel does not consult family members,
we held in Williams v. Head, 185 F.3d 1223, 1237 (11th
Cir. 1999), that counsel’s investigation was reasonable
when he did not interview the defendant’s sister or father,
the latter because the defendant had not lived with him for
very long. “[S]trategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a
duty to make a reasonable investigation or to make a
reasonable decision that makes particular investigations
unnecessary.” Strickland [v. Washington,] 466 U.S. [668]
at 690-91, 104 S.Ct. [2052] at 2066 [(1984)].
The conduct of the counsel here did not fall below
the professionally competent standard. While the Warrens
did not discover the records from Holladay’s stay at
Central State Hospital in Milledgeville, Georgia or records
from other psychiatrists who treated Holladay, there is no
evidence in the record, nor does Holladay allege, that he
told them of his prior treatment. As in Funchess, the report
of the lunacy commission that Holladay was sane and
competent combined with counsel’s impression of
Holladay as cooperative, articulate, and affable did not put
Mrs. Warren on notice that there were or might be
psychiatric records that she needed to find.
Holladay v. Haley, 209 F.3d 1243, 1251-52 (11th Cir. 2000). Based on
the unusual circumstances presented in this case and the fact that we not
[sic] know the extent of cocounsel’s investigation because Adams was
not called to testify, we cannot say that counsel was ineffective for
failing to discredit the statements of Davis, his mother, and two of his
siblings, and to conduct yet more investigations. Thus, we conclude that
109

the circuit court did not abuse its discretion in finding that the
investigation conducted by Davis’s attorneys was reasonable. “Clearly
this is not a case where counsel failed to investigate, a case where
counsel was ignorant of what evidence could be presented in mitigation,
or a case where counsel presented no mitigation evidence.” Waldrop v.
State, 987 So.2d 1186, 1202 (Ala. Crim. App. 2007).
Moreover,
“[a] defense attorney is not required to investigate all
leads, however, and “there is no per se rule that evidence
of a criminal defendant’s troubled childhood must always
be presented as mitigating evidence in the penalty phase of
a capital case.” Bolender [v. Singletary], 16 F.3d [1547,]
at 1557 [(11th Cir. 1994)] (footnote omitted) (quoting
Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), cert.
denied, [513] U.S. [1161], 115 S.Ct. 1125, 130 L.Ed.2d
1087 (1995)). “Indeed, ‘[c]ounsel has no absolute duty to
present mitigating character evidence at all, and trial
counsel’s failure to present mitigating evidence is not per
se ineffective assistance of counsel.’” Bolender, 16 F.3d at
1557 (citations omitted).”
Marek v. Singletary, 62 F.3d 1295, 1300 (11th Cir. 1995). Evidence of
childhood abuse has been described as a double-edged sword. See
Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002) (evidence of
brain injury, abusive childhood, and drug and alcohol abuse was “double
edged” because it would support a finding of future dangerousness). See
also Miniel v. Cockrell, 339 F.3d 331 (5th Cir. 2003); Harris v.
Cockrell, 313 F.3d 238 (5th Cir. 2002). The circuit court did not abuse
its discretion in denying relief on this claim.
....
Last, even if we were to find that counsel’s performance was
deficient in the penalty phase of Davis’s trial, we would find no

110

prejudice. As the United States Supreme Court stated in Wiggins v.
Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003):
In Strickland [v. Washington, 466 U.S. 668 (1984)], we
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.” Id., at 694, 104 S.Ct. 2052.
In assessing prejudice, we reweigh the evidence in
aggravation against the totality of available mitigating
evidence.
539 U.S. at 534, 123 S.Ct. 2527.
The circuit court noted in its order denying relief that the evidence
of Davis’s childhood abuse was not of “any great mitigation significance
as his violent criminal behavior does not begin until years later after he
is away from his mother and her influence.” The circuit court found in
mitigation that Davis was only 23 years old at the time of the
robbery/murder and the court also “considered all testimony and
evidence presented to the jury and to the Court in regard to the
defendant’s background, character, [and] education achievement level.”
The court found that the failure to present evidence of Davis’s childhood
abuse would not have prejudiced him.
We have reweighed the alleged omitted mitigation evidence
against the aggravating circumstances that existed in this case. We
agree with the circuit court that death was the appropriate sentence in
this case and that the fact that certain potential mitigation evidence was
not presented would have had no affect [sic] on the outcome.
Davis v. State, 9 So. 3d 539, 563-566, 569-570 (Ala. Crim. App. 2008) (alterations
in original).

111

d.

Analysis

For claims that counsel was ineffective at the penalty phase of trial, the issue
is “whether counsel reasonably investigated possible mitigating factors and made a
reasonable effort to present mitigating evidence to the sentencing court.” Henyard
v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006). To establish ineffective
assistance of counsel, and rebut the strong presumption that counsels’ performance
was reasonable, the petitioner has the burden of establishing that no competent
counsel would have taken the action his counsel took.
Davis’s reply challenges the reasonableness of the state court’s decision,
asserting that the failure to grant him relief on the merits of his ineffective assistance
of counsel claims was contrary to, and involved an unreasonable application of,
clearly established Federal law, and 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.115 He argues that the presumption of correctness owed to state
court fact findings is rebutted by the clear and convincing evidence presented during
the Rule 32 hearing.116 In support, Davis directs this court to the “Petitioner’s
Proposed Findings of Fact and Conclusions of Law, submitted to the Rule 32 Circuit

115
116

Doc. no. 39.
Id. at 13.

112

Court.”117 Davis also contends that the Alabama Court of Criminal Appeals failed to
properly apply the Strickland test because it “ignored United States Supreme Court
law pertaining to the professional standards and norms of representation in capital
cases.”118
i.

Performance

Davis first argues that the Alabama Court of Criminal Appeals unreasonably
blamed counsels’ failure to uncover evidence of his childhood abuse on his and his
family’s silence about the abuse, without faulting trial counsel for failing to
investigate school, medical, and social service records, or for failing to ask probing
questions of the Davis family.119 He cites Rompilla, 545 U.S. at 381, for the
proposition that the Sixth Amendment requires counsel to make a reasonable effort
to obtain information, even when the defendant and his family are “uninterested in
helping” and inform counsel that no mitigating evidence is available.120 He also cites
Williams v. Taylor, 529 U.S. 362, 396 (2000), for the proposition that counsel’s

117

Id. The Petitioner’s Proposed Findings of Fact and Conclusions of Law are located in
Rule 32 C.R. Vol. 17, at 1034-1113.
118

Doc. no. 39, at 15.

119

Id. at 18-19.
Id. at 19.

120

113

failure to conduct a “thorough investigation of the defendant’s background” could not
be excused as within counsel’s discretion to make a “tactical decision.”121
It is apparent from a review of the state court record that counsel did not
conduct an extensive investigation for the penalty phase of this capital trial. It is
troubling that: counsel’s notes reflect only two visits with Davis prior to trial; counsel
spoke with Davis’s mother only once, and then only days before the trial; much of the
preparation, including the evaluation that was performed the weekend prior to the
Monday morning trial, was conducted at the last minute; and, counsel did not meet
with the penalty phase witnesses prior to the day they were scheduled to testify. It
also is troubling that relevant mitigation evidence existed, but was not discovered.
Even so, counsel did not have many leads to pursue mitigating evidence. The
record is clear that neither Davis nor his mother informed Giddens of the abuse Davis
suffered.122 Any suggestion that Davis might have opened up to counsel if they had
spent more time with him, earning his trust, or perhaps explaining the importance of
being completely truthful and forthright, is mere conjecture, and unsupported by any
evidence. Although it undoubtedly would have been far better if counsel had
gathered more background information prior to the capital sentencing proceeding,
121

Id.

122

Because Davis did not call Adams to testify at the Rule 32 hearing, the court has no way
of knowing if Adams was informed of the abuse or the role Adams played in preparing for the
sentencing phase of the trial.

114

they were not constitutionally required to complete any set checklist of tasks,
especially when counsel had received no information to indicate that potential
mitigating evidence existed.
Ultimately, this court must confront the fact that the Eleventh Circuit has
“repeatedly held that ‘[a]n attorney does not render ineffective assistance by failing
to discover and develop childhood abuse that his client does not mention to him.’”
Puiatti v. Secretary, Florida Department of Corrections, 732 F.3d 1255 (11th Cir.
2013) (quoting Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999)) (alteration
in original).
Thus, it cannot be said that the determination of the Alabama Court of Criminal
Appeals — i.e., that counsel’s investigation was not constitutionally deficient — was
objectively unreasonable.
The Alabama court painstakingly considered the evidence presented, applied
the controlling Supreme Court precedent, and found that,
[b]ased on the unusual circumstances presented in this case and the fact
that we do not know the extent of cocounsel’s investigation because
Adams was not called to testify, we cannot say that counsel was
ineffective for failing to discredit the statements of Davis, his mother,
and two of his siblings, and to conduct yet more investigations.

115

Davis v. State, 9 So. 3d 539, 566 (Ala. 2008) (alteration supplied). Davis has not
shown that no reasonable factfinder would have arrived at the same conclusion.
ii.

Prejudice

In any event, Davis has not demonstrated that he suffered prejudice as a result
of his attorneys’ failure to more thoroughly investigate potential sources of mitigating
evidence. Davis argues that he was prejudiced by counsels’ failure to present to the
jury the “compelling mitigating evidence of the serious abuse [he] suffered as a child,
the chaotic and dysfunctional household in which he grew up, and the gross neglect
of his parents.”123 He asserts:
The compelling mitigation evidence trial counsel failed to
investigate and uncover was at least as severe as evidence that the
United States Supreme Court has found to be prejudicial when excluded.
See, e.g., Wiggins, 539 U.S. at 516, 524-25 (holding that petitioner was
denied Constitutionally effective assistance of counsel when counsel
chose not to expand their investigation of his life history for mitigating
evidence beyond the pre-sentence investigation report and department
of social services records, and thereby failed to uncover evidence of
“severe physical and sexual abuse petitioner suffered”); Williams, 529
U.S. at 395-98 (holding that petitioner was denied Constitutionally
effective assistance when counsel failed to investigate and present
during the sentencing phase a “voluminous amount” of evidence of his
“nightmarish childhood”); Williams v. Allen, 542 F.3d 1326, 1339 (11th
Cir. 2008) (holding that counsel’s failure to conduct an adequate
investigation precluded jury from weighing evidence of childhood
history of abuse and cruelty).

123

Doc. no. 39, at 18 (alteration provided).

116

Doc. no. 39, at 18.
According to Davis, the Alabama Court of Criminal Appeals failed to properly
weigh the additional mitigating evidence presented during the Rule 32 proceeding
under the standards set forth in Strickland and its progeny.124 He argues that the court
improperly based its determination on his failure to “show a direct link between the
proffered mitigating evidence and the commission of [the] offense.”125 Additionally,
he asserts:
As this Court held in Boyd v. Haley, the “fail[ure] to recognize that
[petitioner’s] background evidence had any mitigating value due to the
lack of its causal nexus to the crimes” results in a “legal conclusion
contrary to clearly established federal law regarding the purposes of the
penalty and sentencing phases of trial.” Order at 31-33, Case no.
CV-00-S-2919-E (Sept. 28, 2001) (holding that the CCA erroneously
failed to properly consider and weigh petitioner’s mitigating background
evidence because of his failure to demonstrate a causative linkage
between that evidence and his crimes) (citing Hardwick v. Crosby, 320
F.3d 1127, 1162-63 (11th Cir. 2003)). In short, the question is simply
whether the evidence is of such a character that it might serve as basis
for a sentence less than death. Tennard v. Dretke, 542 U.S. 274, 287
(2004). Accordingly, the CCA’s decision is contrary to and an
unreasonable application of clearly established federal law.126
Doc. no. 39, at 20 (alterations in original).

124

Id. at 19.

125

Id. at 20 (quoting Davis v. State, 9 So. 3d 539, 561 (Ala. Crim. App. 2008)) (alteration in

original).
126

Id. at 20 (alterations in original).

117

Upon review of the record in this case, it is apparent that the trial court did not
base its finding of no prejudice solely on the absence of a causal link between the
abuse Davis suffered as a child and the crime he committed. The trial court held that
the evidence could have been introduced as non-statutory mitigation and entitled to
some weight in determining the proper sentence. Even so, the trial court found, for
multiple reasons, that the evidence would not have been sufficient to create a
reasonable probability that the sentence would have been different. Moreover, the
Alabama Court of Criminal Appeals based its implicit determination that Davis was
not prejudiced on the nature of evidence of childhood abuse as mitigation, noting that
it is often described as a “double-edged sword,” because it could also support a
finding of future dangerousness. Davis v. State, 9 So. 3d 539, 566 (Ala. Crim. App.
208).
Davis also argues that the Alabama Court of Criminal Appeals improperly
weighed the mitigation evidence when it “completely shifted course from its 2006
opinion where it stated that ‘[i]t is reasonable to conclude that the evidence of Davis’s
child abuse could very well have tipped the scales in the . . . direction [of life
imprisonment without parole],’” and “improperly agreed with the Circuit Court’s
assessment that the evidence was not of ‘any great significance as his violent criminal

118

behavior does not begin until years later after he is away from his mother and her
influence.’”127 Davis argues:
This Court has noted that “the Supreme Court has long recognized that
a defendant’s troubled background is relevant mitigating evidence in the
quest to determine his moral culpability.” Boyd, Order at 32, Case no.
CV-00-S-2919-E (Sept. 28, 2001) (citing Penry v. Lynaugh, 492 U.S.
302, 319 (1989)); Eddings v. Oklahoma, 455 U.S. 104, 112 [(1982)];
Lockett v. Ohio, 438 U.S. 586, 604 (1978)). Thus, the CCA’s failure to
give appropriate weight to the evidence of Davis’s childhood abuse
because it occurred years earlier than the crime constitutes a decision
both contrary to, and an unreasonable application of, clearly established
federal law.
Doc. no. 39, at 21 (alteration supplied).
The trial court’s determination that Davis had not established prejudice was not
based entirely on the length of time that had elapsed between the abuse and the
offense. Moreover, the appellate court, which devoted most of its discussion to the
performance prong of Strickland, based its prejudice determination primarily on the
risks of presenting evidence of childhood abuse as mitigation evidence. The state
court considered the totality of the available mitigation evidence, including that
adduced at trial and in the postconviction proceedings, and determined that there was
no reasonable probability that the introduction of that evidence would have resulted
in a different sentence. That determination was not patently unreasonable.
127

Id. at 20-21 (quoting Davis v. State, 9 So. 3d 514, 524 and Davis v. State, 9 So. 3d 539,
563) (alterations and emphasis in original).

119

2.

Failure to obtain or present any testimony regarding Davis’s mental
health
— and —

3.

Failure to obtain mental health evidence
mental/psychological dysfunction and brain damage

relating

to

Davis asserts that his trial counsel did not adequately discover, prepare, and
present evidence regarding his mental health and brain damage.128 He complains that
counsel did not obtain information regarding his mental competency and health until
the week before trial, when they filed a motion seeking “to determine [Davis’s]
intelligence level, educational level, any behavioral problems, or any condition
relative to his behavior in a normal social environment.”129 Because counsel did not
specify that Davis was facing capital murder charges, the evaluation was performed
by a psychometrist whose licensing, training, and experience were in the
administration of I.Q. tests, primarily to school students.130

The psychometrist

administered IQ and MMPI (Minnesota Multiphasic Personality Inventory) tests on
December 4, 1993, just two days before trial, and counsel did not speak with or meet
her until just before she testified.131 Davis also contends that counsel should have

128

Doc. no. 33, at 34-39.

129

Id. at 34 (alteration supplied) (emphasis in original).

130

Id. at 34-35.
Id. at 35.

131

120

sought the services of other qualified experts, such as a forensic psychologist, a social
worker, and a neuropsychologist.132

Finally, Davis faults counsel for failing to

discover and present evidence that he had sustained a frontal lobe brain injury — a
defect that he contends manifested in poor performance in school and delayed
maturation.133
a.

Evidence presented in state court

Davis called Anne M. Storey, the psychometrist who had administered IQ and
MMPI tests, during the penalty phase of trial. Ms. Storey testified that Davis had a
full-scale IQ of 77, which placed him in the borderline range of intellectual
functioning.134 Storey stated that Davis’s IQ would make it difficult for him to
perform ordinary tasks.135

Counsel presented no evidence that Davis had brain

damage or other mental deficiencies.
During the Rule 32 hearing, Davis produced several of his school records and
report cards. His eighth grade report card shows that he made four B’s and one C.136
He also was administered the Wechsler Intelligence Scale (“WISC-R”) IQ test in

132

Id. at 37.

133

Id. at 39.

134

R. Vol. 8, Tab 20, at 1332-33.

135

Id. at 1334-35.
Rule 32 C.R. Vol. 34, Tab 58, at 1848.

136

121

eighth grade, which revealed a full-scale IQ of 74.137 The WISC-R evaluation form
contained the handwritten comment: “all areas are above grade level expectancy.”138
During the hearing, Davis presented the testimony of Dr. Kimberly Svec
Ackerson, an Alabama-licensed clinical psychologist specializing in forensic
psychology, who testified that she would have referred Davis to a neuropsychologist
for further investigation of possible brain injury or damage.139 Dr. Charles J. Golden,
a professor of psychology at Nova Southeastern University and Director of the
Neuropsychological Assessment Center, testified, based on his assessment of Davis’s
IQ scores, that Davis had frontal-lobe brain damage.140
The State presented the testimony of Dr. Glen D. King, a clinical psychologist
who testified, after evaluating Davis and his IQ scores, that Davis merely had
borderline intellectual functioning, not brain damage, and that he would not have
referred Davis to a neuropsychologist.141 Dr. King also testified that a CAT scan, an
MRI, or a PET scan is traditionally used to diagnose brain damage, but none of those

137

Id. at 1853.

138

Id.

139

Rule 32 R. Vols. 21-22, Tab 58, at 694-98.

140

Rule 32 R. Vol. 22, Tab 58, at 795-804.
Id. at 869-73.

141

122

tests had been administered to Davis at any time — either prior to trial or during the
postconviction proceedings.142
b.

Rule 32 court’s order of denial

Following the evidentiary hearing, the trial court rejected Davis’s claims,
saying:
Next, Davis alleges [ineffective assistance of counsel] based on
trial counsel’s failure to get a psychologist to conduct a mental
evaluation, rather than having him tested by a psychometrist. This
claim, too, fails.
First, trial counsel did not request that the evaluation be
conducted by a psychometrist, nor did this Court’s order state that the
evaluation should have been done by a psychometrist. Instead, due to
an administrative error at the mental health center, Davis was assigned
to Annie Storey, a psychometrist, for evaluation. (RR. 129) Although
trial counsel did not request this procedure, Giddens testified that
Storey, “did exactly what I asked her to do.” (RR. 93) Namely, Giddens
testified that he was concerned mostly with Davis’[s] IQ and
achievement level.
Under the circumstances of this case, defense counsel’s concern
about IQ and achievement level testing was reasonable. As Giddens
recounted, there was no special plea in Davis’[s] case and nothing had
struck either Giddens or Adams as peculiar about Davis’[s] mental state.
Giddens did not believe that Davis was incapable of assisting in his
defense, and did not believe that Davis had any mental problems. Davis
did not provide any evidence at the evidentiary hearing that would
suggest otherwise. Accordingly, there is no basis for this Court to
conclude that reasonably competent trial counsel would have been

142

Id. at 873.

123

concerned about Davis’[s] mental health, other than information that
might be useful for mitigation.
Trial counsel was not looking to prove the statutory mitigating
circumstances of “extreme mental or emotional disturbance” or
“substantial impairment of his ability to conform his conduct to the
requirements of the law,” just as Davis did not do so in the evidentiary
hearing. Further, had Davis’[s] IQ been lower (or had the United States
Supreme Court made Atkins [v. Virginia, 536 U.S. 304 (2002),]
applicable to individuals in the borderline range of intelligence), trial
counsel’s strategy would be celebrated as genius by collateral counsel
today. There was nothing unreasonable about getting Davis’[s] IQ and
achievement levels before the jury.
In addition, even though trial counsel were not responsible for the
assignment of a psychometrist to this case, trial counsel were under the
impression that Storey’s report had been reviewed and approved by Dr.
Clarence McDanal, a licensed psychiatrist. Although McDanal testified
at the evidentiary hearing that his review was merely an “administrative
sign-off,” there is nothing to impute this knowledge to trial counsel.
Reasonable trial counsel could have trusted that a clinic of mental health
professionals would be run with more efficiency than the picture painted
by Dr. McDanal. Because Storey did exactly what trial counsel wanted
her to do, it was reasonable for trial counsel to accept her work and
accept the representations of the clinic that her work had been reviewed
by a licensed psychiatrist.
Finally, Davis was not prejudiced by Storey’s work in this case.
First, Dr. King — an experienced forensic psychologist with a great deal
of experience testifying in Alabama criminal cases — testified that he
would not have referred Davis for any further testing or evaluation. In
addition, the law allowed Storey to refer Davis for further evaluation or
testing if she felt it was necessary. Ala. Code § 34-26-1(c)(1)(b). That
she did not do so corroborates the findings of Dr. King.
The Court notes that, notwithstanding Dr. King’s testimony,
Petitioner could argue that Storey was not trained to know when referral
124

to a neuropsychologist was necessary or indicated. This argument,
however, is not persuasive. Although Dr. Ackerson, the psychologist
who testified for Davis, stated that she would have referred Davis to a
neuropsychologist for further evaluation, she also indicated that the
results of the testing were not enough for her to reach that conclusion.
(RR. 716) To reach the conclusion that a referral to a neuropsychologist
was necessary, Ackerson stated that she would have needed a social
history.
Thus, Ackerson’s testimony that she would have referred Davis
to a neuropsychologist is based on the premise that she would have had
an accurate social history. As noted above, Davis’[s] family was not in
the mood or habit of giving accurate social histories in 1993. Even
Davis himself gave a watered down version of his social history to Dr.
King in the months prior to his evidentiary hearing. He did not
cooperate with his trial counsel or in the preparation of the [pre-sentence
investigation] report. Thus, the social history that would have been
given to a psychologist in 1993 is the same social history that was spoon
fed to trial counsel by Davis’[s] family, intent on concealing their
history of abuse. Accordingly, this Court cannot find that Davis would
have been referred to a neuropsychologist had his evaluation been
completed by a psychologist rather than a psychometrist.
....
Based on the testimony of Storey at the original sentencing
hearing, this Court considered the difficulty of Davis’[s] upbringing and
his below-average intellect. While this new evidence puts this
information in a new perspective, it does not change the fact that the
facts of this crime and the two aggravating circumstances proven by the
State far outweighed the one statutory mitigating factor and these
non-statutory mitigating factors.
Rule 32 C.R. Vol. 62, Tab. 80, at 48-51, 55 (alterations supplied) (footnote omitted)
(emphasis in original).

125

c.

Decision of the Alabama Court of Criminal Appeals

The Alabama Court of Criminal Appeals made the following findings:
Davis argues that counsel was ineffective for failing to present evidence
that he suffered from damage to the frontal lobe of his brain. At the
Rule 32 hearing, Giddens testified that he moved that Davis be mentally
evaluated to determine his IQ and his academic performance. He said
that he and Adams planned to use this information in mitigation if Davis
was convicted. Giddens further testified that Davis gave him no reason
to believe that he was mentally impaired or that he could not assist in his
defense.
Dr. Kimberly Ackerson, a clinical psychologist, testified at the
Rule 32 hearing that after examining Davis she would have referred him
to a neuropsychologist for further evaluation. Dr. Charles Golden, a
professor of psychology at Nova Southeastern University and Director
of the Neuropsychological Assessment Center, testified that based on
Davis’s IQ scores it was his opinion that Davis had frontal-lobe damage.
The State countered Davis’s experts by calling Dr. Glenn King,
a clinical psychologist. Dr. King testified that he had examined Davis
and that it was his opinion that Davis “merely had borderline intellectual
functioning” and that he would not refer Davis for further testing by a
neuropsychologist.
Whether Davis suffered from brain damage was disputed by the
medical experts. “[The defendant’s] presentation of conflicting expert
opinion would have further undermined the defense’s credibility. Trial
counsel ‘cannot be deemed ineffective’ for not presenting . . . conflicting
opinions.” Philmore v. State, 937 So.2d 578, 587 (Fla. 2006).
Therefore, counsel was not ineffective for failing to discover and present
this disputed evidence.
Davis v. State, 9 So. 3d 539, 566-567 (Ala. Civ. App. 2008) (alteration in original).
d.

Analysis
126

To the extent Davis now claims he suffers from organic brain damage, the state
court concluded that Davis had failed to prove the assertion during the Rule 32
evidentiary hearing. That determination is amply supported by the record. The state
court’s determination that counsel was not ineffective for failing to discover and
present such evidence was not contrary to or an unreasonable application of clearly
established federal law.
Davis also has not shown that he was prejudiced by any delay in conducting
the evaluation, or by the manner in which the evaluation was conducted. It is true
that, as a result of the delay, counsel never learned that the examination had been
performed by a school psychometrist instead of a forensic psychologist, and the
evaluator never learned that Davis was facing capital charges. Even so, there is no
indication that those deficiencies affected the outcome of Davis’s sentencing. Even
though Davis’s own expert witness testified that she would have referred Davis to a
neuropsychologist for further evaluation, she conceded that she would have needed
an accurate social history before making that determination. There is nothing to
suggest that a different examiner performing the tests on an earlier date would have
recorded an accurate social history, given the persistent reluctance of Davis and his
family members to be forthcoming about the family’s history of abuse. Moreover,
Giddens testified that there were no signs that Davis had mental deficiencies or
127

defects, and there has been no conclusive evidence to establish that Davis suffered
from anything more than a low I.Q., which was identified by the psychometrist and
placed into evidence during the penalty phase of the trial.
The state court’s denial of this claim was neither contrary to nor an
unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination in light of the evidence presented.
4.

Failure to discover and present mitigation evidence about prior felony
conviction

Davis asserts that counsel was ineffective for failing to investigate the facts of
his prior felony conviction for robbery, which was his sole prior felony aggravator.143
He argues that, while the prior offense technically was classified as a robbery, it really
was more of a “minor offense involving the theft of a few pizzas.”144 According to
Davis’s petition, he
was one of a group of four involved in what was a minor offense:
someone called and ordered pizzas for delivery to a certain address, and
when the pizza deliveryman arrived, the group robbed approximately
$35 and six pizzas, then fled. R.202/4-204/7; 206/22-25. The police
quickly apprehended everyone. No weapon was involved. R.205/3-6.
Doc. no. 33, at 39. Davis asserts that Jadie Boozer, the court-appointed lawyer who
had represented him on the earlier “pizza case” and testified at the Rule 32
143
144

Doc. no. 33, at 39-41.
Id. at 39.

128

evidentiary hearing, would have been willing to testify at trial to the foregoing facts,
if trial counsel had only contacted him.145
This claim was considered and rejected by the Alabama Court of Criminal
Appeals. The relevant portions of the opinion read as follows:
Davis argues that counsel was ineffective for failing to investigate and
to present evidence concerning the facts of Davis’s prior conviction for
robbery. He asserts that the facts surrounding that offense were relevant
to alleviate the impact of the aggravating circumstance that Davis had
previously been convicted of a crime of violence. He cites Rompilla v.
Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), for the
proposition that he is entitled to a new sentencing hearing on that basis.
In Rompilla v. Beard, the United States Supreme Court held that
counsel’s performance at the penalty phase of a capital-murder trial was
ineffective because counsel failed to examine the court file of a prior
conviction that the Commonwealth of Pennsylvania intended to use at
sentencing. The Supreme Court noted that its holding was due, in part,
to the fact that counsel was aware that the Commonwealth intended to
seek the death penalty by relying solely on the aggravating circumstance
that the defendant had a significant history of felony convictions
involving the use of violence, that the Commonwealth intended to rely
on a prior conviction for rape and assault, and that the Commonwealth
intended to introduce the transcript of the victim’s testimony to show the
defendant’s violent nature. The United States Supreme Court stated:
Without making reasonable efforts to review the file,
defense counsel could have no hope of knowing whether
the prosecution was quoting selectively from the transcript,
or whether there were circumstances extenuating the
145

Id. at 41. Davis also contends that two of the other individuals who were involved in the
robbery, “Carlos Hughley and Vishon Sigler[,] would have been ready, willing, and able to testify
at the penalty phase of Davis’[s] trial that Davis was a minor participant and was apprehended in
possession of a single pizza as he fled the scene.” Id. at 40 (alterations supplied).

129

behavior described by the victim. The obligation to get the
file was particularly pressing here owing to the similarity
of the violent prior offense to the crime charged and
Rompilla’s sentencing strategy stressing residual doubt.
Without making efforts to learn the details and rebut the
relevance of the earlier crime, a convincing argument for
residual doubt was certainly beyond any hope.
....
If the defense lawyers had looked in the file on
Rompilla’s prior conviction, it is uncontested they would
have found a range of mitigation leads that no other source
had opened up. In the same file with the transcript of the
prior trial were the records of Rompilla’s imprisonment on
the earlier conviction, . . . , which defense counsel testified
she had never seen, id., at 508. The prison files pictured
Rompilla’s childhood and mental health very differently
from anything defense counsel had seen or heard. An
evaluation by a corrections counselor states that Rompilla
was ‘reared in the slum environment of Allentown, Pa,
vicinity. He early came to the attention of juvenile
authorities, quit school at 16, [and] started a series of
incarcerations in and out Penna. [sic] often of assaultive
nature and commonly related to over-indulgence in
alcoholic beverages.’ Lodging [to App. 111-120] 40. The
same file discloses test results that the defense’s mental
health experts would have viewed as pointing to
schizophrenia and other disorders, and test scores showing
a third grade level of cognition after nine years of
schooling.
The accumulated entries would have destroyed the
benign conception of Rompilla’s upbringing and mental
capacity defense counsel had formed from talking with
Rompilla himself and some of his family members, and
from the reports of the mental health experts.
130

545 U.S. at 386-91, 125 S.Ct. 2456. In responding to a dissent to its
opinion, the Supreme Court in Rompilla stressed that it was not creating
a per se rule that counsel was automatically ineffective for failing to
conduct a “complete review of the file on any prior conviction.” 545
U.S. at 388, 125 S.Ct. 2456.
In this case there is no allegation that the file of Davis’s prior
conviction contained a plethora of mitigating evidence. In fact, the
record shows that Davis pleaded guilty to robbery in the third degree
and that he was sentenced to one year and one day. At the sentencing
phase of Davis’s trial[,] counsel argued that he had been convicted and
sentenced for the lowest degree of robbery recognized in Alabama. At
the Rule 32 hearing Giddens testified as follows:
[Rule 32 counsel]: Did you make an attempt to talk to any
other person within the criminal justice system that had had
any dealings with Jimmy?
[Giddens]: Criminal justice systems being I believe he had
a robbery conviction that was offered against him. And I
was aware of that. I mean, I had gotten those records so I
was aware of that through the criminal justice system.
[Rule 32 counsel]: Did you speak to anyone involved in
that case?
[Giddens]: No. I reviewed the record on that and saw what
he was convicted of it. And I think he actually served time
on it.
....
[Rule 32 counsel]: And you didn’t do any investigation to
find out what the circumstances of that robbery was; did
you?

131

[Giddens]: Well, the only thing that is admissible is the
conviction itself, not the facts of it.
[Rule 32 counsel]: Even at a sentence hearing in
mitigation?
[Giddens]: The state offered simply a certified copy of the
conviction. Which we don’t object to, because you didn’t
want them to have to put on a witness to bring out the facts.
(R. 100-01.)
Davis presented testimony at the Rule 32 hearing that his prior
robbery in the third degree conviction was the result of Davis and
several other individuals robbing a pizza delivery person of six pizzas.
Davis was caught by police running away with a pizza.
This case is distinguishable from Rompilla. In Rompilla the sole
aggravating circumstance that the Commonwealth was relying on to
seek the death penalty was related to Rompilla’s prior conviction for
violence.
In this case, the State relied on two aggravating
circumstances: that the murder was committed during a robbery and that
Davis previously had been committed of a “felony involving the use or
threat of violence.” Also, in Rompilla the attorney testified that she had
not looked at the file of Rompilla’s prior rape conviction. Here,
Giddens testified that he did examine the file on Davis’s prior
conviction but had not spoken to anyone about the prior case. More
importantly, the jury in this case was aware that Davis had previously
been convicted of the lowest degree of robbery. Counsel tried to
minimize the prior conviction. Thus, we do not believe that Rompilla
mandates that we reverse Davis’s sentence on this issue. As the Florida
Supreme Court stated in Davis v. State, 928 So.2d 1089 (Fla. 2005):
“The facts of the instant matter are entirely
distinguishable from those present in Rompilla. As noted
above, defense counsel in the present case reviewed all of
the materials that were in his possession in preparation for
132

Davis’s penalty phase trial. Moreover, unlike Rompilla,
there is no indication that there was material here that trial
counsel was aware the State was going to use in
aggravation that was not obtained and reviewed by trial
counsel prior to the penalty phase trial. Moreover, unlike
defense counsel in Rompilla, there is no indication that
there was material here that trial counsel was aware the
State was going to use in aggravation that was not obtained
and reviewed by trial counsel prior to the penalty phase
trial. Moreover, unlike defense counsel in Rompilla,
Davis’s trial counsel reviewed records in the public
defender’s file transmitted to him regarding Davis’s
medical history, educational background, and other general
background information surrounding his life. A thorough
reading of the United States Supreme Court’s decision in
Rompilla reveals that it is inapplicable to the facts of the
instant matter.
Unlike defense counsel’s deficient
performance in Rompilla, trial counsel’s investigation in
the instant matter was within the level of reasonable
performance that is required by Strickland [v. Washington,
466 U.S. 668 (1984) ] and Wiggins [v. Smith , 539 U.S. 510
(2003) ]. See Rompilla, 125 S.Ct. at 2463 (“[T]he duty to
investigate does not force defense lawyers to scour the
globe on the off-chance something will turn up; reasonably
diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.”)
(citing Wiggins, 539 U.S. at 525, 123 S.Ct. 2527;
Strickland, 466 U.S. at 699, 104 S.Ct. 2052).
928 So.2d at 1108. See also Miller v. State, 926 So.2d 1243, 1252-53
(Fla. 2006). Thus, we cannot say that counsel was ineffective for failing
to conduct a more detailed investigation into Davis’s prior conviction
for robbery in the third degree.
Davis v. State, 9 So. 3d 539, 567-569 (Ala. Crim. App. 2008) (third alteration
supplied; other alterations, ellipses, and emphasis in original).
133

Davis argues that the Alabama Court of Criminal Appeals’s decision was
contrary to, and an unreasonable application of, Rompilla. He also challenges the
state court’s findings of fact, asserting that “the [Court of Criminal Appeals] stated,
without any explanation or citation to evidence, that ‘counsel tried to minimize the
prior conviction,’” and contending that the record is “void of any evidence of
diligence by counsel to support this judicial conclusion.”146
This court does not agree with Davis’s contentions, and finds that the Alabama
Court of Criminal Appeals correctly construed Rompilla, and reasonably applied that
decision to the facts of this case. Rompilla established a reasonableness test for
assessing the duty of counsel to conduct an adequate investigation. In Rompilla,
defense counsel attempted to research the defendant’s background by talking to him
and his family, and even consulted mental health experts in preparing the defendant’s
mitigation case. Rompilla, 545 U.S. at 381. However, counsel failed to review prior
conviction records, despite his knowledge that the government intended to rely on the
records in arguing aggravating circumstances.

The Supreme Court found that

counsel’s conduct was both unreasonable and prejudicial because the records
revealed “a range of mitigation leads that no other source had opened up.” Id. at 390.

146

Doc. no 39, at 21-22 (alteration supplied).

134

The Alabama Court of Criminal Appeals found that Rompilla did not require
the reversal of Davis’s sentence. Davis v. State, 9 So. 3d538, 569 (Ala. Crim. App.
2008). It relied upon two Florida cases, both of which are factually distinguishable
from the instant case. In Davis v. State, 928 So.2d 1089 (Fla. 2005), the petitioner did
not make a specific claim about failure to investigate the facts of a prior conviction,
but instead challenged trial counsel’s overall investigation and preparation for the
penalty phase.147

The state court denied the claim, finding that counsel had

adequately prepared and noting that trial counsel not only obtained the old criminal
file, but also “reviewed records . . . regarding [the petitioner’s] medical history,
educational background, and other general background information surrounding his
life.” Id. at 1108 (alteration supplied).
In Miller v. State, 926 So.2d 1243 (Fla. 2006), the state court rejected a claim
that counsel was ineffective for failing to mitigate the prior violent felony aggravator
by articulating the underlying circumstances of his second degree murder conviction.
The court held that Rompilla was inapplicable because an “informed attorney” had
made an “informed and strategic decision” not to present evidence of the facts of the
underlying conviction. Id. at 1253. The record supported a conclusion that counsel
147

The petitioner in the 2005 Florida Davis case faulted counsel for waiting until after the
jury found him guilty to begin preparing for the penalty phase, for spending only eleven hours in
preparation, and for presenting only the petitioner’s testimony during that phase of the trial. Davis
v. State, 928 So. 2d 1089 (Fla. 2005).

135

had “researched all reasonable areas of mitigation, including the work and research
of prior defense counsel”; was aware of the defendant’s childhood, substance abuse
problems, and mental health issues; and, most relevantly, had “all relevant
information regarding Miller’s 1986 second-degree murder conviction.” Id. at 1250,
1253. The court concluded, based on counsel’s testimony at the postconviction
evidentiary hearing, that he had made a strategic decision to minimize the impact of
Miller’s prior conviction by “gloss[ing] over it” and “not allowing [the state] to
present more evidence on it.” Id. at 1252 (alterations provided).
In this case, the state court’s determination that counsel’s performance was not
constitutionally deficient was based upon the following findings of fact: (1)
Giddens’s testimony that he examined “the file on Davis’s prior conviction, but had
not spoken to anyone about the prior case”; (2) the jury’s awareness that Davis had
previously been convicted of the lowest degree of robbery; and (3) counsel’s attempt
to minimize the prior conviction. Davis v. State, 9 So. 3d 539, 569 (Ala. Crim. App.
2008). Two of these findings are not clearly supported by the record. First, Giddens
did not testify that he reviewed “the file on Davis’s prior conviction”; rather, he
testified that he “reviewed the record and saw what he was convicted of.”148 That
testimony suggests that Giddens was referring to the actual charge, third degree
148

Rule 32 C.R. Vol. 18, Tab 58, at 100.

136

robbery, and not the underlying circumstances of the crime. Second, the court’s
conclusion that counsel attempted to minimize the prior conviction is tenuous. After
a thorough review of the record, it is apparent that counsel did not testify that he
made an informed and strategic decision149 not to present the facts of the conviction
to the jury, or to “gloss over” the prior conviction in order to minimize its impact.
During the hearing, Giddens testified in a general sense that he did not object to the
State offering a certified copy of the conviction into evidence, “because you don’t
want them to have to put on a witness to bring out the facts.”150 But he did not
explain how testimony regarding the facts of the prior offense would have been
anything other than helpful. Moreover, the state court did not find, and the record
does not support a finding, that counsel was in fact familiar with the underlying facts
of Davis’s prior offense.
Rompilla does not mandate that defense counsel obtain the complete court files
of all prior convictions of a capital defendant that will be used by the State at trial, or
suggest that counsel must comb through the old files of prior defense counsel in order
to obtain buried, but possibly relevant social and mitigating history. Here, however,
the relevant mitigating evidence could have been discovered through a simple review
149

The state court never made the explicit determination that counsel had made the strategic
decision to ignore the underlying facts of the robbery conviction, nor did it discuss whether any such
strategic decision was reasonable.
150
Rule 32 C.R. Vol. 18, Tab 58, at 101.

137

of the arrest affidavit.

Counsel’s failure to conduct that simple inquiry is

questionable at best.
Even if counsel’s performance could be considered constitutionally deficient,
however, Davis still must show that he suffered prejudice as a result. Davis’s failure
to prove prejudice appears to have formed the primary basis of the decision of the
Alabama Court of Criminal Appeals to deny relief. That court noted that, unlike in
Rompilla, “there is no allegation that the file of Davis’s prior conviction contained
a plethora of mitigating evidence.” Davis v. State, 9 So. 3d 539, 568 (Ala. Crim. App.
2008). The court also relied heavily on the fact that the jury knew that Davis was
convicted of the lowest degree of robbery, and that one other aggravating
circumstance was present.
Davis argues that, if the jury had learned the “underlying facts of [his] tagalong
involvement in the group robbery of a few pizzas, the outcome of the penalty phase
might have been different.”151 Common sense does suggest that testimony that Davis
went along with a group of boys who ordered and then stole several pizzas and $35
from a delivery person, where no gun or weapon was involved and no one was
injured, could have been more compelling to a jury than an argument by defense
counsel that his prior conviction and sentence were for the lowest degree of robbery
151

Doc. no. 39, at 22.

138

in Alabama. Whether this would have been sufficient to sway the jury, and the court,
to impose a sentence of life without parole is another matter. In Davis’s case, unlike
in Rompilla, the State was not relying solely on the prior conviction of a violent
offense. It also relied upon the fact that the murder was committed during a robbery
as an aggravating circumstance. Importantly, the fact of the robbery was undisputed
once Davis was convicted as charged.
Moreover, a review of the Rule 32 testimony of Jadie Boozer, the attorney who
represented Davis in his prior robbery case, reveals that the facts surrounding the
robbery actually could have been more damaging to Davis than he claims.152
Although Boozer testified that no weapon was used or recovered, he also testified on
cross-examination that the victim’s narrative in the police report stated that “[o]ne
black male wearing a jacket and some dark cloth over his face confronted [the victim]
and said, ‘[g]ive it up, man,’” that a “[b]lack male had his hand – right hand in the
jacket pocket as if he, black male, had a gun,” and that the victim “gave up the
money.”153 The events as recorded in the police report mirror the facts of the instant
case, and both sets of facts suggest an escalating pattern of violence by Davis.
Because there was evidence of the threatened use of a firearm, the prior robbery,

152
153

Rule 32 R. Vol. 19, Tab 58, at 201-210.
Id. at 205, 209 (alteration provided) (emphasis provided).

139

which Boozer also testified had originally been charged as a first degree offense,
might not have been viewed by the jury as a mere “prank,” as Davis now suggests.
The state court’s denial of this claim was not an unreasonable application of clearly
established federal law, or based on an unreasonable determination of clearly
established federal law.
This claim is due to be denied.
5.

Failure to object to the submission of the penalty phase case to the jury
on a Friday at 4:30 p.m.

Davis contends that trial counsel were ineffective for failing to object to the
submission of the penalty phase case to the jury on a Friday at 4:30 p.m. Davis offers
the following in support of this claim:
Submitting the case to the jury this late in the day before the weekend,
and shortly before Christmas, placed pressure on the jurors to try to
“wind up” deliberations to avoid being sequestered over the weekend.
The consequence of submitting the case to Davis’[s] jury at such a late
hour on a Friday created a climate for a hurried, unconsidered sentence.
The facts bear this out: by 7:00 p.m. that Friday evening, the jury
reached a decision of 7 to 5 in favor of execution. Tr. 1374. Trial
counsel posed no objection to the jury continuing to deliberate after such
an exhausting and demanding day. Only twenty minutes later, they
voted 11 to 1 in favor of execution. Tr. 1377. Trial counsel erred in not
objecting to the jury’s deliberating Davis’[s] fate while under such time
pressure.
Doc. no. 33, at 42 (alterations supplied).154
154

This is the entirety of Davis’s claim.

140

Respondent maintains that this claim is unexhausted, pointing out that, even
though Davis raised the claim in his second amended Rule 32 petition,155 he did not
raise it on collateral appeal. 156 Davis argues that this claim was “in fact raised on
collateral appeal,”157 but a review of his appellate brief does not reveal any mention
of the claim.158 The claim, therefore, is procedurally defaulted, and Davis has offered
nothing to excuse the default.
Respondent argues, in the alternative, that habeas relief cannot be granted on
this claim because the Rule 32 court denied the claim on the merits, and
Davis has not alleged, and cannot show, that the denial of relief on his
claim in state court “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.”
Doc. no. 35, at 26.159 Contrary to Respondent’s argument, however, it does not
appear that the trial court addressed this claim at all. As a result — i.e., because the
trial court made no findings on this claim — there is nothing for this court to review.
155

Rule 32 C.R. Vol. 12, Tab 47, at 29.

156

Doc. no. 35, at 25.

157

Doc. no. 39, at 8.

158

See Rule 32 C.R. Vol. 57, Tab 60.

159

Respondent cites “C.R2. 1190-1191” as the pages of the trial court’s opinion on which it
denied this claim on the merits. The trial court’s opinion denying Davis’s Second Amended Rule
32 petition is located in Rule 32 C.R. Vol. 62, Tab 80. The pages cited by the respondent correspond
to Rule 32 C.R. Vol. 62, Tab 80, at 57-58. However, the trial court did not address this claim on
the pages cited by the respondent.

141

Furthermore, even assuming the claim were properly before this court, it would
be due to be denied on the merits. Davis has offered nothing beyond a conclusory
assertion that counsel “erred in not objecting to the jury’s deliberating Davis’s fate
while under such time pressure.” Similarly, he has offered nothing to indicate that
he was prejudiced by counsel’s failure to object to the jury’s deliberations beginning
on a Friday night.
C.

Counsel Was Ineffective for Not Objecting to Prosecutorial Misconduct
Davis asserts that repeated instances of prosecutorial misconduct violated his

rights to a fair trial, due process, and a reliable sentence.160 He also contends that trial
counsel were ineffective for failing to object to the alleged instances of prosecutorial
misconduct.
The relevant question on habeas review of claims of prosecutorial misconduct
is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The
Eleventh Circuit explicated that standard in Spivey v. Head, 207 F.3d 1263 (11th Cir.
2000), cert. denied, 531 U.S. 1053 (2000):

160

Doc. no. 33, at 42-50.

142

Improper prosecutorial arguments, especially misstatements of
law, must be considered carefully because “while wrapped in the cloak
of state authority [they] have a heightened impact on the jury.” Drake
v. Kemp, 762 F.2d 1449, 1459 (11th Cir. 1985). When assessing this
type of claim, this Court examines the entire context of the judicial
proceeding to determine if it was fundamentally unfair. See Brooks v.
Kemp, 762 F.2d 1383, 1400 (11th Cir. 1985) (en banc), vacated, 478
U.S. 1016, 106 S. Ct. 3325, 92 L. Ed. 2d 732 (1986), reinstated, 809
F.2d 700 (1987). Not every improper prosecutorial remark, therefore,
renders the trial unfair. See id. Improper arguments do, however, render
the capital sentencing hearing fundamentally unfair and require reversal
when there is a reasonable probability that they changed the outcome of
the case. See id. at 1402. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id. at 1401
(quoting Strickland v. Washington, 466 U.S. 668, 669, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). Proper arguments, regardless of their impact
on the outcome of the case, do not render a trial unfair.
Spivey, 207 F.3d at 1275-76 (alteration in original). Moreover, “improper statements
during argument can be cured by clear and accurate jury instructions.” Johnson v.
Alabama, 256 F.3d 1156, 1185 (11th Cir. 2001).
Davis raises nine distinct examples of prosecutorial misconduct as separate
claims in his federal petition. All of those claims were raised for the first time in
Davis’s petition for writ of certiorari to the Supreme Court of Alabama on direct
appeal.161 Although the Alabama Supreme Court did not specifically address all of
those claims in its opinion, it did note that it had thoroughly reviewed the petitioner’s
arguments and found no reversible error. Ex Parte Davis, 718 So.2d 1166 (Ala.
161

C.R. Vol. 10, Tab 35, at 49-65.

143

1998). That decision was neither contrary to nor an unreasonable application of
clearly established federal law, nor was it based on an unreasonable determination of
the facts in light of the evidence presented. As will be seen, the record establishes
that the comments did not “so infect the trial with an unfairness” as to deprive Davis
of constitutional due process. When considered in light of the weight of the evidence,
the arguments made by defense counsel, and the trial court’s instructions to the jury,
it is not likely that the prosecutor’s comments influenced the jury’s decision. See
Darden, 477 U.S. at 182 (citing United States v. Young, 470 U.S. 1 (1985)).
1.

Implying that Davis had been involved in a gang prior to his arrest

Davis asserts that the prosecutor violated his right to a fair trial by repeatedly
implying during his closing argument that Davis was a gang member and, therefore,
should be convicted and sentenced to death.162 In support of this assertion, Davis
contends that the prosecutor “referred to Davis’[s] use of bandanas on previous
occasions, and he also called Davis a ‘hoodlum’ who ‘conned’ a state witness.”163
The relevant portions of the opinion of the Alabama Supreme Court on direct
appeal read as follows:

162

Doc. no. 33, at 43.

163

Id. (alteration supplied). Davis adds that the “pre-sentence investigative report also
contained damaging hearsay about Davis’s alleged gang involvement.” Id. (alteration supplied). This
claim was raised separately in Claim H and will be addressed as part of Claim H.

144

Davis next argues that in his closing argument the prosecutor
made comments insinuating that Davis had been involved in a gang
before he was arrested for this crime. Davis points out that the evidence
in this case did not suggest that Hazle’s murder was connected to gang
activity, and he argues that the prosecutor nevertheless used his closing
argument to inject irrelevant implications of gang activity into the trial,
in violation of the trial court’s ruling on a motion in limine to exclude
any evidence of alleged gang activity on Davis’s part.
....
No evidence at trial established, or even implied, that Davis had
any involvement in gangs. However, Davis argues that the prosecutor
circumvented the motion in limine by making remarks during closing
argument that, he says, were tantamount to accusations that Davis was
a gang member and that were so highly prejudicial as to mandate the
reversal of his conviction.
During closing arguments, defense counsel argued primarily that
the testimony of Willie Smith, Alphonso Phillips, Terrance Phillips, and
others was not reliable. In response to these arguments, the prosecutor
stated, in pertinent part:
[The State]: Ladies and gentlemen, if I brought – if I could
– if I could bring somebody that was the pillar of the
community down here to say, “Yes, I saw Jimmy Davis kill
Johnny Hazle at Direct Oil,” then don’t you think I’d do it?
But that’s not what you get. You get the people that
were there. The people that are involved in the crime . . .
. I don’t have anybody from Parker Memorial or from St.
Michael’s [apparent references to Baptist and Episcopal
churches in Anniston]. And you have to understand that.
We’ve got people that this is the streets [sic]. This
is the streets where young men these days make their bones
and they carry the badge of honor with bandannas –
145

[Defense counsel]: Judge, I object to that line of argument.
[The State]: Judge, I can appeal for law enforcement all
day long. And we would ask the court to allow me to do
so.
The Court: Overrule the objection.
[The State]: They have guns, just like this gun that was
acquired. And in this situation, the guns and the bandannas
led to a man’s death. These were teenagers from good
homes. I think you could see that.
Davis concedes that in its closing argument the State did not
explicitly accuse him of being a gang member; however, he argues that
it is “common knowledge” that bandannas may be used as gang
paraphernalia and that the prosecution’s reference to a bandanna as a
“badge of honor” so strongly invoked the imagery of gang membership
as to amount to an outright accusation that the defendant was a gang
member.
Davis relies upon Haralson v. State, 227 Ga. App. 118, 488 S.E.
2d 497 (1997), wherein the Georgia Court of Appeals affirmed the
granting of a mistrial on the ground that the prosecutor had
impermissibly placed the defendant’s character into issue by eliciting
testimony that the defendant was a gang member. . . .
....
Davis argues that here, as in Haralson, the prosecutor’s mention
of “bandannas” during his closing remarks was synonymous with
reference to gang involvement. Davis points out that Alabama courts
have considered evidence of a defendant’s association with a “gang” as
functionally equivalent to evidence of a “collateral criminal act,” so that
such evidence “is presumptively prejudicial and . . . is admissible only
when [it is] probative and [only] under certain limited exceptions.”

146

Thomas v. State, 625 So.2d 1149, 1153 (Ala. Cr. App. 1992), reversed
on other grounds, Ex parte Thomas, 625 So.2d 1156 (Ala. 1993). . . .
....
We recognize that admitting evidence of a defendant’s association
with an ill-received organization or group may constitute reversible
error, Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d
309 (1992), and that mentioning gang activity — in particular the
prosecutor’s mentioning it in the trial of a case that is itself not
gang-related, and to which gang-related activity has no connection —
may invite a reversal. Walker v. State, 631 So. 2d 294 (Ala. Cr.
App.1993). However, we do not agree with Davis that the prosecutor’s
mention of “bandannas” as a “badge of honor” was equivalent to an
improper reference to gang activity, such as was present in both
Haralson and Thomas. In Haralson, the detailed evidence as to the
defendant’s wearing a bandanna and the significance of its color
unequivocally linked the defendant with gang involvement. Likewise,
in Thomas, the evidence directly established that the defendant was
associated with a gang and it was particularly prejudicial because the
crime in question was of a type commonly associated with gang activity.
In contrast, in this present case, the prosecutor’s reference to
“bandannas” was not even made in regard to Davis; it certainly did not
directly link him to gang involvement. The prosecutor made this
reference in the context of responding to defense counsel’s argument
that the State’s witnesses were “liars”; the prosecutor admitted that the
State’s witnesses were not “pillar [s] of the community” but were instead
from “the streets where young men . . . carry the badge of honor with
bandannas.” Even in view of “the massive media coverage of gang
violence in contemporary society,” Ex parte Thomas, 625 So. 2d at
1157, we find no basis for holding that the prosecutor’s reference to
bandannas was an overt, or even a veiled, reference to a gang affiliation.
Moreover, if the reference to bandannas carries any generally negative
connotation, it necessarily reflects upon the State’s own witnesses, not
upon the defendant. We therefore hold that the prosecutor’s remarks do
not warrant a reversal of Davis’s conviction.
147

Ex parte Davis, 718 So.2d 1166, 1174-77 (Ala. 1998) (emphasis and alterations in
original).
Review of the closing arguments confirms that it was not unreasonable for the
Alabama Supreme Court to conclude that any potentially negative connotation from
the prosecutor’s reference to “bandannas” reflected on the State’s own witnesses.
There was no overt or veiled reference to Davis’s alleged gang membership. As such,
Davis has not shown that the state court’s determination that the prosecutor’s remarks
did not warrant a reversal was contrary to, or an unreasonable application of, clearly
established federal law, or that the decision was based upon an unreasonable
determination of the facts in light of the evidence presented in the state courts.
Davis argues that counsel were ineffective for failing to object when the
prosecutor improperly implied that he had been involved in a gang prior to his arrest.
Davis did not raise this claim in state court.164 Thus, it is has not been exhausted, and
164

Davis alleged in Claim F of his Rule 32 petition that “Trial Counsel Failed to Prevent or
Otherwise Object to Important Instances of Prosecutorial Misconduct.” Rule 32 C.R. Vol. 14, Tab.
52, at 21. He argued, inter alia, that counsel were ineffective for failing to object to the prosecution
improperly drawing attention to the fact that he did not testify in his own defense and attempting to
improperly bolster the credibility of Alphonso Phillips by painting him as a “good kid” led astray
by Davis. Id. at 21-22. Davis did not argue, as a part of Claim F, that counsel were ineffective for
failing to object when the prosecutor improperly implied that he had been involved in a gang prior
to his arrest. Id. at 21-23. However, in Claim C of his Rule 32 petition, in which Davis alleged
counsel were ineffective for failing to challenge the State’s investigation and presentation of the case,
he argued that counsel were ineffective for failing to “ensure the pretrial ruling [that the prosecution
was barred from introducing any evidence that in any way implied that the murder was gang-related
or that Davis or the co-defendants were involved in a gang] was enforced and that gang-related
references and innuendo did not make their way into the trial.” Rule 32 C.R. Vol. 14, Tab. 52, at 11-

148

this court cannot review it. Even if the claim were properly before this court, it would
be due to be dismissed, because the underlying claim of prosecutorial misconduct
upon which the ineffective assistance of counsel claim is based is without merit.
Counsel cannot be found deficient for failing to make an objection that was not
warranted.
2.

Improperly telling the jury that one purpose of convicting Davis was to
decrease crime in general

Davis complains that the prosecutor made the following closing argument:
“That doesn’t mean that if you believe beyond a reasonable doubt this defendant is
guilty and you convict him that it’s not going to have an effect [on crime in general].
It doesn’t mean that whatsoever.”165 Davis contends that the prosecutor’s argument
was irrelevant, prejudicial, and violated the principles established in Woodson v.
North Carolina, 428 U.S. 280, 304 (1976) (holding that capital cases require
consideration of “the character and record of the individual offender” and “the
circumstances of the particular offense”) and Copeland v. Washington, 232 F.3d 969,
975 (8th Cir. 2000) (prosecutor unlawfully referenced “the other murders in all of
Missouri’s history” and, thereby, improperly evoked the jury’s fear of crime).
12. Davis raised this claim as Claim A(3) of his federal petition, and it is addressed in that section
of this memorandum opinion. It does not appear that Davis intended for that claim of ineffectiveness
to be a part of the current claim, Claim C(1). However, even if he did, it would be due to be denied
for the same reasons discussed in Claim A(3).
165
Doc. no. 33, at 44 (alteration in original).

149

The Alabama Supreme Court summarily denied relief, Ex Parte Davis, 718
So.2d 1166 (Ala. 1998), and Davis merely reasserts the arguments made in state
court. Davis does not explain how the denial of this claim was an unreasonable
determination of clearly established federal law. Moreover, the trial transcript reveals
that the portion of the argument quoted by Davis was taken out of context. The
entirety of the comment is as follows:
Your job, Ladies and Gentlemen, is to decide guilt or innocence
of Jimmy Davis. And you’re [sic] job is not to decide, as Mr. Giddens
and Mr. Adams said before, that there’s too much violence in the street.
That doesn’t mean that if you believe beyond a reasonable doubt this
defendant is guilty and you convict him that it’s not going to have an
affect [sic]. It doesn’t mean that whatsoever.
R. Vol. 7, Tab 14, at 1232. Although the prosecutor admitted that convicting Davis
might have an impact on street violence in general, he clearly advised the jurors that
their only purpose was to decide if Davis was guilty or innocent, regardless of the
possible effect their decision might have. The comment is not comparable to the
outrageously objectionable arguments made in Copeland; and there is no reasonable
likelihood that the comment rendered Davis’s trial unfair. Davis is entitled to no
relief on this claim.
Davis also argues that counsel were ineffective for failing to object when the
prosecutor improperly told the jury that one purpose of convicting him was to

150

decrease crime in general. Davis did not raise this claim in state court. Thus, it has
not been exhausted, and this court cannot review it. Even if the claim were properly
before this court, it would be due to be dismissed, because the underlying claim of
prosecutorial misconduct upon which the ineffective assistance of counsel claim is
based is without merit. Counsel cannot be found deficient for failing to make an
objection that was not warranted.
Misstating the law and arguing facts not in evidence

3.

Davis argues that the prosecutor impermissibly argued “facts” that were not in
evidence, and manipulated other facts to induce the jury to convict and sentence him
to death.166 He cites Copeland v. Washington, 232 F.3d 969, 975 (8th Cir. 2000) for
the general proposition that it is unreasonable, in light of Supreme Court precedent,
for a state court to find harmless a prosecutor’s reference to facts not in evidence
during a penalty stage argument.167 He provides no further elaboration. In the one
sentence Davis devotes to this claim, he fails to identify the facts — either not in
evidence or allegedly manipulated — that were improperly and impermissibly argued
by the prosecutor.168
166

Doc. no. 33, at 44.

167

Id.

168

Likewise, Davis failed identify these facts when he raised this claim in his certiorari
petition on direct appeal. See C.R. Vol. 10, Tab 35, at 53.

151

This claim was summarily denied by the Alabama Supreme Court. By merely
asserting this ground for relief, without more, Davis has failed to satisfy his burden
of proof or the requirements of 28 U.S.C. § 2254(e)(2) and Rule 2(c), Rules
Governing § 2254 Cases in the United States District Courts. See, e.g., McFarland
v. Scott, 512 U.S. 849, 856 (1994). The absence of a fully-developed argument
necessarily leads this court to conclude that Davis has failed to show that the state
court’s denial of this claim was contrary to, or an unreasonable application of, clearly
established federal law. See Davis v. State, 9 So. 3d 514 (Ala. Crim. App. 2006).
Davis also argues that counsel were ineffective for failing to object when the
prosecutor repeatedly and impermissibly argued “facts” that were not in evidence and
manipulated other facts to prejudice him and induce the jury to convict him. Davis
did not raise this claim in state court. Thus, it has not been exhausted, and this court
cannot review it. Even if the claim were properly before this court, it would be due
to be dismissed, because the underlying claim of prosecutorial misconduct upon
which the ineffective assistance of counsel claim is based is clearly without merit.
Counsel cannot be found deficient for failing to make an objection that was not
warranted.
4.

Improperly vouching for the veracity and quality of state witnesses

152

Davis contends that “the prosecutor repeatedly attempted to bolster the
credibility of the State’s witnesses, in clear violation of federal law. Berger v. United
States, 295 U.S. 78, 88 (1935) (‘[I]mproper suggestions, insinuations, and especially,
assertions of personal knowledge are apt to carry much weight against the accused
when they should properly carry none’).”169 Davis adds that his attorneys’ failure to
adequately investigate the circumstances of his case made it impossible for them to
know that the prosecutor’s characterizations were false.170
Davis first complains that the prosecutor improperly vouched for the credibility
of Shannon Hardy Wilson, who testified, among other things, that she heard Davis
confess to committing the murder.171 Davis points to the following argument by the
prosecutor: “Shannon Hardy, what is her axe to grind in this thing? Really, I doubt
very seriously — well, you Ladies and Gentleman saw her testify. I don’t think she
was trying to cover — didn’t appear like she was trying to cover for her cousin in the
situation.”172
This claim was rejected without discussion by the Alabama Supreme Court.
Ex Parte Davis, 718 So.2d 1166 (Ala. 1998). A review of the record indicates that,

169

Doc. no. 33, at 44 (alteration supplied).

170

Id.

171

Id. at 45. Ms. Wilson’s testimony is located at R. Vol. 6, at 991-1034.
Doc. no. 33, at 45.

172

153

during closing arguments, defense counsel attacked Wilson’s credibility, arguing that
she had lied to protect her cousins, Alphonso and Terrance Phillips.173

The

prosecutor’s argument was made in response to that attack upon Hardy’s credibility,
and was a legitimate inference from the evidence. The state court’s implicit
determination that the prosecutor’s argument did not constitute plain error was neither
contrary to, nor an unreasonable application of, clearly established federal law, nor
was it based upon an unreasonable determination of the facts in light of the evidence.
Davis next claims that the prosecutor improperly attempted to portray
co-defendant Alphonso Phillips as a “good kid” who had been led astray by Davis.174
Specifically, Davis points to the prosecutor asking Alphonso if he had “ever been
involved in anything like this before in your life,” to which Alphonso answered, “No,
sir.”175 Davis contends that, at the time of trial, the District Attorney’s Office had a
list compiled by the Anniston Police Department, confirming that Alphonso was
known to be a gang member,176 and the department was aware that Alphonso had
previously been arrested for disorderly conduct, a weapons violation, trespass, and

173
174
175

R. Vol. 7, Tab 13, at 1178, 1184, 1196-1205.
Doc. no. 33, at 45.
R. Vol. 7, at 1135.

176

Doc. no. 33, at 45. Davis points out that, during his testimony at the Rule 32 hearing,
Assistant District Attorney Ron Wood stated that he did not know if this information was disclosed
to Davis’s attorneys during the course of the trial. Id. (citing Rule 32 R. Vol. 23, at 1086).

154

violation of a liquor law.177 Davis further contends that the prosecutor made repeated
attempts to improperly bolster the credibility of Terrance Phillips, despite knowing
that Terrance had “entered into a consent decree in connection with a third-degree
assault charge in 1992.”178
Davis argues that although the prosecution knew that both Alphonso and
Terrance Phillips had criminal records relating to guns and assaults, District Attorney
Joe Hubbard made the following statements during his closing argument:
Terrance Phillips did a terrible thing. He got involved in something he
shouldn’t get involved in. He did a terrible thing and he knows that.
But he was not a hard core criminal. He was going to school. Never
been in trouble before. Terrance Phillips, 16 years old, no trouble
whatsoever, a good boy, on the edge of going bad if something didn’t
happen. And something did happen. And Alphonso Phillips, a boy that
hadn’t crossed the edge was looking for something, looking for
whatever. Crossed the edge and got into some trouble. Because they
were looking for somebody to help him, looked to somebody to be their
big brother, and the father or whatever. And they picked him. They
picked Jimmy Davis. And they picked the wrong one.

177

Id. Davis points out that, during his Rule 32 testimony, Mr. Wood stated that he did not
know if this information was disclosed to Davis’s attorneys during the course of the trial. Id. (citing
Rule 32 R. Vol. 23, at 1089).
178
Id. Davis points out that in his Rule 32 testimony, Mr. Wood stated that he did not know
if this information was made available to trial counsel. Id. (citing Rule 32 R. Vol. 23, at 1088).
Further, Davis does not explain what a “consent decree” is. At the time of his trial, it was
defined by § 12-15-1(6), Ala. Code 1975, as “[a]n order, entered after the filing of a delinquency
petition and before the entry of an adjudication order, suspending the proceedings and continuing
the case of the child under supervision in the child’s own home, under terms and conditions agreed
to by all parties concerned.” See D.D.A. v. State, 650 So.2d 571, 573 (Ala. Crim. App. 1994)
(alteration in original).

155

Doc. no. 33, at 46 (quoting R. Vol. 7, Tab 14, at 1231). Davis argues that, because the
prosecution did not disclose the information it had regarding Alphonso’s gang
involvement, his attorneys were unable to challenge the prosecutor’s improper
vouching for the credibility of Alphonso and Terrance, and were unable to use the
information for cross-examination purposes.179
Many of the arguments and facts presented here were not raised in the state
court. When Davis first raised this claim in his petition for a writ certiorari on direct
appeal, he objected to the following instances of alleged improper bolstering:
The next witness for whose veracity the prosecutor testified was
Terrance Phillips: “Terrance Phillips, 16 years old, no trouble
whatsoever, a good boy. . . .” R. 1231) The prosecutor continued
through his list of crucial witnesses: “And Alphonso Phillips, a boy that
hadn’t crossed the edge, was looking for something, looking for
whatever.” R. 1231) Later, the prosecutor again vouched for the
credibility of the witnesses, the very witnesses who received “deals”
from the prosecutor in exchange for their favorable testimony: “It’s rare,
Ladies and Gentlemen, to see people cooperate against their friend in
situations like this. And that’s the reason you can’t just discount what
they’ve done here today, yesterday. It takes some guts, particularly
when you as young as though (sic) two fellows were.” R. 1235).
C.R. Vol. 10, Tab. 35, at 54 (alteration in original). Davis argued that the “prosecutor
made a concerted effort to attest to the credibility of each witness, cumulatively
bolstering the state’s otherwise weak case.”180 His argument was based on the
179
180

Doc. no. 33, at 46 (quoting R. Vol. 7, Tab 14, at 1231).
C.R. Vol. 10, Tab. 35, at 54.

156

premise that it is “grossly improper” for a prosecutor, as a public official, to
personally vouch for the credibility of his witnesses, especially when that testimony
constitutes the bulk of the State’s case against the defendant.181 That claim was
rejected by the Alabama Supreme Court without discussion. Ex Parte Davis, 718
So.2d 1166 (Ala. 1998).
The denial of that claim was not contrary to, or an unreasonable application of,
clearly established federal law, including Donnelly v. DeChristoforo, 416 U.S. 637
(1974), nor was the decision based upon an unreasonable determination of the facts
in light of the evidence presented in the state courts. Defense counsel had previously
attacked the credibility and character of the Phillips cousins, and argued that they had
conspired to tell lies in order to place all of the blame on Davis.182 The argument that
Davis makes here — i.e., that the prosecutor’s portrayal of the Phillips cousins as
“good kids” was misleading and improper, because he knew or should have known
about their contacts with the juvenile system — was not raised in the petition for writ
of certiorari on direct appeal. The state court did not have the opportunity to address
the claim in light of these belatedly offered “facts”and argument. Thus, the claim has
not been exhausted, and this court cannot review it.183
181

Id. at 55.

182

R. Vol. 7, Tab 13, at 1178-1181, 1183-84, 1187-1211.
To the extent Davis argues that the facts and argument were not raised on appeal because

183

157

Davis also contends that counsel were ineffective for failing to object to the
allegedly improper arguments about Shannon Wilson and the Phillips cousins
referenced above.

He adds that counsels’ unreasonable failure to adequately

investigate the circumstances of his case made it impossible for them to know that the
prosecutor’s characterizations were false. In his Rule 32 petition, Davis raised only
the portion of this claim relating to Alphonso Phillips. Specifically, Davis alleged
that:
The prosecutor made repeated attempts to improperly bolster the
credibility of Alphonso Phillips by painting him as a “good kid” led
astray by Davis. The prosecutor asked this elder Phillips cousin if he
had ever been involved with anything like the Hazel robbery and
murder. Alphonso Phillips replied “no.” (Tr. 1135). In closing, the
prosecutor refers to Alphonso as “a boy that hadn’t crossed the edge,
was looking for something, for whatever.” (Tr. 1231). If trial counsel
had spent any time whatsoever investigating Alphonso Phillips’ past,
they would have learned that he had been in trouble on multiple
occasions including conduct involving a firearm. Because defense
counsel failed to conduct an investigation, however, they could not
challenge the prosecutor’s portrayal of Alphonso Phillips and
consequently failed to challenge Alphonso Phillips’ credibility.
Rule 32 C.R. Vol. 14, Tab. 52, at 22.184 The trial court denied the claim, saying that
the Court finds that the State did not “improperly bolster” the testimony
of Alphonso Phillips. The State argued legitimate, reasonable inferences
from the record. This type of argument is well within the State’s right.
of the alleged Brady violations by the State, the Brady claim will be addressed separately.
184

Davis raised the identical issue on appeal from the denial of his Rule 32 petition. Rule
32 C.R., Vol. 57, Tab 60, at 41-42. However, the Alabama Court of Criminal Appeals did not
address the claim in its opinion. See Davis v. State, 9 So. 3d 539 (Ala. Crim. App. 2008).

158

Davis certainly did not establish prejudice as to this claim. Further,
having read the closing argument of the State, this Court cannot find that
no reasonable attorney would have failed to object to this line of
argument.
Rule 32 C.R. Vol. 62, Tab 80, at 20. Davis has not established that the state court
unreasonably determined that he failed to prove either deficient performance by
counsel or prejudice from counsel’s failure to object to the prosecutor’s statements
about Alphonso Phillips.
Davis did not raise his claims that counsel were ineffective for failing to object
to allegedly improper arguments about Shannon Wilson and Terrance Phillips in state
court. Thus, the portion of this claim pertaining to Shannon Wilson and Terrance
Phillips has not been exhausted, and this court cannot review it.
5.

Improperly commenting on Davis’s failure to testify

Davis contends that his constitutional rights were violated by the prosecutor’s
comments about his silence throughout the trial. He argues that:
During his guilt-phase closing argument, the prosecutor drew the
jury’s attention to the fact that Davis had not testified. Tr. 1234. After
emphasizing to the jury that each of the accomplices and other witnesses
had admitted to minor roles in the crime, the prosecutor implied that the
only person who could have told a different story was Davis. By
rhetorically asking who could contradict each witnesses’ [sic] testimony,
Davis contends that the prosecutor focused the jury’s attention on the
fact that Davis had not denied the accomplices’ allegations. Tr.
1230-32.

159

Doc. no. 33, at 47. The Supreme Court of Alabama addressed this claim as follows:
Davis next argues that during closing arguments the prosecution
made improper remarks that violated his rights to a fair trial, due
process, and a reliable verdict. Davis first contends that the prosecution
improperly commented upon his decision not to testify at trial and that,
under Alabama law, this error, taken alone, mandates a reversal of his
conviction. Davis points out that “[i]t is a basic principle of law that
once a defendant chooses not to testify at his trial the exercise of that
choice is not subject to comment by the prosecution.” Wherry v. State,
402 So.2d 1130, 1133 (Ala. Cr. App. 1981). “In determining if a
prosecutorial remark impairs the integrity of the defendant’s right not to
testify the test is whether the defense can show that the remark[, given
the context in which it was made,] was intended to comment on the
defendant’s silence or was of such character that a jury would naturally
and necessarily construe it as a comment on the defendant’s silence.”
United States v. LeQuire, 943 F.2d 1554, 1565 (11th Cir. 1991), cert.
denied, 505 U.S. 1223, 112 S. Ct. 3037, 120 L. Ed. 2d 906 (1992).
Additionally, we note that at trial Davis did not object to the comments
he complains of here, and, therefore, that his argument must be reviewed
for plain error; that is, for “those errors that ‘seriously affect the fairness,
integrity or public reputation of judicial proceedings.’” Kuenzel v. State,
577 So.2d 474 (Ala. Cr. App. 1990), affirmed, Ex parte Kuenzel, 577
So.2d 531, cert. denied, Kuenzel v. Alabama, 502 U.S. 886, 112 S. Ct.
242, 116 L. Ed. 2d 197 (1991) (quoting United States v. Young, 470 U.S.
1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)).
Davis argues that during closing argument the prosecutor
repeatedly drew the jury’s attention to the fact that Davis did not testify.
According to Davis, the prosecutor reminded the jury that each of the
other persons who participated in the crime had testified and that only
Davis could “tell a different story.” To support this argument, Davis
points to the following excerpt from the prosecutor’s argument:
What do we have to show that Alphonso and
Terrance are telling the truth? I submit to you, ladies and
gentlemen, if you’re going to get together and concoct a
160

story about somebody else doing a crime, first thing you’re
going to do is exonerate yourself. You’re going to get
yourself out of it.
Now, what would keep Shannon, Alphonso and
Terrance from getting together and putting Alphonso as a
lookout that just walked off, didn’t do anything? Why did
Alphonso change his story now? . . . Who was going to
say different? . . .
....
Why didn’t they say Jimmy hid the gun in the back
yard? Who was going to say different than that?
....
Why did Alphonso – why didn’t he just say Jimmy
had the gun all day? Why didn’t he say that? Who was
going to dispute that? . . . Why didn’t he just say Jimmy
had it? Who was there to dispute it? Why didn’t he?
Because it wasn’t the truth.
....
It’s rare, ladies and gentlemen, to see people
cooperate against their friends in situations like this. And
that’s the reason you can’t just discount what they’ve done
here today, yesterday. It takes some guts, particularly
when you’re as young as though [sic] fellows were.
....
Because, ladies and gentlemen, I wanted them to
testify. And they did testify. . . . And I submit to you,
ladies and gentlemen, you know who it was that did this

161

killing. It’s Jimmy Davis. The man’s been sitting over
there with his attorneys. (Emphasis added.)
Davis argues that these comments served only to focus the jury’s
attention on the fact that he did not personally refute the testimony of the
other witnesses, and that they implied to the jury that he would have
done so if he was innocent.
In closing argument, Davis’s counsel attacked the credibility and
character of the witnesses who knew Davis, suggesting that Alphonso
Phillips and the other witnesses against Davis could gain from lying on
the stand, and thus conspired against Davis by testifying against him.
The State points out that, in its rebuttal argument, it repeatedly offered
examples of how, if the witnesses were indeed conspiring to falsely
testify against Davis, they could have done so to their own greater
benefit by telling a different story. After reviewing the State’s
comments in their full context, we cannot hold that they would naturally
and necessarily be construed as an attack on Davis’s decision not to
testify on his own behalf; rather, they could well be construed as a form
of cohesive rebuttal to defense counsel’s theory that the witnesses
against Davis were lying in order to rid themselves of involvement in
the crime.
Ex Parte Davis, 718 So.2d 1166, 1173-74 (Ala. 1998) (alterations and emphasis in
original).
The Supreme Court has held that direct comments by the prosecution about a
defendant’s silence violate the Fifth Amendment. Griffin v. California, 380 U.S. 609,
615 (1965). When determining whether a prosecutor has made an impermissible
comment, federal courts must consider the totality of the circumstances and evaluate
“whether the remark is ‘manifestly intended’ by the prosecutor or ‘would naturally

162

and necessarily be understood by the jury’ as a comment on the defendant’s silence.”
Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987) (citing United States v.
Vera, 701 F.2d 1349 (11th Cir. 1983)).
The Eleventh Circuit described the proper manner in which to evaluate a
Griffin claim in Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002), saying:
The Fifth Amendment prohibits a prosecutor from
commenting directly or indirectly on a defendant’s failure
to testify.
A prosecutor’s statement violates the
defendant’s right to remain silent if either (1) the statement
was manifestly intended to be a comment on the
defendant’s failure to testify; or (2) the statement was of
such a character that a jury would naturally and necessarily
take it to be a comment on the failure of the accused to
testify. The question is not whether the jury possibly or
even probably would view the remark in this manner, but
whether the jury necessarily would have done so. The
defendant bears the burden of establishing the existence of
one of the two criteria. The comment must be examined in
context, in order to evaluate the prosecutor’s motive and to
discern the impact of the statement . . . .
United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (citations,
quotations, and footnotes omitted). See also United States v. LeQuire,
943 F.2d 1554, 1565 (11th Cir. 1991) (same); Solomon v. Kemp, 735
F.2d 395, 401 (11th Cir. 1984).
In applying Griffin, we have strictly enforced the requirement that
a defendant show that the allegedly offensive comment was either
manifestly intended to be a comment on the defendant’s silence or that
the comment naturally and necessarily related to the defendant’s silence.
Isaacs, 300 F.3d at1270 (ellipses supplied).
163

Davis has failed to explain how the Alabama Supreme Court’s decision with
respect to the prosecutor’s alleged comments about his failure to testify was contrary
to or an objectively unreasonable application of Griffin. He is entitled to no relief.
Davis also claims that his attorneys were ineffective for failing to object to the
allegedly improper argument. That claim was raised in Davis’s Rule 32 petition, and
on appeal from the denial of that petition. The Alabama Court of Criminal Appeals
affirmed the trial court’s denial of this claim, holding:
The circuit court made the following findings on this claim:
In paragraph 43, Davis alleges [ineffective assistance
of counsel] because the prosecutor allegedly drew attention
to the fact that Davis did not testify, without objection from
defense counsel. The contention that the prosecutor
improperly commented on Davis’s failure to testify was
reviewed and rejected by the Supreme Court of Alabama.
Ex parte Davis, 718 So.2d 1166, 1174 (Ala. 1998). Having
failed on the underlying issue on direct appeal, Davis
cannot succeed by relitigating this issue in the guise of
[ineffective assistance of counsel]. See, Williams [v. State],
783 So.2d 108, 133 (Ala. Crim. App. 2000) (“Because we
determined that the remarks did not constitute plain error
even if objectionable, appellant cannot relitigate the issue
under the guise of ineffective assistance of counsel in a
post-conviction proceeding. A finding of no manifest
injustice under the ‘plain error’ standard on a direct appeal
serves to establish a finding of no prejudice under the test
for ineffective assistance of counsel provided in Strickland
v. Washington [, 466 U.S. 668 (1984) ].”). Because the
underlying issue lacks merit, counsel could not have been
ineffective in this regard. See Card v. Dugger, 911 F.2d
164

1494, 1520 (11th Cir. 1990) (“Counsel cannot be labeled
ineffective for failing to raise issues which have no
merit.”).
R. 1152-53.)
Initially we note that the circuit court erroneously relied on a
decision by this Court, Williams v. State, 783 So.2d 108 (Ala. Crim.
App. 2000), that was later reversed by the Alabama Supreme Court.
However, the circuit court issued its order before the Supreme Court
released Ex parte Taylor, 10 So.3d 1075 (Ala. 2005). The Taylor court
held:
Although it may be the rare case in which the
application of the plain-error test and the prejudice prong
of the Strickland [v. Washington, 466 U.S. 668 (1984) ] test
will result in different outcomes, a determination on direct
appeal that there has been no plain error does not
automatically foreclose a determination of the existence of
the prejudice required under Strickland to sustain a claim
of ineffective assistance of counsel.”
Taylor, 10 So. 3d at 1078.
On direct appeal the Supreme Court stated the following
concerning the prosecutor’s argument in closing:
After reviewing the State’s comments in their full context,
we cannot hold that they would naturally and necessarily
be construed as an attack on Davis’s decision not to testify
on his own behalf; rather, they could well be construed as
a form of cohesive rebuttal to defense counsel’s theory that
the witnesses against Davis were lying in order to rid
themselves of involvement in the crime.
Ex parte Davis, 718 So.2d 1166, 1174 (Ala. 1998). The Alabama
Supreme Court specifically found that the prosecutor’s comments were
165

not improper. “The sixth amendment right to effective assistance of
counsel does not require counsel to raise every objection without regard
to its merit.” Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.
1984). See also Thomas v. Jones, 891 F.2d 1500 (11th Cir. 1989)
(counsel not ineffective for failing to object to admissible evidence).
Therefore, counsel was not ineffective for failing to object to a
prosecutor’s proper argument.
Moreover, whether to object is a matter of trial strategy.
“[C]ounsel’s failure to object to the prosecutor’s summation represents
his tactical decision to avoid underscoring the prosecutor’s statements
so as to draw the jury’s attention to them.” Gatto v. Hoke, 809 F. Supp.
1030, 1039 (E.D.N.Y. 1992). Relief was correctly denied on this claim.
Davis v. State, 9 So. 3d 539, 551-552 (Ala. Crim. App. 2008) (alterations in original).
That determination was neither contrary to clearly established federal law, nor
an unreasonable determination of the facts in light of the evidence. Davis offers no
evidence to refute the court’s conclusion that he failed to establish deficient
performance. Moreover, because he has not established that the allegedly offensive
comment was manifestly intended to be a comment on his silence or naturally and
necessarily related to his silence, he cannot establish that the state court unreasonably
determined that he was not prejudiced by counsels’ failure to object to the comment.
6.

Improperly arguing that the jury could not consider mercy in reaching
a verdict

Davis contends that, during closing arguments, the prosecutor “instructed the
jury to set aside their prerogative to consider mercy and convict Davis of capital

166

murder and sentence him to death,” when he argued: “It’s emotional, isn’t it? Really
emotional . . . . But you Ladies and Gentleman have no place for tears for you right
now”; and when the prosecutor later “urged the jury to disregard feelings for Davis’s
family and impose a death sentence.”185 In its full context, the prosecutor made the
following argument to the jury:
It’s emotional, isn’t it? Really emotional. But, you know, if you believe
– if we can see a 17-year-old boy look at a picture of a man that he was
involved in killing and shed a tear, and then maybe there’s some hope.
Because maybe he is sorry for what happened, for his involvement in it.
But you Ladies and Gentleman have no place for tears for you
right now. You shed them all for Johnny Hazle when this is over with.
But right now you’ve got to do your duty and if you find this defendant
— we’ve shown you beyond a reasonable doubt that he’s guilty, then
don’t let a murderer walk away. And don’t just put it on and say I’ve
done a good job because little Terrance and 17-year-old Alphonso have
bit the bullet, and they’re going to prison.
I ask you, Ladies and Gentlemen, to search your consciences and
be realistic. Understand, Ladies and Gentlemen, that you’re dealing
with people who are not used to testifying, would not take this stand for
a million dollars if they could. But they’re consistent in one thing. And
that is that Jimmy Davis was the one who killed Johnny Hazle and tried
to rob him out there on that occasion.
I ask you, Ladies and Gentlemen, to do what you have to do, as
unpleasant as it is, and convict him — Jimmy Davis — of capital
murder.

185

Doc. no 33, at 47-48 (alteration supplied).

167

R. Vol. 7, Tab 14, at 1235-37. Citing Nelson v. Nagle, 995 F.2d 1549, 1555-57 (11th
Cir. 1993), Davis asserts that the Eleventh Circuit has explicitly found that “mercy
is a proper consideration” in capital cases.

He contends that the prosecutor

improperly argued that the jury should not consider mercy or sympathy during its
deliberations.186
Davis has not established that the Alabama Supreme Court’s summary denial
of this claim was unreasonable or contrary to clearly established law. He correctly
argues that the jury may show mercy in rejecting a death sentence. Here, however,
the prosecutor’s argument acknowledged the tragedy of the victim’s death, then
appropriately urged the jurors not to be emotional during their deliberations. Further,
the arguments made by the prosecutor in this case, even if they could be viewed as
improper, did not so prejudicially affect Davis’s substantial rights as to deprive him
of a fair trial.
Davis also argues that counsel were ineffective for failing to object to the
prosecution’s argument that the jury should not consider mercy or sympathy during
its deliberations. Davis did not raise this claim in state court. Thus, it has not been
exhausted, and this court cannot review it. Even if the claim were properly before
this court, it would be due to be dismissed, because the underlying claim of
186

Doc. no. 33, at 47-48.

168

prosecutorial misconduct upon which the ineffective assistance of counsel claim is
based is clearly without merit. Counsel cannot be found deficient for failing to make
an objection that was not warranted.
Improperly instructing the jury that it was their duty to impose death

7.

Davis asserts that, during the State’s closing argument in the guilt phase, and
again during the penalty phase, the prosecutor improperly argued that the jury had a
duty to impose death.187 He claims that:
The prosecutor unmistakably instructed the jury that they had an
obligation to convict Davis: “[b]ut right now you’ve got to do your duty
and if you find this defendant – we’ve shown you beyond a reasonable
doubt that he’s guilty, then don’t let a murderer walk away,” and later,
“I ask you, ladies and gentlemen, to do what you have to do.” Tr. 1236.
During the penalty phase, the prosecutor continued to emphasize
that the jury had a duty: “You’re part of society that sometimes gets drug
(sic) down here by subpoena. And sometimes jurors do what they’re
supposed to do. And sometimes jurors don’t do what they’re supposed
to do.” And later: “I just want you to do the right thing . . . . Because
I know you’ve done your job already and you’re going to do your job
again.” The prosecutor concluded his [argument] by exhorting the jury
to do “what is best for the community.” Tr. 1354-55.
Doc. no. 33, at 48-49 (ellipses and first alteration in original, other alteration
supplied).

187

Doc. no. 33, at 48.

169

The Alabama Supreme Court’s summary denial of this claim is entitled to
deference. Davis has not established that its determination was contrary to, or an
unreasonable application of, clearly established federal law, or based on an
unreasonable determination of the facts in light of the evidence presented. Although
Davis argues that the prosecutor “instructed the jury that they had an obligation to
convict Davis,” it is clear that the prosecutor was arguing that the State had met its
burden of proof, and was asking the jury to follow the law and return a conviction.
Review of the prosecution’s arguments in their entirety, reveals that these arguments
did not render the trial fundamentally unfair:
But you Ladies and Gentleman have no place for tears for you
right now. You shed them all for Johnny Hazle when this is over with.
But right now you’ve got to do your duty and if you find this defendant
— we’ve shown you beyond a reasonable doubt that he’s guilty, then
don’t let a murderer walk away. And don’t just put it on and say I’ve
done a good job because little Terrance and 17-year-old Alphonso have
bit the bullet, and they’re going to prison.
I ask you, Ladies and Gentlemen, to search your consciences and
be realistic. Understand, Ladies and Gentlemen, that you’re dealing
with people who are not used to testifying, would not take this stand for
a million dollars if they could. But they’re consistent in one thing. And
that is that Jimmy Davis was the one who killed Johnny Hazle and tried
to rob him out there on that occasion.

170

I ask you, Ladies and Gentlemen, to do what you have to do, as
unpleasant as it is, and convict him — Jimmy Davis — of capital
murder.188
....
Ladies and Gentlemen, I know you had rather do anything in the
world than look at my face one more time. But this will be the last time,
I can assure you.
Because it is the last time, I want to thank you. Because I think
you’ve done something that maybe some of you didn’t think you would
ever be able to do either. You came into a terrible situation and you
performed admirably.
You took a situation where you could have copped out, to be
honest with you. And I don’t mean cop-out about finding this defendant
not guilty. I don’t think there’s any question in your mind that this
defendant is guilty. But you could have avoided what you’re doing here
right now.
You could have avoided it by finding the defendant guilty of a
lesser charge on the felony murder. And you didn’t do that. Which tells
me that you were willing to bear up under what you’re bearing up under
now. Don’t ever let anybody tell you it’s not a serious, serious thing that
you’re doing.
And as the District Attorney in this county, I want you to know
that I appreciate the seriousness of this as well. Because not only are
you making the decision with this recommendation, but I as the District
Attorney, a human being, am asking you to do something that’s not
pleasurable to me at all.
You have borne up under the circumstances and you performed
your civic duty because you are a part of society. You’re part of society
188

R. Vol. 7, Tab 14, at 1236-37.

171

that sometimes gets drug down here by subpoena. And sometimes
jurors do what they’re supposed to do. And sometimes jurors don’t do
what they’re supposed to do. They’re still part of society.
And our society says you don’t take a life when you don’t have to
take a life. Johnny Hazle’s life didn’t have to be taken.
Now, did it have anything to do with the fact, did it really, that
Ms. Davis was not a good mother? Of course not. Had nothing to do
with that.
Did it have anything to do with the fact that he had a lower
intelligence than some other people? Do you think that?
Did it have anything to do with the fact that it might be that
Jimmy Davis is mean? And that when he took that pistol in his hand he
wasn’t thinking, “I’ve got a low IQ,” or, “Is this going to hurt my mama
when I do this,” or, “Is it going to hurt my cousin,” Mr. Sigler? He was
thinking of one thing: “I want some money and if I don’t get it, I’m
going to kill this man.”
Society, of which we’re all a part, has a right to exact a just
punishment. I’m going to submit to you, Ladies and Gentlemen, that a
just punishment as the death penalty need not require you go into
McDonald’s and shoot five or six or ten people. It’s the person that
we’re looking at.
The aggravating circumstances in this case far outweigh the
mitigating circumstances. And I’m as sorry as I can be for this mother.
And I’m as sorry as I can be for Mr. Sigler. And the whole family. And
I’m not blaming them one iota. Because do you know how many people
grow up in families without fathers? Families without mothers?
Families where both parents work? They never ever kill.
Jimmy Davis knew he shouldn’t be doing what he did and he did
it anyway. And he took a man’s life. He will never be back.

172

I don’t want to preach to you. I just want you to do the right
thing. And I, like these defense lawyers, whatever you decide to do, I’ll
be satisfied with that. Because I know you’ve done your job already and
you’re going to do your job again.
I’m just asking you to look at the options. And if you feel like
these aggravating circumstances outweigh the mitigating ones, then I
ask you to return a recommendation to Judge Street. And I don’t know
whether he will follow it, but it will carry a great weight for him. And
I don’t want to mislead you. It will carry great weight whatever you do.
I appreciate your work this week. And I think it’s appropriate that
we end on late Friday afternoon since we started early one Monday
morning. And you’ll never forget this week. I know you won’t. And
you may be on other juries later on down the road. But you’ll never
forget this week and I know I won’t.
As many of these cases as I handle, and my assistants handle, and
that these gentlemen over here handle, we never forget these kind of
cases. So we’ll be satisfied with what you Ladies and Gentlemen do.
And I will just ask you to do in your conscience what you feel is best for
society. Do what’s best for the community.
R. Vol. 8, Tab. 23, at 1352-56.
The state court reasonably determined that the prosecutor had not made an
improper argument. Davis is entitled to no relief.
Davis also argues that counsel were ineffective for failing to object when the
prosecutor improperly argued that the jury had a duty to impose death. Davis did not
raise this claim in state court. Thus, it has not been exhausted, and this court cannot
review it. Even if the claim were properly before this court, it would be due to be

173

dismissed, because the underlying claim of prosecutorial misconduct upon which the
ineffective assistance of counsel claim is based is clearly without merit. Counsel
cannot be found deficient for failing to make an objection that was not warranted.
Improperly arguing nonstatutory aggravating circumstances in support
of conviction and sentence

8.

Davis asserts that the prosecutor put forth numerous irrelevant and prejudicial
“reasons” for convicting and sentencing him to death.189 He lists the following
examples of improper arguments: (1) the importance of a guilty verdict to the victim;
(2) the ordeal suffered by the victim’s brother in identifying the victim’s body; (3)
Davis killed the victim for smiling at him; (4) Davis was the principal in the crime,
rather than an accomplice; and (5) the pain inflicted on Davis’s mother.190 Davis
argues that none of those considerations was relevant, yet each encouraged an
improper conviction and sentence of death, based on nonstatutory aggravating
circumstances.
In support of this claim, Davis cites pages 1173 and 1234 of the trial
transcript.191 On page 1173, the prosecution argued at the conclusion of the guilt
phase that the testimony at trial was that the victim “looked over, looked back at

189

Doc. no. 33, at 49.

190

Id.
Id.

191

174

Jimmy Davis and smiled, and Jimmy Davis shot him.”192 In fact, the prosecution
made the following comments on page 1234 of the guilt-phase rebuttal closing
argument:
And I submit to you, Ladies and Gentlemen, you know who it was that
did this killing. It’s Jimmy Davis. The man’s been sitting over there
with his attorneys. I wish I could bring the one that really ought to be
here to testify as to what kind of clothing he was wearing — this man
who robbed him was wearing. And how tall he was. And what the gun
looked like. And how long he was there.
The one that laughed. The one that smiled. Maybe he was
nervous. Maybe he was scared. Maybe he just didn’t believe it was
happening. When he looked at his old friend and smiled and looked
back at Jimmy Davis and smiled, and couldn’t believe it when that bullet
penetrated his chest and he grabbed his chest.
I would like to present the man to you that grabbed his chest and
obviously turned and was shot in the back a second time. I would love
to have him testify. But that man was shot and was in excruciating pain,
according to Dr. Warner, when those shots pierced his liver. And yet
that tough man tried to get to that telephone and call in his own
emergency.
But I don’t have him. We’ll just have to go by what the other
witnesses said. . . .
R. Vol. 7, Tab 14, at 1234-1235. These comments were proper comments on the
evidence and inferences to be drawn from the evidence.

192

R. Vol. 7, Tab 12, at 1173.

175

Davis’s federal petition does not identify the portions of the transcript where
the prosecution allegedly made other improper arguments. However, Davis did cite
to specific pages of the trial transcript when he raised this claim in state court:
For example, the prosecutor improperly argued at the guilt phase that
their decision was important to the deceased victim, R. 1185); that the
victim’s brother[’s] ordeal in identifying the victim’s body requires a
guilty verdict R. 1186); . . . that he was the principal instead of an
accomplice and therefore deserved the death penalty R. 1409); and that
the pain inflicted on Mr. Davis’s mother made the death penalty
appropriate. R. 1409-1410).
C.R. Vol. 10, Tab 35, at 61 (alteration supplied). The arguments made on pages 1185
and 1186 of the transcript do, in fact, involve references to the importance of the
verdict to the victim, and to the victim’s brother’s ordeal in identifying the body, but
those arguments were made by defense counsel, and not by the prosecution.193
The arguments made on pages 1409 and 1410 were made by the prosecution
during the State’s final argument to the trial judge at the March 4, 1994 sentencing
hearing.194 Earlier in the sentencing hearing, the defense called Davis’s mother, Lillie
Bell Davis, to testify on his behalf, pleading for his life.195 The prosecutor stated
during his final argument that Lillie Bell Davis “deserves all of our sympathy and

193

R. Vol. 7, Tab 13, at 1185-1186.

194

R. Vol. 8, Tab 27, at 1409-10.
Id. at 1395-1401.

195

176

condolences.”196 However, there was no argument that the pain inflicted on Davis’s
mother made a death sentence appropriate.
Furthermore, the prosecution’s argument that Davis deserved the death penalty
because he was the principal in the murder was made in comparing Davis’s
participation in the crime with the participation of the Phillips cousins.197
I want to comment on the defendant’s participation in this matter
as compared to Alphonso Phillips and Terrance Phillips’[s]
participation. It was known at the time of trial that Terrance Phillips
had, in fact, pled guilty to conspiracy to commit robbery. He had done
so prior to trial.
It was also known at the time of trial that Alphonso Phillips
would, in fact, plead guilty to robbery and receive a 20-year sentence.
And those considerations were placed before a jury of Mr.
Davis’[s] peers and they understood that when they went to deliberate
in this particular case. But they also understood from the evidence,
Judge, and I think it was very clear that their participation in this crime
was nowhere near the participation that Mr. Davis had in this crime.
The evidence was overwhelming that Terrance Phillips basically
backed out in this particular robbery offense after conspiring to rob.
Alphonso Phillips did, in fact, participate in the robbery, even though
nothing was taken. But his participation was not nearly so great as the
defendant’s in one respect, in that he was not armed. And that the
defendant chose to take another person’s life. And that he was in fact,
the shooter.

196
197

Id. at 1410.
Id. at 1408.

177

We did not charge Jimmy Davis with complicity in this matter, as
Mr. Adams indicated. He is the principal without question. And that’s
the reason we ask for a sentence commensurate with his actions as
compared to those of Alphonso and Terrance Phillips.
R. Vol. 8, Tab 27, at 1408-09 (alterations supplied). This was a proper argument
based on the evidence presented at trial. Thus, the state court’s summary denial of
this claim was not unreasonable or inconsistent with clearly established law.
Moreover, Davis has not established that the alleged errors rendered his trial
fundamentally unfair.
Davis also argues that counsel were ineffective for failing to object when the
prosecutor argued nonstatutory aggravating circumstances in support of a conviction
and death sentence. Davis did not raise this claim in state court. Thus, it has not been
exhausted, and this court cannot review it. Even if the claim were properly before
this court, it would be due to be dismissed, because the underlying claim of
prosecutorial misconduct upon which the ineffective assistance of counsel claim is
based is clearly without merit. Counsel cannot be found deficient for failing to make
an objection that was not warranted.
9.

Improperly denigrating Davis’s right to an attorney

Davis contends that the prosecutor denigrated his right to an attorney, and
encouraged the jury to convict him because he relied on counsel throughout the

178

trial.198 Specifically, Davis argues that “[d]uring closing arguments of the guilt phase,
the State argued that the jury ‘know[s] who it was that did this killing. It’s Jimmy
Davis. The man’s been sitting over there with his attorneys.’”199 According to Davis,
this was an impermissible argument in favor of guilt or punishment based on his
assertion of a constitutional right in violation of Doyle v. Ohio, 426 U.S. 610
(1976).200
In Doyle, the Supreme Court held that a prosecutor’s use of the petitioner’s
silence at the time of his arrest for impeachment purposes violates due process. Id.
at 619. “The Court later extended this protection to post-Miranda invocations of the
right to counsel.” Fugate v. Head, 261 F.3d 1206, 1222(11th Cir. 2001) (citing
Wainwright v. Greenfield, 474 U.S. 284, 295 (1986)).
The comment in question here was made during the State’s rebuttal closing
argument, in response to Davis’s closing argument that someone other than Davis
committed the murder.201 In full context, the prosecution argued:
It’s rare, Ladies and Gentlemen, to see people cooperate against
their friends in situations like this. And that’s the reason you can’t just
discount what they’ve done here today, yesterday. It takes some guts,
particularly when you’re as young as though [sic] fellows were.
198

Doc. no. 33, at 49-50.

199

Id. (first alteration supplied, second alteration in original)

200

Id. at 49.
R. Vol. 7, Tab 13, at 1175-1214.

201

179

And I’m not saying anything about them — I’m not putting a halo
on any of them. Alphonso and Terrance need to have — get some time.
And if you Ladies and Gentlemen don’t like what happened, to them, if
you’re upset about what happened to them, then you have to look to me,
because I make those decisions as far as what kind of plea agreement
they enter into. And don’t hold that against them. You can hold that
against me, if you want to.
Because, Ladies and Gentlemen, I wanted them to testify. And
they did testify. And I submit to you, Ladies and Gentlemen, you know
who it was that did this killing. It’s Jimmy Davis. The man’s been
sitting over there with his attorneys. I wish I could bring the one that
really ought to be here to testify as to what kind of clothing he was
wearing – this man who robbed him was wearing. And how tall he was.
And what the gun looked like. And how long he was there.
R. Vol. 7, Tab 14, at 1233-34. Clearly, this argument was not a comment on Davis’s
assertion of his right to counsel. Rather, it was an appropriate response to Davis’s
prior argument that someone else committed the crime. Davis cannot show that the
state court’s summary denial of this claim was an unreasonable application of clearly
established federal law. This claim is due to be dismissed.
Davis also argues that counsel were ineffective for failing to object when the
prosecutor encouraged the jury to convict him because of his reliance on counsel
throughout the trial. Davis did not raise this claim in state court. Thus, it has not
been exhausted, and this court cannot review it. Even if the claim were properly
before this court, it would be due to be dismissed, because the underlying claim of
prosecutorial misconduct upon which the ineffective assistance of counsel claim is
180

based is clearly without merit. Counsel cannot be found deficient for failing to make
an objection that was not warranted.
D.

Counsel Were Ineffective for Failing to Preserve Investigation Records
and Files for Review
Davis complains that trial counsel failed to adequately preserve the record for

review.202 Specifically, he claims that:
Giddens did not maintain any meaningful files associated with Davis’[s]
defense.
No records, notes, or memoranda of interviews or
investigations or preliminary hearing testimony was in the file. R.47/89.
Throughout the pretrial proceedings and trial, bench conferences
were held that were not transcribed. These gaps in the record prevented
appellate counsel from identifying and addressing all claims on appeal,
foreclosed a full and fair review on direct appeal, and resulted in a trial
record missing crucial portions of the proceedings against Davis.
Doc. no. 33, at 50 (alteration supplied, paragraph numbers omitted). Davis alleges
that his lawyers “took no steps to preserve or retain reasonably competent client files
or to return Davis’[s] files to him after they were discharged by Davis,” when, “[a]t
a minimum, the files could have been sent to Davis or his successor counsel as trial
counsel knew of Davis’[s] whereabouts —

Holman Prison — and successor

counsel’s identity was readily available from published decisions.”203 Davis contends
that his trial counsels’ failures prejudiced him in his post-conviction proceedings, and
202
203

Doc. no. 33, at 50-51.
Doc. no. 33, at 50-51 (alterations supplied).

181

that this problem was “further aggravated because trial counsel were uncooperative
in the Rule 32 investigation into the effectiveness of their representation.”204
Davis raised this claim in his Rule 32 petition as two separate claims.205 In
denying the claims on the merits, the trial court found:
In paragraph 46, Davis alleges [ineffective assistance of counsel]
based on defense counsel’s failure to adequately preserve the record.
Davis failed to carry his burden of proof in regard to this claim. Davis
did not establish that he was prejudiced by the failure to transcribe all
bench conferences. This Court, which sat over Davis’s capital murder
trial, has no personal knowledge of any issues discussed during such
bench conferences that supports a finding of prejudice. Accordingly,
this claim is denied.
....
In this claim, Davis alleged [ineffective assistance of counsel]
based on trial counsel’s failure to maintain Davis’[s] client files.
Giddens testified at the evidentiary hearing that he turned over
everything relating to Davis that he had in his possession. (RR. 28)
Giddens also testified that he gave Davis’[s] direct appeal lawyers a
copy of his file after his representation of Davis terminated. (RR. 29)
Although Giddens offered the hearsay statement of Adams that Adams
did not have any files relating to Davis, Adams did not testify to the
circumstances surrounding the absence of these files. Again, Davis did
not carry his burden of proving [ineffective assistance of counsel] in this
regard.
For example, the record is silent as to whether Adams destroyed
this file, whether the file was lost during a move between law offices, or
whether the file was destroyed by a fire or flood. There are numerous
204
205

Id. at 51.
R. 32 C.R. Vol. 14, Tab 52, at 22-25.

182

events or reasons that Adams’[s] files could have been missing, many of
which would not necessarily reflect on Adams’[s] reasonableness or
diligence in attempting to maintain client files. Davis appears to attempt
to capitalize on a silent record to infer deficient performance, which he
cannot do.
It should also be noted that if Giddens provided his file to both
Davis’s direct appeal lawyers and collateral counsel, Davis has not
established prejudice under Strickland, even if this Court considers the
hearsay statement of Adams offered through Giddens. If Davis received
items that would have been duplicated in Adam’s case file, then he
suffered no prejudice. There was no testimony or evidence presented at
the evidentiary hearing that would allow this Court to find the existence
of prejudice in regard to this claim. As such, this claim is denied. A.R.
Cr.P., 32.2.
Rule 32 C.R. Vol. 62, Tab. 80, at 23, 26-27 (alterations supplied). Although Davis
presented the claims to the Alabama Court of Criminal Appeals on collateral
appeal,206 that court did not address the claims.207
Davis argues that the state courts’ failure to grant relief on the merits of this
“compelling Constitutional claim resulted in a decision that was contrary to, and
involved an unreasonable application of, clearly established Federal law,” and
“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.”208 Davis does not
explicate that argument any further.
206

Rule 32 C.R. Vol. 57, Tab 60, at 13; 39-40; 60; 72-73.

207

See Davis v. State, 9 So. 3d 539 (Ala. Crim. App. 2008).
Doc. no. 33, at 51.

208

183

The trial court found that Davis failed to establish that he was prejudiced by
counsel’s failure to have all bench conferences transcribed, and that he failed to
establish that counsel were unreasonable in failing to maintain his client files, or that
he was prejudiced as a result. Davis makes the conclusory argument that counsels’
shortcomings denied him effective assistance of counsel because, but for counsels’
deficient performance, the outcome of his trial could have been different.209 He adds
that the failures prejudiced him in his post-conviction proceedings.210 However,
Davis offers nothing to support a finding that the state court’s denial of this claim was
contrary to, or an unreasonable application of, clearly established federal law, or that
it was based on an unreasonable determination of the facts in light of the evidence
presented.
E.

Brady Claims
Davis argues that the State withheld exculpatory information, and that deprived

him of his rights to due process, a fair trial, and a reliable sentencing proceeding in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.211 Specifically, he
complains that: (1) the State failed to reveal Alphonso Phillips’s known gang
involvement, as well as the disposition of juvenile delinquency charges against both
209

Id.

210

Id.
Id. at 51-55.

211

184

Phillips cousins; (2) the State suppressed and/or mishandled material evidence
recovered by the police; and (3) the State failed to disclose threats made against Davis
and his mother, and the existence of a confidential informant who feared for his life.
The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that “the
suppression by the prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to punishment.” Id. at 87
(ellipses supplied). A Brady violation has three components: “[(1) t]he evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; [(2)] that evidence must have been suppressed by the State, either
willfully or inadvertently; and [(3)] prejudice must have ensued.” Strickler v. Greene,
527 U.S. 263, 281-82 (1999) (alterations supplied). The prejudice requirement (which
is also sometimes referred to in the case law as a “materiality” requirement) is
satisfied if “‘there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.’” United
States v. Bagley, 473 U.S. 667, 682 (1985) (quoting Strickland, 466 U.S. at 695); see
also Kyles v. Whitley, 514 U.S. 419, 434 (1995). Stated differently, prejudice (or
“materiality”) is determined by asking whether the evidence suppressed by the
government, viewed cumulatively, would undermine confidence in the guilty verdict.
See Kyles, 514 U.S. at 434, 436-37 & n. 10.
185

Davis first raised a Brady Claim in his Rule 32 petition. He listed nineteen
items that, he alleged, were not produced to defense counsel,212 but he offered only
a conclusory assertion his constitutional rights were violated as a result of the alleged
suppression of those items. The claim was denied by the trial court.213 Davis
appealed the denial, focusing on the same alleged violations that he raises here.214
The Alabama Court of Criminal Appeals held as follows:
Davis next argues that the State suppressed evidence in violation
of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). Specifically, Davis argues that the State failed to provide
footprint evidence, failed to preserve his codefendant’s clothes, failed
to disclose threats made against Davis and his family, failed to reveal his
codefendant’s gang involvement, and failed to reveal the identity of the
informants. FN.
FN. In Davis’s second amended petition he merely recites
19 different evidentiary items that he alleged the State
suppressed.
The circuit court made the following findings of fact on this
claim:
The petitioner failed to carry his burden of proof in
establishing the existence of a valid Brady claim. The
United States Supreme Court definitively held, in Brady v.
Maryland, that “the government’s failure to disclose
evidence favorable to the defendant who specifically
requested it violates the defendant’s due process rights
212

Rule 32 C.R. Vol. 14, Tab. 52, at 36-37.

213

Rule 32 C.R. Vol. 62, Tab 80, at 58-59.
Rule 32 C.R. Vol. 57, Tab. 60, at 64-70.

214

186

when the evidence is material to the guilt or punishment.”
Smith v. State, 698 So.2d 189, 207 (Ala. Crim. App. 1996);
Brady v. Maryland, 373 U.S. at 87. To properly establish
a Brady violation, the defendant must make a showing that
(1) the prosecution suppressed evidence, (2) the evidence
suppressed was favorable to the defendant or was
exculpatory, and (3) the evidence suppressed was material
to the issues at trial. Ex parte Kennedy, 472 So.2d 1106
(Ala.1985), cert. denied, 474 U.S. 975 (1985).
“‘Materiality’ requires a finding that, had the evidence
been disclosed to the defense, a reasonable probability
exists that the outcome of the proceedings would have been
different.” Coral v. State, 628 So.2d 954, 979 (Ala. Crim.
App. 1992), aff’d on return to remand, 628 So.2d 988 (Ala.
Crim. App. 1992), aff’d, 628 So.2d 1004 (Ala. 1993), cert.
denied, 114 S.Ct. 1387 (1994). “A ‘reasonable probability’
is one sufficient to undermine confidence in the result.”
Coral v. State, 628 So.2d at 979; Pennsylvania v. Ritchie,
480 U.S. 39 (1987); United States v. Bagley, 473 U.S. 667
(1985); Rogers v. United States, 485 U.S. 969 (1988).
Thus, in order for Davis to make a proper Brady
claim, he must clearly show a suppression of evidence and
that there was a reasonable probability, one sufficient to
undermine confidence in the proper resolution of the case
at trial, that the jury would have resolved his case
differently had the prosecution disclosed the evidence in a
timely manner. Id. There has been no such evidence
established by the petitioner in this case, certainly nothing
enumerated in items (a) through (s) of paragraph 67 in the
second amended petition.
Davis absolutely failed in this regard. Many of the
items alleged in the petition were never mentioned during
the Rule 32 hearing. One of the items mentioned, an
alleged footprint at the scene, was referred to in a report
handed over to the defense, never used at trial, and never
187

explained at the hearing. Thus, Davis did not prove
suppression as the defense was put on notice that this
evidence may have existed, did not prove materiality (it is
unclear if this item even exists, where it was located, how
it was found, how it was documented, whether it was
casted or photographed, etc.), and he did not prove that it
was exculpatory.
Based on the record before this Court, this claim is
denied.
(C.R. 1191-92.) The record of the Rule 32 proceedings supports the
circuit court’s findings. Davis made no effort at the Rule 32 hearing to
satisfy the requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963). Davis thoroughly failed to meet his
burden of proof under Rule 32.3, Ala. R. Crim. P.
Moreover, this claim is procedurally barred for the reasons
discussed by this Court in Williams v. State, 782 So.2d 811, 818 (Ala.
Crim. App. 2000):
The appellant’s first argument is that the State
withheld exculpatory information in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). Specifically, he contends that the State suppressed
evidence that a potential witness had seen the appellant and
the victim together in Mobile before the murder and
evidence that a white Porsche automobile had been seen at
the scene of the crime at about 3:30 p.m. on the day of the
murder. The appellant did not assert that this claim was
based on newly discovered evidence. Therefore, it is
procedurally barred because he could have raised it at trial
and on direct appeal, but did not. See Rule 32.2(a)(3) and
(a)(5), Ala. R.Crim. P.; Boyd v. State, 746 So. 2d 364 (Ala.
Cr. App.1999); Matthews v. State, 654 So. 2d 66 (Ala. Cr.
App.1994); Lundy v. State, 568 So. 2d 399 (Ala. Cr.
App.1990).
188

Davis v. State, 9 So. 3d 514, 526-528 (Ala. Crim. App. 2006).
Thus, the claim was found to be procedurally barred by the Alabama courts.
Davis contends that the claim is not procedurally defaulted, arguing:
Courts have declined to procedurally bar such claims, noting that such
a ruling would “reward the wrongdoer because he was not timely found
out.” Julius v. Jones, 875 F.2d 1520, 1525 (11th Cir. 1989) (declining
to impose procedural bar as to Brady claim and unwilling to hold that “if
the prosecutor failed to produce evidence which was required to be
produced under Brady and which failure was unknown to defendant’s
counsel, the claim is procedurally barred because defense counsel did
not ferret out the violation”).
Here, the Brady evidence was not disclosed to Davis’[s] trial
counsel. Moreover, a second informant’s existence did not come to light
until post-conviction proceedings were underway. Thus, this claim
simply could not have been raised at trial or on direct appeal. Neither
Davis nor his counsel had reason to know of the Brady material at an
earlier stage. Subsequent to the discovery of the withheld evidence, this
claim was timely raised on direct appeal as well as in Davis’s Second
Amended Rule 32 Petition and on collateral appeal in the CCA. See
Exhibit A (“Chart of Davis’s Responses to the State’s Answer”). Thus,
there can be no default.
Doc. no. 39, at 6-7 (alteration supplied).
Alternatively, Davis argues that the State’s suppression of this evidence
constitutes cause for any default, and asserts that he suffered actual and substantial
prejudice because evidence pointing to a different perpetrator likely would have
resulted in a different outcome at the guilt/innocence phase. He contends that “given
the strong likelihood that such evidence could have reasonably implicated another
189

perpetrator or could have been tested to in fact prove Davis’s innocence, the failure
to consider Davis’s claim results in a fundamental miscarriage of justice” and should
be excused.215
As discussed in Section IV.B.1., supra, federal courts “will not review
judgments of state courts that rest on adequate and independent state grounds.”
Michigan v. Long, 463 U.S. 1032, 1041 (1983). Thus, “an adequate and independent
finding of procedural default will bar federal habeas review of the federal claim,
unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice
attributable thereto.’” Harris v. Reed, 489 U.S. 255, 262 (1989) (quoting Murray v.
Carrier, 477 U.S. 478, 485 (1986)). In the context of a defaulted Brady claim, the
Supreme Court explained in Banks v. Dretke, 540 U.S. 668 (2004), that the cause and
prejudice standard tracks the last two elements of a Brady claim: suppression by the
government and materiality. Id. at 691 (citing Strickler, 527 U.S. at 282). As will be
seen from the discussion of each of Davis’s allegations of error, in turn, he cannot
establish both cause for the default and actual prejudice from the alleged errors, as
required to excuse the procedural default.
1.

215

The state failed to disclose Alphonso Phillips’s known gang involvement
and prior adjudications of delinquency charges against both Phillips’s
cousins
Doc. no. 39, at 7 (alterations supplied).

190

Davis alleges that the following information was not disclosed to counsel: (1)
a 1993 “compilation of persons reported to be in gangs by the Anniston Police
Department” that was maintained by the prosecutor, confirming that Alphonso
Phillips was a known gang member; (2) the previous arrests of Alphonso Phillips for
disorderly conduct, a weapons violation, violation of a liquor law, and trespass; and
(3) the entry of Terrance Phillips into a consent decree in connection with a
third-degree assault charge in 1992.216 He argues that the State’s failure to disclose
that information hindered trial counsels’ ability to effectively cross-examine the

216

Doc. no 33, at 45.

191

Phillips cousins and challenge the prosecutor’s improper closing arguments.217
According to Davis:
Evidence about the Phillips cousins’ pasts, coupled with
inconsistencies in their testimony, would likely have caused the jury to
consider whether the Phillips cousins acted alone and then later
conspired to blame Davis for the Direct Oil robbery and shooting. It
also might have undermined that State’s theory that the Phillips cousins
were “good boys” led astray by Davis, and caused a jury to conclude that
Davis was, at best, a follower. There is a reasonable probability that the
result of the guilt/innocence phase would have been different.
Doc. no. 33, at 52.

217

The prosecutor argued:
Terrance Phillips did a terrible thing. He got involved in
something he shouldn’t get involved in. He did a terrible thing and
he knows that. But he was not a hard core criminal. He was going to
school. Never been in trouble before. And now he’s got a ten-year
conspiracy to commit robbery. He’s ruined his life.
....
Terrance Phillips, 16 years old, no trouble whatsoever, a good
boy, on the edge of going bad if something didn’t happen. And
something did happen.
And Alphonso Phillips, a boy that hadn’t crossed the edge was
looking for something, looking for whatever. Crossed the edge and
got into some trouble. Because they were looking for somebody to
help him, looked to somebody to be their big brother, and the father
or whatever. And they picked him. They picked Jimmy Davis. And
they picked the wrong one.

R. Vol. 7, Tab 14, at 1226-1231.

192

Sufficient prejudice exists to excuse a procedurally defaulted Brady claim only
when “‘the favorable evidence could reasonably be taken to put the case in such a
different light as to undermine the confidence of the verdict.’” Strickler, 527 U.S. at
290 (quoting Kyles, 514 U.S. at 435). The “question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Id. at 289-290 (quoting Kyles, 514 U.S. at 435).
A review of the state court record reveals that Davis has not met this standard.
First, not only is it highly unlikely that the “compilation of suspected gang members”
would have been admissible at trial in any event, but the record reveals that the list
included Davis as a suspected gang member as well,218 thereby negating any benefit
Davis might have gained by opening the door to that inquiry.2 19 Second, even making
218

Rule 32 C.R. Vol. 32, at 1905.

219

In its reply brief on appeal from the denial of Davis’s Rule 32 petition, the State argued:
Davis conveniently fails to note that his name was also included on
this “gang list” he (presumably) claims would have altered the
outcome of his case in his favor. (R. 1085) In the previous argument,
Davis attacks his attorneys for not taking more measures to prevent
the mention of gangs at his trial, but now he blames the State for not
allowing him to interject the gang issue into the trial. Davis cannot
expect to argue it both ways and receive relief.
If Davis had used these gang records against the Phillips
brothers [sic], it would have opened the door to proving Davis’s
similar gang-related activities – thereby shattering all of Davis’s
previous attempts to keep this information away from the jury. If

193

the unlikely assumption that the juvenile records of the Phillips cousins would have
been admissible at trial to show bias pursuant to Davis v. Alaska, 415 U.S. 308
(1974),220 their omission does not undermine confidence in the verdict. Although the
prosecutor did argue that Terrance Phillips had “never been in trouble before,”221 that
was just a portion of his argument, and the statement was in response to the
arguments of defense counsel. The prosecutor did not paint the State witnesses as
innocent bystanders, or upstanding citizens. Rather, he acknowledged that he did not
have pastors, clergy, and nuns to present as witnesses, but only the people who were
at the crime scene, on the streets, and involved in the crime.222 While he tried to paint
the Phillips cousins, who were ages 16 and 17 at the time of the offense, as less
culpable than Davis, he specifically told the jury he was not “putting a halo on any
of them,” and that they needed to “get some time” for their involvement in the case.223
Finally, the prosecutor’s argument that the Phillips cousins were credible witnesses
anything, this information would have been more prejudicial to
Davis’s defense.
R. 32 C.R. Vol. 57, Tab. 61, at 40-41.
220

Under Alabama law, the use of juvenile records for purposes of general impeachment is
not allowed. Alabama Rule of Evidence 609(d) states that “[e]vidence of juvenile or youthful
offender adjudications is not admissible under this rule” (alteration supplied).
Section
12-15-72(a)(b) of the Alabama Code provides that a juvenile adjudication is not a conviction and
is not admissible against a juvenile in any court.
221

R. Vol. 7, Tab 14, at 1226.

222

Id. at 1225.
Id. at 1233.

223

194

was not based on the assertion that they were “good boys,” but on the fact that,
despite their involvement in the crime, they had the fortitude to testify against a
friend, and in so doing, did not try to completely exonerate themselves of
culpability.224 Thus, even if the Phillips’s prior arrests had been admitted, the State’s
argument and theory of the case would not have been significantly weakened. There
is no reasonable likelihood that the verdict would have been different, nor is
confidence in the verdict undermined.
2.

The state suppressed and/or mishandled material evidence recovered by
police

Davis asserts that (1) footprints were retrieved from the crime scene, but not
logged into evidence or produced for examination by his attorneys; (2) a pair of white
tennis shoes was recovered, but not put in evidence or provided to counsel; (3) the
officers failed to retrieve clothing worn by the Phillips cousins; and (4) an officer
provided false testimony regarding how he learned of the gun’s location — first
claiming that he received the information from another officer, but later saying he
received a tip as to the gun’s location from a second confidential source.225 Davis
contends that all of this evidence could have substantiated the theory that someone
else shot the victim.
224
225

Id.
Doc. no. 33, at 52-54.

195

Davis’s bare suppositions are not sufficient to establish that any of the alleged
evidence would have been exculpatory, impeaching, or otherwise favorable to his
defense. Without any proof of materiality, the Brady inquiry must end. See, Allen v.
Secretary, Florida Dept. of Corrections, 611 F.3d 740, 746-47 (11th Cir. 2010).
The state failed to disclose death threats against Davis and his mother
and the existence of a confidential informant who feared for his life

3.

Davis argues that during the trial, death threats were made against him and his
mother, but neither he nor defense counsel was informed.226 According to Davis, the
failure to disclose this information deprived his defense team of the opportunity to
investigate whether the person responsible for the threats was connected to the Direct
Oil robbery and murder, and whether the threats were made as a means of
intimidating him.227 As an initial matter, Davis has offered no evidence to support his
conclusory assertion that defense counsel were not informed about the alleged threats.
During the Rule 32 evidentiary hearing, Davis called prosecutor Ron Wood as a
witness.228 Wood testified that he had no idea that such a threat was made, and that
he did not know whether Davis’s lawyers had been informed of the threat.229 Thus,

226

Id. at 54-55.

227

Id.

228

Rule 32 R. Vol. 23, at 1066-1119.
Id. at 1104-05.

229

196

there is no evidence to support Davis’s contention that the evidence was suppressed.
There also is no indication that the evidence was material.
Davis further argues that, throughout both the trial and the Rule 32
proceedings, the State refused to “disclose the identity of a confidential informant
identified in a supplemental report who allegedly feared for his life if his identity
were disclosed.”230 Davis reasons that “if the confidential informant still fears for his
life nearly ten years after the crime was committed, and Davis has been incarcerated
since the day after the shooting at Direct Oil, it is likely that Davis was not the
perpetrator.”231
Mr. Wood was also questioned about the confidential informant during the
Rule 32 evidentiary hearing,232 but he denied any awareness:
Q:

Now, Mr. Wood, are you aware that the AG’s office has taken the
position that the identity of a confidential informant used in this
case cannot be revealed because the confidential informant feared
his life would be in danger if his ID. was revealed?

A:

No, ma’am.

....
Q:

Have there been times where the District Attorney’s office has
refused to turn over the identity of an informant because that

230

Doc. no 33, at 55.

231

Id. (emphasis in original).
R. 32 R. Vol. 23, at 1105-1108.

232

197

informant was fearful that if his identity was revealed his life
would be in danger?
A:

I don’t have any personal knowledge of it.

....
Q:

And could you read that paragraph into the record?

A:

“Officer Tim Whatley introduced me to a black male that did not
want his ID. known. This person told me that he had reason to
believe that the following four people did the murder: Jimmy
Davis, Alphonso Phillips, Terrance Phillips and Willie Smith.”

Q:

And does that paragraph in the report here refresh your
recollection as to whether or not there was a confidential
informant in this matter?

A:

No, ma’am.

Q:

Did you ever speak to a confidential informant in this matter?

A:

I don’t recall speaking to one, no, ma’am.

Q:

Now, if I told you that the Attorney General’s office has made
argument to this Court and the Court has accepted that there was
a confidential informant in this matter, and that person’s identity
could not be revealed because he felt his life would be threatened,
would you take issue with that?

A:

No, ma’am.

Q:

And would you agree that if that’s the position that the Attorney
General’s office took, that there must have been persons in the
Anniston community in 1993 that would threaten a witness to
keep him from testifying?

198

A:

Ma’am, I have no knowledge of your procedures, what you’ve
been doing this week, or whether that’s – I don’t know. I don’t
know what the game plan is here.

Q.

Do you think the Attorney General’s office would state that the
confidential informant feared for his life if he didn’t fear for his
life?

A:

No, ma’am.

R. 32 R. Vol. 23, at 1105-08 (ellipses supplied). Davis has provided no evidence to
support his contentions that the identity of a confidential informant was suppressed,
or that the identity of any confidential informant was material.
F.

The Admission of Highly Prejudicial Hearsay Testimony
Davis contends that his Fifth, Sixth, Eighth and Fourteenth Amendment rights

were violated by the admission of the damaging hearsay testimony of Willie Smith
and Shannon Hardy Wilson.233 This claim was raised for the first time in Davis’s
petition for writ of certiorari on direct appeal.234 The State correctly noted in its
response to the claim that no objections to the testimony were made during trial, and
argued that there was no plain error.235 The Alabama Supreme Court denied the claim

233

Doc. no. 33, at 55-58.

234

C.R. Vol. 10, Tab 35, at 33-36.

235

C.R. Vol. 10, Tab 36, at 35-38. The State argued that Willie Smith’s testimony about
what Alphonso said to him was admissible under the excited utterance exception to the hearsay rule,
and that Shannon Hardy’s testimony was admissible because the conversations she testified about
were either not offered for the truth of the statement or were admissible under the excited utterance
exception to the hearsay rule. Id.

199

without discussion. Ex parte Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998). That
decision was neither contrary to, nor an unreasonable application of, clearly
established federal law.
1.

Willie Smith

Willie Smith, who was not charged in the offense, testified that, on the night
of the shooting, Davis told him that he had shot someone while he robbed Direct Oil
with Alphonso and Terrance Phillips.236 Smith also testified that he met up with
Alphonso Phillips and Davis at Alphonso’s home the next morning, and the
conversation turned to the events of the previous evening.237 Smith testified that,
during that conversation, Alphonso said to him: “‘Willie, you ought to seen [sic] how
Jimmy was shooting that man.’”238
Davis argues that Smith’s testimony about Alphonso’s statement was hearsay,
and that it should have been excluded because it did not fall within any exception.239
He contends that admission of the testimony violated his right to due process and a
fair trial because it corroborated Alphonso’s trial testimony identifying him as the
shooter, and it bolstered Alphonso’s credibility.240
236

R. Vol. 6, at 951.

237

Id. at 953-54.

238

Doc. no. 33, at 56 (quoting R. Vol. 6, at 954-55).

239

Id.
Id. at 57.

240

200

There were no objections to the testimony during trial. Consequently, the claim
could only have been reviewed on direct appeal for plain error. Without regard to the
propriety or the admissibility of the challenged statement, it is well settled that, even
when evidence is improperly admitted, a conviction will not be reversed for plain
error unless the error affected the substantial rights of the defendant. See United
States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006). In other words, the “error
must have been prejudicial,” and it must have affected the outcome of the court
proceedings. Id.
There was no such showing in this case, due to the more damaging nature of
Smith’s testimony that Davis himself admitted to the shooting, as well as the other
substantial evidence against Davis. The Alabama Supreme Court’s implicit finding
that the admission of the allegedly improper testimony did not constitute plain error
or seriously impact the fairness of the trial was not unreasonable.
2.

Shannon Hardy Wilson

Davis also complains about portions of the testimony given by Shannon Hardy
Wilson, a cousin of Alphonso and Terrance Phillips.241

Wilson lived at her

grandmother’s home with her husband, her two young children, and Alphonso.242

241
242

Id. at 57-58.
R. Vol. 6, at 992-93.

201

Wilson testified that, on the night of the murder, Davis and Alphonso entered the
house around 8:00 p.m., changed their clothes, and then sat down and watched
television for a couple of hours.243
Wilson overheard a conversation between Davis and Alphonso.

Wilson

testified as follows:
A:

I was in my grandmother’s room, sitting on the bed. And they
were talking about what they had — you know, what was going
on and who did what. Basically they were saying, you know, that
it didn’t work out right.

Q:

Did you know what they were talking about?

A:

No.

Q:

– at that time?

A:

I just heard Alphonso say that it was — it was fucked up, that it
didn’t go right.

R. Vol. 6, at 1011. Before Wilson left the house to go to work at 10:45 p.m., Davis
left her grandmother’s home, and Wilson asked Alphonso why he was changing
clothes. In response, Alphonso replied that he was going to bed and was not going
back out that night.244 The next day, Davis returned to the house with Willie Smith.245
243

Id. at 1000-1001. Wilson testified that she knew “Alphonso put on his night clothes,”
“some short pajamas and a T-shirt because he didn’t go back out,” and that Davis “changed into
some street clothes,” maybe “a pair of jeans and a shirt.” Id.
244
245

Id. at 1002-1003.
Id. at 1004.

202

They went into the den with Alphonso and were “just hanging out.”246 According to
Wilson’s testimony, the three of them then discussed the events of the previous night:
Q:

Who do you remember speaking first?

A:

It was Willie.

Q:

What did Willie say, if you remember?

A:

Just asked them what they had been up to.

....
Q:

Did either one of them respond?

A:

Jimmy did.

Q:

What did Jimmy say?

A:

He went in to tell them about what had happened the night before
in full detail. He explained it to Willie.

Q:

What did he say happened, Ms. Wilson ?

A:

He said, “My nigger, let me tell you what happened last night.”

....
Q:

All right. And no question in your mind he said that.

A:

(Nodding head up and down.)

Q:

What did he say next?

246

Id. at 1005.

203

A:

Told him about how they planned to rob Direct.

Q:

Had anybody spoken about that except Jimmy at this time?

A:

No. I had heard a little bit of conversation, just a little bit the
night before while I was curling my hair in the bathroom.

Q:

Okay. Who was in that conversation?

A:

Alphonso and Jimmy, but Jimmy was doing the talking.

Q:

All right. Let’s — I’ll go back to that in just a minute.
After he said what he said, “Let me tell you what happened
last night,” and he began telling him about the plan, tell us exactly
what he said as best you remember.

A:

That him and Terrance and Snook — I mean Alphonso were
walking. And Jimmy and Alphonso decided that they had a little
job that they needed to do. The job being that they were going to
rob Direct.

Q:

And Jimmy – was Jimmy saying this?

A:

Yes, sir, he was.

Q:

Was Alphonso saying anything –

A:

No.

Q:

– at that time?

A:

No, sir, he wasn’t.

Q:

But Jimmy said that Jimmy and Alphonso had decided that they
had a little job to do?

204

A:

Yeah. And then Alphonso told him that he hadn’t done nothing.

Q:

Alphonso told him that he hadn’t done nothing?

A:

Yeah.

Q:

Who was he talking to?

A:

He was speaking to Willie.

Q:

All right. And then what’s the next thing your heard?

....
A:

[Davis] said, “Damn right, you punk ass nigger. You ran off and
left me.”

Q:

Okay. He said, “Damn right, you punk ass nigger. You ran off
and left me?” Now, am I correct?

A:

Yes.

Q:

Now, what was said then?

A:

Then he went on to tell what happened.

Q:

All right. What did he say happened?

A:

That Terrance was — Scooter was on the corner looking out for
the police. And that him and Snook went on to the Direct parking
lot and into the building. Before they got in there, he said they
pulled up their bandanas and they went in there. And when he got
to the door he said, “Give it up.” And that Mr. Hazle laughed at
him and that Alphonso ran.
And then he said he told him to give it up again. And he
said Mr. Hazle laughed at him and then he shot him.
205

Q:

And was that Jimmy that was saying that?

A:

Yes, sir.

Q:

What did Alphonso say, if anything, while Jimmy was saying
that?

A:

He just kind of sat there.

Q:

What happened next, Ms. Wilson?

....
A:

Then he raised his hand up and he said that gun went “pow pow
pow.” (Indicating.)

Q:

All right. Who are you saying said that?

A:

Jimmy said it.

Q:

And were you able to see anything at that time as he was saying
that?

A:

I saw him with his hand up (indicating).

....
Q:

After you saw him raise his hand and “pow pow pow,” what’s the
next thing you saw or heard?

A:

Willie asks him, “Man, what did you – ”

Q:

Speak up now?

A:

Willie asked him what did he – Willie said, “Man, you didn’t
have to do that, you didn’t have to shoot him.”

206

Q:

What else was said?

A:

Then he said that he wasn’t going to let no cracker laugh at him.

Q:

Wasn’t going to let no cracker laugh at him?

A:

(Nodding head up and down.)

Q:

Do you remember anything else that was said?

A:

Yeah. When they went on to talk about, they were talking about
the gun. Jimmy said that the last shot felt better than the first.

R. Vol. 6, at 1005-10 (alteration supplied).
Davis challenges the admissibility of Wilson’s testimony that: (1) on the night
of the murder, Alphonso told her that he was changing into his night clothes because
he was not going out again; (2) the next morning, she heard Alphonso tell Willie
Smith that Alphonso had not done anything wrong; (3) she overheard Smith telling
Davis that Mr. Hazle did not have to be shot; and (4) the night before, she had heard
Alphonso say the crime was “fucked up” and “didn’t go right.”247 Davis argues that
the hearsay testimony was damaging to his case because Wilson was the only
non-accomplice who testified to these statements, and the statements bolstered the
credibility of Alphonso, Terrance, and Smith.248

247
248

Doc. no 33, at 57.
Id. at 57-58.

207

Given the strength of the other evidence against Davis, it is highly unlikely that
the admission of Wilson’s testimony had any material effect on the outcome of the
trial. Thus, there was no plain error. The Alabama Supreme Court’s rejection of this
claim was neither contrary to, nor an unreasonable application of, clearly established
federal law.
G.

Admission of Note Allegedly Found in the Pocket of Davis’s Clothing
Davis challenges the admission of a note with his name on it, found in the

pocket of a pair of black shorts taken from a laundry hamper in Alphonso Phillips’s
home249 the day after the homicide.250 During the trial, Alphonso and Terrance
testified that Davis wore and discarded the shorts on the day of the murder.251 To
corroborate this testimony, the State sought the admission of the note found in the
pocket of the shorts. The trial court reviewed the note, and admitted the following
redacted version without objection from defense counsel252:
Dear My Little African Queen,

249

At the time of the Direct Oil shooting, Alphonso resided with his grandmother, Martha
Jean Phillips, at 1711 Moore Avenue in Anniston. R. Vol. 6, at 1048.
250

Doc. no. 33, at 58-59. Officer Roy Nunnelly testified that he found the note in the pocket
of a pair of shorts he retrieved from Alphonso’s home on March 19. R. Vol. 5, at 875-880. The note
was admitted in its redacted form at R. Vol. 5, at 893-94.
251

R. Vol. 5, at 802-803, 820, 826 (Terrance); R. Vol. 6, at 1067, 1074, 1080-1082 and R.
Vol. 7 at 1107-1108, 1123 (Alphonso).
252
R. Vol. 5, at 893-94.

208

1.
2.
3.
4.
5.
6.

How’s life? Mines are doing fine. I got your letter. I feel
the same as you do. Here’s all the things about me.
My Name: Jimmy Davis Jr:
My Birthday: Oct. 6, 1970
My Hobbies: Being Pro black each and every day.
My Birth place: Queens, New York
My type of women: Honest, true, and Loving.
My Age: 22
I wish we could of stayed a little longer, but my mommy
were ready to go. I would love to get to know you better.
So we would get a chance to really get to know each other
in the furture [sic] soon. So that’s all for now but never my
loving thoughts for you.
Your furture [sic]
Lover
When you come
back to Anniston
again call this
number 236-5912
Tell me [sic] sister
I said I love her.

C.R. Vol. 1, Tab 1, at 83.
Davis argues that, even in redacted form, the note contained references and
innuendo from which a juror might infer an association with a gang, or a suggestion
that the victim’s death was race-related.253 Davis posits that the phrase “pro-black
each and every day” could have suggested to the jury that his daily actions were

253

Doc. no. 33, at 58.

209

motivated by racial hatred, and that the salutation to his “little African queen”
furthered this prejudicial view by calling to mind black separatism and militance.254
Davis contends that the admission of the note likely motivated a conviction based on
fear rather than on proof beyond a reasonable doubt.255 He further argues that the
note was not relevant because it said nothing about the crime, and was useless as
identification evidence.256
This claim was raised for the first time in Davis’s petition for writ of certiorari
on direct appeal.257 In its reply brief, the State argued that the note was relevant
because its presence in the pocket helped establish that Davis had worn the shorts
found in Alphonso Phillips’s home, and thus, supported the testimony of Alphonso
and Terrance Phillips describing what Davis wore during the commission of the
crime.258 The State also asserted that the prejudicial nature of the note had been
minimized by the redactions, and that any prejudice was outweighed by the probative
value of the note.259

254

Id.

255

Id. at 58-59.

256

Id. at 59.

257

R. Vol. 10, Tab 35, at 20-26.

258

R. Vol. 10, Tab 36, at 25-30.
Id.

259

210

Without discussing the claim, the Supreme Court of Alabama found no
reversible error. Ex Parte Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998). Davis
has not established that the denial of this claim was contrary to, or an unreasonable
application of, clearly established federal law, or that it resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented. The content of the note admitted into evidence was not inflammatory or
obviously gang-related, and it would not have caused the conviction to be based on
fear and racial bias.
Davis also asserts that trial counsel were constitutionally ineffective because,
instead of objecting to the admission of the note altogether, they stipulated to its
admission in a redacted form. According to Davis, even the redacted note contained
phrases that the jury was likely to associate with racism or gang activity.260 That
claim was denied by the Rule 32 trial and appellate courts upon remand:
He argues that counsel should have objected to the admission of
a letter found in Davis’s pocket that referred to gang activity. . . .
The circuit court found that Davis failed to meet his burden of
proof on this claim because no evidence was introduced at the
evidentiary hearing concerning this issue. We agree. Counsel was not
questioned concerning this evidence.

260

Doc. no. 33, at 17-18, 59.

211

This court has held that “[o]bjections are a matter of
trial strategy, and an appellant must overcome the
presumption that ‘conduct falls within the wide range of
reasonable professional assistance,’ that is, the
presumption that the challenged action ‘might be
considered sound trial strategy.’ Moore v. State, 659 So.2d
205, 209 (Ala. Cr. App. 1994), citing Strickland [v.
Washington], 466 U.S. [668] at 687-88, 104 S.Ct. [2052] at
2064-65 [(1984)].”
Lane v. State, 708 So.2d 206, 209 (Ala. Crim. App. 1997). As we stated
in Brooks v. State, 456 So.2d 1142, 1145 (Ala. Crim. App. 1984),
“effectiveness of counsel does not lend itself to measurement by picking
through the transcript and counting the places where objections might
be made. Effectiveness of counsel is not measured by whether counsel
objected to every question and moved to strike every answer.” Davis
failed to meet his burden of proof on this claim; therefore, the trial court
correctly denied him relief.
Davis v. State, 9 So. 3d 539, 550-551 (Ala. Crim. App. 2008) (alterations in original).
Thereafter, however, Davis failed to raise this claim in his petition for writ of
certiorari.261 As such, it is both unexhausted and procedurally barred because a
return to state court would be futile. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); Collier v. Jones, 910 F.2d 770 (11th Cir. 1990).
Moreover, it should be noted that the Alabama Court of Criminal Appeals’
denial of this claim on the merits was neither contrary to, nor an unreasonable
application of, clearly established federal law.

261

Rule 32 C.R. Vol. 61, Tab 72.

212

The state court’s implicit

determination that the note was not overly prejudicial was not unreasonable, and its
conclusion that counsel was not ineffective for failing to object to its admission was
consistent with clearly established federal law.
H.

Improper Consideration Through the Pre-Sentencing Report of Davis’s
Juvenile Record and Allegations of Gang Involvement
Davis contends that the trial court violated his Eighth and Fourteenth

Amendment rights by considering “allegations set forth in the pre-sentence
investigation report, which consisted of inflammatory and erroneous allegations,
[and] included assertions of vulgar and reckless conduct at the referenced interview,
assertions based on hearsay about gang involvement or leadership, and implications
that Davis had a criminal record that included gun charges.”262 This claim was raised
by Davis in his certiorari petition on direct appeal,263 and rejected by the Alabama
Supreme Court:
Davis next argues that during the sentencing phase of the trial the
court improperly considered evidence of his prior juvenile offenses in
determining whether he should receive the death penalty. Davis also
argues that a separate reference to gang affiliation, made in the
presentencing report rather than in the prosecutor’s closing arguments,
was highly prejudicial and was improperly considered by the trial court
in its sentencing order.

262
263

Doc. no. 33, at 60 (alteration supplied).
C.R. Vol. 10, Tab 35, at 26-30.

213

Before the sentencing hearing, defense counsel objected to a
portion of the presentencing report that refers to allegations that Davis
was a member of a gang. That objection was as follows:
[Defense counsel]: And then, Judge . . . it is stated that it’s not
only reported by a codefendant and other witnesses, but also other
witnesses in prior cases, that Mr. Davis was a ringleader of the
‘Folks’ gang and then it’s got a branch of ‘Disciples’ in West
Anniston. And the defendant disputes that.”
Davis argues that this portion of the presentencing report was
irrelevant on the question of the existence of the aggravating
circumstances allowed into evidence under Ala. Code 1975, § 13A-5-49,
and that it did not serve to rebut any evidence offered in mitigation. He
also argues that the trial court’s considering his juvenile adjudications
was, in itself, reversible error, even if the court did not consider the
allegations of Davis’s gang involvement to be part of his history of
juvenile delinquency.
Davis points out that “juvenile adjudications are not convictions
and are not criminal in nature” and thus cannot be considered as prior
criminal activity under the Alabama capital sentencing scheme.
Freeman v. State, 555 So.2d 196, 212 (Ala. Cr. App. 1988), affirmed, Ex
parte Freeman, 555 So.2d 215 (Ala.1989), cert. denied, Freeman v.
Alabama, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). He
theorizes that is it “highly likely” that the trial court considered his prior
juvenile adjudications as proof of gang involvement, thereby
exacerbating the error, and concludes that the trial court’s sentencing
order was thus based upon inadmissible and highly prejudicial evidence,
which mandates that we reverse his sentence and order a new sentencing
hearing.
We find nothing in the record to support Davis’s contention that
the trial court considered the allegations of his gang involvement when
it determined his sentence and drafted its sentencing order. The
presentencing report contained evidence of Davis’s prior adjudications
of delinquency based on theft, receiving stolen property, and trespass.
214

However, the report also showed that, since 1987, when he became an
adult, Davis had been convicted on misdemeanor counts alleging
assault, trespass, theft, and resisting arrest and also on one felony count
alleging robbery in the third degree.
In its order sentencing Davis to death, the trial court cited only
two aggravating circumstances: (1) that Davis murdered Johnny Hazle
during a robbery attempt and (2) that Davis had a prior felony
conviction for third-degree robbery. In considering the “mitigating
circumstance” set out in § 13A-5-51(1) — that “[t]he defendant has no
significant history of prior criminal activity” — the trial court
specifically cited Davis’s prior juvenile adjudications in negation of that
factor.
While we find no merit in Davis’s argument that in determining
his sentence the trial court considered the suggestion that he had been
involved in gang activity, we agree that the trial court erred in
considering Davis’s juvenile adjudications. The juvenile adjudications
could not properly be used to negate the mitigating circumstance of “no
significant history of prior criminal activity.” However, it is clear that,
without regard to Davis’s juvenile adjudications, the evidence of Davis’s
convictions of various misdemeanors and, most important, his
conviction of robbery, would preclude the trial court from finding that
he had “no significant [criminal] history.” Because the properly
considered evidence of Davis’s criminal convictions would negate this
mitigating factor, we conclude that the trial court’s error in considering
Davis’s juvenile adjudications was harmless.
Ex parte Davis, 718 So.2d 1166, 1177-78 (Ala. 1998) (alterations in original).
It is undisputed that the presentencing report did make some references to
alleged gang activity. However, the Alabama Supreme Court’s determination that
there was “nothing in the record to support Davis’s contention that the trial court
considered the allegations of his gang involvement when it determined his sentence
215

and drafted its sentencing order” is entitled to deference on review. Moreover, that
determination is supported by an independent review of the record.
It also is undisputed that the trial court, without objection, improperly
considered Davis’s juvenile convictions in determining that he was not entitled to the
statutory mitigating circumstance of having “no significant criminal history.”
However, the Alabama Supreme Court determined that the error was harmless since
Davis’s adult convictions would also negate the mitigating factor. That decision is
neither contrary to, nor an unreasonable application of, clearly established federal
law, nor was it based on an unreasonable determination of the facts in light of the
evidence presented. Davis’s criminal convictions as an adult supported the state
court’s finding that he did not qualify for the mitigating circumstance at issue.
Finally, it is fundamental that federal courts may not grant habeas relief for
errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Davis is entitled to
no relief on this claim.
Under the heading of this claim, Davis also challenges trial counsel’s failure
to object to the procedures used to prepare the presentence report in this case.264
Davis argues that, pursuant to Estelle v. Smith, 451 U.S. 454, 469-70 (1981), the Sixth
Amendment right to counsel is implicated at presentence interviews, and Davis
264

Doc. no. 33, at 60.

216

should not have been interviewed outside the presence of his attorneys.265
Specifically, Davis claims that counsel were ineffective for failing to object to the
presentence report because he was interviewed outside the presence of previous
counsel; the report contained inflammatory and condemning conclusions about
Davis’s refusal to communicate with the author of the report; the report allegedly
contained false statements; and the judge could have drawn adverse inferences from
Davis’s refusal to communicate with the report’s author.266
It does not appear that this claim was raised in state court; therefore, it is
unexhausted and procedurally defaulted. Moreover, Davis has offered nothing to
indicate that he was prejudiced by counsel’s failure to object to the presentence report
on these grounds. Thus, he is entitled to no relief.
I.

Conviction and Sentence Obtained Through the Use of Uncorroborated
Accomplice Testimony
Davis asserts that the non-accomplice testimony was insufficient to convict him

of capital murder.267 He contends that, even though the trial court found as a matter
of law that only Alphonso Phillips was an accomplice, both Terrance Phillips and

265

Id.

266

Id.
Id. at 63-65.

267

217

Willie James Smith were accomplices. 2 6 8 He argues that no other witness was able
to connect him with the commission of the offense.269
Davis unsuccessfully argued this claim in the Alabama Supreme Court on
direct appeal:
Davis argues that the only evidence directly linking him with the
robbery and murder of Hazle was the testimony of Alphonso Phillips,
Terrance Phillips, and Willie Smith. Based upon the evidence of
Alphonso Phillips’s participation in the robbery that ended in the murder
of Jimmy Hazle, the trial court held that, as a matter of law, Alphonso
Phillips was an accomplice to the crimes that Davis was charged with.
Davis relies on § 12-21-222, Ala. Code 1975:
A conviction of felony cannot be had on the
testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the
commission of the offense, and such corroborative
evidence, if it merely shows the commission of the offense
or the circumstances thereof, is not sufficient.
Davis argues that Terrance Phillips and Willie Smith were
accomplices to the crimes he was charged with, just as Alphonso
Phillips was, and that their testimony, therefore, could not properly be
used to corroborate Alphonso Phillips’s testimony. Knowles v. State, 44
Ala. App. 163, 204 So. 2d 506 (1967). He contends that, beyond the
“accomplice” testimony of Terrance Phillips and Willie Smith, there was
no evidence to link him with the robbery and murder of Johnny Hazle;
thus, he concludes, his sentence and conviction should be overturned.
Before § 12-21-222 is invoked, it must clearly appear that the
witness is an accomplice, and it is the defendant’s burden to prove that
268
269

Id. at 63.
Id. at 64.

218

a witness is an accomplice, unless the evidence shows without dispute
that the witness is an accomplice. Steele v. State, 512 So. 2d 142 (Ala.
Cr. App. 1987). The evidence clearly established that Alphonso Phillips
acted as Davis’s accomplice in the robbery that ended in the murder of
Johnny Hazle, and the trial court thus properly held that, as a matter of
law, Alphonso Phillips was Davis’s accomplice. Davis contends that the
trial court should likewise have held that, as a matter of law, Terrance
Phillips and Willie Smith were also Davis’s accomplices, so that their
testimony against him would have to be corroborated.
Davis emphasizes that Terrance Phillips was indicted for the same
offense as Davis was; however, the mere fact that a witness is indicted
for the same crime as the defendant does not alone mark the witness as
an accomplice with the defendant in the commission of the crime. Steele
v. State, supra. The evidence shows that, on the day of the crime,
Terrance Phillips went to a nearby community center after school, that
Davis and Alphonso Phillips were already there, and that they already
had a plan to rob Direct Oil. The evidence shows that the two informed
Terrance Phillips of the plan, and that he walked with them in the
direction of Direct Oil. There is no evidence that Terrance Phillips
participated in the formulation of the plan, or that he helped execute it;
rather, it is clear that Terrance Phillips separated himself from Davis and
Alphonso Phillips before the commission of the crime. These facts are
sufficient to present a jury question as to whether Terrance Phillips was
an accomplice in Davis’s crime, and to support a finding by the jury that
Terrance Phillips was not an accomplice.
As to Willie Smith, the evidence merely shows that on the
morning of March 17, 1993, Davis came to the motel room where Smith
and a friend were lodging and that Smith “handled” the gun that Davis
used later that day in the murder of Johnny Hazle. No evidence
indicates that Smith had any prior knowledge that Davis planned to used
the gun in the commission of a crime, or that Smith otherwise
participated in the robbery-murder. The only evidence of any complicity
on Smith’s part was that, after Davis had robbed Direct Oil and
murdered Johnny Hazle, Davis discussed this crime with Smith. We
agree that this was not a sufficient basis upon which the trial court could
219

have determined, as a matter of law, that Smith was Davis’s accomplice
in the crime; on the contrary, the evidence would support a jury’s
finding of fact that Smith was not Davis’s accomplice.
“The test for determining whether there is sufficient corroboration
of the testimony of an accomplice consists of eliminating the testimony
given by the accomplice and examining the remaining evidence to
determine if there is sufficient incriminating evidence tending to connect
the defendant with the commission of the offense.” Ex parte Scott, 460
So.2d 1371 (Ala. 1984) (quoting Ware v. State, 409 So.2d 886, 891
(Ala.Cr.App. 1981)). “Such corroborative evidence does not have to be
very strong, or even sufficient to support a conviction, but merely must
logically tend to link the accused with the offense.” Scott, at 1373.
There was abundant evidence, through the testimony of Terrance
Phillips and Willie Smith, to connect Davis with the robbery of Direct
Oil and the murder of Johnny Hazle. Moreover, even if the jury
considered Terrance Phillips and Willie Smith to be Davis’s
accomplices, and thus followed the trial court’s instructions that their
testimony would likewise require corroboration, the record provides
such corroboration. We therefore find no merit in Davis’s argument as
to this issue.
Ex Parte Davis, 718 So.2d 1166, 1170-71 (Ala. 1998) (emphasis in original).
Although Davis contends that the denial of this claim was contrary to, and
involved an unreasonable application of, clearly established Federal law, and was
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding, he does nothing but repeat the arguments he made in
state court.270 The state court’s factual determinations were amply supported by the

270

Doc. no. 33, at 63-65.

220

record, and its legal conclusions were neither contrary to, nor an unreasonable
application of, clearly established federal law. Davis is entitled to no relief.
J.

The State Court Violated Davis’s Constitutional Rights by Applying a
Blanket Rule that Hearsay Evidence is Inadmi ssible in Rule 32
Proceedings
Davis argues that the Alabama courts deprived him of fair sentencing under the

Eighth and Fourteenth Amendments when they applied a blanket rule that hearsay
evidence is inadmissible in Rule 32 proceedings.271
This claim was raised and rejected on appeal from the denial of Davis’s Rule
32 petition:
Davis also argues that the circuit court erred in excluding other
evidence related to Davis’s family environment. Davis’s brief on this
issue consists of two paragraphs. Davis states only that the circuit court
erroneously excluded hearsay and that hearsay evidence is admissible at
the sentencing stage of a capital-murder trial. However, Davis does not
identify what hearsay was excluded.
What Davis fails to consider is that this evidence was offered in
a Rule 32 proceeding and not at the sentencing phase of a capital-murder
trial. The Alabama Rules of Evidence do not apply to sentencing
hearings, but do apply to Rule 32 proceedings. See Rule 101, Ala. R.
Evid., and Rule 1101(a), Ala. R. Evid. Rule 804, Ala. R. Evid.,
specifically forbids the admittance of hearsay evidence. It appears that
the circuit court correctly applied the law. We find no error here.
Davis v. State, 9 So. 3d 514, 530 (Ala. Crim. App. 2006).

271

Id. at 65-66.

221

Davis contends that during the Rule 32 evidentiary hearing, he offered the
testimony of his family, friends, and others familiar with his childhood, as well as
social history testimony from Janet Vogelsang, a licensed clinical social worker, in
support of his ineffective assistance of trial counsel claims.272 Davis complains that
portions of these witnesses’ testimony were excluded by the trial court based on the
State’s hearsay objection, even though such testimony would have been admissible
during the penalty phase.273 Davis asserts that it is unconstitutional to exclude
mitigation evidence on the basis of hearsay during sentencing, and argues that
post-conviction counsel could not have established prejudice in support of Davis’s
ineffective assistance of counsel claims without presenting the readily available
evidence that trial counsel could and should have presented during the penalty phase
hearing.274
It does not appear that this claim was raised in Davis’s petition for writ of
certiorari on appeal from the denial of his Rule 32 petition.275 As such, it is both
unexhausted and procedurally barred because a return to state court would be futile.

272

Id. at 65.

273

Id.

274

Id.
Rule 32 C.R. Vol. 61, Tab 72.

275

222

See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Collier v. Jones, 910 F.2d
770, 773 (11th Cir. 1990).
Moreover, “state courts are the final arbiters of state law.” Agan v. Vaughn,
119 F.3d 1538, 1549 (11th Cir. 1997). Alabama state courts have held that hearsay
is not admissible in a Rule 32 hearing. See, e.g., Hunt v. State, 940 So.2d 1041, 1051
(Ala. Crim. App. 2005).
Even though this claim is based primarily on state evidentiary law, and has not
been exhausted, it is due to fail on the merits. Davis does not identify what
“portions” of the witnesses’ testimony were excluded based on the State’s hearsay
objection, nor does he demonstrate how their omission caused him prejudice.
Finally, review of the record reveals that the state court’s evidentiary rulings
did not strip Davis of the opportunity to present his claim during the Rule 32
proceedings. Davis is not entitled to relief on this claim.
K.

The State Court Violated Davis’s Constitutional Rights When it Excluded
the Testifying Expert’s Social History Exhibit as Cumulative
Davis explains that during the Rule 32 hearing, “Ms. Vogelsang testified to

Davis’s social history with reference to a testifying exhibit, Petitioner’s Exhibit
114,276 which was duly marked and prominently displayed to the court and all

276

Petitioner’s Exhibit 114 is located at Rule 32 C.R. Vol. 55, at 6102.

223

counsel.”277 However, when Exhibit 114 was offered into evidence, the State’s
objections were sustained.278 The Alabama Court of Criminal Appeals found that,
although the social history binder was otherwise admissible, there was no error in
excluding the exhibit since it was cumulative of other admitted evidence. Davis v.
State, 9 So. 3d 514, 530 (Ala. Crim. App. 2006). Davis concedes that the exhibit
“may to some extent have tracked Ms. Vogelsang’s testimony,” but argues that such
evidence was not merely cumulative of other lay testimony, but rather, “assigned the
expert’s analysis of and conclusions regarding significant, relevant facts in an
organized way found nowhere else in the record.”279 Davis further contends that the
exhibit included matters about which Ms. Vogelsang did not testify.280
The Alabama Court of Criminal Appeals found the following:
Davis argues that the Rule 32 court erred in excluding clinical
social worker Jan Vogelsang’s entire binder of notes that consisted of a
compilation of her findings regarding Davis’s social history.
Initially, we note that Davis’s social history was introduced for
the purpose of showing that mitigating evidence existed and that his trial
counsel was ineffective for failing to introduce that evidence. However,
in Part I of this opinion we held that Davis’s claims of ineffective
assistance of trial counsel were procedurally barred because when Ex

277

Doc. no. 33, at 66.

278

Rule 32 R. Vol. 23, at 1134-36.

279

Doc. no. 33, at 66.
Id.

280

224

parte Jackson was in effect, Davis was tried. Accordingly, if any error
did occur, it was rendered harmless by our holding in Part I.
Moreover, in his brief to this Court Davis argues that “[t]his issue
merits this Court’s close attention because such an expert’s exhibit is
indeed the very sort of exhibit that belongs in the jury room in the
penalty phase deliberations of a capital murder case along with whatever
supporting and discrediting evidence accompanies it.” (Davis’s brief at
pp. 75-75.) The National Association of Social Workers (“NASW”)
argues that social histories are reliable and important evidence and are
widely used in capital-murder cases to show mitigation.
At the Rule 32 proceeding a plethora of other evidence was
offered and admitted to show that mitigation evidence did exist. Indeed,
the evidence introduced and admitted at the hearing was similar to the
evidence contained in Vogelsang’s social history binder.
When addressing a similar claim in Williams v. Anderson, 174 F.
Supp. 2d 843 (N.D. Ind. 2001), aff’d, Williams v. Davis, 301 F.3d 625
(7th Cir. 2002), a federal court when denying relief, likewise noted:
Williams argues that the post-conviction court’s
decision denied him due process by precluding the court
from considering additional mitigating evidence, as
mandated by Hitchcock v. Dugger, 481 U.S. 393, 107 S.
Ct. 1821, 95 L. Ed. 2d 347 (1987), Eddings v. Oklahoma,
455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), and
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d
973 (1978). In Skipper v. South Carolina, 476 U.S. 1, 106
S. Ct. 1669, 90 L. Ed. 2d 1 (1986), the Supreme Court held
that excluding mitigating evidence as cumulative may be
implausible under the facts of a case if the court cannot
conclude that the excluded evidence would have had no
impact on the jury’s deliberations. 476 U.S. at 8, 106 S. Ct.
1669. Thus, Williams argues that the Indiana Supreme
Court’s determination that the evidence was cumulative
impeded the court’s ability to consider all relevant facets of
225

his character in determining his sentence, and thus violated
Skipper.
This court first notes that the evidence was excluded
during post-conviction proceedings, and not during the
actual trial. Thus, it is unclear whether the protection of
Hitchcock, Eddings, Lockett, and Skipper apply at all.
174 F. Supp. 2d at 872-73.
The social history binder was admissible. The circuit court erred
in not allowing this binder to be received into evidence; however, in this
case, it is clear that the material in the binder was cumulative to
Vogelsang’s thorough and lengthy Rule 32 testimony and to testimony
offered by other witnesses at the Rule 32 hearing. “The exclusion of
admissible evidence does not constitute reversible error where the
evidence ‘would have been merely cumulative of other evidence of the
same nature, which was admitted.’” Houston v. State, 565 So. 2d 277,
281 (Ala. Crim. App. 1990) (quoting Ex parte Lawson, 476 So. 2d 122,
122 (Ala. 1985)). Accordingly, for the reasons stated above we find no
reversible error.
Davis v. State, 9 So. 3d 514, 529-530 (Ala. Crim. App. 2006) (alteration in original).
The denial of this claim was based on the court’s factual finding that the
material in the binder was cumulative to Vogelsang’s testimony and the testimony of
other witnesses. While Davis disputes this finding, and argues that it was an
unreasonable factual determination, he does not cite to any portions of the record to
demonstrate which evidence was not cumulative, and improperly and prejudicially
excluded. His conclusory assertion that the exhibit “assigned the expert’s analysis

226

of and conclusions regarding significant, relevant facts in an organized way found
nowhere else in the record” is insufficient factual support for this claim.
Davis has not established that the decision of the Court of Criminal Appeals
was contrary to, and involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States, or was based
on an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. Davis is not entitled to relief on this claim.
L.

The State Court Violated Davis’s Constitutional Rights By Adopting
Verbatim the State’s Proposed Factual Findings and Legal Conclusions
Davis complains that the Rule 32 court abdicated its responsibility to provide

an independent review of the issues by adopting verbatim the State’s proposed
findings of fact and conclusions of law, without adopting anything from his own
submission.281 Davis argues that the court should have made a fair and independent
judicial review of the evidence and law, and rendered its own order adopting portions
from each party’s submission as it deemed appropriate, incorporating any necessary
text to explain its independent legal analysis and judgment.282 He asserts that by
adopting the State’s proposed order verbatim, the court violated Supreme Court

281
282

Doc. no. 33, at 67-69.
Id. at 68.

227

precedent established in Anderson v. Bessemer City, 470 U.S. 564, 572-73 (1985),
and United States v. El Paso Natural Gas, 376 U.S. 651, 656-57 (1964).
In response, the State first argues that, because this claim raises only an issue
of state law, it is not subject to review by this court pursuant to 28 U.S.C. §
2241(c)(3), 28 U.S.C. § 2254(a), and Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
In the alternative, the State contends that the claim is procedurally barred because
Davis did not raise it in his Rule 32 petition or on appeal from the denial of that
petition.
This claim was raised on appeal from the denial of Davis’s Rule 32 petition,283
in his application for rehearing, 2 8 4 and in his certiorari petition.285 While the merits
of the claim were not addressed by the Rule 32 court, and the claim itself was not
identified by either appellate court, the failure of a state appellate court to mention a
claim does not mean the claim was not presented. Dye v. Hofbauer, 546 U.S. 1, 2-4
(2005). Because the Alabama Court of Criminal Appeals did not find that this claim
was procedurally defaulted, there is no procedural bar stemming from any state
procedural default.

283

Rule 32 C.R. Vol. 57, Tab 60, at 4, 53-55.

284

Rule 32 C.R. Vol. 58, Tab 64, at 27.
Rule 32 C.R. Vol. 59, Tab 67, at 7-9, 93-105.

285

228

Moreover, the respondent’s argument that the claim is one of pure state law is
not persuasive. Davis raised the issue of whether the Rule 32 court’s verbatim
adoption of the Rule 32 Proposed Order submitted by the State in the circumstances
of this case was a violation of Davis’s rights under “the Due Process Clause of the
Alabama Constitution of 1901 (Article 1, Section 6) and/or the Due Process Clause
of the United States Constitution.”286 Davis elaborated by arguing that the appellate
court should not employ the clear error standard on review because the Rule 32 court
had essentially “rubber stamped” the State’s proposed order, which was “replete with
error,” and based its conclusions in part on information outside the Rule 32 record.287
Although not presented as a separate and delineated claim for relief, Davis arguably
alerted the state courts to the federal constitutional issue.
In any event, Davis’s claim is without merit. Although in Anderson v. City of
Bessemer, 470 U.S. 564, 572 (1985), and United States v. El Paso Natural Gas Co.,
376 U.S. 651, 656-657 (1964), the Supreme Court criticized trial courts’ verbatim
adoption of findings of fact prepared by prevailing parties, it ultimately held “that
even when the trial judge adopts proposed findings verbatim, the findings are those

286

Rule 32 C.R. Vol. 57, Tab 60, at 4; Rule 32 C.R. Vol. 59, Tab 67, at 8-9 (emphasis

supplied).
287

Rule 32 C.R. Vol. 57, Tab 60, at 53-55.

229

of the court and may be reversed only if clearly erroneous.” Anderson, 470 U.S. at
572.
Davis identifies two portions of the trial court’s order he alleges constitute
clear error. First, he alleges that the order erroneously stated that “[t]here are no
constitutionally required checklists for mitigation investigations.”288 He argues that
“this conclusion is wholly contrary to” Wiggins v. Smith, 539 U.S. 510, 524-25
(2003), in which the Court noted “that a ‘checklist’ can be found in the standards for
capital defense work articulated by the American Bar Association and that the Court
has ‘long referred [to the ABA Standards] as “guides in determining what is
reasonable.”’”289
In its order denying Davis’s Rule 32 petition, the trial court stated:
Although Davis faults trial counsel for not subpoenaing his DHR
records, there is absolutely no evidence before this Court that
reasonably competent counsel would have been on notice that such
records existed. There are no constitutionally required checklists for
mitigation investigations. Trial counsel are faced with the realities of
limited time and limited resources. Those resources have to be managed
in an efficient manner. Thus, this Court does not find that attorneys are
expected to subpoena agency records “just in case.” Had Lillie Bell
Davis, Davis’s siblings, or Davis himself told his trial counsel that this
issue needed to be investigated — that DHR had been involved in the
Davis home — this Court would absolutely find ineffective assistance
of counsel for failure to investigate, discover and/ or develop this
288
289

Doc. no. 33, at 68 (alteration in original).
Id. (alteration in original).

230

evidence, depending on the strategic decisions made by counsel
following their investigation. But that is not what happened here.
Rule 32 C.R. Vol. 62, Tab. 80, at 39-40 (boldface emphasis in original, italicized
emphasis supplied).
The Court in Wiggins did not indicate that there are “constitutionally required
checklists for mitigation investigations.” In fact, Wiggins did not mention a checklist
at all. Rather, Wiggins stated:
Counsel’s conduct similarly fell short of the standards for capital
defense work articulated by the American Bar Association (ABA) —
standards to which we long have referred as “guides to determining what
is reasonable.” Strickland, supra, at 688, 104 S.Ct. 2052; Williams v.
Taylor, supra, at 396, 120 S.Ct. 1495. The ABA Guidelines provide
that investigations into mitigating evidence “should comprise efforts to
discover all reasonably available mitigating evidence and evidence to
rebut any aggravating evidence that may be introduced by the
prosecutor.” ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(c), p. 93 (1989) (emphasis
added). Despite these well-defined norms, however, counsel abandoned
their investigation of petitioner’s background after having acquired only
rudimentary knowledge of his history from a narrow set of sources. Cf.
Id., 11.8.6, p. 133 (noting that among the topics counsel should consider
presenting are medical history, educational history, employment and
training history, family and social history, prior adult and juvenile
correctional experience, and religious and cultural influences (emphasis
added)); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p.
4-55 (2d ed. 1982) (“The lawyer also has a substantial and important
role to perform in raising mitigating factors both to the prosecutor
initially and to the court at sentencing . . . . Investigation is essential to
fulfillment of these functions”).

231

Wiggins, 539 U.S. at 524-25 (emphasis in original). The American Bar Association
guidelines regarding the performance of counsel in death penalty cases are not
constitutionally required. Thus, the trial court’s statement was not contrary to
Wiggins. Further, the court notes that the trial court followed Wiggins in adjudicating
Davis’s claim that counsel were ineffective during the sentencing phase.290
Second, Davis questions the Rule 32 court’s conclusion that “this Court does
not know what [defense counsel] Adams did or did not do in preparation for this
case.”291

Davis argues that this statement is factually false because it is

“uncontroverted that trial counsel did not subpoena key documents or make any
attempt to secure DHR, school, or other available records.”292 Davis has taken this
quote out of context. In denying Davis’s claim that counsel were ineffective during
the penalty phase, the Rule 32 court stated:
Jimmy Davis’s family – and to a very large extent his mother – bears a
heavy burden in this case for their role in this matter. Because Adams
did not testify, this Court does not know what Adams did or did not do
in preparation for this case. The Court presumes, however, that Adams
acted reasonably in the questions he asked his client and his client’s
mother and in preparing for the penalty phase. FN.
FN. Further, based on Davis’s statement that his attorneys
only spoke with his mother and two siblings, this Court
290

Rule 32 C.R. Vol. 62, Tab 80, at 27-44.

291

Doc. no. 33, at 68 (alteration in original).
Id.

292

232

presumes Adams spoke with at least two of Davis’s
siblings. (RR. 863)
Further, the testimony of Giddens establishes that at no time did Davis
ever mention to his attorneys the abuse suffered at the hands of his
mother or the intervention of DHR in the Davis home.
Rule 32 C.R. Vol. 62, Tab 80, at 29 (boldface emphasis in original, italicized
emphasis supplied). The court’s statement was intended to emphasize that because
Davis did not call Adams to testify at the Rule 32 hearing, the court did not have the
benefit of Adams’ testimony concerning his preparation for the penalty phase. The
footnote indicates that the court did not pretend to have no knowledge of anything
Adams did or did not do.
Davis has pointed to no clear error in the trial court’s order denying the Rule
32 petition. Thus, his claim must fail.
M.

The State Failed to Meet its Burden of Proving Capital Murder During the
Course of a Robbery
Davis asserts that his conviction should have been vacated because the State

failed to prove its case of capital murder committed during a robbery.293 He argues
that no physical evidence linked him with the robbery of Direct Oil or the murder of
Mr. Hazle, no eyewitness could identify him as the man who shot the victim, and no

293

Doc. no. 33, at 69-70.

233

reliable evidence to corroborated the testimony of the Phillips cousins, who were
given plea agreements in exchange for their testimony against him.294
Davis further argues that, even if the evidence was sufficient to prove that he
shot Mr. Hazle, the State did not carry its burden of proof on robbery because no
money was taken from the scene, and the only evidence to support the robbery
element of capital murder was the Phillips cousins’ uncorroborated testimony.295 He
adds that, without the robbery, the most serious charge for which any of the
participants could have been convicted was intentional murder.296
Although the claim was not raised in Davis’s brief on direct appeal, the
Alabama Court of Criminal Appeals nonetheless considered the sufficiency of the
evidence:
He does not question the sufficiency of the evidence to support his
conviction. Even though he does not raise this issue on appeal, we have
reviewed the evidence presented and find it was sufficient for the jury
to find the appellant guilty beyond a reasonable doubt of the capital
offense charged in the indictment. In fact, the evidence of his guilt is
strong and convincing.
Davis v. State, 718 So. 2d 1148, 1156-57 (Ala. Crim. App. 1997).

294

Id. at 69.

295

Id.
Id.

296

234

The Alabama Supreme Court affirmed that decision, and in connection with
Davis’s claim in his petition for writ of certiorari that there was insufficient
corroborating evidence to convict him, found that:
“The test for determining whether there is sufficient corroboration of the
testimony of an accomplice consists of eliminating the testimony given
by the accomplice and examining the remaining evidence to determine
if there is sufficient incriminating evidence tending to connect the
defendant with the commission of the offense.” Ex parte Scott, 460 So.
2d 1371 (Ala. 1984) (quoting Ware v. State, 409 So. 2d 886, 891 (Ala.
Cr. App. 1981)). “Such corroborative evidence does not have to be very
strong, or even sufficient to support a conviction, but merely must
logically tend to link the accused with the offense.” Scott, at 1373.
There was abundant evidence, through the testimony of Terrance
Phillips and Willie Smith, to connect Davis with the robbery of Direct
Oil and the murder of Johnny Hazle. Moreover, even if the jury
considered Terrance Phillips and Willie Smith to be Davis’s
accomplices, and thus followed the trial court’s instructions that their
testimony would likewise require corroboration, the record provides
such corroboration.
Ex parte Davis, 718 So. 2d 1166, 1171 (Ala. 1998).
The denial of this claim by the state court was neither contrary to, nor an
unreasonable application of, clearly established federal law. The evidence, taken in
the light most favorable to the State, amply established that the murder was
committed during the course of a robbery attempt, and that Davis was indeed the man
who shot and killed the victim.

235

N.

Double Counting of Robbery as an Element of the Underlying Offense and
as an Aggravating Circumstance at Sentencing Violated the Fifth, Sixth,
Eighth, and Fourteenth Amendments
Davis argues that one of the aggravating circumstances presented by the State

during the penalty phase of the trial was the fact that the murder was committed
during the course of a first degree robbery: a fact that also was necessary to prove the
offense of capital murder.297 Davis argues that the “double counting” of robbery
“both as an elevator in the guilt phase and as an aggravator in the penalty phase”
violated his right to a reliable and rational sentence, and failed to narrow the class of
cases eligible for the death penalty as required by federal law.298
This claim was first raised in Davis’s amended petition for writ of certiorari
on direct appeal, and it was denied without discussion by the Supreme Court of
Alabama. Ex parte Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998). The Alabama
Supreme Court’s denial of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law.
“To pass constitutional muster, a capital sentencing scheme must ‘genuinely
narrow the class of persons eligible for the death penalty and must reasonably justify
the imposition of a more severe sentence on the defendant compared to others found

297
298

Doc. no. 33, at 70-71.
Id.

236

guilty of murder.’” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v.
Stephens, 462 U.S. 862, 877 (1983)). The requirement that a jury in the sentencing
phase find an aggravating circumstance before it can impose a death sentence,
narrows the class of persons eligible for the death penalty. Id. The use of an
aggravating circumstance is only one means of narrowing the class of death-penaltyeligible defendants. Id. The narrowing function may be performed by jury findings
at the guilt or sentencing phases of a trial.

Id. at 245. In Davis’s case, the

“narrowing function” was performed by the jury at the guilt phase of his trial when
it found him guilty of committing an intentional murder during the course of a first
degree robbery. “The fact that the sentencing jury is also required to find the
existence of an aggravating circumstance in addition is no part of the constitutionally
required narrowing process, and so the fact that the aggravating circumstance
duplicated one of the elements of the crime does not make this sentence
constitutionally infirm.” Lowenfield, 484 U.S. at 246. See also Johnson v.
Singletary, 991 F.2d 663, 669 (11th Cir. 1993) (finding no constitutional infirmity in
a Florida statute permitting a defendant to be eligible for the death penalty based
upon a felony murder conviction, and to be sentenced to death based upon an
aggravating circumstance that duplicates an element of the underlying conviction).
Davis is not entitled to relief on this claim.
237

O.

The Trial Court’s Failure to Conduct Individual Sequestered Voir Dire
Depri ved Davis of His Rights to Due Process and a Fair Trial by an
Impartial Jury
Davis asserts that, because he is an African-American who was charged with

capital murder of a white man who was well known in the community, his case had
racial overtones, and that individual voir dire was necessary to ensure that he
obtained a fair and impartial jury.299 Specifically, Davis contends that, during voir
dire, one potential juror, Nicholas Deljudice, made blatant references to race.300
Davis speculates that many other jurors likely held similar racially-biased attitudes,
but were uncomfortable expressing them in front of the group.301
299

Davis also

Doc. no. 33, at 71-73.

300

Id. at 72. The trial transcript reveals that the “blatant references to race” made by
Deljudice were made at a sidebar, outside of the presence of the rest of the potential jurors. When
asked at sidebar what he had heard about the case, Deljudice explained:
Was strictly in the community and strictly scuttlebutt. It’s never really
accurate, not the intellectual community.
Anyway, the scuttlebutt is in the community amongst the blacks that it was
a hit. They didn’t mention names of who did. I don’t know that guy from anybody
else. The scuttlebutt was that it was a hit, that he, Hazle, was informing on some of
the narcotics, informing, and that they hit him. And this is what was said. I don’t
know if it’s any truth in it or not.
...
That’s right, that’s all I heard. And I know – like I said, I know his brother
and his brother said nothing of this nature. Just was strictly scuttlebutt amongst the
gang kids.
R. Vol. 2, at 109-110.
301
Doc. no. 33, at 72.

238

complains that the venire was exposed to the beliefs of other potential jurors about
the victim, the defendant, and the nature of the crime which may have caused him
prejudice.302
This claim was first raised in Davis’s second petition for writ of certiorari on
direct appeal,303 and it was summarily denied by the Alabama Supreme Court. Ex
parte Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998).
It is well established that trial courts are granted wide discretion in conducting
voir dire. The Supreme Court has never held that individual, sequestered voir dire
is constitutionally required, but has left that determination to the discretion of the trial
court. Mu’Min v. Virginia, 500 U.S. 415, 431-32 (1991). As in Mu’Min, the voir dire
proceedings in Davis’s case were “by no means perfunctory.” Id. at 431. The record
reflects that the trial court allowed 127 potential jurors to be questioned in groups of
fourteen.304 Defense counsel did not object to that process, nor did they request
302

Id. at 72-73. Davis asserts that:

Specifically, several potential jurors stated in the presence of their panels that Mr.
Hazel [sic] had worked hard, was polite, was a church-going man, had a brother who
was well-known in the community and had left other family behind, and was friendly
to most people. Moreover, one of the potential jurors stated his opinion in open court
that “this case is violent, very violent case.” Tr. 301. One panel also heard that
Davis had been suspended from school several times, and that he attended school
sporadically. Tr. 413-14.
Id.
303
304

C.R. Vol. 10, Tab 35, at 70-75.
R. Vol. 1, Tab 4, at 21-23.

239

individual sequestered voir dire. The voir dire of each fourteen-member panel was
extensive and thorough.305 Review of the transcript reveals no comments made by
prospective jurors in the presence of other panel members that would have caused
bias or prejudice.306 Furthermore, individual questioning was allowed if needed.
The trial court’s examination of prospective jurors was within “the wide
discretion granted to the trial court in conducting voir dire.” Mu’Min, 500 U.S. at
427. There is no indication that the petitioner was prejudiced by the trial court’s
decision to conduct voir dire examination of prospective jurors in panels, rather than
individually. In sum, the Supreme Court of Alabama’s denial of this claim was
neither contrary to, nor an unreasonable application of, clearly established federal
law. This claim is due to be dismissed.
P.

Davis’s Rights to Due Process, a Fair Trial, and a Reliable Verdict from
a Fair and Impartial Jury Were Violated When the Trial Court Failed to
“Life Qualify” the Veniremembers in Accordance with Morgan v. Illinois
Davis argues that he was denied an adequate voir dire because the trial court

failed to “life qualify” the venire by asking whether any juror would automatically
impose the death penalty, in accordance with Morgan v. Illinois, 504 U.S. 719, 729
(1992).307 He argues that several potential jurors were struck for cause because they
305

R. Vol. 1, Tab 5, at 29-95; R. Vol. 2, at 96-296; R. Vol. 3, at 297-492.

306

Id.
Doc. no. 33, at 74.

307

240

had fixed opinions against the death penalty, but complains that he was not afforded
the opportunity to determine whether any potential jurors had fixed opinions in favor
of it.308 This claim was raised in Davis’s second petition for writ of certiorari on
direct appeal,309 and it was summarily denied by the Alabama Supreme Court. Ex
Parte Davis, 718 So. 2d 1166, 1172, 1179 (Ala. 1998).
The Sixth Amendment guarantees criminal defendants the right to a fair trial
by an impartial jury. Skilling v. United States, 561 U.S. 358, 438 (2010) (citing Irvin
v. Dowd, 366 U.S. 717, 723 (1961)). The purpose of voir dire is to determine
whether prospective jurors can render an impartial verdict based solely on the
evidence and the court’s instructions. Rosales-Lopez v. United States, 451 U.S. 182,
188 (1981).
The voir dire inquiry used to determine whether there are jurors
who would vote automatically to impose the death penalty if a defendant
were found guilty of a capital crime is referred to as the
“reverse-Witherspoon” inquiry, because it arose from a line of death
penalty voir dire cases exemplified by Witherspoon v. Illinois, 391 U.S.
510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Brown v. Jones, 255 F.3d 1273, 1279 n.6 (11th Cir. 2001).
The Supreme Court has held that defendants have a right to conduct that
inquiry at voir dire. Morgan, 504 U.S. at 736 (holding that the defendant “was
308
309

Id.
C.R. Vol. 10, Tab 35, at 79-81.

241

entitled, upon his request, to inquiry discerning those jurors who, even prior to the
state’s case in chief, had predetermined the terminating issue of his trial, that being
whether to impose the death penalty”) (emphasis supplied).

That right can be

waived, however. There is no clearly established federal law requiring a court to ask
life-qualifying questions sua sponte during voir dire, when a defendant has requested
that line of questioning himself.
Moreover, to the extent Davis may be attempting to assert that counsel was
ineffective for failing to life-qualify the jury, 3 10 he has failed to satisfy both prongs
of the Strickland analysis. See Hightower v. Schofield, 365 F.3d 1008, 103-538 (11th
Cir. 2004), abrogated on other grounds, 545 U.S. 1124 (2005) (to succeed on a
reverse-Witherspoon-based claim of ineffective assistance, defendant must show that
counsel’s errors resulted in the seating of jurors who were unconstitutionally biased
in favor of death); Stamper v. Muncie, 944 F.2d 170, 177 (4th Cir. 1991) (petitioner
alleging ineffective assistance based on counsel’s failure to explore with certain
members of the venire the “reverse-Witherspoon” inquiry must demonstrate how any
shortcoming on trial counsel’s part constituted prejudice sufficient to satisfy the

310

Within this claim, Davis makes the assertion: “Neither the court nor trial counsel
attempted to “life qualify” the jury by asking whether any veniremember would automatically
impose the death penalty. Davis was denied a fair trial because the jury was weighted in favor of
death.” Doc. no. 33 at 74. He elaborates no further.

242

second prong of the Strickland test). Davis has not produced any evidence that any
of the seated jurors were unconstitutionally biased in favor of death.
The state court’s denial of this claim did not result in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal
law.
Q.

The Trial Court Erred By Granting the State’s Motions to Strike for
Cause Potential Jurors Elaine Thomas and Sandra Tilley
Davis asserts that in capital cases, the right to a fair and impartial jury requires

that veniremembers not be struck for cause merely because they express reservations
about the death penalty.311 He argues that potential jurors Elaine Thomas and Sandra
Tilley should not have been struck for cause for expressing their reservations about
the death penalty, because their opinions did not affect their ability to perform their
duties as jurors.312 According to Davis, the trial court used the wrong standard when
it granted the State’s cause challenge on the grounds that Ms. Thomas “clearly stated
she has a fixed opinion against the death penalty.”313 He also contends that the trial
court erroneously stated that Ms. Tilley “continued to be adamant in her beliefs that
she would require proof beyond all doubt in order to either convict or to impose a

311

Doc. no. 33, at 75.

312

Id. at 75-77.
Id. at 76 (quoting R. Vol. 3, at 314).

313

243

death penalty,” and incorrectly characterized Ms. Tilley’s answers to voir dire
questions as an indication that she was unable to convict under the reasonable doubt
standard.314
This claim first was raised in Davis’s second petition for writ of certiorari on
direct appeal,315 and it was summarily denied by the Supreme Court of Alabama. Ex
Parte Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998). That decision was neither
contrary to, nor an unreasonable application of, clearly established federal law, nor
was it based on an unreasonable determination of the facts in light of the evidence
presented.
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court held that
“a sentence of death cannot be carried out if the jury that imposed it was chosen by
excluding potential jurors for cause simply because they voiced general objections
to the death penalty or expressed conscientious or religious scruples against its
infliction.” Id. at 522. This standard was later clarified in Wainwright v. Witt, 469
U.S. 412 (1985), when the Supreme Court held that a prospective juror may be
excluded for cause because of his views on capital punishment when “the juror’s
views would ‘prevent or substantially impair the performance of his duties as a juror

314
315

Id. (quoting R. Vol. 3, at 314-15) (emphasis supplied).
C.R. Vol. 10, Tab 35, at 82-89.

244

in accordance with his instructions and his oath.’” Id. at 424 (quoting Adams v.
Texas, 448 U.S. 38, 45 (1980)).

The Court further held that, because the

determination of juror bias involves “credibility findings whose basis cannot be easily
discerned from an appellate record,” the trial court’s factual findings are entitled to
deference on habeas review and are presumed correct under § 2254(d). Wainwright,
469 U.S. at 429.
During voir dire, the following exchanges took place with potential juror
Elaine Thomas:
MR. HUBBARD: Okay. With that in mind, we move into an area now
for a few questions on something very heavy, if you
will. And if you find this defendant guilty, as I told
you before, you will then be asked to render or
recommend a sentence to Judge Street, if you find
him guilty of this capital murder offense. These two
recommendations can only be life without parole or
the death penalty.
Be candid and honest with us if you will at
this time. Do any of you have a fixed opinion
against the imposition of the death penalty?
You may have read about it a million times,
may have seen about it on television a million times,
and you never thought that it might come down to
you sitting in a jury box possibly having a part in
rendering a verdict in that way. But I’m telling you
and the Judge will tell you that that’s a very real
possibility in this situation, that you may have that

245

decision; that decision to make a recommendation as
to that.
So what I want to ask you is, do any of you
have a fixed opinion against the death penalty,
whether it be religious, moral grounds, or any other
type grounds that we can think of?
Yes, ma’am.
PJ THOMAS:

Elaine Thomas. I don’t like the death penalty.

MR. HUBBARD: Okay. Let me ask you just a couple of questions,
Ms. Thomas, and I appreciate your candor there with
us.
And you said you don’t like the death penalty.
Is there any set of circumstances that you can
imagine in your mind for which you would vote for
the death penalty to be imposed? Or would you
always say, “I don’t care what the circumstances are,
I’m going to vote against the death penalty”?
PJ THOMAS:

I just wouldn’t want to be in a case where I would
have to decide that someone should die. I wouldn’t
— I wouldn’t want that for me.

MR. HUBBARD: And again, I understand what you’re saying and I
don’t want to press you too much, because I know
that lawyers tend to do that at times. But I have to
try to get a yes or no answer for the record here.
PJ THOMAS:

But if I had to vote for a death penalty, I would
probably vote no. If I was on the jury and I was
asked, I would probably say life without parole
instead of death penalty. To be honest.

246

MR. HUBBARD: Can you imagine anytime you’re sitting in a jury,
regardless, not necessarily this defendant or not
necessarily this case, but any case, can you ever
imagine yourself sitting in a jury and voting for the
death penalty?
PJ THOMAS:

No.

MR. HUBBARD: All right. So I assume then you would have a fixed
opinion against the imposition of the death penalty.
PJ THOMAS:

Uh-huh (affirmative).

MR. HUBBARD: Am I correct?
PJ THOMAS:

Yeah. I wouldn’t vote for the death penalty.

MR. HUBBARD: That’s fine. Thank you, ma’am. This is a very
weighty decision. Everybody has to make up their
own mind and I appreciate your candor.
....
MR. GIDDENS:

Okay. This question is to Ms. Thomas, Ms. Elaine
Thomas. You have indicated earlier that you said, I
believe, you don’t like the death penalty and you
would not want to be in the case. And I believe you
said you would probably vote “no” in that event on
the death penalty.

PJ THOMAS:

Uh-huh (affirmative).

MR. GIDDENS:

Do you understand that this case has two phases?
You have a guilt, to determine the — the jury
determines the guilty or not guilty of the defendant.
And then you have the penalty phase to decide the

247

punishment. And you believe you would probably
vote “no.”
Could you sit on the part whereby you
determined the guilt or not guilty? I mean, would
your feeling on the death penalty, do you think
would prevent you from sitting in another one?
PJ THOMAS:

I probably could sit there, but I wouldn’t vote for it.

MR. GIDDENS:

Well, my question is, could you decide on the guilt
or innocence from the evidence presented to you
from the witness stand —

PJ THOMAS:

Yeah.

R. Vol. 2, at 285-286; R. Vol. 3, at 305-306.
The following took place with potential juror Sandra Tilley:
PJ TILLEY:

My name is Sandra Tilley. And before I can impose
the penalty, it would have to be beyond any doubt,
you know.

MR. HUBBARD: Okay. And perhaps – Okay. Well, I understand. In
other words, if the Judge charged you that if you
were convinced beyond a reasonable doubt then you
would still require beyond all doubt or to 100
percent?
PJ TILLEY:

Yeah. I wouldn’t want to sentence somebody to
that, you know, if I had any doubt —

MR. HUBBARD: I understand.
PJ TILLEY:

— that he was guilty.

248

MR. HUBBARD: What I’m saying is though, if the Judge charged you
of one thing that only required beyond a reasonable
doubt, you would still hold us to a higher burden of
proof; that is, beyond all doubt?
PJ TILLEY:

Yeah.

MR. HUBBARD: Is that correct?
PJ TILLEY:

Yeah. I would want to be sure that he did it, you
know.

MR. HUBBARD: Well, I don’t want to mislead you. I know this is a
difficult concept. But we’re talking about two
different phases of a trial here. The first phase
would be for us to prove to you beyond a reasonable
doubt that this defendant is guilty. Okay.
And then the next phase is to decide what
recommendation would be made for that. So that
you could actually make a finding that the defendant
was guilty of capital murder and then still
recommend life without parole or the death penalty,
whichever, you know, you preferred. Do you
understand what I’m saying there?
PJ TILLEY:

Yeah.

MR. HUBBARD: But what you’re saying is, as I understand it, is
regardless of what the Judge said about beyond a
reasonable doubt, that you had to be satisfied
beyond a reasonable doubt and only that level of
proof was necessary, you would still require proof
beyond all doubt or to 100 percent; is that correct?
PJ TILLEY:

Yes, you know. I would.

249

....
MR. GIDDENS:

Okay. And, Ms. Tilley, I believe you stated that you
would not impose a death penalty unless it
convinced to you beyond any doubt; is that correct?

PJ TILLEY:

Yes. Before I would want to take someone’s life I
would want to be sure that he did it. I wouldn’t —
I wouldn’t want to have any doubt he was guilty.

MR. GIDDENS:

Would that be relative to imposing the death
penalty? My question again would be to —

PJ TILLEY:

After I heard the evidence, if I felt sure that he was
guilty, then I would have no problem with, you
know, with capital punishment. But if I had any
doubt that he was guilty, no, I couldn’t.

MR. GIDDENS:

Okay. Again, we go back to beyond a reasonable
doubt. And we have again, we have two parts. We
have a guilt or what we call the guilt phase, that
decides guilty and not guilty of capital murder.
My question is, can you sit on that part and
could you decide his guilt or innocence, so to speak,
and are you saying you would impose the burden
they must prove it beyond all doubt at that point?

PJ TILLEY:

Well, I would want to feel sure that he was guilty.

MR. GIDDENS:

Okay. Beyond all doubt?

PJ TILLEY:

I wouldn’t want to have any doubt he was guilty to
take his life.

MR. GIDDENS:

Okay.

250

R. Vol. 2, at 290-291; R. Vol. 3, at 306-307.
When the State challenged Ms. Thomas and Ms. Tilley, the following
transpired:
MR. HUBBARD: Judge, the state would make two challenges at this
time. One, Ms. Elaine Thomas, and I believe the
record reflects that she could not vote for the death
penalty under any circumstances.
We would also move to strike Sandra Tilley,
who indicated, as I understand it, that she could not
follow the Judge’s instructions in that she would
require the state of Alabama to prove beyond all
doubt its case, and beyond all doubt in order to have
the defendant sentenced to the death penalty, as
opposed to what the law would be with regard to
beyond a reasonable doubt.
We would ask both of those to be struck by
challenge.
THE COURT:

Any challenges by the defense?

MR. ADAMS:

No challenges. Are we allowed to make a response?

THE COURT:

All right.

MR. ADAMS:

Our response on the challenge on Juror Thomas goes
exactly back to the motion we filed prior to voir dire
about the defendant being entitled to a jury of his
peers. This would be a classic example where a
black member is wanting to be excluded by the state
on the premise that she has now been death
qualified. When she told the Court in response to
one of Mr. Giddens’ questions that she would
251

probably render a verdict based on guilt or
innocence, that her problem would be returning a
verdict for capital punishment in the penalty phase.
So we would renew our motion that we filed
that it would infringe his right to a jury of his peers
if she’s excluded.
And on Ms. Tilley, I believe Ms. Tilley said
she wanted just to be sure and have no doubt in her
mind before she would impose the death penalty. I
don’t think that she has a problem with the death
penalty and I don’t think she has a problem with the
presumption of reasonable doubt, what your
instructions might be. She just wants to be satisfied
completely in her mind.
So we would oppose the challenge of Ms.
Tilley.
THE COURT:

Response by the state?

MR. HUBBARD: In the first instance, Judge, with Elaine Thomas, I
don’t care whether she’s black, white, green or
purple. The law is clear in that the state can
challenge any individual who says that they
basically are conscientiously objecting to the
imposition of the death penalty. Whether she could
serve as a fair juror on the trial part and an unfair
juror on the death penalty part has already been
decided — and we feel like decided correctly — that
she is not a juror that is qualified to serve on this
particular jury under the Whitt decision.
As far as Ms. Tilley is concerned, I
understood and I tried to be as thorough as I could
be with her in explaining to her what beyond a
252

reasonable doubt and beyond all doubt meant. And
each time she brought it to my attention that she
could not do anything unless she was satisfied 100
percent beyond all doubt. And I think that’s
certainly a reason to be able to challenge her in that
regard.
THE COURT:

Anything further?

MR. ADAMS:

No, sir.

THE COURT:

The Court has heard the arguments made to the
state’s challenge of juror Elaine Thomas and Sandra
Tilley. The Court finds from their responses that
challenges are well made in that Ms. Thomas has
clearly stated she has a fixed opinion against the
death penalty. And Ms. Tilley, despite attempts to
say otherwise, continued to be adamant in her beliefs
that she would require proof beyond all doubt in
order either to convict or to impose a death penalty
after conviction at the guilt phase.
Both challenges are granted.

R. Vol. 3, at 312-315.
The transcript amply supports the determination that the views of both Thomas
and Tilley would have prevented, or substantially impaired, the performance of their
duties as jurors in accordance with their instructions and oath. Although Ms. Thomas
indicated that she could decide on the guilt or innocence from the evidence presented
on the witness stand, she never contradicted her repeated declarations that she would
not vote to impose the death penalty. Ms. Tilley consistently maintained that she
253

would not impose the death penalty unless she was convinced beyond all doubt,
rather than beyond a reasonable doubt. The trial court’s findings are “credibility
findings whose basis cannot be easily discerned from an appellate record,” and they
are entitled to deference from this court. See Wainwright, 469 U.S. at 429. Davis
has failed to demonstrate that, when the state court rejected this claim, it relied on
erroneous facts, applied law contrary to established United States Supreme Court
precedent, or construed the applicable law in an objectively unreasonable manner.
He is, therefore, not entitled to habeas relief on this ground.
R.

The Trial Court’s Failure to Strike for Cause Jurors Who Demonstrated
Bias Against Davis Deprived Him of His Rights to Due Process and a Fair
Trial by an Impartial Jury
Davis asserts that the trial court erroneously failed to sua sponte remove for

cause potential jurors Mary Deese and Robert Tate.316 Although defense counsel did
316

Doc. no. 33, at 77-78. Davis asserts that:

Veniremember Mary Deese stated that she knew the victim’s family from
church and expressed that her knowledge of the family would cause problems for her
if she were selected to sit on the jury. Although Ms. Deese acknowledged that she
would try to set her feelings aside, she was so uncomfortable with her knowledge of
the Hazel [sic] family that she again brought it to the court’s attention in response to
a question about pretrial publicity. Ms. Deese stated, “I knew too many of the
family. I’ve known them for years, the family.” Tr. 112. The trial court
acknowledged that Ms. Deese probably had contact with the victim’s family and
talked about the crime with them.
Id. at 77 (alteration provided). With regard to Robert Tate, Davis complains that:
Potential Juror Robert Tate answered during voir dire that he had heard Mr.

254

not challenge either potential juror for cause,317 Davis nonetheless argues that the
court’s failure to remove them sua sponte forced him to use valuable peremptory
challenges.318
Davis raised this claim in his second petition for writ of certiorari on direct
appeal.319 The Alabama Supreme Court found that the trial court did not abuse its
discretion or commit plain error in failing to strike the jurors:
Davis next argues that, during voir dire examination of the venire,
the trial court erred to reversal in failing to strike for cause certain
members of the venire who, according to Davis, gave responses
indicating a bias against him. As Davis points out, it is fundamental that
jurors who display prejudice or bias against a defendant should be
removed for cause from the petit jury panel. Ross v. Oklahoma, 487
U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); State v. Freeman,
605 So. 2d 1258 (Ala. Cr. App. 1992). He argues that the trial court
should have struck these jurors for cause from the venire, and that its
failure to do so forced his defense counsel to use valuable peremptory
strikes to remove them from the venire. Davis concludes that this
amounts to a denial of his right to a fair and impartial jury and that he is
therefore entitled to a new trial.
Hazel [sic] was killed in a gang hit. Tr. 310. The trial court, which had previously
granted a motion in limine to prevent any mention of gangs or gang-related activity
because of the inherent prejudice involved, failed to remove Mr. Tate for cause. Tr.
310-11. The fact that a veniremember who possessed such presumptively prejudicial
information remained on the panel violated Davis’[s] right to be tried by a fair and
impartial jury. The defense was forced to use a peremptory strike to remove Mr. Tate
from the jury.
Id. at 77-78 (alteration supplied).
317
318
319

R. Vol. 3, at 312; R. Vol. 2, at 138-141.
Doc. no. 33, at 78.
C.R. Vol. 10, Tab 35, at 65-70.

255

To justify a challenge for cause, there must be a proper statutory
ground or “‘some matter which imports absolute bias or favor, and
leaves nothing to the discretion of the trial court.’” Clark v. State, 621
So. 2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So.
2d 146, 149 (Ala. Cr. App. 1983)). This Court has held that “once a
juror indicates initially that he or she is biased or prejudiced or has
deep-seated impressions” about a case, the juror should be removed for
cause. Knop v. McCain, 561 So. 2d 229, 234 (Ala. 1989). The test to
be applied in determining whether a juror should be removed for cause
is whether the juror can eliminate the influence of his previous feelings
and render a verdict according to the evidence and the law. Ex parte
Taylor, 666 So. 2d 73, 82 (Ala. 1995). A juror “need not be excused
merely because [the juror] knows something of the case to be tried or
because [the juror] has formed some opinions regarding it.” Kinder v.
State, 515 So. 2d 55, 61 (Ala. Cr. App. 1986). Even in cases where a
potential juror has expressed some preconceived opinion as to the guilt
of the accused, the juror is sufficiently impartial if he or she can set
aside that opinion and render a verdict based upon the evidence in the
case. Kinder, at 60-61. In order to justify disqualification, a juror
“‘must have more than a bias, or fixed opinion, as to the guilt or
innocence of the accused’”; “‘[s]uch opinion must be so fixed . . . that
it would bias the verdict a juror would be required to render.’” Oryang
v. State, 642 So. 2d 979, 987 (Ala. Cr. App. 1993) (quoting Siebert v.
State, 562 So. 2d 586, 595 (Ala. Cr. App. 1989)).
Ex Parte Davis, 718 So. 2d at 1171-72 (alterations and ellipses in original). With
respect to potential juror Mary Deese, the Alabama Supreme Court found:
Davis next argues that, during voir dire, juror no. 24 indicated a
strong affiliation with the victim’s family and that she therefore should
have been struck for cause. Davis did not challenge this juror for cause;
thus, we need only determine whether the trial court committed plain
error in failing to strike juror no. 24 sua sponte. “‘Plain error’ arises
only if the error is so obvious that the failure to notice it would seriously
affect the fairness or integrity of the judicial proceedings.” Ex parte
Bankhead, 585 So.2d 112, 117 (Ala. 1991).
256

During voir dire, juror no. 24 told the trial court that she knew the
victim’s family from church and that she did not want to sit on the jury
because she knew too many of the victim’s family members. Juror no.
24 stated, in pertinent part:
[Defense counsel]:

Yes ma’am,
Hazle?

you knew Mr.

[Juror 24]:

Yes, I knew his family. They’re
members of the church where I
attend.

....
[Defense counsel]:

All right, . . . would the fact that
you knew all these people,
would that cause you any
problems if you were selected on
this jury?

[Juror 24]:

I’m afraid it would.

[Defense counsel]:

All right. Let me put it to you
another way then. If you were
selected on this jury, would you
be able to set aside the fact that
you knew Johnny Hazle or his
family and reach a decision
based solely on the evidence in
the case?

[Juror 24]:

I would try.

[Defense counsel]:

Okay.
That’s a pretty good
answer, but are you saying
you’re not sure?

[Juror 24]:

Yes, sir.
257

[Defense counsel]:

Do you think it might influence
you in some way?

[Juror 24]:

I’m afraid so.

However, the trial court questioned juror no. 24 further, as
follows:
[The Court]:

. . . [L]et me ask you a question.
Is your answer one really that
you would be uncomfortable in
sitting as a member of the jury
and would rather not?

[Juror 24]:

Yes, sir.

[The Court]:

I understand that. The legal
question, however, is if in fact
you were selected could you sit
as a fair and impartial juror, put
out of your mind whatever you
have heard from any family
members of the Hazle family, or
anything you’ve heard on any
news reports of any kind, listen
just to the evidence in this case,
and if you had to from that
evidence strictly determine what
the facts are and apply the law?

[Juror 24]:

Yes, I think I could, yes.

[The Court]:

But your answer is you had
rather not; is that it?

[Juror 24]:

I have never been in court. I
don’t know anything about it.
258

[The Court]:

I understand.

[Juror 24]:

But I could.

(Emphasis added.)
We agree with the State that the voir dire of juror no. 24 does not
reveal an absolute bias or favor on her part; on the contrary, she was
forthright in expressing both her reservations about serving on the jury
and her belief that she could overcome those reservations and properly
render a decision in the case, based upon the evidence and the law. In
view of this, we find no plain error in the trial court’s failure to strike
this juror sua sponte.
Ex Parte Davis, 718 So. 2d 1166, 1172-73 (Ala. 1998) (alterations and emphasis in
original).
With respect to potential juror Robert Tate, the following exchange took place,
at side bar, during voir dire:
THE COURT:

Mr. Tate, I believe earlier when questions were
asked about do you know anything about what
happened at the Direct Oil or had you heard
anything, I believe your answer was that you just
heard what the other people were saying?

PJ TATE:

That was what I heard, just hearsay, you know.

THE COURT:

Right. As quietly as you can, can you tell us what it
is that you heard said?

PJ TATE:

Well, what I heard was this was a gang member and
he had —

THE COURT:

Keep quiet as you can.
259

PJ TATE:

Had to kill a white man to join that gang. Now, I
heard that. I don’t know if it’s so or not.

THE COURT:

I believe you told us you could — any of that that
you heard you could put out of your mind and not
give any consideration in the deliberation; is that
correct:

PJ TATE:

I think I probably could.

THE COURT:

Just listen to the evidence that’s presented?

PJ TATE:

The evidence that’s presented over there is what I
want to go by.

THE COURT:

All right. Any other questions?

MR. ADAMS:

Who told you that it had something to do with a
gang?

PJ TATE:

I don’t even remember. It’s just friends. There’s
several people talking about it. I don’t remember
who it was. Said that’s what it was all about, that
they had to go out and kill a white man to join a
gang. You know, whether it’s so or whether it’s not,
I don’t know.

R. Vol. 3, at 309-311. In its opinion on direct appeal, the Alabama Supreme Court
did not discuss the trial court’s failure to sua sponte strike juror Tate, but implicitly
found no plain error had occurred. Ex Parte Davis, 718 So. 2d 1166, 1169, 1178
(Ala. 1998).

260

Davis offers no Supreme Court precedent to support his inchoate claim that it
is the trial court’s responsibility to sua sponte dismiss prospective jurors for cause.
Instead, the issue in the case cited by the petitioner, Ross v. Oklahoma, 487 U.S. 81
(1988), was whether the trial court had committed reversible error by failing to grant
the defendant’s motion to excuse a potential juror for cause. In that case, the
Supreme Court expressly held that the an erroneous denial of a for-cause challenge
of a juror does not amount to a constitutional infirmity, unless the challenged juror
is actually seated on the defendant’s jury. Id. at 89-91; see also United States v.
Martinez-Salazar, 528 U.S. 304, 316 (2000). Thus, the relevant Supreme Court
precedent does not impose a duty on the trial court to sua sponte strike jurors for
cause as a result of bias, and it only allows a habeas petitioner to complain of a trial
court’s denial of his challenges for cause when the challenged veniremembers
actually end up sitting on the jury. Heath v. Jones, 941 F.2d 1126, 1132-33 (11th
Cir.1991) cert. denied, 502 U.S. 1077 (1992).
In this case, even though Davis failed to raise a cause challenge against either
of the potential jurors about whom he now complains, he was able to remove them
by exercising peremptory challenges. Neither Deese nor Tate was seated on the jury.
Thus, even setting aside the fact that the trial court was not required to sua sponte
exclude potential jurors Deese and Tate for cause, Davis did not suffer a
261

constitutional injury because neither of those challenged jurors actually sat on his
jury.
Moreover, Davis may not assert a constitutional violation based on an alleged
loss of peremptory challenges, as the Supreme Court has “reject[ed] the notion that
the loss of a peremptory challenge constitutes a violation of the constitutional right
to a impartial jury.” Ross, 487 U.S. at 88 (alteration supplied). The state court’s
denial of this claim was neither contrary to, nor an unreasonable application of,
clearly established federal law.
S.

The Use of Improper Jury Instructions Deprived Davis of His Fifth, Sixth,
Eighth, and Fourteenth Amendment Rights
Davis contends that the court read erroneous instructions to the jury, and in so

doing, decreased the burden of proof in violation of Supreme Court precedent and his
rights to due process and a fair trial.320
1.

Reasonable doubt

Davis asserts that the trial court’s reasonable doubt instruction erroneously
afforded the jurors the alternative of convicting based on moral certainty. He claims
that the court used the terms “moral certainty” and “reasonable doubt”
interchangeably, thereby decreasing the burden of proof and implying that acquittal

320

Doc. no. 33, at 78-79.

262

was not mandatory if the State failed to carry its burden of proof beyond a reasonable
doubt.321
Davis raised this claim in his second petition for certiorari on direct appeal. 322
The Alabama Supreme Court summarily denied the claim. Ex Parte Davis, 718 So.
2d 1166, 1169, 1178 (Ala. 1998). That denial was neither contrary to, nor an
unreasonable application of, clearly established federal law.
The record reflects that the trial court gave the following instructions to the
jury:
Now, in coming before you, a jury of his peers, upon his plea of
not guilty the defendant is presumed to be innocent of the charge or
charges against him. The presumption of innocence remains with a
defendant through every stage of the trial and during your deliberations
on the verdict and is not overcome unless from all of the evidence in the
case you are convinced beyond a reasonable doubt that the defendant is
guilty.
The presumption of innocence with which the defendant enters
into the trial is a fact in the case which must be considered with all of
the evidence and is not to be disregarded by you.
To state that principle another way, a defendant, although accused
of crime, begins a trial with a clean slate, with no evidence against him.
The law then permits nothing but legal evidence presented before the
jury to be considered in support of any charge against the accused. The
presumption of innocence follows a defendant as a matter of evidence
until his guilt is established by the evidence beyond a reasonable doubt.
321
322

Id.
C.R. Vol. 10, Tab 35, at 77-78.

263

The presumption of innocence alone is sufficient to acquit a
defendant — that is, to find a defendant not guilty — unless the jurors
are satisfied beyond a reasonable doubt of the defendant’s guilt from all
of the evidence in the case.
Now, Ladies and Gentlemen, the burden is upon the state of
Alabama to convince you members of the jury from the evidence and
from all reasonable and proper inferences that can be drawn therefrom
beyond a reasonable doubt and to a moral certainty that the defendant
is guilty as charged in the indictment before you can convict him of that
charge. And this burden remains on the state throughout the case. The
defendant is not required to prove his innocence.
Now, the terms “reasonable doubt” and “moral certainty” are
interchangeable terms, and actually are legal equivalents. That means
that if the jury is convinced beyond a reasonable doubt of the guilt of the
defendant, or if the jury is convinced to a moral certainty of the guilt of
the defendant, in either event you should then convict the defendant of
the appropriate charge.
On the other hand, if the jury is not so convinced, then the
defendant should be acquitted.
Now, the term “reasonable doubt” means just what it says. The
law tells us that a reasonable doubt is a fair doubt based upon reason and
common sense and arising from the state of the evidence. While it’s
rarely possible to prove anything to an absolute certainty, a defendant is
never to be convicted on mere suspicion, conjecture, guess or surmise.
A reasonable doubt may arise not only from the evidence in the
case that is produced, but also from a lack of evidence in the case. The
burden is upon the state to prove the defendant guilty beyond a
reasonable doubt of every essential element of the crime that is charged.
A defendant has the right to rely upon failure of the prosecution to
establish such proof.

264

A defendant may also rely upon evidence brought out on cross
examination of witnesses for the prosecution and upon evidence
presented on behalf of the defendant. But the law never imposes upon
a defendant in a criminal case the burden or the duty of producing any
evidence whatsoever.
We can say, Ladies and Gentlemen, that before a conviction can
be had in this case the state must satisfy each and every member of the
jury of the defendant’s guilt beyond a reasonable doubt. Even if the
state demonstrates a probability of guilt, if it does not establish guilt
beyond a reasonable doubt you must acquit the defendant.
The term “reasonable doubt” is basically self-explanatory. And
efforts to define it don’t always clarify the term. It may help you to
know that reasonable doubt is not a mere possible doubt. Everything
relating to human affairs is open to some possible or imaginary doubt.
A reasonable doubt is a doubt of a fair-minded juror honestly
seeking the truth after careful and impartial consideration of all of the
evidence in the case. It’s a doubt based upon reason and common sense.
It does not mean a vague or arbitrary notion, but it is an actual doubt
based upon the evidence, the lack of evidence, a conflict in the evidence,
or a combination thereof.
It is a doubt that remains after going over in your minds the entire
case and giving consideration to all of the testimony and evidence. It is
distinguished from a doubt arising from mere possibility, from bare
imagination, or from fanciful conjecture.
If after considering all of the evidence you are convinced of the
defendant’s guilt beyond a reasonable doubt then it would be your duty
to convict the defendant. However, if you still have a reasonable doubt
then the defendant is entitled to the benefit of it and you should acquit
the defendant.
So then, Ladies and Gentlemen, we can say that a reasonable
doubt exists in any case when after careful and impartial consideration
265

of all of the evidence the jurors do not feel convinced to a moral
certainty that a defendant is guilty of the charge, then there is reasonable
doubt and the jury should acquit the defendant on that charge.
Upon considering all of the evidence in the case, if you have a
reasonable doubt of the defendant’s guilt of the charge arising out of any
part of the evidence or lack of evidence in the case, then you should find
the defendant not guilty.
Now, Ladies and Gentlemen of the jury, it may well be that
portions of testimony or evidence in this case that’s been presented to
you would be of the type that we call circumstantial evidence. The test
of the sufficiency of circumstantial evidence is whether the
circumstances as proved produce a moral conviction to the exclusion of
all reasonable doubt of the guilt of the defendant.
There should not be a conviction based upon circumstantial
evidence unless to a moral certainty it excludes every other reasonable
hypothesis than that of the guilt of the accused.
No matter how strong may be the circumstances, if they can be
reconciled with the theory that the defendant is innocent then the guilt
of the accused is not shown by that full measure of proof which the law
requires and the defendant should be acquitted.
R. Vol. 7, Tab 15, at 1243-49 (emphasis supplied).
An identical claim was rejected in Johnson v. Alabama, 256 F.3d 1156 (11th
Cir. 2001), in which the Eleventh Circuit set out the clearly established federal law
as follows:
In a criminal case, the government must prove each element of a
charged offense beyond a reasonable doubt. See, e.g., In re Winship,
397 U.S. 358, 361, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970).
Although a court must instruct the jury that a defendant’s guilt has to be
266

proven beyond a reasonable doubt, the Supreme Court has stated that
“the Constitution neither prohibits trial courts from defining reasonable
doubt nor requires them to do so as a matter of course.” Victor v.
Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583
(1994). If a trial court does attempt to define reasonable doubt, it must
explain the standard correctly, although “the Constitution does not
require that any particular form of words be used in advising the jury of
the government’s burden of proof.” Id.
When reviewing the correctness of reasonable-doubt charges, the
Supreme Court has phrased the proper constitutional inquiry as
“‘whether there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to meet the
Winship standard.’” Harvell v. Nagle, 58 F.3d 1541, 1542-43 (11th Cir.
1995) (quoting Victor, 511 U.S. at 6, 114 S. Ct. at 1243). We consider
the instruction as a whole to determine if the instruction misleads the
jury as to the government’s burden of proof. See id.; see also Victor,
511 U.S. at 5-6, 114 S. Ct. at 1243 (instructions must be “taken as a
whole”); Cage, 498 U.S. at 41, 111 S.Ct. at 329 (explaining that “[i]n
construing the instruction, we consider how reasonable jurors could
have understood the charge as a whole”).
Johnson, 256 F.3d at 1190-91 (alteration in original)
The Eleventh Circuit then examined the petitioner’s claim, explaining:
At the close of the evidence at Johnson’s trial, the judge gave the
jury a lengthy instruction on reasonable doubt. Johnson contends that
the instruction was flawed because, in the course of the instruction, the
trial judge (1) equated “beyond reasonable doubt” with “moral
certainty”; (2) referred to a reasonable doubt as an “actual and
substantial one,” or a “a doubt for which a good reason can be given or
assigned”; and (3) said that in “the final analysis” each juror would have
to look into his “own heart and mind” for the answer. Johnson asserts
that these comments effectively lowered the burden of proof below the
reasonable doubt standard.

267

....
Here, the trial judge employed “beyond a reasonable doubt” and
“to a moral certainty” interchangeably and even informed the jury that
the two terms were synonymous. But other portions of the instruction
ensured that the “moral certainty” language would not reasonably be
understood to lower the State’s burden. We have specifically
recognized that the use of the term “moral certainty” in a reasonable
doubt instruction is not fatal. See Felker v. Turpin, 83 F.3d 1303, 1309
(11th Cir. 1996) (trial court’s definition of reasonable doubt as “‘doubt
which is based on the evidence, a lack of evidence or a conflict in the
evidence’” and “‘doubt which is reasonably entertained as opposed to
vague or fanciful or farfetched doubt,’ served to erase any taint created
by the term ‘moral certainty’ and to thus place it beyond the potential for
constitutional harm”); Harvell, 58 F.3d at 1543 (trial court’s statements
that reasonable doubt had to be derived from the evidence and that
reasonable doubt could not be “fanciful, vague, whimsical, capricious,
conjectural or speculative” cured any potential constitutional harm
associated with the term “moral certainty”).
The instruction in this case included substantial language echoing
the key phrases in Felker and Harvell. Specifically, the trial judge in
this case repeatedly informed the jury that it could not convict Johnson
unless the evidence presented to it was inconsistent with any reasonable
theory of innocence; the judge also repeatedly instructed the jury not to
go beyond the evidence and engage in speculation in order to find
Johnson guilty. The instruction as a whole, which emphasized the jury’s
obligation to focus on the evidence presented in court and made
abundantly clear that a conviction could not be based on speculation,
convinces us that it was not reasonably likely that the jury understood
the instructions to allow conviction based on proof insufficient to satisfy
Winship.
Johnson, 256 F.3d at 1192-93 (ellipses supplied).

268

A review of the entire charge in this case reflects that, as in Johnson, the trial
court correctly conveyed to the jury that Davis was presumed innocent, that the
presumption of innocence remained with him throughout his trial, and that the jury
must be convinced from the evidence of his guilt beyond a reasonable doubt. Thus,
the trial court’s instructions did not violate Davis’s rights to due process and a fair
trial, despite the trial judge’s interchangeable use of the phrases “moral certainty” and
“reasonable doubt.” Cf. Victor v. Nebraska, 511 U.S. 1, 8-22 (1994) (trial courts’
instructions on reasonable doubt, which contained references to “a moral certainty”
and “an actual and substantial doubt,” when taken as a whole, correctly conveyed the
concept of reasonable doubt to the jury). Davis is entitled to no relief on this claim.
2.

Aggravating circumstances

Davis claims the trial court improperly instructed the jury that it could consider
two aggravating circumstances if it found them beyond a reasonable doubt.323 This
claim was raised in Davis’s second petition for writ of certiorari on direct appeal,324
and it was rejected without discussion by the Supreme Court of Alabama. Ex Parte
Davis, 718 So. 2d 1166, 1169, 1178 (Ala. 1998).

323
324

Doc. no. 33, at 79.
C.R. Vol. 10, Tab 35, at 78-79.

269

The trial judge gave the following jury instruction on aggravating
circumstances:
The aggravating circumstances, which you may consider in this
case, if you find from the evidence that they have been proved beyond
a reasonable doubt are as follows: First, that the defendant was
previously convicted of a felony involving the use or threat of violence
to the person; secondly, that the capital offense was committed while the
defendant was engaged in or was an accomplice in the commission of
or an attempt to commit or flight from committing a robbery.
R. Vol. 8, Tab 24, at 1360-1361. Davis complains that the court failed to instruct the
jury on the elements of the aggravating circumstances, so the jury “received no
guidance on how to determine whether Davis had previously been convicted of a
crime involving violence against a person.”325 Davis concedes that the State offered
a certified copy of a prior conviction for robbery in the third degree, but argues that
the court never defined third degree robbery for the jury.326
Davis has not explained how the court’s failure to define third degree robbery
or to offer the jury any additional guidance in determining whether Davis had
previously been convicted of a crime involving violence against a person violated his
constitutional rights. During the sentencing phase of the trial, the State introduced
certified copies of the case action summary and bench sheets from Davis’s 1992

325
326

Doc. no. 33, at 79.
Id.

270

conviction for third degree robbery in State of Alabama v. Davis, CC-92-979.327 The
defense stipulated that “in CC 92-979, Circuit Court of Calhoun County, Alabama,
that Jimmy Davis is the same Jimmy Davis that pled guilty to robbery in the third
degree, received a sentence of one year and one day, on December 21, 1992,” and that
he was represented by an attorney.328 Alabama law provides that:
(a) A person commits the crime of robbery in the third degree if in the
course of committing a theft he:
(1) Uses force against the person of the owner or any
person present with intent to overcome his physical
resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person
of the owner or any person present with intent to compel
acquiescence to the taking of or escaping with the property.
(b) Robbery in the third degree is a Class C felony.
Ala. Code § 13A-8-43 (1975). By pleading guilty to third degree robbery, Davis
admitted to committing a crime involving the use, or threat, of force or violence
against a person. The defense stipulated to the authenticity and validity of the prior
conviction. Thus, the “previous conviction of a violent felony” aggravator was
unquestionably satisfied.

327

R. Vol. 7, Tab 19, at 1295-98. The exhibits themselves are located at C.R. Vol. 1, Tab
1, at 87-89.
328
R. Vol. 7, Tab 19, at 1298-99.

271

Furthermore, even if the jury had not found the existence of a previous
conviction of a violent felony, it clearly found that the “murder during the
commission of a robbery” aggravator had been satisfied. Davis’s conviction was for
that very offense. Thus, the robbery served as both the underlying offense and an
aggravating circumstance.

Under Alabama law, “any aggravating circumstance

which the verdict convicting the defendant establishes was proven beyond a
reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for
purposes of the sentence hearing.” Ala. Code § 13A-5-45(e) (1975). As such, the
fact that Davis had been convicted of murder during the commission of a robbery
necessarily meant that the jury had unanimously determined that the robbery
aggravator had been satisfied. Davis is entitled to no relief on this claim.
T.

The Trial Court’s Instructions on Accomplices and Corroboration
Constituted Reversible Error
Davis complains that the trial court instructed the jury that Alphonso Phillips

was an accomplice, but it did not mention whether Terrance Phillips or Willie Smith
could be considered an accomplice.329 Davis contends that Terrance Phillips should
have been considered an accomplice as a matter of law, and the jury should have been

329

Doc. no. 33, at 79-82.

272

so informed.330 He also asserts that the court gave confusing instructions about
whether anyone else could be considered an accomplice.331
Specifically, Davis complains that the court committed reversible error when
it failed to instruct the jury: (1) that it had the duty to determine which witnesses were
accomplices; and (2) that accomplices could not corroborate each other.
The trial court gave the jury the following instructions on accomplices:
Ladies and gentlemen of the jury, a term utilized in the law that
you may have heard previously is that of “accomplice.” An accomplice
is defined as an associate in crime or a partner or a partaker in guilt. An
accomplice is one who is in some way connected with the commission
of a crime. And whether a witness is an accomplice or not is a question
of fact to be determined by a jury where there is conflict in the evidence
on that question.
A conviction for a felony offense cannot be had on the testimony
of an accomplice or of numerous accomplices unless such testimony be
corroborated or be supported by other evidence tending to connect the
defendant with the commission of the offense.
The rule is that such other evidence[,] to be sufficient, to be
believed by the jury beyond a reasonable doubt, if such evidence merely
shows the commission of the offense or the circumstances of the offense
thereof, without connecting the defendant with the commission of the
offense, then such other evidence is not sufficient and the defendant
could not be convicted as to that charge.
If the jury is not satisfied beyond a reasonable doubt of the truth
of some of the evidence in this case tending to prove the defendant’s
330
331

Id. at 80.
Id.

273

guilty connection with the charged offense, other than the testimony of
Alphonso Phillips, then the jury cannot find the defendant guilty.
The Criminal Code of the state of Alabama at Section 12-21-222
reads: A conviction of felony cannot be had on the testimony of an
accomplice unless corroborated by other evidence tending to connect the
defendant with the commission of such offense, and such corroborative
evidence if it merely shows commission or circumstances thereof is not
sufficient.
So it’s the law of this state that no person can be convicted on the
uncorroborated testimony of an accomplice. Corroborating testimony
that would be sufficient in order to support a conviction for an offense
charged, if a jury is so satisfied from the evidence beyond a reasonable
doubt, need not necessarily refer to any facts testified to by an
accomplice, if any there be, but may include proof of circumstances
tending to prove the truth of the material features of the testimony of the
alleged accomplice.
The corroborating testimony is not sufficient if it merely shows
the commission of an offense or the circumstances thereof. As a matter
of law in this case the defendant Alphonso [Phillips] is an accomplice
of the defendant in this case.
R. Vol. 7, Tab 15, at 1261-64 (emphasis and alteration provided).
In his petition, Davis contends that the trial court’s instruction was not only
confusing,
it also misled the jury by telling it that only Alphonso Phillips could be
considered an accomplice in determining the sufficiency of the evidence.
The trial court did not tell the jury that others could be accomplices,
even though Terrance Phillips was also an accomplice as a matter of
law. The trial court also did not explain that although other witnesses’
status as accomplices was not so clear as to warrant a directed verdict on
this issue, they might still be found to be accomplices on the facts as
274

presented at trial. This ambiguity was crucial in this case, because the
State relied so heavily on the testimony of Terrance Phillips and Willie
Smith.332
Davis further alleges that:
The trial court failed to instruct the jury that if Terrance Phillips
and Willie Smith were found to be accomplices, their testimony could
not be used to corroborate the testimony of Alphonso Phillips.
As a result, the jury may well have found that the testimony of
Alphonso Phillips was corroborated by the testimony of accomplices
Terrance Phillips and Willie Smith. The jury could also have found that
Alphonso Phillips corroborated Terrance Phillips, that Terrance Phillips
corroborated Willie Smith, and that Willie Smith corroborated Alphonso
Phillips.
The proper instruction would have required the jury to subtract all
three witnesses’ testimony, and then to decide whether the remaining
evidence was sufficient to convict Davis of capital murder. . . .
At the very least, the jury should have been required to assess the
sufficiency of the evidence without considering the testimony of
Terrance and Alphonso Phillips. Whether to also subtract Willie
Smith’s testimony should have been left to the jury to decide. The
insufficient instructions did not give guidance to the jury about the
critical issue in this case and rendered Davis[’s ]conviction unreliable.333
Doc. no. 33, at 82 (alteration and ellipses supplied, paragraph numbers omitted).
Both claims were raised in Davis’s second petition for writ of certiorari on
direct appeal,334 and both were summarily denied by the Alabama Supreme Court. Ex
332

Id. at 81-82.

333

Id. at 82.
C.R. Vol. 10, Tab 35, at 7-11.

334

275

Parte Davis, 718 So.2d 1166, 1169, 1178 (Ala. 1998). Davis has not shown that the
state court’s denial of these claims was either contrary to, or an unreasonable
application of, clearly established federal law, nor that it was based on an
unreasonable determination of the facts in light of the evidence presented.
Davis’s contention that the court failed to instruct the jury of its duty to
determine which witnesses were accomplices is belied by the record. The court
instructed the jury that the question of “whether a witness is an accomplice or not is
a question of fact to be determined by a jury where there is conflict in the evidence
on that question.” The jury was clearly instructed that it was their job to determine
whether any witness was an accomplice.335 Further, the court never indicated that
Alphonso Phillips was the only accomplice.
Davis’s contention that the trial court failed to instruct the jury that
accomplices could not corroborate each other is similarly unavailing. The court
instructed the jury that a “conviction for a felony offense cannot be had on the
testimony of an accomplice or of numerous accomplices unless such testimony be
corroborated or be supported by other evidence tending to connect the defendant with
the commission of the offense.”336 Although the court did not identify by name the

335
336

R. Vol. 7, Tab 15, at 1261-62.
Id. at 1262 (emphasis provided).

276

witnesses who might have been considered accomplices, it adequately informed the
jury of the appropriate law.
Moreover, the United States Supreme Court has made it clear that, in the
context of jury instructions,
[t]he only question for [the habeas court] is “whether the ailing
instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147,
94 S. Ct. 396, 400-01, 38 L. Ed. 2d 368 (1973); see also Henderson v.
Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736-37, 52 L. Ed.2d 203
(1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868,
1871, 40 L. Ed. 2d 431 (1974) (“‘[I]t must be established not merely that
the instruction is undesirable, erroneous, or even “universally
condemned,” but that it violated some [constitutional right]’”). It is well
established that the instruction “may not be judged in artificial
isolation,” but must be considered in the context of the instructions as
a whole and the trial record. Cupp v. Naughten, supra, 414 U.S., at 147,
94 S. Ct., at 400-01. In addition, in reviewing an ambiguous instruction
. . . we inquire “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the
Constitution. Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190,
1198, 108 L. Ed. 2d 316 (1990). And we also bear in mind our previous
admonition that we “have defined the category of infractions that violate
‘fundamental fairness’ very narrowly.” Dowling v. United States, 493
U.S. 342, 352, 110 S. Ct. 668, 674, 107 L. Ed. 2d 708 (1990). “Beyond
the specific guarantees enumerated in the Bill of Rights, the Due Process
Clause has limited operation.” Ibid.
Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (ellipses and first two alterations
supplied, other alterations in original) (footnote omitted). See also Jones v. United
States, 527 U.S. 373, 389-390 (1999).

277

In his previous Claim V.I., Davis argued that he was convicted due to the
admission of uncorroborated accomplice testimony. When faced with the same claim,
the Alabama Supreme Court found that “even if the jury considered Terrance Phillips
and Willie Smith to be Davis’s accomplices, and thus followed the trial court’s
instructions that their testimony would likewise require corroboration, the record
provides such corroboration.” Ex Parte Davis, 718 So.2d 1166, 1170-71 (Ala. 1998).
Davis has not established that this finding was contrary to, or involved an
unreasonable application of, clearly established federal law, or that it was based on
an unreasonable determination of the facts in light of the evidence presented in state
court. Because there was sufficient corroboration of the testimony of Terrance
Phillips and Willie Smith, any “confusion” caused by what Davis alleges to be a “lack
of guidance” did not render his trial fundamentally unfair. These claims are due to
be denied.
U.

The Penalty Phase Jury Instructions Implied That Aggravating
Circumstances Did Not Have to Be Found Unanimously
Davis complains that the trial court erroneously instructed the jury on

aggravating circumstances.337 The trial judge gave the following instruction at the
conclusion of the penalty phase of trial:

337

Doc. no. 33, at 83.

278

Now, as I’ve stated to you before, the burden of proof is on the
state to convince each of you beyond a reasonable doubt as to the
existence of any aggravating circumstance or circumstances considered
by you in determining what punishment is to be recommended in this
case.
This means before you can even consider recommending that the
defendant’s punishment be death, each and every one of you must be
convinced beyond a reasonable doubt based on the evidence that at least
one or more of the aggravating circumstances exists.
In deciding whether the state has proven beyond a reasonable
doubt the existence of any given aggravating circumstance, you should
bear in mind the definitions which I have given you as to reasonable
doubt.
R. Vol. 8, Tab 24, at 1361.
According to Davis, this instruction implied that the jurors had permission to
find either one or the other aggravating circumstance, without the State having to
prove either of them beyond a reasonable doubt as required by Ala. Code §
13A-5-45(e) (1981).338 In other words, he contends, some jurors could have found
the aggravating circumstance of homicide during a robbery, while others found the
circumstance of a prior violent felony conviction.339 He argues that this instruction
338

Doc. no. 33, at 83-84. Ala. Code § 13A-5-45(e) states:

At the sentence hearing the state shall have the burden of proving beyond a
reasonable doubt the existence of any aggravating circumstances. Provided,
however, any aggravating circumstance which the verdict convicting the defendant
establishes was proven beyond a reasonable doubt at trial shall be considered as
proven beyond a reasonable doubt for purposes of the sentence hearing.
339
Doc. no. 33, at 83.

279

ran directly contrary to the concept that aggravating circumstances must be
unanimously found beyond a reasonable doubt, and substantially increased the
likelihood that the jury’s sentence recommendation would be arbitrary and capricious,
rendering his sentence unreliable.340
There was no objection at trial to this instruction. This claim was raised for the
first time in Davis’s amended petition for writ of certiorari on direct appeal,341 and
it was denied without discussion by the Supreme Court of Alabama. Ex parte Davis,
718 So. 2d 1166, 1169, 1178 (Ala. 1998).
These instructions present no constitutional violation. Taken as a whole, the
instruction adequately informed the jury that each aggravating circumstance had to
be found unanimously. See Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)
(“In determining the effect of this instruction on the validity of respondent’s
conviction, we accept at the outset the well-established proposition that a single
instruction to a jury may not be judged in artificial isolation, but must be viewed in
the context of the overall charge.”) (citations and internal quotation marks omitted).
The Alabama Supreme Court’s implicit determination that no plain error had been
committed was not unreasonable.

340
341

Id.
C.R. Vol. 10, Tab 35, at 47-48.

280

Moreover, even if the instructions could be considered ambiguous, given the
facts of this case, there is no possibility that the jurors did not unanimously find the
existence of one aggravating factor. Davis was convicted of murder during the
commission of a robbery. The robbery served as both the underlying offense and an
aggravating circumstance.

Under Alabama law, “any aggravating circumstance

which the verdict convicting the defendant establishes was proven beyond a
reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for
purposes of the sentence hearing.” Ala. Code § 13A-5-45(e). Thus, the fact that
Davis had been convicted of murder during the commission of a robbery necessarily
meant that the jury had unanimously determined that the robbery aggravator had been
satisfied. Davis is entitled to no relief on this claim.
V.

Misconduct by Jurors Deprived Davis of His Constitutional Right to Be
Tried by an Impartial Jury
Davis complains that three instances of juror misconduct deprived him of his

right to be tried by an impartial jury.342 This claim was raised in Davis’s Rule 32
petition.343 The Rule 32 court dismissed the claim, finding it was procedurally barred:
This claim is dismissed as Petitioner never established that the
information pleaded or established that the information contained in this
claim could not have been discovered in time to be included in a motion
342
343

Doc. no. 33, at 84-85.
Rule 32 C.R. Vol. 14, Tab 52, at 45-46.

281

for a new trial. Further, the Petitioner did not offer any facts that would
rebut the presumption created by the State’s pleading of a procedural
bar. Because this was the Petitioner’s burden under Rule 32.3, the Court
accepted the application of the procedural bar in this case. Accord,
Debruce v. State, CR-99-1619, 2003 WL 22846752 (Ala. Crim. App.
Dec. 2, 2003). Accordingly, this claim is procedurally barred.
Further, paragraph 84 appears to violate Rule 606(b) of the
Alabama Rules of Evidence,[344] and no facts pleaded in the petition
brought this claim within any exception to that rule. Thus, this
paragraph would have been rightfully dismissed under Rule 32.7(d).
See, Ex parte Neal, 731 So. 2d 621 (Ala. 1999).

344

The petitioner alleged in paragraph 84 that:

During the penalty phase of the trial, the jurors were divided on the capital
punishment issue such that seven jurors were in favor of a sentence of death and five
were against it. At that point, one of the group of seven jurors took four of the five
jurors who had voted against the death penalty around the corner and out of ear shot
of the remaining jurors, and discussed their refusal to vote for the death penalty.
Thereafter, the vote in favor of the death penalty changed to 11-to-1.
Rule 32 C.R. Vol. 14, Tab 52, at 45. Alabama Rule of Evidence 606(b) provided that:
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of
a verdict or indictment, a juror may not testify in impeachment of the verdict or
indictment as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other juror’s mind or
emotions as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes in connection therewith, except
that a juror may testify on the question whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence
of any statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes. Nothing herein precludes
a juror from testifying in support of a verdict or indictment.
Ala. R. Evid. 606(b).

282

Rule 32 C.R. Vol. 62, Tab 80, at 62-63. Davis did not appeal the Rule 32 court’s
denial of this claim. As no cause or prejudice has been alleged or demonstrated, this
claim is due to be dismissed as procedurally barred.
Moreover, even if Davis’s juror misconduct claims were not procedurally
barred, he would be entitled to no relief. Davis asserts that juror Brian Pike
“improperly failed to disclose during voir dire when questioned that his
brother-in-law was a law enforcement officer who escorted the Phillips cousins
and/or Davis to and from the courtroom during Davis’[s] trial.”345 Davis maintains
that Pike’s failure to disclose this crucial information deprived him of a trial by an
impartial jury, and denied his right to have questions answered truthfully by
prospective jurors so that his counsel could exercise discretion wisely in making
peremptory strikes.346
During voir dire of Mr. Pike’s panel, defense counsel asked, “How many in
here . . . have law enforcement in their family background, whether their father,
mother, brother, sister were in law enforcement?”347 Mr. Pike did not respond to the
question. Davis contends that Mr. Pike “improperly failed to disclose . . . that his
brother-in-law was a law enforcement officer who escorted the Phillips cousins
345

Doc. no 33, at 84-85 (alteration supplied).

346

Id. at 85.
R. Vol. 3, at 434-35.

347

283

and/or Davis to and from the courtroom” during the trial.348 However, the question
asked was limited to having an immediate family member — “father, mother, brother
[or] sister” — involved in law enforcement. The panel was never asked about inlaws.
Further, Davis alleges only that Mr. Pike’s brother-in-law “escorted the Phillips
cousins and/or Davis to and from the courtroom during Davis’[s] trial.”349 Davis
makes no claim that Mr. Pike’s brother-in-law was ever present in the courtroom
during voir dire, or that Mr. Pike had any reason to believe, during voir dire, that his
brother-in-law might be involved with the trial in any capacity. Finally, there is no
allegation that Mr. Pike ever became aware of his brother-in-law’s alleged
participation in the trial, thus triggering a need to notify the court of his potential
conflict after he was seated on the jury. This claim is without merit.
Davis further argues that:
During the penalty phase of the trial, the jurors were divided on
the capital punishment: seven jurors were in favor of a sentence of
death and five were against. At that point, one of the group of seven
jurors took four of the five jurors who had voted against the death
penalty around the corner out of ear shot of the remaining jurors, and
discussed their refusal to vote for the death penalty. Thereafter, the vote
in favor of the death penalty changed to 11-to-1.
348

Doc. no. 33, at 84-85. The court notes that Davis does not identify Mr. Pike’s brother-inlaw by name, nor does he reveal who the brother-in-law allegedly worked for, or the exact nature of
his employment.
349
Id. (alteration and emphasis supplied).

284

Doc. no. 33, at 84. Presumably, Davis is arguing that it was reversible error in his
trial for several jurors to go around the corner from the other jurors to talk. In support
of this argument, Davis cites Kimoktoak v. State, 578 P.2d 594 (Alaska 1978), in
which the Alaska Supreme Court held it was per se reversible error for the court to
allow the sequestered jury to separate from each other for three days during
deliberations.
The holding in Kimoktoak was based upon Rule 27 of the Alaska Rules of
Criminal Procedure, which “requires that once a jury has begun its deliberations it
must remain under the charge of the court until a verdict is agreed upon, unless the
parties agree to allow the jurors to return to their homes for reasonable periods of
rest.” Kimoktoak, 578 P.2d at 595. The court noted that the case was distinguishable
from “situations in which the court required sequestration but separation occurred by
the inadvertence or carelessness of the jurors or the officer of the court, or both.” Id.
at 596 n.4.
The Alaska Rules of Criminal Procedure do not apply to Davis, and Alabama
does not have a similar rule. Even if such a rule did apply, it would not have been
violated in Davis’s case because the “separation” alleged by Davis did not involve the
jurors being allowed to return to their homes for a period of time during deliberation.

285

Finally, Davis alleges that Mr. Pike stated that “during the trial, the jurors
observed persons in cars circling the hotel where the jurors were sequestered,” and
discussed amongst themselves their belief that the persons in the cars
were gang members and were watching the jurors. Because no juror
stated this fear or belief to the court, trial counsel and the court were
unable to evaluate and/or determine whether the jurors’ belief of gang
involvement affected the deliberations and verdict.
Doc. no. 33, at 85. There is nothing in the record to support even an inference that
the jurors engaged in any misconduct with regard to observing cars circling their
hotel, or that their deliberations were impacted in any way by their observations.350
W.

Alabama’s Fee Cap Foreclosed Effective Representation
Davis asserts that Alabama Code §15-12-21, which capped the compensation

for court-appointed attorneys in capital cases at $1,000 for out-of-court work
conducted in connection with each phase of the trial,351 “inevitably discouraged”
counsel from conducting the preparation necessary to provide effective assistance of
counsel.352 He further asserts that the State of Alabama failed to authorize ancillary

350

The court notes, however, that if the jurors’ deliberations had been affected by their fear
that gang members were watching them, it seems more likely that their verdict would have been in
favor of Davis rather than against him.
351

Section 15-12-21 was amended in 1999 to remove the cap on the total fee an attorney
representing an indigent defendant could recover. However, the cap was in effect at the time of
Davis’s trial.
352
Doc. no. 33, at 85-87.

286

costs that were necessary to investigate, prepare, and properly defend him at both
phases of his trial.353
Davis raised both parts of this claim in his Rule 32 petition.354 The respondents
contend that this claim is procedurally barred because it was not raised at trial or on
appeal, and it was subsequently found to be barred by the Rule 32 court.355 The Rule
32 court pointed out that, because the same claim had been rejected numerous times
by Alabama’s appellate courts, the claim was frivolous and failed “to state a material
issue of law.”356
On appeal, the Alabama Court of Criminal Appeals found that the claim was
procedurally barred by Alabama Rules of Criminal Procedure 32.3(a)(3) and (a)(5)
because it could have been, but was not, raised at trial or on appeal. Davis v. State,
9 So. 3d 514, 530 (Ala. Crim. App. 2006). Although Davis raised the claim in his
certiorari petition,357 the Alabama Supreme Court “decline[d] to address issues not
previously considered on the merits by the Court of Criminal Appeals,” then reversed
the Court of Criminal Appeals’ judgment and remanded the case for the appeals court
to “consider all Davis’s ineffective-assistance-of-counsel claims on their merits.” Ex
353

Id. at 86.

354

Rule 32 C.R. Vol. 14, Tab 52, at 7-9.

355

See Rule 32 C.R. Vol. 62, Tab 80, at 9.

356

Id. at 10.
Rule 32 C.R. Vol. 59, Tab 67, at 65-67.

357

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parte Davis, 9 So. 3d 537, 539 (Ala. 2007) (alteration supplied). The Alabama Court
of Criminal Appeals did not mention Davis’s fee cap claim in its opinion following
remand. Davis v. State, 9 So. 2d 539 (Ala. Crim. App. 2008). Davis raised the claim
in his next certiorari petition,358 but the Alabama Supreme Court denied the petition.
Ex parte Davis, 9 So. 3d 571 (Ala. 2008).
The Alabama Court of Criminal Appeals was the last state court to address this
issue. That court found the claim to be procedurally barred. Davis v. State, 9 So. 3d
514, 530 (Ala. Crim. App. 2006). Thus, the claim is procedurally barred from review
in this court. See Harris v. Reed, 489 U.S. 255, 262 (1989).
Moreover, even if this claim were not barred, it is apparent that it cannot
succeed on the merits. Inadequate funding of counsel appointed to represent capital
defendants does not itself amount to ineffective assistance of counsel unless it
contributes to actual errors or shortcomings in the performance of counsel. See
Strickland, 466 U.S. at 690 (“A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment.”).
Davis asserts that Alabama’s compensation scheme provides an inherent
economic disincentive to conduct effective representation. He makes the general
358

Rule 32 C.R. Vol. 61, Tab 72, at 125-126.

288

assertion that due to this “inherent economic disincentive,” counsel were unable to
interview “20 or 30 people,” unable to obtain and review hundreds of pages of
“valuable mitigation documents,” unable to prepare and argue motions, and unable
to spend “countless hours” working with “experts and investigators.”3 5 9 However, he
fails to explain the actual errors or shortcomings that resulted from those deficiencies.
Similarly, despite his general assertion that “[m]eaningful legal assistance and due
process requires the State to ensure defendants are not deprived of crucial expert
testimony simply because they are indigent,”360 Davis fails to identify any alleged
crucial expert testimony that was not obtained in his case as a result of cost
constraints.
X.

Davis’s Death Sentence Was Improperly Sought and Imposed Pursuant
to a Pattern of Racial Bias
Davis asserts that the death penalty was sought and imposed in his case due to

a pattern of racial bias, and that his attorneys were ineffective for failing to make this
argument at trial and on appeal.361 Heargues:
In Calhoun County and the State of Alabama, the death penalty is sought
in an arbitrary and capricious fashion and pursuant to a racially
discriminatory pattern in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments and the Alabama Constitution. See McClesky
359

Doc. no. 33, at 86.

360

Id. at 86.
Id. at 87-88.

361

289

v. Kemp, 481 U.S. 279 (1987). Ineffective assistance of counsel under
the standards of Strickland arose through failure of trial counsel to raise
these issues during the trial and appeal.
Doc. no. 33, at 87.
In support of this argument, Davis points to the testimony of Assistant District
Attorney Ron Wood, who testified during the Rule 32 hearing that he had noted in
the case screening summary that the “[d]efendant refuses to talk and is said to hate
whites.”362 Davis contends that the notation evinced racial bias because, as Mr. Wood
acknowledged during his testimony, murder motivated by racial prejudice is not an
aggravating factor for purposes of determining whether a crime should be charged as
a capital crime under Alabama law.363 Davis also contends Mr. Wood’s testimony
that “he was unaware of any case where he had prosecuted the murder of an
African-American victim by a white defendant as a capital murder case” is evidence
of racial bias.364
This claim was raised in Davis’s Rule 32 petition, 3 6 5 and on appeal from the
denial of that petition.366 The Alabama Court of Criminal Appeals held that the claim
was procedurally barred pursuant to Rules 32.3(a)(3) and (a)(5), Ala. R. Crim. P.,
362

Id. (quoting Rule 32 R. Vol. 23, at 1068-69).

363

Id. at 88 (citing Rule 32 R. Vol. 23, at 1077-79).

364

Id. (citing Rule 32 R. Vol. 23, at 1109).

365

Rule 32 C.R. Vol. 14, Tab 52, at 38.
Rule 32 C.R. Vol. 57, Tab 60, at 71-72.

366

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because it could have been, but was not, raised at trial or on appeal. Davis v. State,
9 So. 3d 514, 530 (Ala. Crim. App. 2006). That finding rests upon firmly established
and regularly followed state procedural rules. Thus, the default precludes federal
review of the claim.
It should be noted that included within this claim is the assertion that
“[i]neffective assistance of counsel under the standards of Strickland arose through
failure of trial counsel to raise these issues during the trial and appeal.”367 Davis does
not elaborate that assertion. Thus is unclear whether he is attempting to excuse his
procedural default of this claim, or raise a separate claim of ineffective assistance of
counsel.
An allegation of ineffective assistance of counsel can constitute cause for a
procedural default, but only if the petitioner can prevail on an independent ineffective
assistance of counsel claim, and has raised, and thus exhausted, that particular claim
of ineffective assistance of counsel in state court. Murray v. Carrier, 477 U.S. 478,
485 (1986); Hill v. Jones, 81 F.3d 1015, 1029-31 (11th Cir. 1997). While Davis
arguably exhausted his claim of ineffective assistance of trial counsel in state court,368

367

Doc. no. 33, at 87 (alteration supplied).

368

On appeal from the denial of his Rule 32 petition, Davis alleged that “trial counsels’
failure to address the role Davis’[s] race and the victim’s race played in the decision by the District
Attorney to seek the death penalty constituted ineffective assistance of counsel.” Rule 32 C.R. Vol.
57, Tab 60, at 72 (alteration supplied).

291

he did not exhaust a claim of ineffective assistance of appellate counsel. Regardless,
it is clear that Davis’s conclusory claim of ineffective assistance of counsel entitles
him to no relief.
Y.

The Manner of Execution Used by the State of Alabama Constitutes Cruel
and Unusual Punishment
Davis asserts that execution using either lethal injection or electrocution

constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments.369 He argues that a “growing number of courts have held that the
protocol employed for administering lethal injection lacks ‘both reliability and
transparency’ and has ‘resulted in an undue and unnecessary risk of an Eighth
Amendment violation.’”370 Alternatively, he argues that electrocution constitutes
cruel and unusual punishment under evolving standards of decency, because
[e]lectrocutions as carried out by the State of Alabama are qualitatively
more cruel and unusual than a civilized society should tolerate. The
State would utilize primitive equipment and procedures in executing
Davis, which can result in grotesque, barbaric torture, including body
charring, organ and tissue explosion, and mutilation.

369

Doc. no. 33, at 88-90.

370

Id. at 89 (citing Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006); Taylor v.
Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006), aff’d 457
F.3d 902, 904 (8th Cir. 2006)).

292

Doc. no. 33, at 89 (alteration supplied). Davis further contends that counsel was
ineffective for failing to raise this issue at trial.371
At the outset, it should be noted that, to the extent this claim pertains to
execution by electrocution, the claim is moot. Alabama Code § 15-18-82(a) (1975)
provides that:
Where the sentence of death is pronounced against a convict, the
sentence shall be executed at any hour on the day set for the execution,
not less than 30 nor more than 100 days from the date of sentence, as the
court may adjudge, by lethal injection unless the convict elects
execution by electrocution as provided by law. If electrocution is held
unconstitutional, the method of execution shall be lethal injection.
Because Davis has not stated that he has affirmatively chosen electrocution as
the means of his execution, he will be executed by lethal injection. Therefore, to the
extent that he challenges the constitutionality of death by electrocution, the claim is
due to be dismissed as moot.
To the extent Davis asserts that lethal injection constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments, the respondent
correctly argues that review of the claim is procedurally foreclosed under the
authority of Hill v. McDonough, 547 U.S. 573 (2006). In Hill, the Supreme Court
held that claims challenging the execution process should be brought in a suit

371

Id.

293

pursuant to 42 U.S.C. § 1983. Id. at 580. See also Thompkins v. Secretary, Dept. of
Corrections, 557 F. 3d 1257, 1261 (11th Cir. 2009) (citing Hill, 547 U.S. at 579-83).
Accordingly, this court is without jurisdiction to entertain the claim in the context of
a habeas petition, and the claim is due to be dismissed.
Similarly, Davis’s conclusory claim that “[i]neffective assistance of counsel
under the standards of Strickland arose through defense counsels’ failure to raise this
issue in the course of trial and direct appeal proceedings” warrants no relief.372
Z.

The Execution of Mentally Retarded Persons With Borderline I.Q. Levels
and Brain Damage is Cruel and Unusual
Davis contends that “imposition of the death penalty on an individual at [his]

limited intelligence level constitutes cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States Constitution.”373 In support
of his position, Davis quotes Atkins v. Virginia, 536 U.S. 304, 306 (2002), for the
proposition that “[b]ecause of their disabilities in areas of reasoning, judgment and
control of their impulses however, [mentally retarded persons] do not act with the
level of moral culpability that characterizes the most serious adult criminal
conduct.”374 Davis asserts that “this principle is applicable” to him, as “an offender

372

Id. at 89 (alteration supplied).

373

Id. at 90 (alteration supplied).
Id. (first alteration supplied, second alteration by petitioner).

374

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over age eighteen who is borderline mentally retarded with a fifth grade reading level,
and who suffered from frontal lobe brain damage as a child, thereby impairing [his]
capacity for culpability or premeditation that a normal adult would have.”375
Davis raised this claim in his Rule 32 petition, which was filed prior to the
Supreme Court’s Atkins’ decision.376 He argued that the “United States is clearly
marching towards a national consensus against executing those with mental
retardation or significantly subaverage general intellectual functioning,” and asserted
that the imposition of the death penalty on an individual at his limited intelligence
level constitutes cruel and unusual punishment.377 The trial court denied the claim on
the merits. 3 7 8 The Alabama Court of Criminal Appeals affirmed the trial court’s
denial of the claim:
Davis argues that in his case the death sentence is cruel and
unusual punishment in violation of Atkins v. Virginia, 536 U.S. 304, 122
S. Ct. 2242, 153 L. Ed. 2d 335 (2002), because he says he is mentally
retarded and has frontal-lobe brain damage.

375

Doc. no. 33, at 90 (alteration supplied). He further asserts that his “combination of clinical
dysfunction yields diminished capacity, diminished executive function in the brain, and diminished
ability to form premeditation, as supported by Rule 32 expert testimony of forensic psychologist Dr.
Kimberly Ackerson and the clinically-based diagnosis of Dr. Charles Golden.” Id. (citation omitted).
376

Rule 32 C.R. Vol. 14, Tab. 52, at 38-39.

377

Id.
Rule 32 C.R. Vol. 62, Tab 80, at 60-62.

378

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In denying this claim the circuit court stated that “[Davis] does
not fall within the definition of defendants protected by the Court’s
decision in Atkins even under the broadest of definitions.” (C.R. 1194.)
The United States Supreme Court in Atkins held that it was a
violation of the Eighth Amendment to execute a mentally retarded
individual. The Atkins Court left the definition of mental retardation to
the individual states. Though Alabama has yet to enact legislation
defining mental retardation, the Alabama Supreme Court in Ex parte
Perkins, 851 So. 2d 453 (Ala. 2002), adopted the broadest definition of
mental retardation used by those states that have legislation prohibiting
the execution of the mentally retarded. To satisfy the Perkins test, the
defendant must exhibit (1) significantly subaverage intellectual
functioning – an IQ of 70 or below; (2) significant or substantial deficits
in adaptive behavior; and (3) these two deficiencies must have
manifested themselves during the developmental years – before the
defendant reached the age of 18.
We have reviewed the records of Davis’s trial and the Rule 32
proceedings. The record of the postconviction proceedings contains
some of Davis’s school records and report cards. A report card issued
to Davis in the eighth grade shows that Davis made all B’s and one C.
(C.R. 1848.) Davis was also administered the Wechsler Intelligence
Scale (“WISC-R”) IQ test in the eighth grade. The test results showed
that Davis’s full-scale IQ was 74. This evaluation also contained the
handwritten comment: “All areas are above grade level expectancy.”
(C.R. 1853.)
At the penalty phase of Davis’s capital trial, Davis presented the
testimony of Anne M. Storey, a counselor employed by Calhoun –
Cleburne County Mental Health Center and the Oxford City School
System. She testified that she administered IQ tests to Davis before his
trial and that Davis had a full-scale IQ of 77.
At the postconviction hearing Davis presented testimony that
when Davis was administered an IQ test while in the custody of the
Alabama Department of Corrections his IQ measured in the high 70s.
296

R. 771.) Jan Vogelsang, a clinical social worker, also testified as
follows:
Jimmy had worked at a car wash. He had worked at
Glen Addie housing project. Jimmy had not maintained
consistent employment. Job Corps, he went away first with
Job Corps to Kentucky and he got homesick and came
back.
Then he went to Tuskegee. In the Job Corps there
they taught him with classes. They taught him brick
masonry. He was gone about a year. He got his GED
while he was there. Apparently did well.
R. 1004.)
Dr. Charles J. Golden, a professor of psychology at Nova
Southeastern University and Director of the Neuropsychological
Assessment Center, also testified at the Rule 32 hearing. Dr. Golden
stated that based on his assessment of Davis’s IQ scores, Davis had
frontal-lobe brain damage. In rebuttal, the State presented the testimony
of Dr. Glen D. King, a clinical psychologist. Dr. King testified that after
evaluating Davis and his IQ scores, it was his opinion that Davis
“merely had borderline intellectual functioning” and that he would not
refer Davis to a neurologist. The experts testified that a CAT scan, a
MRI, or a PET scan are traditionally used to diagnose brain damage.
However, none of these tests were administered in this case.
We have painstakingly reviewed the record of the trial and the
Rule 32 proceedings and find no indication that Davis meets the most
liberal definition of mental retardation adopted by the Alabama Supreme
Court in Perkins. Therefore, Atkins does not bar the imposition of the
death penalty in Davis’s case.
Davis v. State, 9 So. 3d 514, 528-29 (Ala. Crim. App. 2006) (alteration in original)
(footnote omitted).
297

Upon review of the record, the Alabama courts’ rejection of Davis’s
“borderline mental retardation claim” was not contrary to, or an unreasonable
application of, clearly established federal law, or based on an unreasonable
determination of the facts. In Atkins, the Supreme Court held that executing mentally
retarded capital offenders violates the Eighth Amendment. Although the court did not
dictate a national standard for determining mental retardation, leaving that
determination to the individual states, it recognized that “clinical definitions of
mental retardation require not only sub-average intellectual functioning, but also
significant limitations in adaptive skills such as communication, self-care, and
self-direction that became manifest before age 18.” Atkins, 536 U.S. at 318.
In Alabama, there is a three part test for determining whether mental
retardation rises to the level of prohibiting execution: “(1) significantly subaverage
intellectual functioning (i.e., an IQ of 70 or below); (2) significant or substantial
deficits in adaptive behavior; and (3) the manifestation of these problems during the
defendant’s developmental period (i.e., before the defendant reached age eighteen).”
Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009) (citing Smith v. Alabama,
No. 1060427, 2007 WL 1519869, at *8 (Ala. May 25, 2007) and Ex Parte Perkins,
851 So.2d 453, 456 (Ala. 2002)).

298

Davis neither disputes that he fails to meet the Alabama criteria for mental
retardation, nor contends that the Alabama courts unreasonably determined that he
was not mentally retarded. Instead, he argues that the Atkins standard should be
expanded to include defendants of limited intelligence, with evidence of frontal lobe
damage. However, he points to no clearly established federal law authorizing such
an application. Moreover, the Eleventh Circuit has denied a claim similar to the one
propounded by Davis, holding that
Atkins protects only those individuals who are mentally retarded, as is
evident by the third prong of the mental retardation inquiry, which
requires onset by age 18 . . . [t]hus, a constitutional rule exempting the
‘functionally mentally retarded’ from execution would go beyond the
holding of Atkins, something this Court may not do when reviewing §
2254 petitions.
Carroll v. Secretary, Dep’t of Corrections, 574 F.3d 1354, 1369 (11th Cir. 2009)
(alteration and ellipses supplied). Davis is entitled to no relief on this claim.
VII. EVIDENTIARY HEARING
Davis requests an evidentiary hearing.

“In deciding whether to grant an

evidentiary hearing, a federal court must consider whether such a hearing could
enable an applicant to prove the petition’s factual allegations which, if true, would
entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465,
474 (2007). The deferential standards prescribed by § 2254 control whether to grant

299

habeas relief, and a federal court must take those standards into account when
deciding whether an evidentiary hearing is appropriate. Id. at 474 (citing Mayes v.
Gibson, 210 F.3d 1284, 1287-1288 (10th Cir. 2000) (“Whether [an applicant’s]
allegations, if proven, would entitle him to habeas relief is a question governed by
[AEDPA]”)) (alterations in Schriro).
The record in this case refutes the applicant’s factual allegations or otherwise
precludes habeas relief. Accordingly, an evidentiary hearing need not be held and
the request for a hearing is denied.
VIII. CONCLUSION
The petition for writ of habeas corpus is due to be denied. A separate final
judgment consistent with this memorandum of opinion will be entered simultaneously
herewith.
DONE this 26th day of May, 2016.

______________________________
United States District Judge

300