Giles v. Alabama Department of Corrections et al

Filing 92

MEMORANDUM OPINION and ORDER that Giles's first motion to alter or amend the judgment is DENIED; Giles's second motion to alter or amend the judgment is GRANTED, and the factual errors contained in the Opinion are AMENDED as expressly set out in this Opinion as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/14/2016. (AHI)

FILED
2016 Apr-14 PM 02:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTHUR LEE GILES,
Petitioner,
vs.
CARTER DAVENPORT,[1] Warden,
Respondent.

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Case No. 2:06-cv-0348-CLS-TMP

MEMORANDUM OPINION AND ORDER ON RULE 59(e) MOTION TO
ALTER OR AMEND JUDGMENT
This court entered a memorandum opinion and order on April 3, 2013, denying the
petition for writ of habeas corpus filed by Arthur Lee Giles pursuant to 28 U.S.C. §
2254, and seeking relief from his state court conviction for capital murder and death
sentence.2

Giles subsequently filed, pursuant to Federal Rule of Civil Procedure 59(e),

a timely motion to alter or amend that judgment.3

The following day, he filed a second

motion, asserting additional grounds for the same relief.4

Following consideration of the

1

Carter Davenport was substituted for Grant Culliver as defendant because Myers is the
current Warden of the State of Alabama’s Holman Correctional Facility, at which petitioner is housed.
See Fed. R. Civ. P. 25(d) (providing that, when a public official who is named as a party in an official
capacity ceases to hold office while the action is pending, “the officer’s successor is automatically
substituted as a party”).
2

See doc. nos. 68 (Memorandum Opinion Denying Habeas Relief) and 69 (Order Denying
Habeas Relief).
3

See doc. no. 70 (Motion to Alter or Amend Judgment).

4

See doc. no. 71 (Second Motion to Alter or Amend Judgment).
1

motions and the parties’ briefs, 5 this court concludes that both motions are due to be
denied.
I. STANDARD OF REVIEW
No specific grounds for relief are stated in Federal Rule of Civil Procedure 59(e),
which addresses motions to alter or amend a judgment. Instead, the rule provides only
that such motions “must be filed no later than 28 days after the entry of the judgment.”
Fed. R. Civ. P. 59(e).

Consequently, the standards for ruling upon such motions are

found in case law, which generally holds that the decision of whether to alter or amend
a judgment is committed to the sound discretion of the district court.

See, e.g.,

American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237,
1238-39 (11th Cir. 1985).6

Even so, the Eleventh Circuit has said that “‘[t]he only

5

See doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims); doc. no. 88 (Response to Giles’s Motion to Alter or Amend
the Judgment, Supplemental Authorities, and Allegations of Cause and Prejudice to Overcome
Procedural Default of Ineffective Assistance of Counsel Claims); and doc. no. 91 (Petitioner’s Reply
Brief in Support of Motion to Alter or Amend Judgment and Reply Brief Regarding “Cause” and
“Prejudice” to Excuse Procedural Defaults of Certain Claims). The court notes that petitioner filed a
brief on August 22, 2013, and a second brief on September 3, 2013, while simultaneously requesting an
extension of time to file his initial brief. See doc. nos. 77 (Brief of Petitioner Showing “Cause” Under
Martinez/Trevino and Requesting Limited Extension of Time to Complete Briefing on “Prejudice”) and
79 (Petitioner’s Brief Showing “Cause” and “Prejudice” to Excuse Procedural Defaults of Certain
Claims). The motion for extension of time was granted, and Giles’s counsel was allowed additional time
to file his initial brief. See doc. no. 80 (Order Granting Motion for Extension of Time). Giles ultimately
filed his initial brief in a timely manner, but exceeded the page limitation. See doc. no. 82. Even so, the
brief has been considered.
6

See also, e.g., Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998) (holding that
a district court’s discretionary denial of a Rule 59(e) motion “is ‘especially soundly exercised when the
party has failed to articulate any reason for the failure to raise the issue at an earlier stage in the

2

grounds for granting [a Rule 59] motion are newly discovered evidence or manifest
errors of law or fact.’” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting
In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)) (first alteration supplied, second
alteration in original); see also, e.g., United States v. Marion, 562 F.3d 1330, 1335
(11th Cir. 2009) (same).

Rule 59(e) may not be used “to relitigate old matters, raise

argument or present evidence that could have been raised prior to the entry of judgment.”
Arthur, 500 F.3d at 1343 (quoting Michael Linet, Inc. v. Village of Wellington, Florida,
408 F.3d 757, 763 (11th Cir. 2005)); see also, e.g., Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 957 (11th Cir. 2009) (same). Finally, a judgment should not be altered
or amended if doing so would serve no useful purpose.

11 Wright, Miller & Kane,

Federal Practice and Procedure § 2810.1 (2d ed. 1995).7
II. DISCUSSION OF ISSUES RAISED IN GILES’S INITIAL
MOTION TO ALTER OR AMEND THE JUDGMENT
A.

Ineffective Assistance of Pos t-Conviction Counsel Pursuant to Martinez and
Trevino8
As explained in the Memorandum Opinion previously entered in this case, a

litigation”) (quoting O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992)).
7

Quod vanum et inutile est, lex non requirit (“The law does not require what is vain and
useless”), sometimes stated as lex neminem cogit ad vana seu inutilia peragenda (“The law does
not require anyone to do vain or useless things”).
8

See doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims); doc. no. 91 (Petitioner’s Reply Brief in Support of Motion to
Alter or Amend Judgment and Reply Brief Regarding “Cause” and “Prejudice” to Excuse Procedural
Defaults of Certain Claims).

3

federal court cannot grant habeas relief to a state prisoner unless the petitioner has first
exhausted his state court remedies.

“‘In other words, the state prisoner must give the

state courts an opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition.’”9
When a state prisoner fails to present a federal constitutional claim in the state
courts in a timely and proper manner, resulting in the state court’s refusal to address the
merits of the claim based on state procedural rules or principles, a federal habeas court
also is precluded from addressing the claim — unless: (1) the state prisoner shows both
(a) cause for failing to comply with the state’s procedural rules, and (b) actual prejudice
as a result of having failed to do so, or (2) the prisoner presents evidence showing that
the federal court’s failure to consider the claim would result in a fundamental
miscarriage of justice. See, e.g., Coleman v . Thompson, 501 U.S. 722, 749-50 (1991);

9

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), ¶ IV.A., at 27 (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (in turn citing Ex parte Royall, 117 U.S. 241, 251
(1886), and 28 U.S.C. § 2254(b)(1))). 28 U.S.C. § 2254(b)(1) reads as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted unless it appears
that—
(A) the applicant has exhausted the remedies available in the courts of
the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.

4

Harris v. Reed, 489 U.S. 255, 262-63 (1989); Wainwright v. Sykes, 433 U.S. 72, 81-88
(1977).
This so-called “procedural default doctrine” bars habeas review of state court
rejections of a state prisoner’s federal constitutional claims when three circumstances
converge: i.e., (i) the last state court to review the claim (ii) states clearly and expressly
that its disposition of the claim rests on a state-law procedural rule; and (iii) the state-law
ground “is independent of the federal question and adequate to support the judgment.”
Coleman, 501 U.S. at 729 (emphasis supplied); see also, e.g., Harris, 489 U.S. at 26263; Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991).
Constitutionally ineffective assistance of counsel typically can serve as “cause”
to excuse a procedural default, unless the attorney’s errors occurred during postconviction collateral proceedings in state court. That exception is based upon the general
rule that “[t]here is no constitutional right to an attorney in state post-conviction
proceedings.” Coleman, 501 U.S. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551
(1987); Murray v. Giarratano, 492 U.S. 1 (1989) (applying the rule to capital cases))
(alteration supplied); see also id. at 755 (“Finley and Giarratano established that there
is no right to counsel in state collateral proceedings.”); id. at 757 (“Because Coleman
had no right to counsel to pursue his appeal in state habeas [i.e., state post-conviction
collateral proceedings], any attorney error that led to the default of Coleman’s claims in

5

state court cannot constitute cause to excuse the default in federal habeas.”) (alteration
supplied).10
As is often the case in Supreme Court jurisprudence, however, there is an
exception to the exception. The Supreme Court’s opinion in Coleman v . Thompson left
open the question of whether a prisoner has a right to effective counsel in state postconviction collateral proceedings that provide the first occasion to raise a claim of

10

As the Supreme Court observed in Martinez v. Ryan, – U.S. –, 132 S. Ct. 1309 (2012):

Federal habeas courts reviewing the constitutionality of a state prisoner’s
conviction and sentence are guided by rules designed to ensure that state-court
judgments are accorded the finality and respect necessary to preserve the integrity of
legal proceedings within our system of federalism. These rules include the doctrine of
procedural default, under which a federal court will not review the merits of claims,
including constitutional claims, that a state court declined to hear because the prisoner
failed to abide by a state procedural rule. See, e.g., Coleman, supra, at 747–748, 111
S. Ct. 2546; Sykes, supra, at 84-85, 97 S. Ct. 2497. A state court’s invocation of a
procedural rule to deny a prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a nonfederal ground adequate to
support the judgment and the rule is firmly established and consistently followed. See,
e.g., Walker v. Martin, 562 U.S. –, –, 131 S. Ct. 1120, 1127–1128, 179 L. Ed. 2d 62
(2011); Beard v. Kindler, 558 U.S. –, –, 130 S. Ct. 612, 617–618, 175 L. Ed. 2d 417
(2009). The doctrine barring procedurally defaulted claims from being heard is not
without exceptions. A prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law. See
Coleman, 501 U.S., at 750, 111 S. Ct. 2546. . . .
Coleman held that “[n]egligence on the part of a prisoner’s postconviction
attorney does not qualify as ‘cause.’” Maples v. Thomas, 565 U.S. –, –, 132 S. Ct.
912, 922, 181 L. Ed. 2d 807 (2012). Coleman reasoned that “because the attorney is
the prisoner’s agent . . . under ‘well-settled principles of agency law,’ the principal
bears the risk of negligent conduct on the part of his agent.” Maples, supra, at 922,
132 S. Ct., at 922.
Martinez, 132 S. Ct. at 1316 (alteration in original, first ellipses supplied, second ellipses in original).

6

ineffective assistance of trial counsel.
“initial-review collateral proceedings.”

Such proceedings have been described as

Coleman suggested, but did not hold, that the

Constitution may require states to provide

counsel

in

initial-review collateral

proceedings because those proceedings are “the first place a prisoner can present a
challenge to his conviction.”

Coleman, 501 U.S. at 755.11

Thus, an initial-review

collateral proceeding effectively constitutes a state prisoner’s “one and only appeal” of
a claim that his trial attorney was ineffective, id. at 756, thereby potentially justifying an
exception to the rule that there is no constitutional right to counsel in collateral

11

See Martinez v. Ryan, 132 S. Ct. at 1316, where the Supreme Court observed that

Coleman, however, did not present the occasion to apply this principle to
determine whether attorney errors in initial-review collateral proceedings may qualify
as cause for a procedural default. The alleged failure of counsel in Coleman was on
appeal from an initial-review collateral proceeding, and in that proceeding the prisoner’s
claims had been addressed by the state habeas trial court. See 501 U.S., at 755, 111
S. Ct. 2546.
As Coleman recognized, this marks a key difference between initial-review
collateral proceedings and other kinds of collateral proceedings. When an attorney errs
in initial-review collateral proceedings, it is likely that no state court at any level will
hear the prisoner’s claim. This Court on direct review of the state proceeding could not
consider or adjudicate the claim. See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207,
56 S. Ct. 183, 80 L. Ed. 158 (1935); Murdock v. Memphis, 20 Wall. 590, 22 L. Ed. 429
(1875); cf. Coleman, supra, at 730-731, 111 S. Ct. 2546. And if counsel’s errors in an
initial-review collateral proceeding do not establish cause to excuse the procedural
default in a federal habeas proceeding, no court will review the prisoner’s claims.
The same is not true when counsel errs in other kinds of postconviction
proceedings. While counsel’s errors in these proceedings preclude any further review
of the prisoner’s claim, the claim will have been addressed by one court, whether it be
the trial court, the appellate court on direct review, or the trial court in an initial-review
collateral proceeding. See, e.g., Coleman, supra, at 756, 111 S. Ct. 2546.

7

proceedings. See id. at 755; Douglas v. California, 372 U.S. 353, 357 (1963) (holding
that states must appoint counsel on a prisoner’s first appeal of trial errors).12
The Supreme Court carved out such an exception in Martinez v. Ryan, – U.S. –,
132 S. Ct. 1309 (2012), saying that:
To protect prisoners with a potentially legitimate claim of ineffective
assistance of trial counsel, it is necessary to modify the unqualified
statement in Coleman that an attorney’s ignorance or inadvertence in a
postconviction proceeding does not qualify as cause to excuse a procedural
default.
This opinion qualifies Coleman by recognizing a narrow
exception: Inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of
a claim of ineffective assistance at trial.
Id. at 1315 (emphasis supplied); see also id. at 1320 (“Where, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.”).

12

As the Supreme Court observed in Martinez v. Ryan, 132 S. Ct. at 1317:

Where . . . the initial-review collateral proceeding is the first designated
proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral
proceeding is in many ways the equivalent of a prisoner's direct appeal as to the
ineffective-assistance claim. This is because the state habeas court “looks to the merits
of the clai[m]” of ineffective assistance, no other court has addressed the claim, and
“defendants pursuing first-tier review . . . are generally ill equipped to represent
themselves” because they do not have a brief from counsel or an opinion of the court
addressing their claim of error. Halbert v. Michigan, 545 U.S. 605, 617, 125 S. Ct.
2582, 162 L. Ed. 2d 552 (2005); see Douglas, 372 U.S., at 357–358, 83 S. Ct. 814 [
alteration in original].

8

The

Martinez Court elaborated its rationale as follows:
Allowing a federal habeas court to hear a claim of ineffective assistance of
trial counsel when an attorney’s errors (or the absence of an attorney)
caused a procedural default in an initial-review collateral proceeding
acknowledges, as an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel, may
not have been sufficient to ensure that proper consideration was given to
a substantial claim. From this it follows that, when a State requires a
prisoner to raise an ineffective-assistance-of-trial-counsel claim in a
collateral proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where the
state courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second is
where appointed counsel in the initial-review collateral proceeding, where
the claim should have been raised, was ineffective under the standards of
Strickland v . Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).[13] To overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit. Cf. Miller–El v. Cockrell, 537 U.S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for certificates of

13

The Court’s opinion in Strickland established a two-pronged standard for judging, under the
Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct
appeal.
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.
Strickland, 466 U.S. at 687 (emphasis supplied); see also, e.g., Williams v. Taylor, 529 U.S. 362, 390
(2000) (same); Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001) (same).

9

appealability to issue).
Martinez, 132 S. Ct. at 1318-19.14
The Supreme Court’s opinion in Trevino v. Thaler, – U.S. –, 133 S. Ct. 1911
(2013), extended the Martinez exception to situations in which a state’s procedural
framework, by reason of its design and operation, makes it highly unlikely in a typical
case that a defendant will have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal. Trevino, 133 S. Ct. at 1921.
Giles relies upon Martinez and Trevino to assert that he can overcome the
procedural default of several of his ineffective assistance of trial counsel claims due to
the following circumstances.15
Giles filed an initial Rule 32 petition for collateral review in the state trial court,
and amended the petition twice.16

The Rule 32 court subsequently held an evidentiary

hearing at which both testimonial and documentary evidence was presented.17 During that
hearing, Giles’s

14

See also doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 35-38 (discussing
Martinez).
15

Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 3-30; doc. no. 91 (Petitioner’s Reply Brief in Support of
Motion to Alter or Amend Judgment and Reply Brief Regarding “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 14-25.
16

Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 2.
17

Id.

10

state post-conviction counsel recognized that Petitioner had to amend his
Rule 32 petition to conform the petition to the evidence presented at the
evidentiary hearing. See, e.g., Rule 32 R. Vol. 33, at 8, 36. The Rule 32
court agreed and directed the Petitioner to file an amended petition
conforming the pleadings to the evidence within 33 days after the mailing
of the hearing transcripts. Rule 32 C.R. Vol. 37, at 596. The transcripts
were mailed in November 1999, and state post-conviction counsel advised
the court that Petitioner would file his Third Amended Petition by
December 21, 1999. Rule 32 C.R. Vol. 37, at 599.
Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 3.

Despite that representation, Giles’s state

post-conviction counsel did not file his third amended Rule 32 petition until August 14,
2000, which also happened to be the same day on which the trial court entered its
judgment denying the claims asserted in Giles’s second amended Rule 32 petition.
Consequently, “the state courts did ‘not consider the allegations contained in [Giles’s
third amended Rule 32] petition because they were never properly before the circuit
court.’”18

In other words, the claims asserted in the third amended petition were

procedurally defaulted.
According to Giles, there is “cause” to excuse the procedural default of each of
those claims because his post-conviction counsel “suffered a period of severe depression
beginning in 1999 and lasting into 2000 — the time during which she was working on the

18

Id. at 3 (quoting Giles v. State, 906 So. 2d 963, 973 (Ala. Crim. App. 2004)) (alteration

supplied).

11

Third Amended Petition.”19

Giles also asserts that he was prejudiced by his attorney’s

failure to comply with the State’s procedural rules because of his inability to present the
following claims:
1.

The claim that 1991 sentencing counsel labored under a conflict of
interest20

Giles asserts that the court should consider his “Sixth Amendment actualineffectiveness claim based on the conflict of interest between [his own] interests and
his [trial] lawyers’ pecuniary interests created by a [state] statutory limit of 50 hours of
compensation for out-of-court work.”21

Giles’s amended habeas petition, however, did

not contain an allegation of conflict of interest between him and his trial lawyers growing
out of Alabama’s statutory caps on attorney compensation.

Instead, the claim reads in

its entirety as follows:

19

Id. at 4-5 (citing Exhibits A & B, the affidavits of post-conviction counsel Angela Phinney
and psychotherapist Nan D. Stromberg). Mrs. Phinney attests she has suffered from depression since
college, and between 1999 and 2000 the condition rendered her “unable to work or concentrate for long
periods of time,” although she admits she did not seek professional help until 2005. Doc. no 82-1
(Affidavit of Angela Phinney), at ¶¶ 4-9. Ms. Stromberg began treating Mrs. Phinney in 2005, and
attests Phinney suffers from “Major Depressive Disorder, Recurrent.” Doc. no. 82-2 (Affidavit of Nan
Stromberg), at ¶¶ 4-5. Stromberg has “regularly and continually had sessions” with Phinney on a
weekly basis and Phinney “is on an aggressive treatment regime to treat her depression.” Id.
20

See doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 6-13; doc. no. 91 (Petitioner’s Reply Brief in Support of
Motion to Alter or Amend Judgment and Reply Brief Regarding “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 23-25.
21

Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 6 (alterations and emphasis supplied) (citing doc. no. 45
(First Amended Unified Petition for Writ of Habeas Corpus Seeking Relief from Unconstitutional Trial
and Conviction of Capital Murder and Sentence of Death), at 109-110).

12

(37) Sixth Amendment Right to Counsel Violated by Alabama Limits on
Court Appointed Compensation
APPLICATION OF 28 U.S.C. § 2254: This claim was raised in state
post-conviction at Vol 43 Tab #R-69 pp. 723-725; Vol 52 Tab #R-71 p.
110.
U.S. SUPREME COURT PRECEDENT: Gideon v. Wainwright, 372
U.S. 335, 342 (1963).
364. At the time of Giles’ trial in 1991, the State of Alabama
severely limited compensation for attorneys appointed by the court to
represent criminal defendants charged in capital cases. Alabama Code §
15-12-21 (1975).
Arthur Giles was represented by court-appointed
attorneys at his sentencing trial.
The lead counsel in Giles’ 1991
sentencing trial, Herb Sparks, recalled he was appointed by Judge Holladay
when Sparks was sitting in the courtroom for criminal docket call. Vol 33
Tab #R-60 p. 49. Though he was lead counsel, this was Sparks’ first capital
murder case. Id. at pp. 114-115.
365. The attorneys did not conduct any investigation whatsoever.
Counsel’s timesheets indicated only 3 hours were spent on “investigation,”
and Herb Sparks testified that time was spent driving by the Nelson’s [sic]
old farm 11 years after the crime. Vol 54 Ex 6. These records indicate
counsel was paid a total of $3,064.05, $1860 for time in court and $1000
for out of court. [sic] Vol 54 Ex 6.
Doc. no. 45 (First Amended Unified Petition for Writ of Habeas Corpus Seeking Relief
from Unconstitutional Trial and Conviction of Capital Murder and Sentence of Death),
at 109-110 (capitalization and other emphasis in original).
The text of those paragraphs cannot reasonably be construed to raise a claim for
ineffective assistance of trial counsel based upon a theory of counsel’s pecuniary
conflict of interest.

Nor can Giles’s citation to Gideon v. Wainwright, which only
13

invokes the Supreme Court’s holding “that the Fourteenth Amendment makes the Sixth
Amendment’s guarantee of right to counsel obligatory upon the States.”

Pointer v.

Texas, 380 U.S. 400, 401 (1965) (citing Gideon, 372 U.S. at 342). Because Giles did
not raise the pecuniary conflict of interest theory in his amended habeas petition, he
cannot now avail himself of Martinez in an effort to seek review of that claim.
Moreover, even if the court were to consider Giles’s argument as part of a more
general ineffective-assistance-of-counsel claim, it would not succeed.

This court found

Giles’s ineffective assistance claim on these grounds to be procedurally defaulted
because “the Alabama Court of Criminal Appeals would ‘not consider the allegations
contained in [the third amended] petition because they were never properly before the
circuit court.’”22 This court also conducted a de novo review of this claim, and found it
to be meritless because Giles did “not attempt to show how the compensation limits
actually adversely impacted his defense.

Strickland requires a showing of both a

professionally unreasonable error by counsel and prejudice to the defense caused by that
error. Under that theory, Giles has shown neither.”23
In summary, Giles’s reliance on Martinez is a moot point, and his post-judgment

22

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 297-98 (quoting Giles v.
State, 906 So. 2d at 973) (alteration supplied).
23

Id. at 297 (emphasis in original).

14

arguments and theories concerning the Strickland standard24 either were or could have
been raised prior to judgment. There are no material errors of law or fact in connection
with the decision on this claim.
2.

The claim that 1991 sentencing counsel faile d to investigate Giles’s
background25

Giles cannot rely upon Martinez for this claim either, because the claim was not
procedurally defaulted.

Instead, this court found the claim to be without merit after

conducting a 28 U.S.C. § 2254(d) review of the Rule 32 court’s dismissal of the claim
for lack of specificity pursuant to Alabama Rules of Criminal Procedure 32.3 and
32.6(b).26

Additionally, and consistent with the pre-judgment position Giles himself

took,27 this court conducted a 28 U.S.C. § 2254(d) review of the Rule 32 court’s
24

As a matter of note, Giles’s post-judgment argument that his heretofore unarticulated
pecuniary “conflict of interest” theory should have been subjected to Cuyler v. Sullivan’s presumed
prejudice standard — as well as Strickland’s actual prejudice standard — is a non-starter for the
reasons set out in the Memorandum of Opinion. See doc. no. 68 (Memorandum Opinion Denying
Habeas Relief), at 297-98. Further, in Schwab v. Crosby, 451 F.3d 1308, 1327-28 (11th Cir. 2006),
the Eleventh Circuit held that “there is no Supreme Court holding that any kind of presumed prejudice
rule applies outside the multiple representation context” addressed in Cuyler v. Sullivan, 446 U.S. 335
(1980)).
25

Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 13-30; doc. no. 91 (Petitioner’s Reply Brief in Support of
Motion to Alter or Amend Judgment and Reply Brief Regarding “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 14-23.
26

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 249-62.

27

See doc. no. 44 (Brief in Support of First Amended Unified Petition for Writ of Habeas
Corpus Seeking Relief from Unconstitutional Trial and Conviction of Capital Murder and Sentence of
Death), at 90 (citing 28 U.S.C. § 2254(d)(2), and asserting that “[t]his claim was dismissed on grounds
that counsel was aware of this information and decided not to pursue it as a matter of strategy. This
is an utterly unreasonable determination of the facts.”) (alteration supplied); doc. no. 57 (Reply to

15

adjudication of the claim based on the evidence presented to it at the Rule 32 hearing.28
The court has examined Giles’s arguments and finds that he is attempting to relitigate old
matters or to present arguments or evidence that could have been raised prior to
judgment.29 There are no manifest errors of law or fact in the court’s resolution30 of this
issue.
3.

Remaining claims

Giles asserts that post-conviction counsel’s failure

to timely file the third

amended petition “meant that the state courts did not hear the ineffective assistance of
trial counsel claims that were raised or adequately pleaded for the first time in the Third
Amended Petition.”3 1

To support that argument, he cites to several pages of this court’s

Memorandum Opinion denying habeas relief to demonstrate that this court found his

State’s Answer to Unified Habeas Petition), at 76 (asserting that this claim was “fully litigated at Rule
32 and decided on the[] merits”) (alteration supplied).
28

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 258-78. The Rule 32 court
expressly considered the evidence presented at the Rule 32 hearing in its judgment. See Rule 32 C.R.
Vol. 56, Tab. 87 at 85-90, 103-07, 112-115. As admitted by Giles, the purpose of the third amended
complaint was to comport the evidence presented at the Rule 32 hearing. Doc. no. 82 (Petitioner’s
Amended Brief Showing “Cause” and “Prejudice” to Excuse Procedural Defaults of Certain Claims),
at 3. In any event, as set out in the Memorandum Opinion, the factual findings made by the Rule 32
court are entitled to deference, and this court found the claim in Giles’s habeas petition to be without
merit. Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 258-78.
29

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 258-78.

30

Id. at 249-78.

31

Doc. no. 82 (Petitioner’s Amended Brief Showing “Cause” and “Prejudice” to Excuse
Procedural Defaults of Certain Claims), at 3.

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ineffective assistance claims to be procedurally barred.32

He also makes a brief assertion

in a footnote that post-conviction counsel’s diagnosed depression supplies the cause to
overcome the default of the claims, and that certain pages of Giles’s pre-judgment
supporting brief supply the requisite prejudice.33
Giles’s blanket citations to pages of this court’s Memorandum Opinion and a prejudgment supporting brief are wholly inadequate to support a Rule 59 motion, or to
justify a Martinez exception to the procedural default rule. Moreover, with regard to the
singular claim for which this court actually has conducted a Martinez review, the court
found that Martinez did not apply.34

Finally, as discussed in the following section, this

court conducted an alternative de nov o review of each of the other claims identified by
Giles, and found each claim to be without merit.
In summary, none of the other claims identified by Giles warrant review under the
Martinez framework.
B.

Giles ’s Contention That the Court Failed to Apply Controlling Precedent
When Determining Whether Claims Raised for the First Time in His Third
Amended Rule 32 Petition Were Barred by Adequate and Independent State

32

Id. (citing doc. no. 68 (Memorandum Opinion Denying Habeas Relief) at 40-44, 101, 119,
157, 185, 271, 279-80, 282, 294, 296).
33

Id. at 4 n.1 (citing doc. no. 44 (Brief in Support of First Amended Unified Petition for Writ
of Habeas Corpus Seeking Relief from Unconstitutional Trial and Conviction of Capital Murder and
Sentence of Death), at 10, 19, 35, 90, 93, 94, 97).
34

See doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 101-05.

17

Grounds 35
The court has examined Giles’s arguments and finds that he is attempting to
relitigate old matters or to present arguments or evidence that could have been raised
prior to judgment. There are no manifest errors of law or fact in the court’s resolution
of this issue. Moreover, although the court found the claims raised in the third amended
petition to be procedurally defaulted, it alternatively found all but three claims to be
without merit after conducting a de novo review.36
As for the remaining three claims, this court examined the first to determine
whether cause and prejudice were present to overcome the procedural default under
Martinez.

It examined the other two claims to determine whether a procedural default

would result in a miscarriage of justice. Neither exception to the procedural default rule
was found to apply. 3 7

Even if this court were to alternatively conduct a de novo review

of these three claims, the claims would be found to be meritless for the same reasons
that the exceptions to the procedural default rule did not apply.
C.

Giles’s Contention That the Court Misapplied Controlling Precedent When

35

See doc. no. 70 (Motion to Alter or Amend Judgment), at 11-18; doc. no. 82 (Petitioner’s
Amended Brief Showing “Cause” and “Prejudice” to Excuse Procedural Defaults of Certain Claims),
at 2-4; doc. no. 91 (Petitioner’s Reply Brief in Support of Motion to Alter or Amend Judgment and
Reply Brief Regarding “Cause” and “Prejudice” to Excuse Procedural Defaults of Certain Claims), at
1-2, 14-30.
36

See doc. no. 68 (Memorandum Opinion Denying Habeas Relief) at 40-44, 97-100, 119-20,
157-58, 174-87, 236-38, 271-73, 279-80, 282-84, 292-99, 323-25.
37

Id. at 101-05, 163-66, 173-74.

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Determining Whether He Could Show Pre judice Relating to Trial Errors
Affecting the Jury, When the Jury Recommended Life Imprisonment
Without Parole 38
The court has examined Giles’s arguments and finds that he is attempting to
relitigate old matters or to present arguments or evidence that could have been raised
prior to judgment. There are no manifest errors of law or fact in the court’s resolution
of this issue.
D.

Giles’s Contention That the Court Misapprehended Controlling Facts
When Determining that Juror Sharon Elliott Was Not Biased, and,
Missapplied Controlling Law When Concluding That Error Was Harmless 39

The court has examined Giles’s arguments and finds that he is attempting to
relitigate old matters or to present arguments or evidence that could have been raised
prior to judgment. There are no manifest errors of law or fact in the court’s resolution
of this issue.
E.

Giles’s Contention That the Court Misapplied Controlling Precedent When
Determining That the Trial Court’s Reliance on the Presentence
Investigation Report Did Not Violate Petitioner’s Right to Due Process of
Law40
The court has examined Giles’s arguments and finds that he is attempting to

relitigate old matters or to present arguments or evidence that could have been raised

38

Doc. no. 70 (Motion to Alter or Amend Judgment) at 18-35.

39

Id. at 35-46.

40

Id. at 46-57.

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prior to judgment.

There are no manifest errors of law or fact in the court’s resolution

of this issue.
F.

Giles’s Contention That the Court Failed to Recognize and Missapplied
Controlling Precedent When Determining That the Alabama Supreme
Court’s Decision in Ex parte Hays Did Not Violate the Constitution’s Ban
on Ex Post Facto Laws , Be cause the Court (1) Failed to Determine That the
Rule Announced in Ex parte Hays Was Foreseeable in Light of the Law
Expressed at the Time of Giles’s Alleged Criminal Conduct, and, (2) Failed
to Recognize That “Procedural” Changes to the Law Can Increase
Punishment41
Giles devotes 103 of the 162 pages of his initial motion to alter or amend the

judgment to these arguments.42

He also filed a “Notice of Supplemental Authorities,”

citing two Supreme Court decisions that were handed down after judgment was entered
in this case.43

Despite the length of those arguments, and even after reviewing the

supplemental authorities identified by Giles, the court concludes that Giles is attempting
to relitigate old matters or to present arguments or evidence that could have been raised
prior to judgment.44 There are no manifest errors of law or fact in the court’s resolution

41

Id. at 57-160; doc. no. 74 (Notice of Supplemental Authorities) at 1-50; doc. no. 91
(Petitioner’s Reply Brief in Support of Motion to Alter or Amend Judgment and Reply Brief Regarding
“Cause” and “Prejudice” to Excuse Procedural Defaults of Certain Claims) at 2-13.
42

Doc. no. 70 (Motion to Alter or Amend Judgment), at 57-160.

43

S ee generally doc. no. 74 (Notice of Supplemental Authorities) (citing Metrish v.
Lancaster, – U.S.– , 133 S. Ct. 1781 (May 20, 2013), Peugh v. United States, – U.S.– , 133 S. Ct.
2072 (June 10, 2013)).
44

The court notes that Giles’s reliance on Peugh v. United States,133 S. Ct. 2072 (June 10,
2013) is misplaced, because that case “involved a direct appeal of a sentence,” and “says nothing about
the authority to consider an . . . error on collateral review.” Spencer v. U.S., 773 F.3d 1132, 1144
(11th Cir. 2014) (citing Hawkins v. United States, 724 F.3d 915-916-19 (7th Cir. 2013) (denying

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of this issue.
III. DISCUSSION OF ISSUES RAISED IN GILES’S SECOND
MOTION TO ALTER OR AMEND THE JUDGMENT
Giles’s second motion to alter or amend the judgment alleges that the court made
a factual error in one sentence of the Memorandum Opinion.45

Respondent agrees and

points out that a companion sentence also contains a factual error.46 Accordingly, the
following sentences on pages 323-324 of the Memorandum Opinion are STRICKEN: “A
new trial occurred in 1982, resulting in conviction and jury recommendation of life
without parole.

The trial court’s override of that recommendation and imposition of a

death sentence was reversed on appeal and remanded for a new sentencing trial before
a new jury.”47

In place thereof, the Memorandum Opinion is AMENDED to reflect the

accurate procedural history, which is: “A new trial occurred in 1982, resulting in a
conviction for capital murder and a sentence of death by electrocution.

The second

conviction was affirmed, but the Alabama Supreme Court set aside Giles’s sentence of

rehearing en banc because the intervening decision in Peugh did not affect collateral review of
sentencing errors)); see also Herrera-Gomez v. U.S., 755 F.3d 142, 145-47 (2nd Cir. 2014) (holding
that the Peugh decision was neither a new substantive rule of constitutional law made retroactive to
cases on collateral review nor a watershed procedural rule to be applied retroactively to cases on
collateral review).
45

See doc. no. 71 (Second Motion to Alter or Amend Judgment), at 2-3.

46

Doc. no. 88 (Response to Giles’s Motion to Alter or Amend the Judgment, Supplemental
Authorities, and Allegations of Cause and Prejudice to Overcome Procedural Default of Ineffective
Assistance of Counsel Claims), at 19-20.
47

Doc. no. 68 (Memorandum Opinion Denying Habeas Relief), at 323-24.

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death and ordered a new sentencing hearing.”
IV. CONCLUSION AND ORDERS
After careful review of the arguments, the record, and this court’s Memorandum
Opinion Denying Habeas Relief, Giles’s first motion to alter or amend the judgment is
due to be, and it hereby is, DENIED.

Giles’s second motion to alter or amend the

judgment is GRANTED, and the factual errors contained in the Opinion are AMENDED
as expressly set out above.
DONE and ORDERED this 14th day of April, 2016.

______________________________
United States District Judge

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