Mashburn v. Thomas

Filing 42

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/31/2021. (PSM)

FILED
2021 Mar-31 PM 02:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ELLIS LOUIS MASHBURN, JR., )
)
Petitioner,
)
)
vs.
)
)
)
JEFFERSON S. DUNN,
)
Commissioner, Alabama
)
Department of Corrections, et al., )
)
Respondents.
)

1:14-cv-01829-LSC

MEMORANDUM OF OPINION
Ellis Louis Mashburn, Jr. (“Mashburn”) has petitioned for a writ of habeas
corpus under 28 U.S.C. § 2254. (See generally Doc. 24) (Mashburn’s amended and
operative habeas petition). Mashburn challenges the constitutionality of his five
capital convictions and death sentence in the Circuit Court of Calhoun County,
Alabama for murdering his grandmother, Clara Eva Birmingham, and stepgrandfather, Henry Owen Birmingham, Jr. After careful consideration, the Court
denies Mashburn’s petition. The Court begins with the background of Mashburn’s
death penalty proceedings.

I.

BACKGROUND
A.

Facts of the Capital Offenses

Quoting from the trial court’s amended sentencing order, the Alabama Court
of Criminal Appeals (“ACCA”) summarized the facts of the double murder and the
surrounding circumstances as follows:
On the 30th day of October 2002, the bodies of Henry Owen
Birmingham, Jr. and Clara Eva Birmingham were discovered in their
home at 205 Melanie Lane, Alexandria, Calhoun County, Alabama.
Both had been severely beaten and stabbed. It was determined that the
deaths occurred during the evening hours of October 29, 2002.
The Calhoun County Sheriff’s Office, with primary assistance from the
Alabama Bureau of Investigation, the Department of Forensic Sciences,
undertook the investigation. The crime scene, as the evidence reflects,
was extremely bloody and it was apparent that a substantial struggle had
taken place between the victims and their assailant or assailants. Too, it
appeared that whoever had entered the home had not done so by
forcible entry against the structure itself and, inferentially, had more
likely than not been admitted entry initially.
Numerous items of evidence were collected by both the Calhoun
County Sheriff’s Office investigators and the Alabama Department of
Forensic Sciences. The scene was kept secured and guarded for several
days which enabled the DFS criminalists to study, differentiate and
collect trace evidence for analysis. While the scene was in great
disarray, indicating a substantial and relatively lengthy struggle,
especially in light of the victims’ ages and states of health, and even
though there was a large quantity of blood from the victims, DFS
scientists were able to identify and recover blood spatter residue that
was not from either of the victims.

2

Through various leads and investigation, three suspects were
identified. These persons were Ellis Louis Mashburn, Jr., the grandson
of Clara Eva Birmingham, Tony Brooks and Jeremy Butler...
....
[]Based upon the evidence presented, the Court finds:
1. [Mashburn], while accompanied by at least one other
individual, went to the home of Henry Owen Birmingham,
Jr., and Clara Eva Birmingham in the late afternoon or
early evening hours of October 29, 200[2]. The apparent
reason for the visit was for the purpose of the theft of
property and perhaps for the purpose of confronting
Henry Owen Birmingham, Jr. In any event, the
Birmingham home was invaded either by force or by the
application of force to an occupant after entry by
[Mashburn] as proven by trace evidence recovered. By
testimony presented by a witness to whom [Mashburn]
had said to have confessed, he and his accomplice, Tony
Brooks, were armed with at least a knife and a hatchet.
2. The fact that certain items of personal property, namely
jewelry, of Clara Eva Birmingham were recovered from or
were traceable to [Mashburn] after the home invasion, the
reasonable inference is that [Mashburn] went to the
Birmingham residence for the purpose of obtaining money
or things of value.
3. The bodies of Henry Owen Birmingham, Jr., and Clara
Eva Birmingham were transported to the Cooper Green
Hospital forensic autopsy facility where they were each
subjected to a post-mortem examination by Dr. Joseph
Embry, State Medical Examiner. The results of the
autopsies were that each victim died from multiple stab
and sharp instrument wounds and blunt-force trauma to
the head. Crime scene photographs, autopsy photographs
and the testimony of Dr. Embry showed that each victim
3

suffered repeated wounds from a knife or knife-like
instrument, that the wounds were vicious and delivered in
such a way as to indicate an attack whereby each defended
themselves and were obviously aware of the extent and
nature of the attack and their impending deaths. The crime
scene, too, indicated that both victims resisted attack and
bore witness to the violence associated with their deaths.
4. Whether either victim was able to appreciate the plight
and suffering of the other or not, the crime scene and the
autopsy findings clearly indicate each would have been
aware of the soon-to-be-fatal assault being committed
upon them individually.
5. Other than [Mashburn’s] plea of guilty, the most
compelling evidence was the DNA analysis and
comparison of crime scene blood with that of [Mashburn]
and the testimony of a former cellmate of [Mashburn],
Michael Wayne Simpson. Four blood traces recovered
from the scene, three in the master bedroom and one from
the wall in the den, matched that of the Defendant, Ellis
Mashburn, with a computed population frequency of 1:1.2
quintillion non-related white individuals and 1:1.3
quintillion non-related black individuals. To strengthen
the connection of the trace evidence recovered,
[Mashburn] was observed to have a fresh laceration on his
left hand that he stated he had himself sewed up after
‘cutting it on a fence’ at his residence. Additionally,
Michael Wayne Simpson testified that [Mashburn] had
confessed to him about the killing of his grandmother and
step-grandfather while accompanied by Tony Brooks.
[Simpson’s] testimony relating what he stated . . .
[Mashburn] told . . . him was confirmed by various aspects
of the crime scene.

4

Mashburn v. State (Mashburn II), 148 So. 3d 1094, 1102-04 (Ala. Crim. App. 2013)
(internal quotation marks omitted) (emphasis in the trial court’s amended order)
(some alterations added); 1 (see also Doc. 30-29 at 55-66.)
B.

Procedural History

A Calhoun County Grand Jury indicted Mashburn for robbing, burglarizing,
and murdering the Birminghams in October 2002 at their home. (Doc. 30-1 at 26-27;
Doc. 30-29 at 1-2.) The Grand Jury charged Mashburn with five capital offenses—
two counts for murdering the Birminghams during a robbery, two counts for
murdering them during a burglary, and one count for murdering them by an act,
scheme, or course of conduct. Mashburn v. State (Mashburn I), 7 So. 3d 453, 455-56
(Ala. Crim. App. 2007); see also § 13A–5–40(a)(2), (4), (10), Ala. Code 1975
(classifying murder during a robbery in the first degree, murder during a burglary in
the first degree, and murder of “two or more persons . . . by one act or pursuant to
one scheme or course of conduct” as capital crimes).
Mashburn pled guilty to the capital counts, and the State presented its guiltphase case to a jury. Mashburn I, 7 So. 3d at 456; see also § 13A–5–42, Ala. Code 1975
(providing that a jury may consider a guilty plea when determining whether the state

1

Mashburn II refers to the ACCA’s collateral appeal opinion. Mashburn I, infra, refers to the
ACCA’s decision on direct appeal.
5

has “prove[n] the defendant’s guilt of the capital offense beyond a reasonable
doubt”). On September 19, 2006, the jury convicted Mashburn on all counts. (Doc.
30-2 at 79-83; Mashburn I, 7 So. 3d at 456).
The jury’s guilty determination triggered penalty-phase proceedings under
Alabama law. Mashburn I, 7 So. 3d at 456. After a penalty hearing, the jury found
unanimously in a special verdict that Mashburn’s crimes “were especially heinous,
atrocious or cruel when compared to other capital offenses[.]” (Doc. 30-2 at 84.)
Eleven of twelve jurors recommended that Mashburn receive a death sentence.
(Doc. 30-2 at 85; Mashburn I, 7 So. 3d at 456). The trial court held a sentencing
hearing, accepted the jury’s penalty findings, and sentenced Mashburn to death.
(Doc. 30-29 at 3; Mashburn I, 7 So. 3d at 456).
Mashburn appealed, and the ACCA rejected the bulk of his challenge but
remanded requiring “the trial court [to] enter a new sentencing order that
complie[d] with the requirements of § 13A–5–47(d), Ala. Code 1975.” 2 Mashburn I,
2

The language of the Alabama Criminal Code provision governing Mashburn’s sentencing
at that time stated:
Based upon the evidence presented at trial, the evidence presented during the
sentence hearing, and the pre-sentence investigation report and any evidence
submitted in connection with it, the trial court shall enter specific written findings
concerning the existence or nonexistence of each aggravating circumstance
enumerated in Section 13A-5-49, each mitigating circumstance enumerated in
Section 13A-5-51, and any additional mitigating circumstances offered pursuant to
Section 13A-5-52. The trial court shall also enter written findings of facts
summarizing the crime and the defendant’s participation in it.
6

7 So. 3d at 465. As documented in the post-remand judgment and sentencing
memorandum, the trial court found that Mashburn’s intentional killing of two
people during the course of a burglary and robbery and the jury’s special verdict
finding supported four aggravating circumstances. (Doc. 30-29 at 55, 62.) The trial
court recognized the absence of a unanimous recommendation of death as a
mitigating circumstance. (Id. at 65.) The trial court identified Mashburn’s
acceptance of legal responsibility; insignificant criminal history; young age;
dysfunctional family unit; histories of emotional, physical, and substance abuse;
untreated Attention Deficit or Attention Deficit Hyperactivity Disorders; difficult
birth, including possible anoxia; lack of mental health treatment, including reports
of hearing voices; and the firm meaning of a life sentence without parole as other
established mitigating circumstances. (Doc. 30-29 at 63-64; see also Mashburn II, 148
So. 3d at 1131 (referencing trial court’s mitigating findings listed in Mashburn’s Rule
32 petition)). While the trial court accepted nearly all of Mashburn’s mitigating
factors, it rejected Mashburn’s reliance on organic brain injury and “significant”
mental dysfunction because the asserted conditions lacked a “reliable degree of
proof” within the record, including contrary evidence showing that Mashburn had

§ 13A–5–47(d), Ala. Code 1975. As amended in 2017, these same sentencing requirements are
incorporated within § 13A–5–47(b).
7

“a structurally normal brain for a male of his age.” (Doc. 30-29 at 65.) The trial court
concluded that the aggravating aspects of Mashburn’s capital offenses “as found by
the Jury in its guilt and special verdicts . . . . clearly outweigh[ed]” the mitigating
factors. (Id.)
On return to the ACCA, the appellate court noted that the trial court had
“complied with [the remand] instructions” and affirmed Mashburn’s convictions
and sentence. Mashburn I, 7 So. 3d at 465, 467. The Alabama Supreme Court and the
United States Supreme Court denied certiorari review on October 24, 2008, and
June 1, 2009, respectively. Mashburn I, 7 So. 3d at 453 (referencing Alabama
Supreme Court No. 1071307); Mashburn II, 148 So. 3d at 1102 (summarizing direct
procedural history); (Doc. 30-29 at 67; Mashburn v. Alabama, 556 U.S. 1270 (2009)).
Mashburn sought post-conviction relief under Alabama Criminal Procedure
Rule 32 through the same counsel who represent him here. (Doc. 30-21 at 6-79 ¶¶ 1271.) The State answered and moved to dismiss, and Mashburn moved for the
discovery “of prosecution files, records, and information necessary to a fair Rule 32
evidentiary hearing[.]” (Doc. 30-21 at 88, 159.) On April 1, 2010, the Rule 32 court
summarily dismissed the petition in a 65-page order based on the trial and direct
appeal records. (Doc. 30-29 at 68-132 ¶¶ 1-45.) Due to a service error, “neither party
received notice of [the collateral] [c]ourt’s [o]rder summarily dismissing th[e]
8

petition for post-conviction relief[,-” and Mashburn missed the appeal deadline.
(Doc. 30-21 at 5.) Mashburn moved to set aside the judgment (doc. 30-22 at 48-53
¶¶ 1-20) and amended his petition (doc. 30-23 at 25-60 ¶¶ 1-132 to doc. 30-24 at 142 ¶¶ 132-290). Based on the service error, Mashburn added a new count seeking
relief because he “was without fault” in “fail[ing] to appeal within the prescribed
time[,]” Ala. R. Crim. Proc. 32.1(f), and alleging due process violations (doc. 30-23
at 25; doc. 30-24 at 36-39 ¶¶ 270-288).3 The Rule 32 court held oral argument to
consider “allow[ing] [Mashburn’s] Rule 32 [petition] to either be heard or . . .
addressed on appeal.” (Doc. 30-22 at 78.) On October 12, 2011, the collateral court
granted Mashburn’s request to file an out of time appeal. (Doc. 30-21 at 5.) The court
denied the remainder of Mashburn’s amended petition. Id.
The ACCA considered the late appeal and affirmed the collateral court’s
summary denial of Rule 32 relief in a 48-page opinion. Mashburn II, 148 So. 3d at
1162. The Alabama Supreme Court denied certiorari review on February 21, 2014.
See Mashburn II, 148 So. 3d at 1094 (referencing Alabama Supreme Court No.
1121548).

3

With the exception of the service-error count, the substance of Mashburn’s original and
amended petitions is the same. (Compare Doc. 30-21 at 6-79 ¶¶ 1-271, with Doc. 30-23 at 25-60 ¶¶
1-132, and Doc. 30-24 at 1-36, 3-42 ¶¶ 132-269, 289-290.) When citing Mashburn’s Rule 32
allegations in the analysis section, the Court refers to Mashburn’s amended petition.
9

Mashburn filed his habeas petition in this Court on September 26, 2014. (Doc.
1.) This Court dismissed the petition as untimely based on 28 U.S.C. § 2244(d)(1)’s
one-year statute of limitations. (Docs. 10 and 11.) The Eleventh Circuit Court of
Appeals determined that equitable tolling saved Mashburn’s petition from an
untimeliness dismissal and remanded the case. (Doc. 20; Mashburn v. Comm’r,
Alabama Dep’t of Corr., 713 F. App’x 832 (11th Cir. 2017)). Post-remand, Mashburn
amended his petition (doc. 24), which Respondents answered (doc. 32). Despite this
Court’s requirements (see doc. 21 at 8 § E), Respondents never filed a brief, and
Mashburn replied to Respondents’ answer (doc. 40). Mashburn sought an
evidentiary hearing, and the Court denied that request without prejudice. (Docs. 25
and 41.)
II.

STANDARDS OF FEDERAL HABEAS REVIEW
Title 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), governs this action. See Guzman v. Sec’y,
Dep’t of Corr., 663 F.3d 1336, 1345 (11th Cir. 2011). Pursuant to § 2254(a), a federal
district court is prohibited from entertaining a petition for writ of habeas corpus
“[o]n behalf of a person in custody pursuant to the judgment of a State court” unless
the petition alleges “he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). In other words, this Court’s
10

review of habeas claims is limited to federal constitutional questions. Claims
pertaining solely to “an alleged defect in a [state] collateral proceeding” or to “[a]
state’s interpretation of its own laws or rules” do not provide a basis for federal
habeas corpus relief under § 2254. Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 132526 (11th Cir. 2010) (internal quotation marks and citations omitted).
A.

Exhaustion of State Remedies and Procedural Default

Under § 2254(b) and (c), a federal court must limit its grant of habeas
applications to cases where an applicant has exhausted all state remedies. Cullen v.
Pinholster, 563 U.S. 170, 182, 131 S. Ct. 1388, 1398-99 (2011). This means that “‘state
prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process,’ including review by the state’s last court of last resort, even if review in
that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999)).
Alabama’s discretionary direct review procedures bring Alabama prisoner habeas
petitions within the scope of the rule. Id. at 1359. The purpose of this requirement is
to ensure that state courts are afforded the first opportunity to correct federal
questions affecting the validity of state court convictions. See Snowden v. Singletary,
135 F.3d 732, 735 (11th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1463
11

(11th Cir. 1989) (“Federal courts are not forums in which to relitigate state trials.”)
(citation omitted). Moreover, “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.’”
Snowden, 135 F.3d at 735 (quoting Anderson v. Harless, 459 U.S. 4, 5-6, 103 S. Ct. 276,
277 (1982)).
“[A]n issue is exhausted if ‘the reasonable reader would understand the
claim’s particular legal basis and specific factual foundation’ to be the same as it was
presented in state court.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1286 (11th
Cir. 2012) (quoting Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir.
2004)) (brackets in original omitted). If a petitioner fails to raise his federal claim to
the state court at the time and in the manner dictated by the state’s procedural rules,
the state court can decide the claim is not entitled to a review on the merits, i.e., “the
petitioner will have procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d
1114, 1119 (11th Cir. 2010). Moreover, a “state court’s rejection of a petitioner’s
constitutional claim on state procedural grounds will generally preclude any
subsequent federal habeas review of that claim.” Ward v. Hall, 592 F.3d 1144, 1156
(11th Cir. 2010) (internal quotation marks omitted) (quoting Judd v. Haley, 250 F.3d
12

1308, 1313 (11th Cir. 2001)). “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.” Ylst v. Nunnemaker, 501 U.S.
797, 803, 111 S. Ct. 2590, 2594 (1991). Yet as the Eleventh Circuit has noted, a claim
will only be procedurally defaulted in the following circumstance:
[A] state court’s rejection of a federal constitutional claim on
procedural grounds may only preclude federal review if the state
procedural ruling rests upon “adequate and independent” state
grounds. Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995)
(citation omitted).
We have “established a three-part test to enable us to determine when
a state court’s procedural ruling constitutes an independent and
adequate state rule of decision.” Judd, 250 F.3d at 1313. “First, the last
state court rendering a judgment in the case must clearly and expressly
state that it is relying on state procedural rules to resolve the federal
claim without reaching the merits of that claim.” Id. Second, the state
court’s decision must rest entirely on state law grounds and not be
intertwined with an interpretation of federal law. See id. Third, the state
procedural rule must be adequate, i.e., firmly established and regularly
followed and not applied “in an arbitrary or unprecedented fashion.”
Id.
Ward, 592 F.3d at 1156–57 (footnote omitted).
There are also instances where the doctrines of procedural default and
exhaustion intertwine. For instance, if a petitioner’s federal claim is unexhausted, a
district court will traditionally dismiss it without prejudice or stay the cause of action
to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy,
13

455 U.S. 509, 519, 102 S. Ct. 1198, 1204 (1982). But “if it is clear from state law that
any future attempts at exhaustion [in state court] would be futile” under the state’s
own procedural rules, a court can simply find that the claim is “procedurally
defaulted, even absent a state court determination to that effect[.]” Bailey v. Nagle,
172 F.3d 1299, 1305 (11th Cir. 1999) (citation omitted).
B.

Overcoming Procedural Default

“[A]n 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, or demonstrate that failure to consider
the federal claim will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564-65 (1991) (citations and
internal quotation marks omitted).
The “cause and prejudice” exception is framed in the conjunctive, and a
petitioner must prove both cause and prejudice. Id. at 750, 111 S. Ct. at 2565. To
show cause, a petitioner must prove that “some objective factor external to the
defense impeded counsel’s efforts” to raise the claim previously. Murray v. Carrier,
477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Examples of such objective factors
include:
. . . interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal
14

basis for a claim was not reasonably available to counsel. In addition,
constitutionally ineffective assistance of counsel . . . is cause. Attorney
error short of ineffective assistance of counsel, however, does not
constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 1470 (1991) (quotation marks,
brackets, and citations omitted), abrogated on other grounds by statute as recognized in
Banister v. Davis, 140 S. Ct. 1698, 1707 (2020). As for prejudice, a habeas petitioner
must show “not merely that the errors . . . created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.
Ct. 1584, 1596 (1982) (emphasis in original).
Finally, a petitioner may also escape a procedural default bar if he “can
demonstrate a sufficient probability that [the court’s] failure to review his federal
claim will result in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529
U.S. 446, 451, 120 S. Ct. 1587, 1591 (2000). To make such a showing, a petitioner
must establish that either: (1) “a constitutional violation has probably resulted in the
conviction of one who is actually innocent,” Smith v. Murray, 477 U.S. 527, 537, 106
S. Ct. 2661, 2668 (1986) (quoting Carrier, 477 U.S. at 496, 106 S. Ct. at 2649), or (2)
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 v. Delo, 513 U.S. 298, 323, 115 S. Ct. 851, 865 (1995) (emphasis in
15

original) (internal quotation marks omitted) (quoting Sawyer v. Whitley, 505 U.S.
333, 336, 112 S. Ct. 2514, 2517 (1992)).
C.

AEDPA Review of State Court Decisions Under § 2254(d) and (e)

When a constitutional claim upon which a petitioner seeks relief under § 2254
is not procedurally defaulted but has instead been adjudicated on the merits in state
courts, this Court is still restricted in its ability to grant relief on those claims by §
2254(d). “AEDPA imposes a highly deferential standard for evaluating state-court
rulings and demands that state-court decisions be given the benefit of the doubt.”
Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted). To grant
habeas relief on a claim, this Court must not only find that the constitutional claims
are meritorious, but also that the state court’s resolution of those claims:
(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)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir.
2010) (quoting § 2254(d)). The burden of showing that an issue falls within §
2254(d)(1) or (d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25,
123 S. Ct. 357, 360 (2002). Section 2254(d)(1)’s “contrary to” and “unreasonable
16

application of” clauses have independent meanings. See Alderman v. Terry, 468 F.3d
775, 791 (11th Cir. 2006) (“[T]he ‘contrary to’ and ‘unreasonable application’
clauses are interpreted as independent statutory modes of analysis.”) (citation
omitted). A state court’s decision is contrary to “clearly established precedents [of
the Supreme Court of the United States] if it applies a rule that contradicts the
governing law set forth in [the Court’s] cases, or if it confronts a set of facts that is
materially indistinguishable from a decision of th[e] Court but reaches a different
result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438 (2005) (citation
omitted). On the other hand, to determine whether a state court’s decision is an
“unreasonable application” of clearly established federal law, the Supreme Court
has stated:
The pivotal question is whether the state court’s application of
the [relevant constitutional] standard was unreasonable. . . . For
purposes of § 2254(d)(1), an unreasonable application of federal law is
different from an incorrect application of federal law. A state court must
be granted a deference and latitude that are not in operation when the
case involves review under the [relevant constitutional] standard itself.
A state court’s determination that a claim lacks merits precludes
federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision. And as the [Supreme Court]
has explained, evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations.

17

Harrington v. Richter, 562 U.S. 86, 100-01, 131 S. Ct. 770, 785-86 (2011) (citations,
alteration, and quotation marks omitted) (emphasis in original); see also Schriro v.
Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
threshold.”); Guzman, 663 F.3d at 1346 (“Ultimately, before a federal court may
grant habeas relief under § 2254(d), ‘a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’”) (quoting Richter, 562 U.S. at 103, 131
S. Ct. at 786-87). As the Supreme Court has stated, “If this standard is difficult to
meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops
short of imposing a complete bar on federal-court relitigation of claims already
rejected in state proceedings.” Richter, 562 U.S. at 102, 131 S. Ct. at 786.
Moreover, a state court’s factual determination is entitled to a presumption
of correctness under § 2254(e)(1)). And commensurate with the deference accorded
to a state court’s factual findings, “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 (alterations in original) (quoting § 2254(e)(1)).
18

D.

The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions

Additionally, because habeas corpus review is limited to review of errors of
constitutional dimension, a petitioner “must meet [the] heightened pleading
requirements [of] 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849,
856, 114 S. Ct. 2568, 2572 (1994) (citation omitted). “[T]he petition must ‘specify
all the grounds for relief available to the petitioner’ and ‘state the facts supporting
each ground.’” Mayle v. Felix, 545 U.S. 644, 655, 125 S. Ct. 2562, 2570 (2005)
(quoting Rule 2(c) of the Rules Governing § 2254 Cases in the U.S. District Courts).
The burden is on the habeas petitioner “to establish his right to habeas relief and he
must prove all facts necessary to show a constitutional violation.” Blankenship v.
Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (citation omitted); see also Smith v.
Wainwright, 777 F.2d 609, 616 (11th Cir. 1985) (recognizing that a general allegation
of ineffective assistance of counsel is insufficient; a petition must allege specific
errors in counsel’s performance and facts showing prejudice).
E.

The General Standard for Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the
Supreme Court established the following two-pronged standard for judging, under
the Sixth Amendment, the effectiveness of attorneys who represent criminal
defendants at trial or on direct appeal:
19

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, 104 S. Ct. at 2064.
Because Strickland’s preceding two-part test is clearly framed in the
conjunctive, a petitioner bears the burden of proving both “deficient performance”
and “prejudice” by “a preponderance of competent evidence[.]” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); see also 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 omitted). Further, when assessing ineffective assistance of counsel
claims:
[I]t is important to keep in mind that in addition to the deference to
counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference—this one to a State court’s decision—when
we are considering whether to grant federal habeas relief from a State
court’s decision. Thus, [a petitioner] not only has to satisfy the
20

elements of the Strickland standard, but he must also show that the
State court applied Strickland to the facts of his case in an objectively
unreasonable manner.
Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010) (brackets in original omitted)
(citations and quotation marks omitted) (emphasis in original).
In order to establish deficient performance, a habeas petitioner “must show
that counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. That reasonableness is judged against
“prevailing professional norms.” Id., 104 S. Ct. at 2065. Moreover, under Strickland,
lower federal courts must be “highly deferential” in their scrutiny of counsel’s
performance. Id. at 689, 104 S. Ct. at 2065. As the Strickland Court outlined:
Judicial scrutiny of counsel’s performance must be highly
deferential. 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.
21

Id., 104 S. Ct. at 2065 (citations and quotation marks omitted).
Simply put, a habeas petitioner “must establish that no competent counsel
would have taken the action that his counsel did take” to overcome the presumption
that counsel’s conduct fell within the wide range of reasonable professional
assistance. Chandler, 218 F.3d at 1315. 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., Newland v. Hall, 527 F.3d 1162, 1184 (11th
Cir. 2008) (“We review counsel’s performance ‘from counsel’s perspective at the
time,’ to avoid ‘the distorting effects of hindsight.’”) (quoting Strickland, 466 U.S.
at 689).
To satisfy the prejudice prong, a habeas petitioner “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.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068. Stated differently, “[a] finding of prejudice requires proof of
unprofessional errors so egregious that the trial was rendered unfair and the verdict
rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001)
(citations and internal quotation marks omitted). Further, the fact that counsel’s
“errors had some conceivable effect on the outcome of the proceeding” is
22

insufficient to show prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.
Therefore, “when a petitioner challenges a death sentence, ‘the question is whether
there is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007)
(quoting Strickland, 466 U.S. at 695, 104 S. Ct. at 2069).
Because Strickland and § 2254(d) both mandate standards that are “‘highly
deferential,’” “when the two apply in tandem, review is ‘doubly’ so.” Richter, 562
U.S. at 105, 131 S. Ct. at 788 (citations omitted). The inquiry is not then “whether
counsel’s actions were reasonable” but is instead “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. The court
must determine “whether the state court’s application of the Strickland standard
was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Id. at 101, 131 S. Ct. at 785. This
“[d]ouble deference is doubly difficult for a petitioner to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.” Evans
v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012) (internal quotation
marks omitted).
23

Finally, “[s]tate court findings of historical facts made in the course of
evaluating an ineffectiveness claim are subject to a presumption of correctness under
28 U.S.C. § 2254(d).” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001).
1.

The Martinez v. Ryan Rule

In Martinez v. Ryan, the Supreme Court announced “a narrow exception” to
the procedural default rule of Coleman, 501 U.S. at 750, 111 S. Ct. at 2565, in the
limited circumstances where a state law “requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding[.]” 566 U.S. 1, 9, 14, 132
S. Ct. 1309, 1315, 1318 (2012). The exception applies only when four conditions are
met:
(1) a state requires a prisoner to raise ineffective-trial-counsel claims at
the initial-review stage of a state collateral proceeding and precludes
those claims during direct appeal; (2) the prisoner did not comply with
state rules and failed properly to raise ineffective-trial-counsel claims in
his state initial-review collateral proceeding; (3) the prisoner did not
have counsel (or his appointed counsel was ineffective by not raising
ineffective-trial-counsel claims) in that initial-review collateral
proceeding; and (4) failing to excuse the prisoner’s procedural default
would cause the prisoner to lose a “substantial” ineffective-trialcounsel claim.
Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014) (footnote omitted) (citing
Martinez, 566 U.S. at 13-14, 132 S. Ct. at 1318-19). A following case, Trevino v. Thaler,
569 U.S. 413, 133 S. Ct. 1911 (2013), extended the Martinez rule to state systems in

24

which it was “virtually impossible” for ineffective assistance claims to be raised on
direct appeal. Id. at 417, 429, 133 S. Ct. at 1915 (internal quotation marks omitted).
In other words, to prevail under Martinez, a petitioner must demonstrate that
his trial counsel were ineffective under Strickland in their treatment of a particular
issue and also that his initial-review collateral appeal counsel were ineffective under
Strickland for failing to raise a claim of ineffective assistance of trial counsel
concerning that issue. As the Eleventh Circuit has explained, the petitioner “must
show more than the mere fact [collateral counsel] failed to raise potentially
meritorious claims; he must show that no competent counsel, in the exercise of
reasonable professional judgment, would have omitted those claims.” Hittson v.
GDCP Warden, 759 F.3d 1210, 1263 (11th Cir. 2014) (emphasis in original). In this
limited case, “a procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial[.]” Martinez, 566 U.S. at 17, 132 S.
Ct. at 1320.
The Martinez rule applies only in initial-review collateral proceedings; it
“does not concern attorney errors in other kinds of proceedings, including appeals
from initial-review collateral proceedings, second or successive collateral
proceedings, and petitions for discretionary review in a State’s appellate courts.” Id.
at 16, 132 S. Ct. at 1320. The Eleventh Circuit has held that Martinez does not serve
25

as a vehicle to allege a freestanding claim of ineffective assistance of state postconviction counsel. Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1262-63 (11th
Cir. 2014); see also 28 U.S.C. § 2261(e) (“The ineffectiveness or incompetence of
counsel during State or Federal post-conviction proceedings in a capital case shall
not be a ground for relief in a proceeding arising under section 2254.”).
III.

DISCUSSION OF MASHBURN’S CLAIMS
Mashburn has completely abandoned many of his § 2254 allegations.

Consequently, the Court begins by identifying those habeas claims in which a
straightforward dismissal is suitable. The Court then considers Mashburn’s
remaining allegations and request for an evidentiary hearing as well as Respondents’
defenses. Because this is a death penalty case, the Court has given Mashburn the
benefit of the doubt by developing and giving context to his cited authorities to
determine whether he overcomes any procedural defenses and satisfies his AEDPA
burden. Consistent with that deeper review, Mashburn is not entitled to habeas relief
or an evidentiary hearing on the remainder of his petition.
A.

Abandoned and Conclusory Claims

Mashburn has alleged many claims in his habeas petition without citing case
authority, discussing record evidence, or replying to Respondents’ contentions
about dismissal. (See generally Docs. 24, 32 and 40.) Consistent with his silence,
26

Mashburn has abandoned those portions of his petition or waived the right to pursue
them as habeas claims. See Tharpe v. Humphrey, No. 5:10-CV-433 CAR, 2014 WL
897412, at *3 n.4 (M.D. Ga. Mar. 6, 2014) (raising a habeas claim without developing
an argument constitutes abandonment), aff’d sub nom. Tharpe v. Warden, 834 F.3d
1323 (11th Cir. 2016); see also Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 987
n.16 (11th Cir. 2001) (asserting a claim without “elaborat[ion] or . . . citation of
authority in support” waives that allegation), superseded on other grounds by statute as
stated in Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015).
Alternatively, Mashburn’s conclusory approach means that he has failed to
show why AEDPA’s predominant rule precluding habeas relief on exhausted claims
does not apply. See Tharpe, 2014 WL 897412, at *3 n.4 (observing that merely
alleging claims is inadequate to show “that the state courts’ adjudications of the[m]
. . . were contrary to, or involved an unreasonable application of, clearly established
Supreme Court precedent, or that the decisions were based on unreasonable factual
findings”). Mashburn’s mere belief that the ACCA misjudged the adequacy of his
claims to a degree that a § 2254(d) exception should preserve them misses the mark.
Instead, Mashburn must persuade this Court—with case authority under (d)(1) or
record evidence under (d)(2)—to apply an AEDPA exception as he “has the burden
of establishing his right to federal habeas relief and of proving all facts necessary to
27

show a constitutional violation.” Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.
2001) (citing Delap v. Dugger, 890 F.2d 285, 311 (11th Cir. 1989), abrogated on other
grounds as recognized in Floyd v. Sec’y, Fla. Dep’t of Corr., 638 F. App’x 909 (11th Cir.
2016)); see also Richter, 562 U.S. at 98 (“Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s [AEDPA] burden still
must be met by showing there was no reasonable basis for the state court to deny
relief.”). Thus, without § 2254(d)(1) or (d)(2) in play, providing an in-depth analysis
of these allegations is unnecessary because the appropriate result under AEDPA—
habeas relief “shall not be granted” is straightforward. 28 U.S.C. § 2254(d); see Early
v. Packer, 537 U.S. 3, 7 (2002) (“When a habeas petitioner’s claim has been
adjudicated on the merits in state-court proceedings, 28 U.S.C. § 2254(d) forecloses
relief unless the state court’s adjudication of the claim” results in actionable
constitutional error under (d)(1) or (d)(2)).
Accordingly, the Court dismisses the following parts of Mashburn’s petition
as abandoned or unproven on habeas review: 4

4

Mindful of the piecemeal pitfalls described in the pre-AEDPA authority of Clisby v. Jones,
960 F.2d 925, 935-36 (11th Cir. 1992), this dismissal applies to all federal claims that these
allegations might present.
28

1.

Claim A—introductory paragraphs to ineffective assistance of trial

counsel guilt-phase subclaims (doc. 24 at 8-10 ¶¶ 19-23)5 and subclaim A.6 (doc. 24
at 17 ¶ 59);
2.

Claim B—introductory paragraphs to ineffective assistance of trial

counsel penalty-phase subclaims (doc. 24 at 18-19 ¶ 61-62);6

5

AEDPA review applies even though the ACCA did not address paragraphs 41 through 44
within Mashburn’s Rule 32 petition that correspond with the initial part of Claim A. See generally
Mashburn II, 148 So. 3d at 1123-31. Under the look-through presumption, a “federal [habeas] court
should ‘look through’ [an] unexplained decision to the last related state-court decision that does
provide a relevant rationale . . . [and] then presume that the unexplained decision adopted the same
reasoning.” Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018). The collateral court
characterized the preliminary paragraphs as general background to the subclaims and dismissed
them as inadequate statements of independent relief. (Doc. 30-29 at 73-74 ¶ 7.) Consequently, the
Rule 32 court’s dismissal for insufficient pleading becomes the merits-based decision to which
AEDPA deference attaches. Mashburn challenges neither the Rule 32 court’s dismissal as one
subject to habeas review under a § 2254(d) exception nor Respondents’ position that “[t]o the
extent that Mashburn is attempting to raise any claims in those paragraphs, such claims are
conclusory in nature and fail to state a claim for relief under 28 U.S.C. § 2254.” (Doc. 32 at 10 ¶
17; Doc. 40 at 10-13.) Thus, Mashburn cannot obtain habeas relief based on Claim A’s preliminary
paragraphs.
6

Neither the ACCA nor the collateral court discussed the allegations within Mashburn’s
Rule 32 petition—paragraphs 80 and 81—that correspond with the introductory paragraphs to
Claim B. See generally Mashburn II, 148 So. 3d at 1131-1143; (see Doc. 30-29 at 86-88 ¶¶ 16-17)
(addressing paragraph 79 and turning to paragraph 82 without mentioning paragraphs 80 and 81).
Still, a dismissal is appropriate because Mashburn offers nothing to refute Respondents’ answer
that Claim B’s initial allegations “are conclusory in nature and fail to state a valid claim for relief
under 28 U.S.C. § 2254.” (Compare Doc. 32 at 49 ¶ 30, with Doc. 40 at 13-15.)
29

3.

Claim C—ineffective assistance of trial counsel for poorly presenting

the mitigation case, including introductory paragraphs and subclaims C.1 to C.4
(doc. 24 at 39-49 ¶¶ 152-192); 7
4.

Claim D—ineffective assistance of trial counsel for omitting certain

mitigating evidence, including introductory paragraphs and subclaims D.1 to D.6,
(doc. 24 at 49-64 ¶¶193-246);8
5.

Claim E—ineffective assistance of trial counsel for not objecting to the

prosecutor’s “nullifying” statements about mitigating evidence (doc. 24 at 64-65 ¶¶
247-251);

7

Consistent with the record and reasoning in n.5, supra, dismissal of the introductory
paragraphs to Claim C which correspond with paragraphs 170 through 174 of Mashburn’s Rule 32
petition is appropriate. See generally Mashburn II, 148 So. 3d at 1143-1151; (Doc. 30-29 at 105-06 ¶
30; Doc. 32 at 77 ¶ 35; Doc. 40 at 10-15.)
8

Consistent with the record and reasoning in n.5, supra, dismissal of the introductory
paragraphs to Claim D is appropriate. See generally Mashburn II, 148 So. 3d at 1151-1160 (omitting
an evaluation of comparable paragraphs 211 through 218 from Mashburn’s Rule 32 petition). The
Rule 32 court identified paragraphs 211 through 218 as “solely . . . a factual narrative regarding
[Mashburn’s] upbringing.” (Doc. 30-29 at 114 ¶ 36.) The collateral court described the later
paragraphs of 219 through 223, including faulting counsel for poorly explaining “‘why Mr.
Mashburn’s life had taken such a vicious downturn and why Mr. Mashburn deserved to live[,]’”
as a “respris[al] [of] [Mashburn’s] claim that trial counsel should have presented mitigation
evidence more effectively.” (Doc. 30-29 at 114 ¶ 36; compare Doc. 24 at 53-54 ¶ 205.) The Rule 32
court dismissed this claim for insufficient pleading and lack of record support. (Doc. 30-29 at 11415 ¶ 36.) Mashburn opposes neither the Rule 32 court’s dismissal of these allegations as one
triggering review under AEDPA nor Respondents’ defense that the allegations are insufficient to
state a claim under § 2254. (Doc. 32 at 95-96 ¶ 40; Doc. 40 at 10-15.)
30

6.

Claim F—prosecutorial suppression of evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963) (doc. 24 at 65-66 ¶ 252);
7.

Claim G—due process violation based on the delayed notice of the Rule

32 court’s order of dismissal (doc. 24 at 66-70 ¶¶ 253-270); 9
8.

Claim H—prosecutorial racial bias in violation of Batson v. Kentucky,

476 U.S. 79 (1986) (doc. 24 at 70-71 ¶¶ 271-73); and
9.

Claim J—cumulative effect of errors warrant a new trial and

resentencing (doc. 24 at 72-73 ¶ 274).
B.

Alleged Ineffective Guilt Phase Assistance

Mashburn alleges in the preliminary section of Claim A that his trial counsel
provided ineffective guilt-phase assistance in violation of the Sixth Amendment to
the United States Constitution under Strickland, supra, Williams v. Taylor, 529 U.S.
362 (2000), and Wiggins v. Smith, 539 U.S. 510 (2003). 10 (Doc. 24 at 8 ¶ 19.)

9

Mashburn reasserts the Rule 32 dismissal order service mishap in the introduction,
procedural background, and evidentiary hearing sections of his reply (doc. 40 at 5-6, 7, 16-17) but
abandons the allegation as an independent due process or other constitutional violation. Also, the
collateral court granted Mashburn’s request to file an untimely appeal challenging the denial of his
Rule 32 petition, Mashburn II, 148 So. 3d at 1104, and Mashburn offers no basis for applying a §
2254(d) exception to the remaining allegations in this subclaim (see generally Doc. 40).
10

Mashburn alleges in his petition that the ineffective assistance of trial counsel violated his
Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (Doc. 24 at 8 ¶ 19.) The Supreme Court
applied the Sixth Amendment right to counsel to the states through the Fourteenth Amendment
in Gideon v. Wainwright, 372 U.S 335, 342 (1963), and a Strickland ineffectiveness claim arises
under the Sixth Amendment. See Borden v. Allen, 646 F.3d 785, 818 (11th Cir. 2011) (“The right of
a state criminal defendant to effective assistance of counsel springs from the Sixth and Fourteenth
31

Mashburn divides Claim A into six Strickland subclaims, including several that he
links to the penalty phase outcome. 11 (Doc. 24 at 10; id. at 12 ¶ 35; id. at 15 ¶ 50.)
Mashburn asserts that trial counsel should have (1) “challenge[d] the robbery and
burglary aspect of Counts I-IV, which [became] . . . an aggravating factor” (doc. 24
at 10) (emphasis omitted); (2) “negate[d] the prosecutor’s allegations [about] . . .
Mashburn’s mental state” by arguing voluntary intoxication (doc. 24 at 13)
(emphasis omitted); (3) introduced evidence establishing that he acted in selfdefense (doc. 24 at 14); (4) “object[ed] to the cumulative and prejudicial
photographs of the bodies” (doc. 24 at 14) (emphasis omitted), asserting that such
evidence can influence a jury to return a death sentence based on “passion,
prejudice, or another arbitrary factor” (doc. 24 at 15 ¶ 50); (5) sought a change in
venue (doc. 24 at 16 ¶ 52); and (6) advised him incorrectly that he could not
withdraw his guilty pleas (doc. 24 at 17).
1.

Procedural Defenses

Amendments to the United States Constitution, and such a right has been clearly established and
roundly reaffirmed by the Supreme Court.”); see also Strickland, 466 U.S. at 684-85. Because
Mashburn does not elaborate why he has a cognizable Fifth, Eighth, (or aside from incorporation)
Fourteenth Amendment right, he has abandoned, underdeveloped, or failed to meet his habeas
burden on ineffectiveness claims based on those amendments.
11

Mashburn alleged seven subclaims within Claim A initially but since has abandoned
Strickland subclaim A.6 as discussed supra.
32

Before contesting the sufficiency of these allegations substantively,
Respondents argue that the fact that Mashburn pleaded guilty precludes him from
obtaining habeas relief on all guilt-phase subclaims because of procedural default or
waiver. (Doc. 32 at 13-14 ¶¶ 20-21.) Respondents base their procedural default
defense on the fact that Mashburn never included an allegation in his Rule 32 petition
seeking to void his guilty pleas as involuntary (doc. 32 at 13-14 ¶ 20), relying on the
circuit court and ACCA post-conviction decisions as support (doc. 32 at 12-14 ¶¶ 18,
20). Consequently, this Court begins by examining the state courts’ disposition of
Mashburn’s guilt-phase ineffectiveness claims.
During the post-conviction process, Respondents moved to dismiss
Mashburn’s Strickland guilt-phase claims under § 13A-5-42, Ala. Code 1975, which
provides that a “guilty plea shall have the effect of waiving all non-jurisdictional
defects in the proceeding resulting in the conviction except the sufficiency of the
evidence.” Id. The circuit court found that Mashburn’s “knowing[] and voluntary .
. . guilty [pleas] . . . estopped [him] from claiming that his trial counsel were
ineffective before and during the guilt phase of his trial.” (Doc. 30-29 at 75 ¶ 9;
Mashburn II, 148 So. 3d at 1124). Consequently, the circuit court dismissed these
ineffectiveness subclaims as statutorily waived. (Id. at 75-76 ¶¶ 8-9.) Alternatively,

33

the circuit court concluded that Mashburn had not pled his Strickland claims
adequately and summarily dismissed them. Mashburn II, 148 So. 3d at 1124-25.
The ACCA upheld the circuit court’s collateral decision without delving into
the dismissals based on § 13A-5-42, Ala. Code 1975. Mashburn II, 148 So. 3d at 112425. Still, the ACCA addressed Mashburn’s contention (contained only in his brief)
that “his pleas were not knowingly and voluntarily entered” and rejected this
nonjurisdictional and unpreserved claim on state procedural grounds. Mashburn II,
148 So. 3d at 1124. As the ACCA explained, “[b]ecause Mashburn did not challenge
the voluntariness of his guilty pleas in his Rule 32 petition, this claim was not
properly preserved and is, therefore, not properly before this Court for review.”
Mashburn II, 148 So. 3d at 1124. Respondents now argue that the ACCA’s
disposition of Mashburn’s involuntary plea allegation constitutes “an independent
and adequate state law ground” of dismissal that supports procedural default (and
precludes habeas relief) because the viability of his Strickland subclaims depends
upon an invalidation of his pleas—a procedurally closed claim under Rule 32. 12 (Doc.
32 at 14 ¶ 20.)

12

The Court has deviated somewhat from Respondents’ description of their procedural
default defense based on its understanding of the underlying post-conviction record.
34

In reply, Mashburn does not mention, much less contest the substance of
Respondents’ appellate preservation procedural defense to his guilt-phase
ineffectiveness subclaims. (See generally Doc. 40 at 10-13.) Consistent with the
Court’s discussion of abandonment supra, Mashburn’s omission of a cause and
prejudice, independent and adequate, or other challenge to procedural default,
constitutes waiver and forecloses habeas relief on these guilt-phase Strickland
subclaims.
Respondents base their waiver defense on several federal authorities. (Doc. 32
at 13, 14 ¶¶ 19, 21.) Respondents rely on one decision for the general proposition that
a voluntary guilty plea waives nonjurisdictional challenges to state and federal
convictions. See Martin v. Kemp, 760 F.2d 1244, 1247 (11th Cir. 1985) (“If Martin’s
plea was voluntary, he has waived this claim and all other claims which challenge the
validity of his conviction.”). Respondents also rely on the § 2254 decision in
Martinez v. Sec’y, Fla. Dep’t of Corr., 684 F. App’x 915 (11th Cir. 2017). The Court
considers these waiver authorities in more detail, including to what extent
Mashburn’s circumstances are similar.
The petitioner based his involuntary plea claim in Martin on law
enforcement’s “refus[al] to dismiss [a] theft . . . charge against [the petitioner’s wife]
and threat[s] to file additional charges against her if [the petitioner] did not confess
35

[to stealing property] and cooperate fully with the police.” 760 F.2d at 1245.
“Relying upon the transcripts of the sentencing hearing and the state habeas corpus
hearing, the district court concluded that the police had probable cause to question
[the petitioner’s wife] about her involvement in the thefts and to file charges against
her.” Id. at 1246. After determining that the “threats against [the petitioner’s wife]
were lawful[,]” the district court found that neither the petitioner’s “confession
[n]or his guilty plea [was] involuntary.” Id. Likewise, the district court denied the
petitioner’s “ineffective assistance of counsel claim on the ground that [he] had not
been prejudiced by his counsel’s alleged failure to properly advise him on whether
to plead guilty.” Id.
On appeal, the Eleventh Circuit acknowledged that the district court had
identified the correct legal principles for evaluating the petitioner’s claim. Id. at 1247.
Under that framework, the petitioner’s prior plea did not “absolute[ly] bar” him
from “claim[ing] that he pleaded guilty only to protect the third party.” Id. at 1248.
Instead, a defendant who contests the voluntariness of a plea under these
circumstances has “a heavy burden to establish that the government did not observe
a ‘high standard of good faith’ based upon probable cause to believe that the third
party had committed a crime.” Id. (quoting United States v. Nuckols, 606 F.2d 566,

36

569 (5th Cir. 1979)).13 The Eleventh Circuit found that the district court committed
reversible error in applying the standard because that court failed to focus on what
the state knew about “[the petitioner’s wife’s] involvement in the crimes at the time
it made the threats.” Id. (emphasis in the original). Thus, the Eleventh Circuit
remanded “for an evidentiary hearing on the question of whether [the] alleged
threats to prosecute [the petitioner’s wife] were founded in good faith upon probable
cause. . . . [or] [i]f [they] were not well-founded[.]” Id. at 1249. Because Mashburn
did not plead guilty because of alleged prosecutorial threats against someone else,
Martin’s holding does not impact the constitutionality of his guilty pleas.
In Martinez, the Eleventh Circuit examined an allegation that the petitioner
“would not have entered the plea and would have gone to trial if [his counsel] had
properly investigated the [alibi] defense and informed him of the potential
witnesses.” Martinez, 684 F. App’x at 922. Revisiting its holding in Arvelo v. Sec’y,
Fla. Dep’t of Corr., 788 F.3d 1345, 1348 (11th Cir. 2015), the Eleventh Circuit
observed that “an ineffective assistance of counsel claim that goes to the voluntary
nature of the defendant’s plea is not waived ‘simply by entering a plea’ because this
is contrary to Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).”

13

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
37

Martinez, 684 F. App’x at 922. The Eleventh Circuit concluded that “to the extent
that the state post-conviction court found that Martinez’s nolo contendere plea
foreclosed his claim that his counsel was ineffective for failing to investigate the alibi
defense and improperly advising him to enter into a plea agreement, that decision
misapplies Hill.” Martinez, 684 F. App’x at 922. Here, Respondents argue that the
reverse of Martinez is true—a waiver of Mashburn’s guilt-phase Strickland
subclaims is consistent with Hill because none of the ineffectiveness allegations
impacts the voluntariness of his pleas. (Doc. 32 at 14 ¶ 21.) Respondents observe
correctly that Mashburn does not allege guilt-phase ineffectiveness in Claim A that
impacts the voluntariness of his pleas, and Mashburn does not counter Respondents’
flipside interpretation of Martinez.
Still, in his reply brief, Mashburn counters Respondents’ waiver defense to
his guilt-phase Strickland subclaims by claiming that he pled guilty in violation of
Boykin v. Alabama, 395 U.S. 238 (1969). (Doc. 40 at 13.) Under Boykin, a state-court
guilty plea involves three federal constitutional rights:
First, is the privilege against compulsory self-incrimination guaranteed
by the Fifth Amendment and applicable to the States by reason of the
Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145,
88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one’s
accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

38

Boykin, 395 U.S. at 243; (see also Doc. 40 at 13) (citing Boykin for same constitutional
principles). The Supreme Court explained that due process would not permit a
“presume[d] . . . waiver of these three important federal rights from a silent record.”
Id. In Boykin, the gaps in the record included “no questions . . . concerning [the
petitioner’s] plea,” “no light” as to whether pleading guilty “seem[ed] the desirable
course” given the “[t]rial strategy[,]” no testimony “concerning [the petitioner’s]
character and background[,]” and no proof that the petitioner “had a prior criminal
record.” Id. at 239-40. The Supreme Court reversed the petitioner’s death sentence
in Boykin “‘because the record does not disclose that the defendant voluntarily and
understandingly entered his pleas of guilty.’” Id. at 244 (internal quotation marks
omitted) (quoting from Alabama Supreme Court dissenting opinion).
Mashburn contends that the trial court violated Boykin by not advising him
“of the rights he was waiving [or] ascertaining that he understood all those rights.”
(Doc. 24 at 72; Doc. 40 at 13.) But Mashburn cites no evidence to support these
assertions. Moreover, unlike the petitioner in Boykin, Mashburn had a guilty plea
hearing (doc. 30-6 at 90-118), during which the trial court addressed his
constitutional rights to a jury trial, to remain silent, and to confront witnesses under
Alabama’s bifurcated capital case process (id. at 103-110). The trial court verified
that Mashburn was pleading freely and independently because of his actual guilt and
39

that he was not receiving or anticipating anything in return. (Id. at 110-111.) During
the colloquy, the trial court reviewed the details and confirmed Mashburn’s
understanding of each capital count. (Doc. 30-6 at 112-18.) Mashburn pled guilty to
each count after affirming to the trial court that he understood the charges. (Id.)
Thus, “plain on the face of the record . . . [is] an affirmative showing that
[Mashburn’s pleas] w[ere] intelligent and voluntary.” Boykin, 395 U.S. at 242; see
also Mashburn I, 7 So. 3d at 456 (finding that “[t]he trial court engaged [Mashburn]
in a thorough colloquy . . . during which [Mashburn] admitted his guilt and expressed
his desire to enter a guilty plea” in compliance with Boykin and Ala. R. Crim. P. 14.4).
Thus, Respondents’ waiver defense applies to Mashburn’s guilt-phase Strickland
claims because (1) the record plainly disproves Mashburn’s assertion that he entered
his pleas unknowingly or involuntarily, and (2) his ineffectiveness allegations in
Claim A do not implicate the voluntariness of his pleas.
Respondents follow their collective defenses with an individualized discussion
of subclaims A.1 through A.7. For each one, Respondents maintain that Mashburn
has not met his burden under § 2254(d)’s deferential review, § 2254(e)(1)’s
presumption of correct state court factual findings, § 2254(e)(2)’s evidentiary
hearing framework, or Rule 2(c)’s heightened pleading framework. 14 (Doc. 32 at 15-

14

Under Rule 2(c) of the Rules Governing § 2254 Cases, a petitioner must:
40

49 ¶¶ 23-29.) While Respondents contend that Mashburn’s habeas allegations fail
for several burden-driven reasons, the heart of their answer is that § 2254(d)
precludes habeas relief, and Mashburn has not shown otherwise. Thus, the Court
proceeds with an AEDPA analysis of these ineffectiveness subclaims.
2.

AEDPA Assessment

Respondents base their § 2254(d) contention on the ACCA’s “deni[al] [of]
Mashburn’s claims on the merits by affirming the circuit court’s alternative” ground
for dismissing his guilt-phase Strickland claims—inadequate pleading. (Doc. 32 at
14-15 ¶ 22.) To provide background for the AEDPA analysis, the Court highlights
the ACCA’s reasons for affirming the circuit court’s summary dismissal of these
ineffectiveness allegations.
a.

The ACCA’s Decision

Preliminarily, the ACCA observed that “Mashburn alleged virtually no facts
regarding the circumstances of the crimes or the State’s evidence against him” and
offered “only one or two sentence summaries of the [prosecution] witnesses’
testimony, followed by conclusory statements that his counsel did not object to the

(1) specify all the grounds for relief available . . . ;
(2) state the facts supporting each ground; [and]
(3) state the relief requested[.]
Rule 2(c)(1)-(3).
41

testimony.” Mashburn II, 148 So. 3d at 1123. After discussing several factual
deficiencies, the ACCA explained that it had no duty “to search the record from a
petitioner’s direct appeal to ascertain the factual basis for a postconviction claim.”
Id. Consequently, the ACCA considered the adequacy of the guilt-phase Strickland
claims “in light of Mashburn’s failure to allege any specific facts regarding the
evidence presented by the State against him.” Id.
The ACCA affirmed the summary dismissal of Mashburn’s Rule 32 burglary
and robbery ineffectiveness allegations (habeas subclaim A.1) under Alabama
Criminal Procedure Rules 32.3 and 32.6(b). Mashburn II, 148 So. 3d at 1126. Rule
32.3 provides that a petitioner has “the burden of pleading . . . the facts necessary to
entitle [him] to relief.” Ala. R. Crim. P. 32.3. Rule 32.6(b) requires a petitioner to
give “a clear and specific statement of the grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds.” Ala. R. Crim. P.
32.6(b). Consequently, “[a] bare allegation that a constitutional right has been
violated and mere conclusions of law [are] . . . [in]sufficient to warrant any further
proceedings.” Ala. R. Crim. P. 32.6(b).
The ACCA described Mashburn’s burglary and robbery allegations as
speculative because Mashburn “did not identify in his petition a single piece of
jewelry he believed had been stolen in the earlier burglary and not on the night of the
42

murders, and he claimed only that the jewelry ‘may have been’ stolen on a previous
occasion.” Id. at 1125 (emphasis in original). The ACCA found also that Mashburn’s
failure to include specific facts about the crimes and the guilt-phase evidence, made
it “impossible to determine whether, even accepting Mashburn’s factual allegations
as true, Mashburn would be entitled to relief on this claim.” Id. at 1126.
The ACCA relied on Rules 32.3 and 32.6(b) in rejecting Mashburn’s
allegations that trial counsel violated Strickland by not pursuing an intoxication
defense (subclaim A.2). Id. The ACCA explained that a “bare allegation of . . .
tak[ing] some undisclosed amount of methamphetamine and unidentified
prescription drugs at some undisclosed point in time in the days preceding the
murder [wa]s simply not sufficient” to support an intoxication defense. Id. Instead,
for intoxication to be a valid defense or warrant a jury instruction under Alabama
law, Mashburn needed to present specific facts “establish[ing] that [he] was
intoxicated to the point of being unable to form the intent to commit a theft or to
form any other intent.” Id. Because Mashburn’s allegations were inadequate to make
intoxication a relevant defense to the capital crimes, “he failed to plead sufficient
facts indicating that his trial counsel were ineffective in this regard.” Id. at 1127.
In upholding the dismissal of the ineffectiveness allegations with respect to
Mashburn’s acting in self-defense when he killed Mr. Birmingham (subclaim A.3),
43

the ACCA referenced Rules 32.3 and 32.6(b) and quoted from the self-defense
provisions of § 13A–3–23, Ala. Code 1975 that were in place “[a]t the time of the
crimes[.]” Id. at 1127. The ACCA found that Mashburn did not meet the pleading
standard because he omitted facts confirming his “reasonabl[e] belie[f] that Mr.
Birmingham was about to use unlawful deadly physical force or to commit a first- or
second-degree assault against him” or addressing his statutory duty to retreat. Id. at
1128. Thus, without establishing the relevancy of self-defense factually, “Mashburn
failed to plead sufficient facts indicating that his trial counsel were ineffective for not
presenting evidence of [that] [theory].” Id.
The ACCA found that the circuit court’s summary dismissal of Mashburn’s
Strickland allegations about the cumulative and prejudicial photographic evidence
(subclaim A.4) was proper under Rules 32.3 and 32.6(b). Id. The ACCA pointed out
that Mashburn “failed to plead in his petition what objection he believed counsel
should have made that would have resulted in the [crime scene and autopsy]
photographs being excluded.” Id. Citing several cases, the ACCA noted that
Alabama courts allow “photographs of the crime scene and victims . . . even though
they might be gruesome and cumulative, if they shed light on an issue being tried”
and noted also that “Mashburn [did not] plead any facts in his petition even
suggesting that the photographs were inadmissible for any reason.” Id. at 1129
44

(internal quotation marks omitted). Given this analysis, the ACCA concluded that
Mashburn had “failed to plead sufficient facts indicating that his trial counsel were
ineffective” for not objecting to the photographs. Id.
The ACCA affirmed the dismissal of Mashburn’s change of venue allegations
(subclaim A.5) under Rules 32.3 and 32.6(b). Id. The ACCA described several of
Mashburn’s pleading deficiencies, including not explaining why the “‘numerous’”
newspaper articles regarding the crimes and the trial . . . were biased or
prejudicial[;]” how the newspaper articles ‘saturated the community with
information[;]’” or “how many prospective jurors had actually heard about the
case[.]” Id. The ACCA noted that Mashburn had “not identif[ied] a single juror who
sat on his jury who had read or heard about the case.” Id. at 1129-1130. Given these
factual flaws, the ACCA concluded that Mashburn had failed to show “a reasonable
probability that a change of venue would have been granted had counsel . . .
request[ed] a change of venue [and] . . . failed to plead sufficient facts indicating that
his trial counsel were ineffective for not moving for a change of venue.” Id. at 1130.
Concerning Mashburn’s allegations that his trial counsel advised him
incorrectly about the right to withdraw his guilty pleas (subclaim A.7), the ACCA
acknowledged that “a defendant may move to withdraw a guilty plea up to 30 days
after sentence is pronounced” under Alabama law. Id. at 1131. Still, the ACCA
45

affirmed the circuit court’s dismissal under Rules 32.3 and 32.6(b) because
“Mashburn failed to allege in his petition when he discussed with his counsel his
desire to withdraw his pleas.” Id. (emphasis in original). The ACCA commented
that Mashburn’s allegation that the discussion with counsel happened “‘subsequent
to pleading guilty” was too ambiguous to support the ineffectiveness subclaim. Id.
Because the ACCA relied on Rule 32.6(b) in affirming the collateral court’s
dismissal of Mashburn’s guilt-phase Strickland allegations, binding precedent
requires this Court to treat the ACCA’s decision “as a holding on the merits” and
evaluate it deferentially under AEDPA. Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir.
2010). Additionally, the Court “look[s] only to” Mashburn’s Rule 32 allegations for
a factually sufficient Strickland claim that survives AEDPA scrutiny. Powell, 602 F.3d
at 1273. Given the ACCA’s merits-based assessment of Mashburn’s guilt-phase
Strickland claims, the Court reviews the petition and reply for authority that
substantiates why § 2254(d) does not preclude habeas relief. See Borden, 646 F.3d at
817-18 (framing the AEDPA issue as whether § 2254(d)(1)’s unreasonable
application prong afforded habeas relief in light of the ACCA’s “determination that
[the petitioner’s] relevant ineffective assistance of counsel claims were due to be

46

dismissed for failure to state a claim with sufficient specificity under Rule
32.6(b)”). 15
Mashburn bears the “burden to show that the state court applied Strickland
to the fact[ual] [allegations] of his case in an objectively unreasonable manner.”
Woodford, 537 U.S. at 25. Against this backdrop, the Court considers whether
Mashburn has overcome AEDPA deference to the ACCA’s denial of his ineffective
assistance of counsel claims.16
b.

Mashburn’s Unpersuasive Efforts to Obtain Habeas
Relief

Within several of his Claim A’s subclaims, Mashburn cites Strickland,
Williams, and Wiggins for core ineffectiveness principles without discussing the
cases factually or articulating how their holdings show that the ACCA’s collateral
15

Similar to Borden, the Court understands that Mashburn seeks habeas relief under (d)(1)’s
unreasonable application prong only and limits its AEDPA analysis to that provision accordingly.
Specifically, Mashburn has not supported his subclaims with cases showing that the ACCA
reached “‘a conclusion opposite to that reached by [the Supreme Court]’” based on established
law or “‘a set of materially indistinguishable facts[,]’” id. at 817 (quoting Williams, 529 U.S. at
413) or any alleged unreasonable factual determinations based on record evidence. Alternatively,
Mashburn has not developed an argument or carried his burden of demonstrating that habeas relief
is appropriate under § 2254(d)(1)’s contrary to prong or (d)(2). See Borden, 646 F.3d at 817
(focusing analysis on the “‘unreasonable application’” clause of § 2254(d)(1) because the ACCA
“clearly did not reach . . . a conclusion” consistent with the contrary to clause).
16

In an effort to preserve all his guilt-phase subclaims under AEDPA, Mashburn cites Boykin
and argues that the trial court’s mishandling of his guilty pleas “resulted in a decision which was
contrary to, and involved an unreasonable application of, already established United States
Supreme Court precedent.” (Doc. 40 at 13.) But as detailed when evaluating Respondents’ waiver
defense supra, the record substantiates the trial court’s compliance with Boykin’s constitutional
requirements. Consequently, Mashburn’s reliance on Boykin does not entitle him to habeas relief.
47

appellate opinion falls within the unreasonable application exception to § 2254(d)’s
overarching bar against habeas relief. (Doc. 24 at 8-10, 12, 17 ¶¶ 19-21, 23, 34, 58;
Doc. 40 at 11.) Additionally, Mashburn mentions Gideon, supra, and United States v.
Cronic, 466 U.S. 648 (1984), in the introduction but again provides no explanation
why either one carries his AEDPA burden. (Doc. 24 at 9 ¶ 20.)
Mashburn refers to these Supreme Court cases generally and, as discussed in
the abandonment section supra, the beginning of Claim A is without any
independently actionable habeas claims. Moreover, the Supreme Court does not
address guilt-phase ineffectiveness in these opinions, much less in the context of a
defendant who has pled guilty to one or more capital crimes. See Strickland, 466 U.S.
at 700 (“[R]espondent has made no showing that the justice of his sentence was
rendered unreliable by a breakdown in the adversary process caused by deficiencies
in counsel’s assistance.”); Williams, 529 U.S. at 390 (“In this case, Williams
contends that he was denied his constitutionally guaranteed right to the effective
assistance of counsel when his trial lawyers failed to investigate and to present
substantial mitigating evidence to the sentencing jury.”); Wiggins, 539 U.S. at 521
(“In this case, as in Strickland, petitioner’s claim stems from counsel’s decision to
limit the scope of their investigation into potential mitigating evidence.”); Gideon,
372 U.S. at 342 (recognizing a defendant’s right to counsel under the Sixth
48

Amendment); Cronic, 466 U.S. at 657 n.20 (noting that “the adversarial process that
implicates the Sixth Amendment is not limited to counsel’s performance as a
whole—specific errors and omissions may be the focus of a claim of ineffective
assistance as well[,]” but not considering Strickland’s application because the
appellate court “passed” on that “type of claim”). Because these decisions do not
involve a petitioner’s request to set aside a conviction (or a sentence as Mashburn
additionally alleges) due to guilt-phase ineffectiveness, Mashburn’s reliance on them
does not help him meet his AEDPA burden of demonstrating that the ACCA
unreasonably rejected his guilt-phase subclaims for inadequate pleading based on
Supreme Court precedent. The Court considers Mashburn’s remaining Claim A
authorities.
Alleged Ineffectiveness on Burglary and Robbery Counts
To support his burglary and robbery Strickland allegations in subclaim A.1,
Mashburn cites direction from the ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases that counsel should
consider aggravating evidence “‘at all stages of the case’” and the Eleventh
Circuit’s acknowledgement in Williams v. Allen, 542 F.3d at 1326, 1339 (11th Cir.
2008), that “the Supreme Court has looked to the ABA Guidelines as standards for
attorney conduct.” (Doc. 24 at 12 ¶ 34; Doc. 40 at 12.) Again, Mashburn relies on
49

these authorities for broad propositions but provides no explanation how either
advances his position that the ACCA’s decision falls within AEDPA’s unreasonable
application clause. Thus, Mashburn does not fulfill his AEDPA burden based on the
ABA Guidelines or Williams.
Mashburn relies also on the Eighth Circuit Court of Appeals’ pre-AEDPA
death penalty decision in Parker v. Bowersox, 188 F.3d 923 (8th Cir. 1999), to
demonstrate that the ACCA unreasonably applied Supreme Court precedent in
analyzing the adequacy of this subclaim. (Doc. 24 at 12 ¶ 34; Doc. 40 at 12.) The jury
in Parker convicted the petitioner of murder and found one aggravating factor to
support the death penalty—the petitioner had murdered the victim “because she
was a potential witness in the assault case” against him. Parker, 188 F.3d at 929. The
Eighth Circuit determined that sentencing counsel’s “representation . . . fell below
an objective standard of reasonableness” when she failed to call the attorney who
represented the petitioner in the assault case. Id. at 931. That lawyer had information
substantiating that the petitioner “did not believe that [the victim] was a potential
witness at the time of the murder” because he was aware of a plea agreement reached
before the homicide that covered the assault charges. Id. at 926, 930. The Eighth
Circuit found that habeas sentencing relief was appropriate because faced with a
record confirming only one aggravating circumstance, “[t]he failure to call [the
50

petitioner’s lawyer in the assault case] undermine[d] [its] confidence in the outcome
of the sentencing proceeding.” Id. at 930.
Even if Parker were binding on this Court, the Eighth Circuit’s holding does
not meet Mashburn’s unreasonable application of Strickland burden for several
reasons. Preliminarily, guilt-phase ineffectiveness is beyond Parker’s scope. Also,
the sentencing balance for the petitioner in Parker was much closer than
Mashburn’s. The jury in Parker convicted the petitioner of one capital murder count
and found one aggravating circumstance that supported the death penalty. The
uncalled witness in Parker had specific information that directly undermined the sole
aggravating factor that the jury found to support the petitioner’s death sentence.
In contrast, after hearing evidence of his guilty pleas, the jury convicted
Mashburn of five capital murder counts, including one crime independent from
robbery or burglary—murdering two or more people in one act or scheme. (Doc. 302 at 83; cf. Tejada v. Dugger, 941 F.2d 1551, 1559-60 (11th Cir. 1991) (concluding that
“the alleged errors, if true,” were inadequate to establish Strickland guilt-phase
prejudice “because the evidence against [the petitioner] [wa]s overwhelming”)).
Therefore, even accepting Mashburn’s theory that the uncalled witnesses’
testimony would have eliminated burglary and robbery as convictions and
aggravating circumstances (doc. 24 at 12-13 ¶¶ 35-36), two other factors that the
51

State proved would remain—Mashburn’s double murder of the Birminghams and
the “especially heinous, atrocious or cruel [nature of that crime as] compared to
other capital offenses” (doc. 30-29 at 62 ¶¶ 3-4).
Additionally, the ACCA pointed out that the witnesses whom trial counsel did
not call during the guilt phase of Mashburn’s trial allegedly had only equivocal
information about Mrs. Birmingham’s stolen jewelry. Consequently, unlike the
uncalled lawyer in Parker, neither witness’s alleged testimony would have
established that “no jewelry was stolen during the murders.” Mashburn II, 148 So.
3d at 1126. Therefore, Mashburn has not shown through Parker that the ACCA
unreasonably affirmed the circuit court’s dismissal of Mashburn’s burglary and
robbery Strickland subclaim for inadequate pleading.
Alleged Ineffectiveness in Omitting Intoxication Defense
Mashburn supports his intoxication ineffectiveness subclaim A.2 with solely
Alabama authorities. Quoting § 13A-3-2, Ala. Code 1975, Mashburn points out that
voluntary or involuntary intoxication “‘is admissible in evidence whenever it is
relevant to negate an element of the offense charge.’” (Doc. 24 at 13 ¶ 38.) Quoting
from commentary on § 13A-3-2, Ala. Code 1975, Mashburn observes similarly that
“‘drunkenness due to liquor or drugs may render defendant incapable of forming or

52

entertaining a specific intent or some particular mental element that is essential to
the crime.’” (Doc. 24 at 13 ¶ 38.)
These Alabama intoxication principles do not undermine but instead are
consistent with the ACCA’s evaluation of this subclaim on appeal. The ACCA found
an absence of adequate facts to show that intoxication was relevant to Mashburn’s
specific intent at the time of the murders. Given that factual gap, the ACCA
concluded that Mashburn had no actionable Strickland claim based on trial counsel’s
failure to pursue an intoxication defense. Thus, Mashburn has not countered the
ACCA’s reasoning directly with these authorities, much less shown that AEDPA
deference does not apply to the ACCA’s affirmance of the collateral court’s
dismissal of this ineffectiveness subclaim. 17
Alleged Ineffectiveness in Omitting Self-Defense to Mr. Birmingham’s Murder
Although Mashburn reasserts his self-defense Strickland subclaim A.3 in reply
to Respondents’ answer, he references no authorities and makes no arguments that
substantiate why AEDPA’s deference does not preclude him from basing habeas
relief on these ineffectiveness allegations. (Doc. 40 at 11). Consistent with this

17

The Court notes that at the beginning of Claim A and in reply, Mashburn seeks habeas
relief on the basis that his trial counsel were ineffective because they “did not investigate the effect
of voluntary intoxication coupled with lack of sleep and the other impairment from which [he]
suffers[.]” (Doc. 24 at 9 ¶ 22; Doc. 40 at 11.) Mashburn does not develop this allegation as a
subclaim with Claim A. And the Court has explained in the abandoned section, supra, why he
cannot obtain habeas relief based on this undeveloped allegation.
53

Court’s abandonment discussion supra, to obtain habeas relief an AEDPA petitioner
must do much more than simply raise (or restate) allegations which he believes
reflect a valid constitutional claim. Instead, he must establish that one of § 2254(d)’s
exceptions—reserved for correcting egregious state court constitutional error—
applies. Because Mashburn has not satisfied his burden of demonstrating that the
ACCA resolved this subclaim unreasonably under § 2254(d)(1), AEDPA precludes
habeas relief.
Alleged Ineffectiveness in the State’s Introduction of
Cumulative and Prejudicial Photographs
Mashburn cites several cases with respect to his photographic evidence
ineffectiveness subclaim A.4. (Doc. 24 at 15-16 ¶¶ 49-50.) Although Mashburn does
not identify this subclaim as one of the “Grounds Supporting . . . Relief” in his reply
(doc. 40 at 10-11) (emphasis omitted), because he mentions cumulative and
prejudicial photographs in the introduction (id. at 4), the Court considers whether
the cases to which he refers within the petition satisfy § 2254(d)(1)’s unreasonable
application standard.
Mashburn cites Ott v. Smith, 413 So. 2d 1129, 1132 (Ala. 1982), for “the rule
in Alabama that the trial court may exclude evidence, even though it is relevant,
when it would serve little or no purpose except to arouse the passion, prejudice, or
sympathy of the jury.” (Doc. 24 at 15 ¶ 49.) But the specific issue in Ott was whether
54

the trial court’s exclusion of a witness’s testimony was an abuse of discretion, 413
So. 2d at 1132; not whether overruling an objection to the admission of photographs
as cumulative and prejudicial was an abuse of discretion. Additionally, as an Alabama
evidentiary authority devoid of constitutional issues, Ott does not help Mashburn
meet AEDPA’s deferential unreasonable application standard.
Relying on the Eleventh Circuit’s pre-AEDPA opinion in Osborne v.
Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983), Mashburn argues that trial
counsel’s failure to object to cumulative and prejudicial photographs “infringed on
[his] rights to due process and a fair trial under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.” (Doc. 24 at 15 ¶ 50.)
The jury in Osborne convicted the petitioner of second-degree murder. 720 F.2d at
1238. The petitioner asserted a habeas claim based on trial counsel’s overruled
objection to the admission “of a number of gruesome photographs.” Id. Specifically,
the petitioner claimed that the admitted “evidence denied him a fundamentally fair
trial in that the photographs inflamed the jury, creating prejudice against him in a
case where the evidence was extremely close and based solely on circumstances
which would not clearly identify petitioner as the culprit.” Id. The district court
denied the habeas claim as an unreviewable state evidentiary issue. Id. The Eleventh
Circuit disagreed and remanded for the district court to consider “whether the trial
55

court’s admission of the photographs constituted error of ‘such magnitude as to
deny fundamental fairness’ to the petitioner.” Id. at 1239 (quoting Nettles v.
Wainwright, 677 F.2d 410, 414–15 (5th Cir. Unit B 1982)); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 647-48 (1974) (recognizing “distinction between
ordinary trial error . . . and that sort of egregious” error which infringes upon a
defendant’s constitutional right to a fair trial).
While the Eleventh Circuit decided that the admission of “gruesome
photographs” over trial counsel’s objection required additional review for
constitutional fairness in Osborne, the other grounds underlying that concern are not
present in Mashburn’s Strickland allegations. As underscored by Mashburn’s guilty
pleas, the DNA evidence, and his confession to a cellmate, Mashburn’s allegations
do not reflect that his death penalty case “was extremely close and based solely on
circumstances which would not clearly identify petitioner as the culprit.” Osborne,
720 F.2d at 1238. Thus, Mashburn has not shown that habeas relief is available to
him because the ACCA unreasonably resolved this Strickland subclaim based on
Osborne.
Citing Woodson v. North Carolina, 428 U.S. 280 (1976) and Gardner v. Florida,
430 U.S. 349 (1977), Mashburn observes that “[e]specially in a capital case,
cumulative and prejudicial videotapes and photographs create a grave risk that the
56

sentence of death will be imposed under the influence of passion, prejudice, or
another arbitrary factor.” (Doc. 24 at 15 ¶ 50.) At the pinpointed reference, the
Woodson Court recognizes that “the penalty of death is qualitatively different from a
sentence of imprisonment” and, as a result a “need [exists] for reliability in the
determination that death is the appropriate punishment in a specific case.” 428 U.S.
at 305. But Woodson’s holding that “North Carolina’s mandatory death sentence
statute violated the Eighth and Fourteenth Amendments” is unrelated to cumulative
and prejudicial evidence creating constitutionally unfair death penalty proceedings.
Id. Akin to Woodson, the Gardner Court cautions that “the action of the sovereign in
taking the life of one of its citizens also differs dramatically from any other legitimate
state action[,]” and emphasizes the consequential “importance to the defendant and
to the community that any [death] . . . sentence be, and appear to be, based on reason
rather than caprice or emotion.” 430 U.S. at 357-58. Still, the holding in Gardner that
a trial court’s reliance on undisclosed portions of a presentence investigative report
to impose a death sentence violated the Fourteenth Amendment’s due process
clause, 430 U.S. at 351, does not involve the constitutional impact of alleged
cumulative and prejudicial evidence. Thus, Mashburn’s reliance on Woodson and
Gardner do not advance his position that the ACCA unreasonably applied Supreme
Court precedent in affirming the dismissal of this subclaim for inadequate pleading.
57

As last support for this subclaim, Mashburn quotes from § 2254(d)’s three
exceptions to the general prohibition against habeas relief cited in two cases—the
independent prongs of a “contrary to” or “unreasonable application” of clearly
established Supreme Court precedent under (d)(1) and an “unreasonable
determination of the facts” under (d)(2). (Doc. 24 at 16 ¶ 50.) But Mashburn
provides no factual or legal development of these cases, and their context reveals no
correspondence to Mashburn’s ineffectiveness subclaim based on the State’s
unchallenged introduction of cumulative and prejudicial photographs during the
guilt phase. Specifically, one Eleventh Circuit decision addresses a Batson claim; not
a constitutional unfairness or Strickland challenge. See Bui v. Haley, 321 F.3d 1304,
1315 (11th Cir. 2003) (“With nothing in the record—save Brooks’s representations
and argument—from which to find that Brooks was in fact presenting Evans’s
reasons (for excusing eight black jurors), we find the trial judge’s contrary finding an
‘unreasonable determination of the facts.’” (quoting 28 U.S.C. § 2254(d)(2))).
The Supreme Court’s opinion in Williams—which, as discussed supra,
involves a Strickland claim based on counsel’s deficient handling of the petitioner’s
mitigation case—is Mashburn’s second reference. See Williams, 529 U.S. at 412-13
(O’Connor, J., majority opinion with respect to part II) (discussing AEDPA’s
restraints on a federal court’s ability to award habeas relief); id. at 399 (reversing
58

Strickland mitigation claim under AEDPA because “viewed as a whole and
cumulative of mitigation evidence presented originally, raised ‘a reasonable
probability that the result of the sentencing proceeding would have been different’ if
competent counsel had presented and explained the significance of all the available
evidence.”). 18 The Supreme Court did not evaluate alleged guilt-phase deficient
performance or a claim that cumulative and prejudicial evidence rendered the death

18

The Williams Court described the complete body of mitigating evidence—omitted and
introduced:
Counsel failed to introduce available evidence that Williams was
“borderline mentally retarded” and did not advance beyond sixth grade in school.
They failed to seek prison records recording Williams’ commendations for helping
to crack a prison drug ring and for returning a guard’s missing wallet, or the
testimony of prison officials who described Williams as among the inmates “least
likely to act in a violent, dangerous or provocative way.” Counsel failed even to
return the phone call of a certified public accountant who had offered to testify that
he had visited Williams frequently when Williams was incarcerated as part of a
prison ministry program, that Williams “seemed to thrive in a more regimented and
structured environment,” and that Williams was proud of the carpentry degree he
earned while in prison. . . .
Williams turned himself in, alerting police to a crime they otherwise would never
have discovered, expressing remorse for his actions, and cooperating with the police
after that. While this, coupled with the prison records and guard testimony, may
not have overcome a finding of future dangerousness, the graphic description of
Williams’ childhood, filled with abuse and privation, or the reality that he was
“borderline mentally retarded,” might well have influenced the jury’s appraisal of
his moral culpability. See Boyde v. California, 494 U.S. 370, 387, 110 S.Ct. 1190, 108
L.Ed.2d 316 (1990).
Williams, 529 U.S. at 396, 398 (some citations omitted).
59

proceedings fundamentally unfair in Williams. Thus, Bui and Williams do not help
Mashburn meet his AEDPA burden on this Strickland subclaim.
Alternatively, because Mashburn challenges the ACCA’s decision as an
unreasonable factual determination under § 2254(d)(2), 19 and in the absence of the
ACCA’s discussing why the unchallenged photographic evidence allegations fell
short of raising a constitutional question about fairness, 20 the Court considers to
what extent this Strickland subclaim may be cognizable under de novo review. The
Court accepts for analysis purposes that Mashburn’s allegations that trial counsel
did not object to “the prosecution’s present[ation] [of] forty-nine . . . graphic crime
scene photographs, including thirteen . . . color photographs of Mr. Birmingham’s .
. . and . . . Mrs. Birmingham’s dead and bloodied bod[ies]” (doc. 24 at 14 ¶ 45) or to
thirty-six photographs from the autopsies, “including seven . . . close-up

19

As summarized supra, the ACCA stated that Mashburn’s allegations were inadequate
under Strickland’s deficient performance prong because he did not identify an objection that trial
counsel should have raised or explain why the photographs were inadmissible. Mashburn alleges
that trial counsel should have objected to the introduction of the photographs as “overwhelmingly
cumulative” and “extremely prejudicial[.]” (Doc. 24 at 15 ¶ 47.) Accepting without deciding that
§ 2254(d)(2) opens the door to habeas review of this subclaim, the Court provides an alternative
basis that supports dismissal.
20

Because neither the ACCA nor the circuit court conducted a constitutional assessment of
the cumulative and prejudicial photographs subclaim, AEDPA’s contrary to prong arguably
applies. See Romine, 253 F.3d at 1365 (“Failure to apply that governing law (or the same rule in
state law) is tantamount to applying a rule that contradicts governing law, for these purposes.”);
id. (“In other words, when there is grave doubt about whether the state court applied the correct
rule of governing federal law, § 2254(d)(1) does not apply.”).
60

photographs . . . [of] stab wounds to Mr. Birmingham’s head and neck and six . . .
[of] stab wounds to Mrs. Birmingham’s head[,]” (doc. 24 at 15 ¶ 46) or ninety other
photographs (id.) are sufficient to state deficient performance under Strickland as
conflicting with Mashburn’s right to a fundamentally fair trial. 21 Still, Mashburn
cannot obtain habeas relief because the prejudice prong fails under AEDPA. Unlike
the petitioner in Osborne, supra, Mashburn lacks supporting facts that the cumulative
and prejudicial photographs undermine confidence in the jury’s guilt and sentence
verdicts. Stated differently, accepting that trial counsel would have been able to limit
the number of graphic photographs introduced at trial is inadequate to create a
reasonable probability of altering the guilty verdict or death penalty outcome under
the circumstances of Mashburn’s case.
With respect to his convictions, Mashburn pled guilty to five capital crimes
tied to the murders of his grandmother and step-grandfather. Forensic evidence
retrieved from the crime scene matched Mashburn’s DNA and while in custody
Mashburn confessed to a cellmate that he had murdered the Birminghams. The
ACCA and this Court have determined supra that the trial court’s plea hearing
refutes Mashburn’s attempt to invalidate his guilty pleas based on Boykin.

21

To what extent Mashburn’s trial counsel would have been successful in limiting the
photographic evidence introduced during the guilt-phase is debatable given the State’s strategy of
submitting a special verdict to the jury on the atrociousness of Mashburn’s crimes.
61

Additionally, Mashburn does not raise constitutional challenges to the DNA
evidence or confession which support the jury’s guilty-phase verdict. Similarly, the
jury returned an eleven to one death-sentence verdict after the penalty-phase
proceeding. Even if the alleged cumulative and prejudicial photographs were the
source of the jury’s special verdict finding that Mashburn committed atrocious
crimes, three other aggravating factors supported the jury’s recommended death
sentence. Although de novo review of the prejudice prong does not require factual
allegations that would satisfy a preponderance of the evidence standard, Strickland’s
reasonable probability test requires more than a theoretical possibility of changing an
adverse sentencing outcome, which Mashburn has not met.
Thus, Mashburn has not shown that the unreasonable application clause
applies to the ACCA’s rejection of this subclaim for insufficient pleading.
Alternatively, Mashburn lacks adequate facts to support Strickland prejudice
regardless of whether he has stated a cognizable prong of deficient performance.
Alleged Ineffectiveness in Omitting Venue Challenge
In his venue subclaim A.5, Mashburn refers generally to the Supreme Court’s
guidance in Strickland that “a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.” (Doc. 24 at 17 ¶ 58;
62

Strickland, 466 U.S. at 690). Strickland does not involve ineffectiveness premised on
venue, and Mashburn references no other supporting authorities. Thus, Mashburn
has not shown an unreasonable application of Supreme Court precedent to override
AEDPA’s deference to the ACCA’s decision on this subclaim.
Alleged Ineffective Advice on Right to Withdraw Guilty Pleas
Although Mashburn offers two Alabama authorities in an effort to show trial
counsel’s ineffectiveness in advising him that he had no right to withdraw a guilty
plea as alleged in subclaim A.7 (doc. 24 at 17-18 ¶ 60), neither establishes a right to
habeas relief under AEDPA. Mashburn refers to Alabama Criminal Procedure Rule
14.4(e) which requires a trial court to “allow withdrawal of a plea of guilty when
necessary to correct a manifest injustice.” Ala. R. Crim. P. 14.4(e). Mashburn relies
also on Dooley v. State, 26 So. 3d 499 (Ala. Crim. App. 2009), in which the ACCA
remanded the criminal case for the defendant to “have the opportunity to withdraw
his guilty plea and to enter another plea after he has been informed of the correct
sentencing range[.]” Id. at 504. These Alabama authorities confirm that a defendant
may seek to withdraw a guilty plea. But neither demonstrates that ACCA
unreasonably applied Supreme Court precedent in affirming the dismissal of this
subclaim.

63

For analysis purposes, the Court accepts that misinforming a defendant about
his right to withdraw a guilty plea under state law might support a constitutional
claim under certain circumstances.22 Still, Mashburn has not shown that the ACCA
unreasonably rejected these allegations as inadequate because Mashburn did not
state when the conversation with trial counsel occurred. Specifically, depending on
when that alleged discussion took place, trial counsel may have given Mashburn
appropriate guidance under Alabama law. See, e.g., Dooley, 26 So. 2d at 500-01
(explaining that “mo[ving] to withdraw a guilty plea . . . more than 30 days after the
date that sentence pronounced [is] untimely) (citing Ala. R. Crim. P. 24.1; Allen v.
State, 883 So. 2d 737, 738 n.1 (Ala. Crim. App. 2003)). Consequently, Mashburn has
not shown an unreasonable application of Supreme Court precedent, and AEDPA
deference forecloses Mashburn from habeas relief on this subclaim.
C.

Alleged Penalty-Phase Ineffective Assistance

Mashburn alleges in Claim B that his trial counsel provided ineffective
penalty-phase assistance. (Doc. 24 at 18.) Mashburn divides Claim B into five
Strickland subclaims. (Doc. 24 at 19, 21, 27, 32, 36.) Mashburn asserts in B.1 that trial
counsel “did not take reasonable steps to provide [him] with an adequate mitigation

22

Mashburn has not identified a Supreme Court holding that recognizes a Strickland claim
premised upon counsel’s misinforming a defendant about his right to withdraw a guilty plea under
state law.
64

investigation and presentation.” (Doc. 24 at 19) (emphasis omitted). Mashburn
alleges in B.2 that trial counsel “did not investigate or prepare [his] defense for two
years after they were assigned the case.” (Doc. 24 at 21) (emphasis omitted).
Mashburn maintains in B.3 and B.4 that trial counsel hired private investigators and
mitigation specialists without assessing their credentials, credibility, or
professionalism or supervising them adequately. (Doc. 24 at 27, 32.) Finally,
Mashburn argues in B.5 that trial counsel performed ineffectively because they did
not advocate ending his psychotropic drug treatment before trial. (Doc. 24 at 36.)
Respondents divide Claim B into three ineffective assistance subclaims—trial
counsel presented an “‘incomplete’” mitigation case due to inadequate
investigation and supervision (doc. 32 at 51 ¶ 32; see also doc. 24 at 20 ¶ 69), failed
to argue that Mashburn should have been “‘weaned off’” his psychiatric medication
before trial (doc. 32 at 69 ¶ 33), and permitted Mashburn to plead guilty without a
deal in place even though Mashburn’s medication affected his ability to make that
decision (doc. 32 at 75 ¶ 34). Mashburn does not challenge Respondents’ grouping
of these Strickland subclaims in reply. (Doc. 40 at 10-15.) Respondents answer the
first two subclaims similarly—habeas relief is inappropriate because Mashburn has
not met his burden under § 2254(d)’s deferential review, § 2254(e)(1)’s
presumption of correct state court factual findings, § 2254(e)(2)’s evidentiary
65

hearing framework, or Rule 2(c)’s heightened pleading framework. (Doc. 32 at 6669 ¶ 32; id. at 72-74 ¶ 33.) With regard to the third subclaim, Respondents contend
that Mashburn has procedurally defaulted on this subclaim because he did not fairly
present it in state court. (Doc. 32 at 75-76 ¶ 34(a).) Respondents argue alternatively
that this one-sentence allegation does not state a cognizable constitutional claim or
warrant an evidentiary hearing under § 2254(e)(2). (Doc. 32 at 76-77 ¶ 34(b)-(c).)
State court exhaustion is a prerequisite to obtaining § 2254 relief. 28 U.S.C. §
2254(b)(1)(A). Consequently, the Court examines that preliminary inquiry and
considers that doctrine’s interplay with Respondents’ procedural default defense to
Mashburn’s guilty plea-medication subclaim first.
1.

Unexhausted Guilty Plea Strickland Subclaim

For the most part, Mashburn’s Rule 32 and § 2254 petitions contain the same
Strickland penalty-phase allegations and claims. Consequently, Mashburn has
exhausted Claim B’s subclaims one through four (totaling 75 allegations) and nearly
all of subclaim five (equaling 15 allegations). (Compare Doc. 24 at 18-39 ¶¶ 61-150,
with Doc. 30-23 at 48-60 ¶¶ 80-132, and Doc. 30-24 at 1-9 ¶¶ 132-169.) But as
Respondents point out, the following allegation placed at the end of Mashburn’s
habeas subclaim B.5 is missing from his Rule 32 petition: “The prescription
psychotropic drugs Mr. Mashburn was taking at the time also affected his ability to
66

determine whether he should plead guilty to capital murder with no deal in exchange
for the guilty plea.” (Doc. 24 at 39 ¶ 151.) This unexhausted allegation is likewise
missing from Mashburn’s Rule 32 guilt-phase Strickland claims. (See Doc. 30-23 at
39-48 ¶¶ 41-79) (alleging robbery and burglary, intoxication, self-defense,
photograph, venue, lack of defense, change of guilty plea Rule 32 subclaims). Thus,
Mashburn did not fairly present this Strickland subclaim in state court.
Respondents argue that a dismissal to exhaust the subclaim would be futile
because Alabama Criminal Procedure Rule 32.2(b) and (c) foreclose Mashburn from
securing relief in state court. (Doc. 32 at 75 ¶ 34(a)). Rule 32.2(b) prohibits awarding
a petitioner “relief on a successive petition on the same or similar grounds” without
exception or different grounds unless one of two exceptions applies. Ala. R. Crim.
Proc. 32.2(b). 23 Additionally, a petitioner must initiate a collateral proceeding within
one year from the certificate of judgment on appeal to avoid a time-bar dismissal
under Rule 32.2(c). Ala. R. Crim. Proc. 32.2(c)(1).

23

Additionally, Rule 32.2(d) bars a petitioner from raising a Strickland claim in a successive
petition regardless of whether the ground is old or new:
Any claim that counsel was ineffective must be raised as soon as practicable, either
at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable. In
no event can relief be granted on a claim of ineffective assistance of trial or appellate
counsel raised in a successive petition.
Ala. R. Crim. Proc. 32.2(d).
67

In reply, Mashburn maintains that “[h]ad trial counsel provided effective
representation, there is a reasonable probability that the outcome of Mr. Mashburn’s
trial would have been different.” 24 (Doc. 40 at 14; see also id. at 11-12.) But Mashburn
does not dispute Respondents’ procedural default analysis or invoke an exception.
(Doc. 40 at 2, 10-15.) Specifically, Mashburn does not challenge Rule 32.2(b)’s or
(c)’s regularly followed and firmly established status under Alabama law. Nor does
Mashburn suggest that his actual innocence establishes “a gateway . . . to have his
otherwise barred constitutional clam considered on the merits.” Schlup, 513 U.S. at
315 (internal quotation marks omitted) (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)).
The cause and prejudice exception cannot save Mashburn’s defaulted
subclaim either. When post-conviction counsel omits a trial counsel Strickland claim,
a prisoner may establish cause for the default of a claim of ineffective
assistance of trial counsel by showing that: (1) post-conviction counsel
was ineffective under the two-prong test of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) the
defaulted claim is a “substantial one,” which means that the prisoner
must show that “the claim has some merit.” Martinez, 566 U.S. at 14,
132 S.Ct. 1309.
24

Mashburn appears to have included this language to meet Strickland’s prong with respect
to his trial counsel’s conduct during the guilty and penalty phases. As a refresher, the prejudice
component of Strickland comes in two forms depending on whether the alleged ineffectiveness
occurred during the guilt or penalty phase. The more specific test for mitigation-phase prejudice
is whether “a reasonable probability [exists] that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Stewart, 476 F.3d at 1209 (internal quotation marks omitted) (quoting Strickland, 466 U.S. at 695).
68

Duffy v. Sec’y, Dep’t of Corr., 729 F. App’x 669, 670 (11th Cir. 2018). “A defaulted
claim is substantial if the resolution of its merits would be debatable among jurists of
reason.” Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Mashburn does
not argue that his post-conviction counsel violated Strickland when they omitted the
guilty plea-medication allegation during the Rule 32 process and does not seek
equitable relief under the Martinez rule for that Rule 32 omission. As a result,
Mashburn cannot show that the merits of his defaulted trial counsel claim are
reasonably debatable. Thus, as Mashburn invokes no exception to procedural default
and additionally lacks cause for excusing the default, a procedural dismissal of this
unexhausted allegation is appropriate.
Alternatively, Mashburn’s ambiguous allegation that his prescribed
medication affected his decision making about the guilty plea, does not support a
cognizable Strickland claim under § 2254’s heightened pleading standard. As the
Supreme Court has explained, pleading an adequate habeas claim demands more
from a petitioner than stating a claim in “ordinary civil proceedings[.]” Mayle, 545
U.S. at 655; see also id. (quoting Advisory Committee’s Note on Habeas Corpus Rule
4, 28 U.S.C., p. 471 (“ ‘[N]otice’ pleading is not sufficient, for the petition[er] is
expected to state facts that point to a real possibility of constitutional error.”
(internal quotation marks omitted))). Thus, a petitioner who simply identifies a
69

constitutional theory but excludes a corresponding factual foundation fails to state a
cognizable habeas claim.
Critical to a viable Strickland claim are factual allegations that support Sixth
Amendment ineffectiveness of counsel—objectively unreasonable representation.
To meet this exacting standard, a petitioner must assert more than alleged ordinary
flaws in the legal representation he received. Instead, a petitioner must assert “errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
With these principles in mind, the Court considers the context of Mashburn’s
guilty plea-medication allegation. Mashburn claims that, despite the State’s strong
case of guilt against him, including corroborating DNA evidence and a confession,
trial counsel acted unreasonably in using his acceptance of guilt as a mitigating factor
during sentencing because his medication affected his ability to decide whether to
enter a plea. Respondents contend that “to the extent that Mashburn is attempting
to raise any challenge to the voluntariness of his guilty plea, the claim fails to state a
valid claim for relief under 28 U.S.C. § 2254.” (Doc. 32 at 76 ¶ 34(b)).
As this Court discussed supra, Mashburn does attempt to challenge his guilty
pleas as involuntary under Boykin. But Mashburn does not allege that his medicated
state prevented him from “voluntarily and understandingly” waiving his Boykin
70

rights without a deal in place. Boykin, 395 U.S. at 244 (internal quotation marks
omitted). Moreover, the state court record of the colloquy confirms the
voluntariness of Mashburn’s plea despite his medicated state. Specifically, when the
trial court asked Mashburn whether taking Elavil, Valium, and Inderal prevented
him from understanding the “consequences” and “seriousness” of pleading guilty,
Mashburn responded, “No, Your Honor.”25 (Doc. 30-6 at 103.) Additionally,
Mashburn affirmed that pleading guilty was his decision. (Doc. 30-6 at 111.)
Mashburn does not argue that the record, minus his pleas, reflects equivocal
evidence of his guilt. Mashburn does not contend that the prosecutor ever
considered offering him a deal or otherwise describe why his counsel acted
objectively unreasonable under the circumstances of the State’s compelling case
establishing his guilt. Consequently, Mashburn lacks the required detail for
actionable deficient performance under Strickland.
Alternatively, accepting that Mashburn has stated the first prong sufficiently,
his subclaim fails to meet Strickland’s prejudice prong. To satisfy prejudice based on
25

Elavil or amitriptyline “is used to treat mental/mood problems such as depression.”
https://www.webmd.com/drugs/2/drug-1807/elavil-oral/details (last visited Dec. 21, 2020).

Valium or “[d]iazepam is used to treat anxiety, alcohol withdrawal, and seizures.”
https://www.webmd.com/drugs/2/drug-11116/valium-oral/details (last visited Dec. 21, 2020).
Inderal or propranolol is a beta-blocker which has an “off-label use . . . [of] help[ing] [to] mange[e]
anxiety symptoms.” https://www.healthline.com/health/beta-blockers-for-anxiety (last visited
Dec. 21, 2020).
71

ineffective assistance with a guilty plea, “the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Because
Mashburn does not allege that, unmedicated, his decision would have been different
about pleading guilty, he has failed to allege actionable prejudice.
Thus, the Court dismisses Mashburn’s unexhausted guilty-plea allegation
within subclaim B.5 for procedural and substantive reasons.
2.

Mashburn’s Exhausted Strickland Subclaims

The Court turns now to Mashburn’s exhausted Claim B allegations, including
subclaims B.1 to B.4, and the remainder of B.5. (Doc. 24 at 19-39 ¶¶ 61-150.)
Accepting these Strickland allegations as true, the state collateral court dismissed
them for insufficiency under Rules 32.3, 32.6(b) and referenced 32.7(d) on some
claims.26 (See Doc. 30-29 at 94) (dismissing mitigation evidence allegations
reasserted in subclaim B.1); (id. at 30-29 at 96) (dismissing delay allegations
reasserted in subclaim B.2); (id. at 97) (dismissing anoxic birth allegations reasserted
in subclaim B.2); (id. at 98, 100, 102) (dismissing expert credentials allegations

26

The Court described Alabama Criminal Procedure Rules 32.3 and 32.6(b) when analyzing
Mashburn’s guilt-phase Strickland subclaims supra and explained that a Rule 32.6(b) dismissal is
subject to AEDPA deferential review. Under Rule 32.7(d), a state court may dismiss a petition that
“is not sufficiently specific, or is precluded, or fails to state a claim, or . . . [is without a] material
issue of fact or law . . . which would entitle the petitioner to relief . . . and . . . no purpose would be
served by any further proceedings[.]” Ala. R. Crim. P. 32.7(d).
72

reasserted in subclaim B.3); (id. at 103) (dismissing supervisory allegations
reasserted in subclaim B.4; (id. at 104) (dismissing prescribed medication allegations
reasserted in subclaim B.5).
The ACCA affirmed the Rule 32 court’s summary dismissal of these
Strickland subclaims without an evidentiary hearing. See Mashburn II, 148 So. 3d at
1107 (stating that “[t]he circuit court properly applied the well[-]recognized and
heavy burden of pleading” and that the 65-page order “contains specific written
findings regarding the pleading deficiencies of each of Mashburn’s ineffectiveassistance-of-counsel claims”); see also id. at 1134 (”As it relates to counsel’s
handling of private investigators, this claim was not pleaded with sufficient
specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b).”); id. at 1140
(affirming circuit court’s summary dismissal of Mashburn’s allegations that “his
counsel were ineffective because of their delay in hiring, their alleged failure to verify
the credentials of, and their alleged failure to supervise the investigation by, the
mitigation specialists”); id. (“[S]ummary dismissal of this claim of ineffective
assistance of counsel as it relates to mitigation specialists was proper.”); id. at 1143
(“Mashburn failed to plead sufficient facts to indicate that his counsel were
ineffective for not adequately advocating that he be weaned off his medications
before trial[.]”).
73

The ACCA considered the trial court’s specific mitigating and aggravating
findings, which sentencing factors this Court included in the procedural history
supra. Mashburn II, 148 So. 3d at 1131-32. The ACCA considered that “13 witnesses
. . . testif[ied] on [Mashburn’s] behalf at the penalty phase of the trial, including
neuropsychologist Dr. Robert Shaffer and neuropsychiatrist Dr. Thomas Sachy.” Id.
at 1132. The ACCA noted that “the penalty phase of the trial lasted five days . . .
and that trial counsel’s presentation of mitigating evidence encompassed over 700
pages of transcript.” Id.
Against this backdrop, the Court considers whether Mashburn has
demonstrated a right to habeas relief based on his mitigation subclaims.
a.

Alleged Incomplete Mitigation Case

Mashburn contends generally in subclaims B.1 through B.4 that trial counsel
committed numerous investigatory and supervisory errors that resulted in an
incomplete mitigation case. Rather than following Mashburn’s division of claims,
the ACCA “f[ound] it more apt” to analyze Mashburn’s allegations “first as [they]
applie[d] to counsel’s private investigators and then as [they] applie[d] to counsel’s
mitigation specialists.” Mashburn II, 148 So. 3d at 1133. To facilitate review, this
Court follows the ACCA’s approach.

74

In evaluating whether Mashburn stated a sufficient Strickland subclaim with
respect to private investigation, the ACCA acknowledged several allegations that
suggested deficient representation. Mashburn II, 148 So. 3d at 1134-35. For example,
Mashburn maintained that counsel waited two years before requesting funds to hire
an investigator and another five months before hiring a replacement after discovering
that the first investigator had falsified his credentials. Id. at 1133-34. Mashburn
asserted that counsel met only once with and did not verify the credentials of the
replacement investigator (beyond obtaining a resume) or the investigator’s associate.
Id. at 1134. Mashburn maintained that trial counsel’s failure to supervise or replace
an associate investigator prejudiced his defense because she lacked persistency;
experienced “difficulty in getting witnesses to speak with her[,]” including a
pawnshop owner connected to the recovered stolen jewelry; delayed following up
with recalcitrant witnesses; and ended her investigation as “futile” once the DNA
evidence implicated Mashburn. Id.
Consistent with these alleged penalty-phase facts, the ACCA found that
“Mashburn identified the acts or omissions of counsel that he believed constituted
deficient performance[.]” Mashburn II, 148 So. 3d at 1134-35. But the ACCA
determined that Mashburn did not assert “any facts indicating that he was
prejudiced by counsel’s performance as it relates to private investigators.” Id. at
75

1135. The ACCA observed that an investigatory delay alone was insufficient to
established prejudice. Id. Instead, the ACCA reasoned that Mashburn should have
“identif[ied] within this claim any evidence, information, or witness that could have
been, but was not, discovered as a result of the delay.” Id.
As for challenging the replacement investigator’s credentials and techniques
under Strickland, the ACCA pointed out that Mashburn provided no identifying
information about witnesses whom the investigator did not interview except for
generally mentioning a pawnshop owner. Mashburn II, 148 So. 3d at 1135. The ACCA
found other pleading problems including Mashburn’s failure to detail what
information the unidentified witnesses and pawnshop owner knew that “would have
been helpful to his mitigation case.” Id. The ACCA concluded that Mashburn’s
allegations that counsel should have instructed the replacement investigator to
continue working despite “the DNA evidence implicat[ing] [him] in the crimes”
lacked sufficiency because Mashburn did not describe what “would have been
discovered . . . had she continued her investigation.” Id. Thus, the ACCA
determined that Mashburn’s facts about counsel’s “delay in hiring, their alleged
failure to verify the credentials of, and their alleged failure to supervise the
investigation by, the private investigators” were insufficient to support a Strickland
mitigation claim. Id.
76

The ACCA concluded likewise that Mashburn’s “lengthy” allegations about
mitigation specialist Strickland errors lacked prejudicial sufficiency. Id. at 1138. The
ACCA credited Mashburn for identifying areas in which he believed counsel
performed deficiently, including “counsel’s two-year delay in hiring a mitigation
specialist[], counsel’s alleged failure to verify the credentials of the three mitigation
specialists they hired, and counsel’s alleged failure to supervise the mitigation
investigation or conduct their own independent mitigation investigation.” Id. But
the ACCA found that “with the exception of his pediatric medical records . . . ,
Mashburn failed to identify within this claim . . . any information or any evidence
that could have been, but was not, discovered” or witnesses “who could have
testified on his behalf[,]” but whom counsel overlooked due to a “‘rushed and
incomplete’” investigation. Id. at 1138.
Concerning the discovery that Mashburn’s third mitigation specialist “was
not a licensed clinical social worker[,]” the ACCA determined that offering “only a
bare allegation” of impeachment failed to establish Strickland prejudice. Id. at 113839. Instead, Mashburn should have included “facts” linking an absence of
“impeach[ment] in this manner” to a reasonable probability “that the sentencer
would have concluded that the balance of aggravating and mitigating circumstances
did not warrant death.” Id. at 1139 (emphasis in original).
77

With respect to his pediatric medical records—documenting a C-section birth
without the complication of anoxia (doc. 30-29 at 98 ¶ 26; Mashburn II, 148 So. 3d at
1118)—Mashburn alleged ineffectiveness because the State used that natal
information to impeach his neuropsychological and neuropsychiatric experts, Drs.
Shaffer and Sachy, who “‘used the possibility of an anoxic birth to inform their
diagnoses of Mr. Mashburn[.]’” Id. at 1118, 1139. Drs. Shaffer and Sachy based their
opinions of possible anoxia given the combination of Mashburn’s mother having a
C-section and Mashburn’s being “in a “‘breach position during childbirth.’” (Doc.
30-29 at 97-98 ¶ 26.) Mashburn claimed “that had counsel obtained the [birth]
records ‘there is a reasonable possibility the expert witnesses would have been
credible and Mr. Mashburn would have received a life sentence.’” Id. at 1139. The
ACCA found that Mashburn’s credibility and life sentence statements were
“conclusion[s], not . . . assertion[s] of fact[,]” and insufficiently “specific to satisfy
the pleading requirements for the prejudice prong of the Strickland test.” Id.
The ACCA found that Mashburn’s ineffectiveness allegations about “last
minute” witnesses were inadequate because he did not state who they were, “what
those witnesses’ testimony was[,]” or the manner and testimonial impact of the
State’s impeachment of one witness. Id. at 1139. Again, the ACCA determined that
to allege Strickland prejudice adequately, Mashburn should have asserted facts
78

showing that the jury would have balanced the sentencing factors differently “had
these two witnesses not been called to testify at the last minute[.]” Id.
Regarding ineffectiveness tied to the expert evaluations that occurred one
“month before trial,” the ACCA found that “Mashburn made only a bare and
conclusory allegation” that the delay resulted in “‘incomplete, uncoordinated, and
rushed’” medical assessments. Id. To state an adequate claim, Mashburn should
have alleged what the experts determined pretrial, “what specifically they testified
to at trial, what part of the evaluations were ‘incomplete,’ or, most importantly, what
Dr. Shaffer and Dr. Sachy would have testified to had they had additional time in
which to evaluate Mashburn.” Id.
Citing several state and federal authorities, the ACCA ended its analysis of
Mashburn’s mitigation specialist allegations with the conclusion that Mashburn
could not base a Strickland claim on “counsel’s hiring other people to conduct the
mitigation investigation instead of conducting the investigation themselves.”
Mashburn II, 148 So. 3d at 1140; see Walls v. Bowersox, 151 F.3d 827, 834 n.4 (8th Cir.
1998) (“[I]t is neither unprofessional nor unreasonable for a lawyer to use surrogates
to investigate and interview potential witnesses rather than doing so personally.”
(citing Harris v. Dugger, 874 F.2d 756, 762 & n.8 (11th Cir. 1989))).

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In seeking habeas relief on these penalty-phase allegations, Mashburn
acknowledges AEDPA’s framework generally. (Doc. 40 at 8-9.) Mashburn cites
several cases that discuss Strickland—Brownlee v. Haley, 306 F.3d 1043 (11th Cir.
2002) (doc. 24 at 18 ¶ 61; doc. 40 at 14); Porter v. Singletary, 14 F.3d 554 (11th Cir.
1994) (doc. 24 at 18 ¶ 61; doc. 40 at 14); Baxter v. Thomas, 45 F.3d 1501 (11th Cir.
1995) (doc. 24 at 18 ¶ 61; doc. 40 at 14); Harris v. Dugger, supra, (doc. 24 at 18 ¶ 61;
doc. 40 at 14); Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988) (doc. 24 at 18 ¶ 61;
doc. 40 at 14); Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994) (doc. 24 at 19 ¶ 63);
Thompson v. Wainwright, supra, (doc. 24 at 21 ¶ 72; id. at 31 ¶ 117; doc. 40 at 14-15);
Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002) (doc. 24 at 35-36 ¶ 135); and Sanders v.
Ratelle, 21 F.3d 1446 (9th Cir. 1994) (doc. 24 at 36 ¶ 135). Mashburn relies also on
the Supreme Court’s pre-Strickland decision in Lockett v. Ohio, 438 U.S. 586 (1978).
(Doc. 24 at 18 ¶ 61; Doc. 40 at 14.) But in citing these cases, Mashburn does not state
which provisions of § 2254(d) this Court should apply—(d)(1), (d)(2), or both. (See
generally Doc. 24 at 18-36 ¶¶ 61-135; Doc. 40 at 13-15.)
As explained in the standards of review section supra, a petitioner may obtain
habeas relief under § 2554(d)(2) if a state court denied the claim “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). During collateral review, Mashburn did
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not submit evidence with his Rule 32 petition or receive a hearing. In contesting the
ACCA’s decision on federal habeas review, Mashburn has not identified portions of
the state court evidentiary record which he contends undermine the summary
dismissal of these Strickland claims. (See generally Doc. 24 at 18-36 ¶¶ 61-135; Doc.
40 at 13-15.) Consequently, the Court understands that Mashburn seeks habeas relief
under § 2254(d)(1) only.
Here, the ACCA correctly invoked the Strickland framework when evaluating
the sufficiency of Mashburn’s ineffective assistance allegations. Thus, §
2254(d)(1)’s contrary-to prong plays no role in the AEDPA analysis. Instead, the
“sole” standard is whether the ACCA unreasonably applied Supreme Court
precedent in rejecting Mashburn’s penalty-phase Strickland subclaims. See Shinn v.
Kayer, ___ U.S. ___, 141 S. Ct. 517, 523 (2020) (applying (d)(1)’s unreasonable
application standard because “the state court applied ‘the correct governing legal
principle ... to the facts of the prisoner’s case’” (quoting Lockyer v. Andrade, 538
U.S. 63, 75 (2003)).
Still, simply citing ineffective-assistance-of-counsel cases, which Mashburn
contends cast doubt on the validity of his state court Strickland outcome, does not
satisfy § 2254(d)(1)’s demanding unreasonable application test. Instead, Mashburn
must persuade this Court that these authorities establish that the ACCA’s decision
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upholding the circuit court’s pleading-based dismissal of his Strickland mitigation
allegations was “so obviously wrong that its error lies ‘beyond any possibility for
fairminded disagreement.’” Shinn, 141 S. Ct. at 526 (quoting Richter, 562 U.S. at
103). After carefully considering Mashburn’s authorities as developed more infra,
AEDPA precludes habeas relief because he has not shown an objectively
unreasonable state court decision.
Lockett is the only Supreme Court decision that Mashburn cites in Claim B
besides Strickland. Given the grave stakes that a capital case presents, the Supreme
Court decided in Lockett that the constitution recognizes a capital defendant’s right
to an individualized penalty-phase assessment. Lockett, 438 U.S. at 604.
Consequently, a “sentencer . . . [normally should] not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” Id. (footnote omitted) (emphasis in original). But the
Eighth and Fourteenth Amendments provide the constitutional foundation for the
Lockett doctrine; not the Sixth Amendment. Id. And while Lockett may shine light on
the merits of a Strickland claim, see Brownlee, 306 F.3d at 1070-71 (linking the Lockett
doctrine to Strickland prejudice), ineffective assistance is beyond Lockett’s holding.
Consequently, Mashburn’s reliance on Lockett is inadequate to establish an
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objectively unreasonable application of Strickland. See Williams, 529 U.S. at 412
(explaining that only Supreme Court holdings effective at the time of the challenged
state court decision constitute clearly established federal law under § 2254(d)(1)).
Mashburn’s remaining cases are from the Eleventh, Fifth, and Ninth Circuits.
Consequently, none constitute clearly established law under § 2254(d)(1) either.
Additionally, except for Neal, the authorities do not involve deferential habeas
review because the § 2254 proceedings began before AEDPA’s April 24, 1996
effective date. Brownlee, 306 F.3d at 1058. Regardless of their pre- or post-AEDPA
status, Mashburn offers little insight why he believes these decisions show that, in
affirming the circuit court’s Rule 32 dismissal, the ACCA applied Strickland or its
progeny unreasonably. The Court turns now to a contextual consideration of these
cases in light of Mashburn’s requested resentencing based on his private investigator
and mitigation specialist allegations—subclaims B.1 – B.4.
Mashburn refers to Brownlee, Porter, Baxter, Harris, and Middleton in the
introductory section to Claim B and in reply. The Court summarizes each case before
comparing them to the ACCA’s dismissal of Mashburn’s Strickland mitigation
subclaims for pleading deficiencies.
The state charged the petitioner in Brownlee and two other persons with
murder of a bar owner during the course of a robbery. 306 F.3d at 1046. The
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petitioner “did not testify and the defense offered no evidence” during the guilt
phase. 306 F.3d at 1049. After a guilty verdict, the state presented two aggravating
circumstances, and the petitioner introduced no mitigation evidence. Id. at 1051. The
Alabama jury “recommend[ed] a sentence of death by an 11-1 vote.” Id. at 1052.
After exhausting the state review process, the petitioner sought federal habeas relief
on several grounds including counsel’s ineffective investigation of his guilt and
mitigation. Id. at 1057. Finding that the record lacked evidence to support a
Strickland guilt claim and that counsel performed deficiently but not prejudicially
during the penalty phase, the district court denied both claims. Id. at 1057-58. The
petitioner appealed on several grounds including the denial of guilt- and penaltyphase ineffectiveness. Id. at 1058.
Rejecting the guilt-phase investigation claim, the Eleventh Circuit pointed out
that counsel “had complete access to all of the State’s evidence and investigative
materials as a result of the district attorney’s office’s ‘open file’ discovery policy.”
Id. at 1060. Additionally, the petitioner had “not identif[ied] any information that
counsel would have obtained if they had conducted more pre-trial discovery.” Id. In
sum, “[c]ounsel’s decision to rely on the extensive material made available by the
district attorney’s office did not fall outside the wide range of professional

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competence, and Brownlee’s failure to demonstrate that further discovery would
have helped the defense clearly bar[red] a finding of prejudice.” Id.
The Eleventh Circuit reached a different conclusion concerning mitigation
and held that the petitioner “plainly received ineffective assistance of counsel at
sentencing in light of his attorneys’ failure to investigate, obtain, or present to the
jury any evidence in mitigation of the death penalty, violating the Sixth Amendment
to the Constitution.” 306 F.3d at 1045 (emphasis in original); see also id. at 1067.
Specifically, counsel did not investigate or present “evidence of Brownlee’s
background and character[,]” id. at 1069, including “the powerful mitigating
evidence of Brownlee’s borderline mental retardation, psychiatric disorders, . . .
history of drug and alcohol abuse,” id. at 1070, and his “‘significantly impaired’
[status] as a result of his various disorders at the time of the crime,” id. at 1071.
Because the State conceded the deficient performance prong on appeal, “the sole
question under Strickland [wa]s whether Brownlee c[ould] prove prejudice as a
result of his counsel’s deficient performance.” Id. at 1069. The Eleventh Circuit
found that the sentencing hearing was “‘fundamentally unfair’” and that the
outcome was “‘unreliable’” in light of the “powerful mitigation evidence” which
the jury never heard. Id. at 1074 (quoting Strickland, 466 U.S. at 700). “[L]ingering
questions about the strength of the case against Brownlee, including whether or not
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he fired the fatal shot killing Dodd,” contributed to the Eleventh Circuit’s “concerns”
over “confidence in the jury’s balancing of the aggravating and mitigating
circumstances, and [the] resulting recommendation of death[.]” Brownlee, 306 F.3d
at 1073-74.
A Florida jury convicted the petitioner in Porter on two counts of premeditated
murder. Porter, 14 F.3d at 555. Although the jury recommended a sentence of life
imprisonment, “the trial judge overrode the jury’s recommendation and sentenced
Porter to death.” Id. at 556. After a state court remand (unrelated to Strickland
mitigation) and resentencing, in which counsel “presented evidence impeaching the
previously unrebutted deposition testimony but . . . little or no other evidence in
mitigation[,]” the petitioner received a second death sentence. Id. at 556. After an
unsuccessful direct appeal, the petitioner moved to vacate pursuant to Florida Rule
of Criminal Procedure 3.850. Id. The Florida circuit court denied the motion without
an evidentiary hearing. Id. After faring no better with his § 2254 challenge in district
court, the petitioner appealed. Id.
The Eleventh Circuit “remanded Porter’s appeal for an evidentiary hearing”
on several claims, including whether the petitioner had received ineffective
mitigation assistance during the sentencing and resentencing. Id. at 556. Postremand, the district court denied relief again. Id. In his second appeal, the petitioner

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“challenge[d] the district court’s holding that counsels’ alleged failure to
investigate, develop, and present mitigating evidence at sentencing and resentencing
constituted an informed strategic decision.” Id. The petitioner faulted the lawyers
from the first sentencing for omitting evidence of his “difficult childhood, . . . abusive
stepfather, illegitimacy, physical and sexual abuse, and juvenile incarceration[.]” Id.
The petitioner claimed that the attorney from the second sentencing should have
contacted his mother and “inquire[d] into information contained in the case file,
including a psychiatric report indicating that petitioner’s family life was ‘less than
ideal, physically, financially and emotionally.’” Id. at 556-57.
Before considering the merits of these mitigation claims, the Eleventh Circuit
described a three-step approach:
First, it must be determined whether a reasonable investigation should
have uncovered such mitigating evidence. If so, then a determination
must be made whether the failure to put this evidence before the jury
was a tactical choice by trial counsel. If so, such a choice must be given a
strong presumption of correctness, and the inquiry is generally at an
end. Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir. 1985). If
the choice was not tactical and the performance was deficient, then it
must be determined whether there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different. Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.
1988).
Porter, 14 F.3d at 557 (emphasis in original). Based on this framework, the Eleventh
Circuit rejected the petitioner’s first sentencing claim because “[a]mple evidence
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support[ed] the district court’s implicit finding of fact that counsel omitted
presentation of family background to shield the jury from Porter’s prior extensive
criminal activity.” Id. at 558. Concerning counsel’s strategy during the sentencing
hearing before the judge, the Eleventh Circuit found “no evidence to contradict the
conclusion that counsel continued to pursue the same informed tactical decision.”
Id.
The Eleventh Circuit upheld the district court’s finding that trial counsel
“made a reasonable tactical choice not to present family background evidence” with
respect to the second sentencing as well. Id. at 560. Referring to counsel’s testimony
from the evidentiary hearing, the Eleventh Circuit noted that the petitioner
identified only his mother as a character witness and later instructed his lawyer not
to call her. Id. at 559. Trial counsel was uncertain whether the petitioner raised his
juvenile record but remembered that the petitioner did not broach illegitimacy or
sexual abuse. Id. at 559-560. Akin to the lawyers’ decision in the first sentencing, the
second sentencing counsel testified that “presenting family members who could
have disclosed other criminal activity would not have been helpful.” Id. at 560.
In Baxter, a Georgia jury sentenced the petitioner to death after finding that
the circumstances of a strangulation murder supported the aggravating factors of
killing a victim inhumanely for monetary gain. 45 F.3d at 1505-06. In reaching this
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decision, the jury heard no new evidence from the state. 45 F.3d at 1505. “The
defense called only one witness, a preacher who testified that . . . Baxter had a
difficult upbringing, was physically abused, and was passed along ‘[f]rom one home,
[an] orphanage or school of some sort.’” 45 F.3d at 1505. The preacher expressed
opposition to the death penalty. 45 F.3d at 1505-06.
After losing on direct appeal, the petitioner sought but did not receive habeas
relief in state or federal district court. 45 F.3d at 1506. The Eleventh Circuit rejected
the petitioner’s appeal with the exception of his Strickland claim based on trial
counsel’s failure to “reasonably investigate his long history of mental problems” or
“present evidence of his psychiatric problems at sentencing.” 45 F.3d at 1512.
Concerning the ineffective investigation claim, the Eleventh Circuit
acknowledged that counsel “investigate[d] Baxter’s background to some degree[,]”
but found that “a reasonable investigation would have uncovered information
concerning Baxter’s psychiatric problems and commitment to a psychiatric
institution.” 45 F.3d at 1513. The Eleventh Circuit explained that counsel could have
reasonably discovered this mitigating evidence if they had requested the petitioner’s
hospital, school, and county family services records or contacted his sister, neighbor,
or social worker. Id. Additionally, given counsel’s request that the petitioner receive

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a pretrial psychiatric evaluation because of communication difficulties, “they were
on notice of potential psychiatric problems in Baxter’s background.” Id.
Turning to the tactical inquiry, the Eleventh Circuit determined that the
decision to forgo an investigation into the petitioner’s mental health was not an
“informed” one given the “misunderstanding” that the petitioner “spent much of
his youth” incarcerated when, in fact, his history of mental problems was “readily
available.” 45 F.3d at 1514. Finally, because “the record was virtually devoid of
mitigating evidence” and contained only “scarc[e] . . . aggravating circumstances,”
the Eleventh Circuit found sufficient prejudice to warrant a resentencing. 45 F.3d at
1515. The Eleventh Circuit acknowledged that “deficient performance in
investigating psychiatric mitigating evidence will not always prejudice the
defense[.]” Id. But the Eleventh Circuit described “the factors suggesting
prejudice” in the petitioner’s sentencing as “strong[,]” including “only one
aggravating circumstance[,]” “several minutes” of mitigating testimony from the
petitioner’s preacher, and no “sexual abuse or kidnapping [offenses] common to
other death penalty cases.” Id.
Procedurally similar to Baxter, the Eleventh Circuit limited habeas relief to the
petitioner’s Strickland mitigation claim in Harris. 874 F.2d at 764. The petitioner’s
good character was the missing mitigation evidence in Harris, including that he “was
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a devoted father, husband and brother” and “a decent, loving man whose life was
important to [his family and minister].” 874 F.2d at 763. Counsel called no witnesses
during the sentencing hearing and told the jury the petitioner’s “‘family ha[d]
turned against him because he was accused of this act.’” 874 F.2d at 760. The
petitioner offered witnesses during the state collateral hearing “who stated that they
would have gladly testified at the sentencing hearing on Harris’ behalf[,]” if
contacted. Id.
The Eleventh Circuit recognized that “[a]n attorney is not obligated to
present mitigation evidence if, after reasonable investigation, he or she determines
that such evidence may do more harm than good.” Id. at 763 (citing Smith v. Dugger,
840 F.2d 787, 795 (11th Cir. 1988)). But here the Eleventh Circuit found that the
petitioner’s counsel acted deficiently because “prior to the day of sentencing,
neither lawyer had investigated Harris’ family, scholastic, military and employment
background, leading to their total—and admitted—ignorance about the type of
mitigation evidence available to them.” Id. Consequently, counsel’s admitted lack of
information precluded them “from making strategic decisions on whether to
introduce testimony from Harris’ friends and relatives.” Id.
As for prejudice, the Eleventh Circuit acknowledged that presenting good
character evidence to a jury was not without drawbacks because that mitigation
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opened the door to developing the petitioner’s “other felony convictions as well as
his dishonorable discharge from the Army.” 874 F.2d at 764. But finding a
reasonable probability of a life sentence, the Eleventh Circuit emphasized that the
jury had no individualized sense of the petitioner and that the murder began as a
“weaponless burglary” that went “horribly awry” after the victim approached the
petitioner with a knife “and apparently struck the first blow.” 874 F.2d at 764.
Consequently, knowledge of the petitioner’s good character “may have had a greater
impact on a jury deciding whether to impose the death penalty for this crime[.]” Id.
A Florida jury convicted and sentenced to death the petitioner in Middleton
“for the premeditated murder of . . . a woman who had taken him into her home,
upon his parole from prison, because of his friendship with her son.” 849 F.2d at
493. After holding a § 2254 evidentiary hearing, the district court ordered a
resentencing based on Strickland, and the Eleventh Circuit affirmed. Id. The
Eleventh Circuit observed that even though the petitioner had discussed mitigating
mental information with his trial attorney, counsel “conducted almost no
background investigation” and “failed to uncover an overwhelming amount of
documentary mitigating evidence[.]” 27 Id. In light of the “readily discoverable” and
27

Specifically, research of the petitioner’s background revealed:
a child psychiatric discharge summary . . . . [a] written diagnostic impression of . . .
‘schizophrenic Reaction, Chronic Paranoid Type with Passive Features’ . . . . [a]
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“already existing” mitigating information, the Eleventh Circuit agreed with the
district court that counsel provided ineffective investigative assistance. Id. at 494.
The Eleventh Circuit found that counsel’s testimony that “had he known of the
records” he would have used them, expert testimony, and a record reflecting “no
discernable [penalty-phase] strategy” supported the conclusion that “counsel had
no valid tactical reasoning” for not investigating the petitioner’s background. Id.
The Eleventh Circuit found that actual prejudice existed because trial counsel
testified that introducing the background evidence to the jury would have made a
difference in the sentencing outcome. 849 F.2d at 495. Additionally, the petitioner’s
“considerable” family, drug abuse, mental health, and scholastic histories included
portions that “could well have met the standard for statutory mitigating factors.” Id.
Thus, “[d]espite the [existence of] statutory aggravating factors[,]” the Eleventh
Circuit concluded that the record contained “ample support for the district court’s
holding” requiring a resentencing. Id.

recommend[ation] [of] . . . place[ment] in a residential treatment center for
emotionally-disturbed children. . . . psychological testing . . . strongly indicat[ing] .
. . a schizoid personality and . . . susceptib[ility] to schizophrenia. . . . [and] records
from . . . various [sources] . . . . chronicl[ing] a childhood of brutal treatment and
neglect, physical, sexual and drug abuse, a low I.Q. and mental illness.
849 F.2d at 493-94.
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Brownlee, Porter, Baxter, Harris, and Middleton are helpful to understanding
the components and core principles of a penalty-phase Strickland claim. But because
the Eleventh Circuit evaluated ineffectiveness based on an evidentiary record in
these cases pre-AEDPA, none addresses squarely whether the ACCA unreasonably
applied Supreme Court precedent when it affirmed the dismissal of Mashburn’s
private investigator and mitigation specialist allegations. Instead, the Eleventh
Circuit’s analysis of adequate pleading post-AEDPA in Powell is more instructive.
602 F.3d at 1273 (“AEDPA limits our review to whether the state court’s
determination that [the petitioner] failed to plead sufficient facts in his Rule 32
petition to support a claim of ineffective assistance of counsel was . . . an
unreasonable application of Supreme Court precedent.”).
For analysis purposes and in the absence of an evidentiary hearing, the Court
accepts that Mashburn’s assertions are sufficient to establish that counsel’s deficient
investigation, including a lack of tactical deliberation to the extent applicable,
resulted in an incomplete mitigation case. Still, Mashburn’s allegations are
insufficient to establish Strickland prejudice. See Powell, 602 F.2d at 1274
(“[R]egardless of whether Powell has made allegations sufficient for a showing of
deficient performance, he has not alleged facts sufficient to show ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.’” (quoting Strickland, 466 U.S. at 694)); cf.
Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies.”).
Mashburn’s cited authorities do not suggest a different prejudicial
assessment. Mashburn pled guilty to committing a premeditated slaying and robbery
of his maternal grandmother and step-grandfather. Consistent with the above
summaries, Brownlee, Baxter, and Middleton involved petitioners with substantial
psychiatric histories as well as other potentially impactful background information
which the sentencing jury never heard. In contrast to these decisions in which
counsel omitted concrete mitigating evidence, Mashburn speculates that his
mitigation case would have been stronger if counsel had represented him better. But
without identifying what witness, record, diagnosis, or other mitigating evidence
counsel overlooked, Mashburn lacks adequate allegations to show a reasonable
probability that a different jury would rebalance the aggravating and mitigating
factors in favor of life. See Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)
(“Speculation is insufficient to carry the burden of a habeas corpus petitioner as to
what evidence could have been revealed by further investigation.”). And AEDPA
requires even more from Mashburn—his better mitigation case must be one that
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undermines confidence in the jury’s death sentence to such a degree that the ACCA
unreasonably concluded otherwise.
The circumstances of the double homicide that Mashburn committed are
more egregious than the record in Harris which began as a weaponless burglary but
escalated to murder after the victim appeared with a knife, or the record in Brownlee
which contained “lingering questions about the strength of the case . . . including
whether . . . [the petitioner] fired the fatal shot killing [the victim] . . . .” Brownlee,
306 F.3d at 1074. Porter does not demonstrate that the ACCA unreasonably applied
Strickland as the Eleventh Circuit upheld the death sentence after finding that
counsel made a tactical choice to not offer mitigation evidence that would open the
door to the petitioner’s criminal history. Therefore, Brownlee, Porter, Baxter, Harris,
and Middleton do not persuade this Court that the ACCA applied Strickland
unreasonably in rejecting Mashburn’s incomplete investigation subclaims.
The Court turns now to Mashburn’s remaining authorities which he
references within Claim B’s subclaims. Citing Agan in subclaim B.1, Mashburn
contends that his trial counsel violated Strickland because they “allowed him to
plead guilty to capital murder without conducting a reasonable investigation.” (Doc.
24 at 19 ¶ 63.) Agan involved a petitioner who confessed to a grand jury about and
received a death sentence for murdering an inmate. 12 F.3d at 1014, 1016. The
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petitioner’s “comments and behavior” before the grand jury and the trial court
during sentencing undermined his “professed strategy of entering a guilty plea to
avoid the death penalty[.]” 12 F.3d at 1017.
Asserting competency and Strickland claims, the petitioner sought federal
habeas review of his Florida capital sentence. 12 F.3d at 1013. After a remand and
evidentiary hearing, the district court granted the writ, and Florida appealed. Id. The
Eleventh Circuit agreed with the district court’s determination that relief was
appropriate under Strickland and upheld the writ. 12 F.3d at 1019.
Specifically, given the following “shortcomings,” the Eleventh Circuit
affirmed the district court’s conclusion that the petitioner’s trial counsel’s
“representation fell below an objective standard of reasonableness” in satisfaction
of Strickland’s first prong. Id. at 1018. Trial counsel spent just seven hours
investigating the petitioner’s capital case. 12 F.3d at 1015. Trial counsel “had little,
if any, communication with” the petitioner’s former attorney and did not obtain that
lawyer’s file which “contained [a] memorandum of [counsel’s] conversation with
[Officer] Ball regarding the possibility of Agan’s innocence.” 12 F.3d at 1014 & n.4.
Trial counsel did not get the petitioner’s medical or military file. 12 F.3d at 1015.
Instead, trial counsel accepted the petitioner’s word that he had never received
psychiatric treatment and did not explore the petitioner’s competency. Id. Without
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reviewing those files, trial counsel was unaware of the petitioner’s “lengthy history
of mental health problems,” including “eighty-one electric shock treatments” for
psychosis; “various blackout incidents” while serving in the military; and use of
“psychotropic medication at the time of the plea and sentencing.” 12 F.3d at 1015.
Trial counsel did not interview other inmates and “ended the inquiry into [the
petitioner’s] family history when [the petitioner] was unwilling to answer
questions.” Id. Trial counsel did not discover an internal prison investigative file that
revealed an alleged extortion plan and identified two other prisoner suspects in the
inmate’s murder. Id. at 1015-16.
The Eleventh Circuit then assessed Strickland’s “‘reasonable probability’ of
a different result” prong and observed that the standard demands “less than proof
by a preponderance of the evidence.” Id. at 1018. The Eleventh Circuit noted that
the district court had considered “the entire evidentiary picture” and accepted the
district court’s factual findings as not clearly erroneous. Id. at 1019. The Eleventh
Circuit concluded its analysis with a de novo confirmation that the petitioner had
met both Strickland components. Id.
As the summary illustrates, the ineffective assistance in Agan is quantitatively
and qualitatively stronger than Mashburn’s allegations about his mismanaged
mitigation case. The focus of Mashburn’s allegations in subclaim B.1 is that an
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investigatory delay and lack of attorney supervision harmed his mitigation case. But
unlike the petitioner in Agan, whose counsel overlooked significant mental health
treatment, competency to testify concerns, and other suspects, Mashburn has not
described what missing pieces to his mitigation case his attorneys’ alleged errors
caused. Likewise, Mashburn has not alleged facts establishing a reasonable
probability that absent the investigative delay and supervisory gaps, a sentencer
would find that “the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695.
Mashburn relies on Thompson in subclaims B.1 and B.4 and his reply for the
principle that “[a] criminal defense attorney has a duty to investigate, but this duty
is limited to reasonable investigation.” 787 F.2d at 1450 (citing Strickland, 466 U.S.
at 691); (Doc. 24 at 21 ¶ 72; id. at 31 ¶ 117; Doc. 40 at 14-15.) As the Strickland Court
clarified, “in any ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” Id. at 691.
The petitioner in Thompson pled guilty to a torture-murder and received a
death sentence under Florida law. 787 F.2d at 1449. On habeas review, the petitioner
claimed (among several issues) that his counsel was ineffective during the sentencing
hearing for not investigating his codefendant’s background or developing the
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petitioner’s psychiatric health history and background. 787 F.2d at 1450, 1452. The
Eleventh Circuit found that these investigative omissions satisfied Strickland’s
deficient performance prong. See id. at 1450 (“In a capital case, where a defendant’s
life may well depend on the extent and nature of his participation, the background of
a codefendant could be crucial.”); id. at 1451 (finding that counsel’s belief that his
client had mental challenges made the failure to develop and present that mitigating
factor “to the jury . . . inexplicable”); id. at 1452 (“We conclude that [counsel]’s
failure to conduct any investigation of the petitioner’s background fell outside the
scope of reasonably professional assistance.”).
Under the prejudice prong, the Eleventh Circuit considered the mitigating
evidence that “a reasonably effective counsel” would have introduced and whether
a jury would find it persuasive. Id. The Eleventh Circuit additionally assessed “the
evidence actually presented to the sentencing jury, because a ‘conclusion only
weakly supported by the record is more likely to have been affected by errors than
one with overwhelming record support.’” Id. at 1452-53 (quoting Strickland, 466
U.S. at 696). The Eleventh Circuit concluded that the sentence “would have been
the same” even if the jury had heard “evidence of a difficult youth, an unsavory

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codefendant, and limited mental capacity” given the “atrocities” the petitioner
admittedly committed. 28 Id. at 1453.
Additionally, the Eleventh Circuit found that this same evidence “would not
be particularly persuasive even had the crime been less egregious.” Id. The Eleventh
Circuit noted that the jury heard about the codefendant’s “connection with
motorcycle gangs” and his influence over the petitioner. Id. While the jury did not
know about the petitioner’s mental condition or his childhood difficulties, the
Eleventh Circuit found nothing to indicate that the petitioner “was suffering any
specific disturbance at the time of the crime” and no witnesses to corroborate that
the petitioner had a troubled youth. Id. at 1453-54. Thus, even though the petitioner
identified specific gaps in his mitigation case because of an insufficient investigation,
habeas relief was inappropriate pre-AEDPA.
Comparing Mashburn’s Rule 32 allegations with the Eleventh Circuit’s
assessment of the sentencing circumstances in Thompson underscores the objective
reasonableness of the ACCA’s prejudicial analysis, rather than detracts from it. For
the most part, Mashburn has not identified what concrete information his mitigation

28

The petitioner’s atrocities in Thompson included “beating the victim with a chain, his fist,
a chair leg, and a billy club” and raping her “with the chair leg and billy club.” 787 F.2d at 1453.
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case lacked due to counsel’s investigatory delay and lack of supervision. 29
Consequently, Mashburn’s generalized mitigation allegations are less compelling
than the petitioner’s reliance on “a difficult youth, an unsavory codefendant, and
limited mental capacity” for resentencing relief in Thompson. And, akin to the
petitioner’s violence against the victim in Thompson, a unanimous jury found that
Mashburn acted atrociously in stabbing and murdering his grandmother and stepgrandfather. Thus, in light of Thompson, the ACCA did not unreasonably conclude
that Mashburn’s allegations were inadequate to undermine confidence in the jury’s
death sentence.
In subclaim B.4, Mashburn cites Neal and Sanders for the proposition that
counsel’s “failure to take an active part in the mitigation investigation” constitutes
ineffective assistance. (Doc. 24 at 35-36 ¶ 135.) However, neither case assists him
with his Strickland habeas burden. Mashburn correctly observes that the Fifth
Circuit criticized trial counsel’s minimal mitigation investigation in Neal. 286 F.3d
at 237 (concluding that “a reasonable attorney would have investigated further and
put on a more compelling defense during sentencing”). But the ACCA affirmed the
dismissal of Mashburn’s investigation allegations for lack of actionable Strickland

29

As mentioned supra, the ACCA found that Mashburn’s pediatric records were the sole
exception in terms of documents that he specifically identified. Mashburn II, 148 So. 3d at 1138.
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prejudice as opposed to performance. And Mashburn does not address Neal’s
prejudice-prong holding that denied the petitioner resentencing relief consistent
with AEDPA’s deferential unreasonable application standard: “We thus hold that
the state court’s prejudice determination was not objectively unreasonable, viewed
in the context of the extreme cruelty of the murder as an aggravating circumstance
and that much of the mitigating evidence had already been presented to the jury,
albeit in an abbreviated form.” Neal, 286 F.3d at 247; see also Cave v. Dep’t of Corr.,
638 F.3d 739, 744 (11th Cir. 2011) (explaining that habeas review is “not a substitute
for ordinary error correction through appeal . . . . [but is] condition[ed] [upon a]
show[ing] that the state court’s ruling . . . was so lacking in justification that there
was an error well understood and comprehended in existing [Supreme Court] law . .
. .”) (internal quotation marks omitted).
Although the Ninth Circuit found sufficient evidence of prejudice to support
habeas relief in Sanders, counsel’s investigatory ineffectiveness occurred during the
guilt phase and involved an omitted confession of a third party whom several state
witnesses had identified as the “‘real’” shooter. 21 F.3d at 1461. Consequently,
counsel’s “gross misconduct carried severe consequences for his client, who,
though possibly innocent, was convicted of murder” and made “[t]he answer to the
prejudice inquiry . . . evident.” Id. Mashburn’s ineffective investigatory assistance
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allegations do not implicate an overlooked third party who confessed to murdering
his grandmother and step-grandfather or otherwise approach gross attorney
misconduct. Thus, Sanders is simply too different factually to establish that
fairminded jurists would not disagree about the correctness of the ACCA’s
application of Strickland to Mashburn’s incomplete investigation subclaims. See
Shinn, 141 S. Ct. at 526 (explaining that an AEDPA petitioner must show “the sort
of ‘extreme malfunctio[n] in the state criminal justice syste[m]’ that would permit
federal court intervention.” (quoting Richter, 562 U.S. at 102)).
b.

Remaining Prescribed Medication Allegations

Finally, the Court considers Mashburn’s exhausted penalty-phase allegations
in subclaim B.5 that his counsel should have taken reasonable steps to make sure that
he stopped taking prescribed medication before trial—80 milligrams of Elavil twice
daily, 10 milligrams of Valium twice daily, and 80 milligrams of Inderal daily. (Doc.
24 at 36-39 ¶¶ 136-150.) Following the circuit court decision, the ACCA divided
subclaim B.5 into five areas of alleged Strickland ineffectiveness: i) raising no
objection when the trial court “asked [Mashburn] whether he wanted to be taken off
of his medication” prior to diagnostic testing, Mashburn II, 148 So. 3d at 1142
(internal quotation marks omitted); ii) “failing to advocate that [Mashburn] be
weaned off of his prescribed medication” to avoid symptoms that limited his ability
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to assist in his defense, id. (internal quotation marks omitted); iii) preventing Dr.
Shaffer from “performing a full and extensive psychological evaluation [of
Mashburn] because of . . . [the] medication,” id. at 1143 (internal quotation marks
omitted0; iv) allowing Mashburn to continue taking ineffective medication that
exacerbated his bipolar disorder, id.; and v) overlooking the negative behavioral side
effects from a “discontinuous administration of Valium to . . . Mashburn[,]” id.
(internal quotation marks omitted).
The circuit court dismissed these allegations as inadequate to show deficient
performance and prejudice under Strickland. Mashburn II, 148 So. 3d at 1142-43; (see
also Doc. 30-29 at 104 ¶ 29.) The ACCA quoted extensively from the circuit court’s
decision and approved the analysis. 148 So. 3d at 1142-43. Consistent with the circuit
court’s reasoning, the ACCA highlighted that Mashburn’s failure to identify “what
objection he believed counsel should have made that would have resulted in the trial
court changing its ruling, postponing the trial, and allowing Mashburn to be weaned
off his medication over time” was inadequate to show ineffectiveness. Mashburn II,
148 So. 3d at 1143. The ACCA noted that without identifying “what part of the
evaluation Dr. Shaffer could not perform or what the results of that part of the
evaluation would have been had Mashburn been taken off his medication[,]” his
diagnostic testing allegations were insufficient to state a Strickland claim. Id. The
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ACCA underscored that Mashburn’s lack of specificity concerning whether “he
suffered from mood instability, rebound irritability, . . . initial behavioral
disinhibition” or other symptoms, rendered inadequate his claim that medicinal side
effects hampered his defense and “‘prevented [him] from expressing his remorse or
contrition to the jury[.]’” Id. The ACCA concluded that dismissing these allegations
summarily was appropriate because “Mashburn failed to plead sufficient facts to
indicate that his counsel were ineffective for not adequately advocating that he be
weaned off his medications before trial[.]” Id.
Respondents maintain that Mashburn cannot obtain habeas relief based on the
allegations of subclaim B.5 because “the ACCA correctly applied the Strickland
standard” in a manner that “was not unreasonable” under § 2254(d)(1). (Doc. 32 at
72-73 ¶ 33.) In reply, Mashburn does not challenge Respondents’ AEDPA position,
mention the prescribed medication allegations, or cite cases that undermine the
ACCA’s decision. (Doc. 40 at 13-15.) Consequently, through his silence, Mashburn
has abandoned these Strickland allegations.
Mashburn has not shown an unreasonable application based on his petition
either. With respect to subclaim B.5, Mashburn simply restates the medication
allegations that he raised in state court and cites no cases. (Doc. 24 at 36-39 ¶¶ 136150.) And none of the authorities that Mashburn included in the introduction to
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Claim B involves alleged ineffectiveness attributable to a petitioner’s medication
regimen. (Doc. 24 at 18 ¶ 61.) Consequently, those decisions do not establish that
the ACCA’s resolution of these Strickland claims is subject to AEDPA’s exceptions
under (d)(1) or (d)(2). Therefore, the Court dismisses the remainder of Claim B as
abandoned or unproven.
D.

Alleged Trial Court Boykin Violation

Mashburn alleges in Claim I that the trial court committed constitutional error
because it “did not advise [him] that he had the right to withdraw his guilty plea
within thirty days of its entry.” (Doc. 24 at 71; Doc. 40 at 13.) Mashburn contends
also that the waiver of his right against self-incrimination and guilty pleas are void
because the trial court did not “inform [him] of the rights he was waiving and [did
not] ascertain[] that he understood all those rights[.]” (Doc. 40 at 13.) Boykin—
considered already in conjunction with Respondents’ waiver defense to all guiltphase Strickland allegations in Claim A and Mashburn’s procedurally defaulted
guilty plea allegation in subclaim B.5—is the only authority that Mashburn
references to support this claim. (Doc. 24 at 71-72; Doc. 40 at 13.)
Respondents assert that Mashburn cannot demonstrate a state court denial
that meets one of § 2254’s exceptions given the ACCA’s rejection of these
allegations on appeal. (Doc. 32 at 159-160 ¶ 52; see generally Mashburn I, 7 So. 3d at
107

462-63). Respondents answer also that Mashburn has not satisfied his burden under
§ 2254(e)(1)’s presumption of correct state court factual findings and § 2254(e)(2)’s
evidentiary hearing requirements. (Doc. 32 at 160 ¶ 52.) In reply, Mashburn does
not meet Respondents’ answer head on but reasserts Boykin and characterizes the
trial court’s alleged guilty plea errors as actions which “compounded” his trial
counsel’s ineffective assistance during the guilt phase. (Doc. 40 at 13.)
The Court accepts, for analysis purposes, that Mashburn’s mention of Boykin
in reply is sufficient to trigger a more thorough habeas review than what a complete
abandonment analysis requires. Still, Mashburn’s response does not save this claim
from a § 2254(d) dismissal.
The ACCA explained that Alabama Rule of Criminal Procedure 14.4(e)
refuted Mashburn’s claim that the trial court failed to advise him of the “right” to
withdraw a guilty plea within 30 days. Mashburn I, 7 So. 3d at 463 (emphasis in
original). Specifically, Rule 14.4(e) “allow[s] [the] withdrawal of a plea of guilty
when necessary to correct a manifest injustice.” Ala. R. Crim. P. 14.4(e).
Additionally, the ACCA observed that permitting a defendant to withdraw a guilty
plea “is a matter solely within the discretion of the trial court[.]” Mashburn I, 7 So.
3d at 463 (internal quotation marks omitted) (quoting Alford v. State, 651 So. 2d 1109,
1112 (Ala. Crim. App. 1994)). Thus, consistent with the ACCA’s analysis, Alabama
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does not afford a defendant with an unfettered right to withdraw a guilty plea. The
Court’s prior discussion of Boykin, supra, confirms that a defendant may challenge
his guilty plea as unconstitutional if, during that process, the trial court fails to
explain and make sure that a defendant understands the federal constitutional rights
that he is forfeiting. But Boykin sheds no light on whether a trial court acts
unconstitutionally if it fails to inform a defendant of a state law right to seek a guiltyplea withdrawal based on manifest injustice. (See Doc. 32 at 158 ¶ 52) (characterizing
“the federal nature of this claim [a]s tenuous”).
Additionally, the record substantiates that the trial court advised Mashburn of
his Boykin rights during the plea hearing as this Court explained when analyzing his
comparable ineffective assistance of trial counsel allegations involving his guilty
pleas. (Doc. 30-6 at 103-110.) Consequently, Mashburn’s contention that the waiver
of his right against self-incrimination and guilty pleas are void because of the trial
court’s Boykin errors is baseless. Thus, Mashburn has not shown that the ACCA
denied this claim in a manner that contradicts or unreasonably applies Supreme
Court precedent.30

30

Likewise, in the absence of citing the state court record to challenge any factual
determinations, Mashburn has abandoned or failed to prove a § 2254(d)(2) avenue to habeas relief
based on Claim I’s allegations.
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E.

Evidentiary Hearing Request

As noted in the procedural history, the Court denied without prejudice
Mashburn’s motion for an evidentiary hearing under Rule 8 of the Rules Governing
§ 2254 Cases and stated that it would assess that request “during its substantive
review of the petition.” (Doc. 41 at 2.) Rule 8 provides that “[i]f the petition is not
dismissed, the judge must review the answer, any transcripts and records of statecourt proceedings, and any materials submitted under Rule 7 to determine whether
an evidentiary hearing is warranted.” Rule 7 allows a habeas court to “direct the
parties to expand the record by submitting additional materials relating to the
petition.”
Recently, the Eleventh Circuit clarified that “[i]f . . . the petitioner was
diligent [in state court], ‘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.’” Ledford v. Warden, Ga. Diagnostic
Prison, 975 F.3d 1145, 1163 (11th Cir. 2020) (quoting Schriro, 550 U.S. at 474). A nondiligent petitioner “must satisfy the conditions of § 2254(e)(2)” to obtain an
evidentiary hearing. Id. The court added that an abuse of discretion standard applies
when a district court denies an evidentiary hearing on a procedurally-defaulted
claim. Id.
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With the exception of one procedurally-defaulted ineffectiveness allegation,
the substance of Mashburn’s Rule 32 and § 2254 assertions are the same. Akin to the
ACCA’s assessment of Mashburn’s exhausted Rule 32 allegations, this Court finds
that Mashburn’s § 2254 allegations, even accepted as true, lack the requisite factual
and legal specificity to substantiate an entitlement to habeas relief. And with respect
to his unexhausted guilty-plea ineffective assistance of counsel claim, Mashburn
does not pursue an exception to procedural default or contend in his motion or reply
that an evidentiary hearing is necessary to overcome a procedural dismissal.
Instead, Mashburn vaguely maintains in his motion that he has sufficiently
alleged constitutional violations based on ineffective assistance during “both the
guilt . . . and penalty phase[s] of his capital murder trial (doc. 25 at 3-4 ¶ 14) and
“seeks a hearing to allow him the opportunity to submit evidence in support of his
allegations” (id. at 4 ¶ 16). Although in reply Mashburn reasserts his request for an
evidentiary hearing and cites the Eleventh Circuit’s Martinez and Porter decisions,
supra, as support (doc. 40 at 15-18), he fails to detail which allegations would benefit
from evidentiary development given AEDPA’s deferential framework and his
procedural default. Likewise, Mashburn does not explain why Martinez or Porter
supports his evidentiary hearing request. Nor does either authority persuade this
Court to hold an evidentiary hearing.
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The Eleventh Circuit assumed in Martinez that the petitioner had
“exercise[d] appropriate diligence” in state court and upheld the district court’s
denial of a habeas hearing because the record either “refuted” his habeas allegations
or his allegations “d[id] not demonstrate” ineffective guilt-phase assistance.
Martinez, 684 F. App’x at 926. This Court has found similar record refutations of
allegations and pleading inadequacies in Mashburn’s petition. Thus, Martinez
bolsters the Court’s decision to forgo a hearing.
Because Porter is a pre-AEDPA case, the Eleventh Circuit remanded for an
evidentiary hearing without considering § 2254’s deferential standards. PostAEDPA, this Court must consider § 2254’s deferential impact when a petitioner
seeks a hearing. See Martinez, 648 F. App’x at 926 (“‘Because the deferential
standards prescribed by § 2254 control whether to grant habeas relief, a federal court
must take into account those standards in deciding whether an evidentiary hearing is
appropriate.’” (quoting Boyd, 592 F.3d at 1304; quoting in turn Schriro, 550 U.S. at
474)).
Thus, consistent with the conclusion that Mashburn has not shown that the
ACCA reached a decision that contradicted or unreasonably applied Supreme Court
precedent and the alternative reasons supporting a dismissal of Mashburn’s petition,
the Court denies Mashburn’s motion for an evidentiary hearing with prejudice. See
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Martinez, 648 F. App’x at 926 (“[T]he district court need not conduct an evidentiary
hearing if the record refutes the petitioner’s factual allegations, otherwise prevents
habeas relief, or conclusively demonstrates that the petitioner was not denied
effective assistance of counsel.” (citing Schriro, 550 U.S. at 474)). 31
IV.

CONCLUSION
For all of the reasons set forth herein, Mashburn’s petition for writ of habeas

corpus is due to be dismissed, or in the alternative denied.
Rule 11(a) of the Rules Governing § 2254 Cases requires the district court to
issue or deny a certificate of appealability when it enters a final order adverse to the
applicant. This Court may issue a certificate of appealability “only if the applicant
has a made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurist would find the district court’s assessment of the constitutional
claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. at 336 (internal quotation marks omitted). This Court

31

Because the Court finds that holding an evidentiary hearing would be futile based on the
habeas record, determining “whether or not [Mashburn] pursued his . . . claim[s] diligently” in
state court is unnecessary. Ledford, 975 F.3d at 1163-64.
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finds Mashburn’s claims do not satisfy either standard. Accordingly, a motion for a
certificate of appealability is due to be denied.
A separate order in accordance with this opinion will be issued.
DONE and ORDERED on March 31, 2021.

_____________________________
L. Scott Coogler
United States District Judge
160704

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