Miller v. Thomas

Filing 28

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 8/4/15. (SAC )

FILED
2015 Aug-04 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALAN EUGENE MILLER,
Petitioner,
v.
KIM T. THOMAS, Commissioner
of the Alabama Department of
Corrections,
Respondent.

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CIVIL ACTION NO.
2:13-00154-KOB

MEMORANDUM OPINION
This case is before the court upon the petitioner Alan Eugene Miller’s “Petition
for Writ of Habeas Corpus By Prisoner In State Custody Under Sentence of Death,”
pursuant to 28 U.S.C. § 2254. (Doc. 1). Miller alleges that he was denied effective
assistance of counsel both at trial and on appeal, and that his death sentence violates
the United States Constitution.
I. THE OFFENSE CONDUCT
The Alabama Court of Criminal Appeals provided the following summary of
the evidence of the offense when it considered Miller’s direct appeal. The State has
adopted this summary for the purpose of answering Miller’s petition. (Doc. 15, at 2).

1

The evidence presented at trial tended to establish the following. Around
7:00 a.m. on August 5, 1999, Johnny Cobb arrived at his place of
employment, Ferguson Enterprises in Pelham. Cobb, the vice president
of operations, recognized several other vehicles in the company's
parking lot as belonging to sales manager Scott Yancy and delivery
truck drivers Lee Holdbrooks and Alan Miller. As Cobb prepared to
enter the building, he heard some loud noises and what sounded like
someone screaming. Cobb opened the front door and saw Miller walking
toward him. Miller, who was armed with a pistol, pointed the pistol in
the general direction of Cobb and stated, “I'm tired of people starting
rumors on me.” Cobb tried to get Miller to put the pistol down, but
Miller told him to get out of his way. Cobb ran out the front door and
around the side of the building. Miller then left the building, walked
over to his personal truck, and drove away.
After Cobb heard Miller drive away, he went back inside the building.
He saw Christopher Yancy on the floor in the sales office and Lee
Holdbrooks on the floor in the hallway. Both men were covered in blood
and showed no signs of life. They appeared to have been shot multiple
times. Cobb used his cellular telephone to summon the police, who were
dispatched at 7:04 a.m. Minutes later, officers from the Pelham Police
Department arrived to investigate the shooting.
After Cobb told the police officers what he had seen, the officers entered
the building. There, they found the body of Christopher Yancy slumped
to the floor, underneath a desk in the sales office. Lee Holdbrooks was
lying face down in the hallway at the end of a bloody “crawl trail,”
indicating that he had crawled 20-25 feet down the hall in an attempt to
escape his assailant. The officers secured the scene and waited for
evidence technicians to arrive. Cobb provided a description of Miller's
clothing and the truck he was driving. This description was transmitted
to police headquarters and sent out over the police radio by the police
dispatcher. Evidence technicians recovered nine .40-caliber shell casings
from the scene.
While officers began investigating the crime scene at Ferguson
Enterprises, Andy Adderhold was arriving for work at Post Airgas in
2

Pelham. Adderhold, the manager of the Pelham store, arrived shortly
after 7:00 a.m. Adderhold entered the office and talked with Terry
Jarvis, another employee, for a few minutes before continuing to another
office. At this point, Adderhold noticed Miller—a former employee of
Post Airgas—enter the building. Miller walked toward the sales counter
and called out to Jarvis: “Hey, I hear you've been spreading rumors
about me.” As Jarvis walked out of his office and walked into the area
behind the sales counter, he replied, “I have not.” Miller fired several
shots at Jarvis. As Jarvis fell to the floor, Adderhold crouched behind
the counter. Miller then walked behind the counter and pointed the
pistol at Adderhold's face. Adderhold begged for his life. Miller paused,
then pointed to a door, and told him to get out. Adderhold stood up and,
as he began to move toward the door, heard a sound from Jarvis. When
Adderhold paused and looked back at Jarvis, Miller repeated his order
to “get out-right now.” At this Adderhold left the sales area. As
Adderhold was leaving the building, he heard another gunshot.
Adderhold proceeded out of the back of the building, climbed over a
fence to a neighboring building, where he used someone's cellular
telephone to summon the police.
The second emergency call came in to the Pelham Police Department at
approximately 7:18 a.m. Upon arrival, officers entered the building
housing Post Airgas and found Jarvis's body on the floor behind the
sales counter. Jarvis had sustained several gunshot wounds to his chest
and abdomen. After securing the scene, officers recovered six .40caliber spent shell casings from the floor of the sales area. Adderhold
was interviewed, and he recounted the events surrounding Jarvis's
murder.
After a description of Miller and the vehicle he was driving was
transmitted over the police radio, law-enforcement officers combed the
area in search of Miller. Pelham police sergeant Stuart Davidson and his
partner were patrolling Interstate 65 near Alabaster when word of the
second shooting was broadcast. Upon hearing that Miller was still in the
vicinity of Pelham, Davidson exited I-65 to head back to Pelham. As
Davidson turned back toward Pelham, he spotted a truck matching the
description of Miller's entering I-65 from Highway 31 in Alabaster.
3

Davidson radioed for backup and followed the truck south on I-65 into
Chilton County. Once additional officers were in place as backup, lawenforcement officers initiated a traffic stop of the truck. Following the
traffic stop, officers were able to positively identify the driver as Miller.
Miller was ordered to get out of the truck, and he was forcibly subdued
and handcuffed after resisting efforts to place him in custody. After
placing Miller in the back of a patrol car, officers secured his truck.
Inside the truck, they found a Glock brand pistol lying on the driver's
seat. The pistol contained 1 round in the chamber and 11 rounds in the
magazine. An empty Glock ammunition magazine was found on the
passenger seat. Miller was transported to the Pelham Police Department
where he was charged with murder.
At trial, the State called various witnesses who testified concerning the
events of August 5, 1999. Evidence was also introduced regarding
ballistics testing of the spent shell casings found at both murder sites;
the testing matched all of the shell casings to the .40-caliber Glock pistol
found on Miller. Dr. Stephen Pustilnik, a state medical examiner with
the Alabama Department of Forensic Sciences, testified that the cause
of death for all three victims was multiple gunshot wounds. Lee
Holdbrooks-whose body was found in the hallway-was shot six times in
the head and chest; although several of the wounds were nonfatal, one
of the head wounds was fired at very close range and would have been
immediately incapacitating and fatal. Based on “blood splatter” analysis
and the positioning of the body, Dr. Pustilnik concluded that
Holdbrooks was turning his head and looking up when the fatal shot was
fired.
Scott Yancy was shot three times; one of the shots struck the aorta,
which would have caused Yancy to “bleed out” within 15-20 minutes,
while another wound would have caused paralysis. At the time he was
shot, Yancy was underneath a metal desk; there was no indication that
he ever moved from this position.
Terry Jarvis was shot five times; one of the shots struck Jarvis's liver
and another his heart. Jarvis had already fallen to the floor when he was
shot in the heart. Based on “blood splatter” analysis, Dr. Pustilnik
4

concluded that Miller was standing over Jarvis as he shot him in the
heart. Despite the nature of this wound, Jarvis could have lived
anywhere from several minutes to 15 minutes after being shot.
Miller v. State, 913 So. 2d 1148, 1154–56 (Ala. Crim. App. 2004).
II. TRIAL: GUILT AND PENALTY PHASES
On August 13, 1999, the Grand Jury indicted Miller on one count of capital
murder under § 13A-5-40(a)(10) of the Code of Alabama for murdering two or more
persons by one act or pursuant to one scheme or course of conduct. (C.R. Vol. 1,
Tab. 1, at 18).1 The Circuit Court of Shelby County initially appointed Mr. Mickey
Johnson and Mr. Roger Bass to represent Miller.2 (C.R. Vol. 1, Tab. 1, at 1).
On August 17, 1999, Miller pled both not guilty and not guilty by reason of
mental disease or defect. (C.R. Vol. 1, Tab. 1, at 1). Accordingly, the State requested
that the Circuit Court order Miller to undergo a mental evaluation. (C.R. Vol. 1, Tab.
1, at 19). On October 4, 1999, approximately two months afer the shooting, Dr.
James Hooper, a psychologist at Taylor Hardin medical facility, examined Miller.

1

References to the record appear as follows: “C.R” refers to the Miller’s trial and Motion
for New Trial. “R” refers to Miller’s direct appeal. “Rule 32 C.R.” refers to the Rule 32
collateral proceedings. “PX” refers to Miller’s Rule 32 Hearing Exhibits. “Rule 32 R” refers to
the Appeal of the Rule 32 collateral proceedings.
2

On June 1, 2000, the Court granted Mr. Bass’s oral motion to withdraw and appointed
Ronnie Blackwood as co-counsel to Mr. Johnson. (C.R. Vol. 1, Tab. 1, at 4). Because Mr. Bass
was not involved in the trial and because Mr. Blackwood did not play any active role, (Rule 32
C.R., Vol. 30, Tab. 59, at 109), when the court refers to “trial counsel,” it refers to Mr. Johnson
unless otherwise specified.
5

(Rule 32 C.R. Vol. 31, Tab. 59, at 320). Dr. Hooper reportedly spent approximately
thirty minutes with Miller in conducting his evaluation, and ultimately found that
Miller was competent to stand trial and that Miller did not meet the legal standard for
insanity. (Rule 32 C.R. Vol. 33, Tab. 59, at 681). The State subsequently hired Dr.
Harry McClaren, a forensic psychologist, to evaluate Miller’s sanity at the time of the
shooting. (Rule 32 C.R. Vol. 33, Tab. 59, at 774). On November 29, 1999, Dr.
McClaren conducted a three-day evaluation of Miller and determined Miller was sane
at the time of the crime. (Rule 32 C.R. Vol. 33, Tab. 59, at 781).
On March 16, 2000, Miller’s trial counsel applied for funds to hire an expert
psychiatrist of their own to assist in Miller’s defense. (C.R. Vol. 1, Tab. 1, at 50–55).
On April 4, 2000, the Circuit Court granted such assistance. (C.R. Vol. 1, Tab. 1, at
57). Trial Counsel hired Dr. Charles Scott, a forensic psychiatrist from the University
of California Davis, to evaluate Miller’s sanity at the time of the shooting. (Rule 32
C.R. Vol. 31, Tab. 59, at 312). Dr. Scott began his three-day psychiatric evaluation
of Miller in late April of 2000, approximately eight-and-a-half months after the
August 5, 1999 shooting. (Rule 32 C.R. Vol. 31, Tab. 59, at 315). In conducting his
evaluation, Dr. Scott consulted with Dr. Barbara McDermick, a psychologist, who
conducted psychological testing on Miller and prepared a report dated May 11, 2000.
(Rule 32 C.R. Vol. 31, Tab. 59, at 316–17). Dr. Scott asked Dr. McDermick to
6

conduct psychological tests focusing on assessing Miller’s IQ and to assist Dr. Scott
in determining whether Miller was malingering when recollecting what happened on
the day of the shooting. (Rule 32 C.R. Vol. 31, Tab. 59, at 317). Based on the
information provided to Dr. Scott and his independent evaluation of Miller, Dr. Scott
determined that Miller was not insane at the time of the shooting. (Rule 32 C.R. Vol.
31, Tab. 59, at 380).
After receiving Dr. Scott’s evaluation of Miller, Miller withdrew the insanity
plea and entered a simple plea of not guilty on May 24, 2000, less than a month
before the scheduled trial. (C.R. Vol. 1, Tab. 6, at 66). On June 1, 2000, less than
two weeks before trial, Mr. Bass withdrew his representation to devote more time to
the Bobby Cherry (Birmingham Church bombing) case, which was brought 40 years
after the original offense. (Rule 32 C.R. Vol. 30, Tab. 59, at 105). On the same day,
the Circuit Court appointed Ronnie Blackwood to assist Mr. Johnson. (C.R. Vol. 1,
Tab. 1, at 4).
Miller’s trial began as scheduled on June 12, 2000. (C.R. Vol. 1, Tab. 7, at 69).
Five days later, on June 17, 2000, the jury returned its verdict finding Miller guilty
of capital murder for murdering two or more persons pursuant to one act or scheme
or course of conduct. (C.R. Vol. 1, Tab. 1, at 73); Ala. Code. § 13A-5-40. After the
jury returned its guilty verdict, the judge and the jury immediately transitioned to the
7

penalty phase of the trial. In the penalty phase, the State bears the burden of proving
the existence of at least one aggravating circumstance beyond a reasonable doubt
before the jury can recommend a sentence of death. Ala. Code. § 13A-5-45(e)–(f).
The only aggravating circumstance the State argued was that the capital offense was
“especially heinous, atrocious, or cruel compared to other capital offenses.” Ala.
Code. § 13A-5-49(8). The State relied largely on the evidence presented during the
guilt phase and only introduced victim impact testimony from a survivor of each
victim during the penalty phase of trial. (C.R. Vol. 8, Tab. 21, at 1335–41).
Trial counsel’s penalty-phase defense was limited to a single witness, Dr. Scott.
(C.R. Vol. 8, Tab. 21, at 1341–1403). Dr. Scott’s testimony, although addressing
Miller’s background, focused on establishing the existence of two mitigating factors.
First, Dr. Scott testified that even though he determined Miller to be sane at the time
of the shootings, he believed that Miller’s “capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law was substantially
impaired.” (C.R. Vol. 8, Tab. 22, at 1383–88). Second, Dr. Scott provided testimony
that Miller committed the offense while “under the influence of extreme mental or
emotional disturbance.” (C.R. Vol. 8, Tab. 22, at 1391). The State stipulated to the
existence of a third mitigating circumstance— that Miller had no significant prior
criminal history. (C.R. Vol. 8, Tab. 22, at 1317).
8

At the end of hearing this evidence, the jury rendered an advisory sentencing
verdict, with ten jurors voting for the death penalty and two voting for life
imprisonment without parole. (C.R. Vol. 1, Tab. 1, at 73–74). The verdict form only
allowed the jurors to indicate the number of votes for the death sentence and the
number of votes for a life sentence. (C.R. Vol. 1, Tab. 1, at 74–75). The form did
not require the jury to indicate the number of jurors who found that the State met its
burden of proving an aggravating factor beyond a reasonable doubt, as is now
required under Ex Parte McGriff, 908 So. 2d 1024, 1039 (Ala. 2004). After receiving
the advisory verdict, the Circuit Court scheduled a sentencing hearing for July 31,
2000. (C.R. Vol. 1, Tab. 1, at 77).
III. SENTENCING HEARING
On July 31, 2000, the Circuit Court held a sentencing hearing and, after
hearing the evidence presented, accepted the jury’s July 17, 2000 recommendation
to sentence Miller to death. (C.R. Vol. 1, Tab. 1, at 89; C.R. Vol. 8, Tab. 28, at
1453). On August 24, 2000, the court issued its written order explaining its decision.
(C.R. Vol. 43, Tab. 71). The court determined that three mitigating factors applied
in Miller’s case: (1) Miller had no significant history of prior criminal activity; (2)
Miller committed the crime while “under the influence of extreme mental or
emotional disturbance”; and (3) Miller’s capacity to “appreciate the criminality of
9

his conduct or to conform his conduct to the requirements of the law was
substantially impaired.” (C.R. Vol. 43, Tab. 71, at 106).
Although the only aggravating factor the court found applicable was that the
offense was especially heinous, atrocious, or cruel, the court ultimately determined
that the defendant “should suffer the punishment of death by electrocution as
provided for by law.” (C.R. Vol. 43, Tab. 71, at 106–07). The court stated that prior
to rendering a decision, it examined the presentence report, Dr. Scott’s testimony,
and the mental evaluation performed, as well as “non-statutory mitigating
circumstance, [like] Defendant’s background and family history . . . includ[ing] . .
. that as a child, Defendant moved to a number of locations and had an estranged and
difficult relationship with his father.” (C.R. Vol. 43, Tab. 71, at 107).
IV. PROCEDURAL HISTORY
On July 31, 2000, the same day Miller received his death sentence, the
Circuit Court released Mr. Johnson as counsel and appointed Mr. William R. Hill to
assist Miller in his direct appeal. (C.R. Vol. 8, Tab. 28, at 1473). Later, on August,
2, 2000, the court also appointed Haran Lowe as co-counsel. (C.R. Vol. 1, Tab. 1,
at 90).

10

A.

Motion for a New Trial
On August 3, 2000, Miller moved for a new trial based solely on the ground

that the verdict was contrary to the weight of the evidence. (C.R. Vol. 1, Tab. 1, at
93). On the same day, Miller requested a transcript of the trial proceedings, in part
because appellate counsel did not witness the trial proceedings and could not
“adequately represent the Defendant in his Motion for New Trial or on appeal
without a transcript of the trial record.” (C.R. Vol. 1, Tab. 1, at 91). On August 25,
2000, Miller filed a motion to amend the motion for a new trial, outlining twentyfive new grounds for relief. (C.R. Vol. 1, Tab. 1, at 95). Although appellate counsel
did not yet have the trial transcript, Ground 24 of the amended motion for a new trial
alleged that Miller’s “due process rights under the United States and Alabama
Constitution were denied because his trial counsel was ineffective.” (C.R. Vol. 1,
Tab. 1, at 96).
The hearing on the motion for a new trial was originally scheduled to take
place on September 5, 2000. (C.R. Vol. 1, Tab. 1, at 108). However, because the
trial transcript was not yet available, appellate counsel filed a motion on August 30,
2000 to continue the hearing until after the transcript had been prepared. (C.R. Vol.
1, Tab. 1, at 108). The court granted the motion, and ultimately held hearings on
December 7, 2000 and again on January 31, 2001. (C.R. Vol. 1, Tab. 1, at 7).
11

During the December 7, 2000 portion of the hearing on the new trial motion,
Miller’s trial counsel, Mickey Johnson, was the sole testifying witness. (C.R. Col.
9, Tab. 30, at 1–110). On January 31, 2000, Miller elicited additional testimony
from Dr. Bob Wendorf, a psychologist, regarding the sufficiency of Dr. Scott’s
testimony during Miller’s penalty phase. (C.R. Vol. 43, Tab. 75, at 1964). Mr.
Aaron McCall from the Alabama Prison Programs discussed the importance and
relative ease of obtaining a mitigation expert at trial in a capital case. (C.R. Vol. 43,
Tab. 75, at 1964). After the hearing, the court gave the parties the opportunity to
brief the issues discussed at the hearing. On February 13, 2001, Miller filed a brief
supporting his motion for a new trial, which argued in support of his ineffectiveassistance-of-counsel claims. (C.R. Vol. 1, Tab. 1, at 114–25).
On February 21, 2001, the court summarily denied Miller’s Motion for a New
Trial without entering a written order or making specific findings of fact regarding
the evidence presented during the hearing. (C.R. Vol. 1, Tab. 1, at 7) (C.R. Vol. 43,
Tab. 73, at 7).
B.

Direct Appeal
On May 7, 2001, Miller filed his appeal brief in the Alabama Court of

Criminal Appeals. (R. Vol. 16, Tab. 32). While the appeal was pending, on June 24,
2002, the United States Supreme Court issued its decision in Ring v. Arizona, 536
12

U.S. 584 (2002). In Ring, the Court held that an Arizona statute allowing a trial
judge—acting alone—to determine the presence or absence of an aggravating factor
(required to impose the death penalty) violated a defendant’s Sixth Amendment right
to a jury trial. Because the Alabama Court of Criminal Appeals had not ruled yet on
Miller’s appeal of his conviction and motion for a new trial, the court required the
parties to file supplemental briefs addressing the impact of Ring on Miller’s death
sentence. (R. Vol. 16, Tab. 34, at 1). On August 18, 2002, both Miller and the State
filed supplemental briefs addressing that issue. (R. Vol. 16, Tabs. 34 and 35
respectively).
On January 6, 2004, the Alabama Court of Criminal Appeals decided to
remand the case for the limited purpose of requiring the Circuit Court both to make
specific findings of fact regarding its August 24, 2000 sentencing determination that
the murders were especially heinous, atrocious, or cruel and to address each claim
Miller raised in his motion for a new trial that the court had previously summarily
dismissed. (R. Vol. 43, Tab. 73); Miller v. State, 913 So. 2d 1148 (Ala. Crim. App.
2004). The Circuit Court made the required findings and denied the ineffectiveassistance-of-trial-counsel claims as meritless.3 (R. Vol. 43, Tab. 72, at 1–23).

3

The Circuit Court addressed each of the eight ineffective-assistance-of-counsel claims
Miller alleged individually: that trial counsel (1) admitted Miller’s guilt during his guilt-phase
opening remarks; (2) failed to present insanity defense during the guilt phase of trial; (3) failed to
13

On October 29, 2004, on return from remand, the Alabama Court of Criminal
Appeals affirmed the Circuit Court’s sentencing decision. (C.R. Vol. 43, Tab. 73,
at 10–25); Miller v. State, 913 So. 2d 1148 (Ala. Crim. App. 2004). Miller made a
timely petition for writ of certiorari to the Alabama Supreme Court on February 8,
2005. (R. Vol. 17, Tab. 38). On May 27, 2005, the Alabama Supreme Court denied
Miller’s petition for writ of certiorari. (C.R. Vol. 43, Tab. 73). Miller filed a petition
for writ of certiorari in the United States Supreme Court on September 22, 2005, and
the Court likewise denied cert in a January 9, 2006 decision. Miller v. Alabama, 546
U.S. 1097 (2006); C.R. Vol. 43, Tab. 74).
C.

Rule 32 Proceedings in Shelby County Circuit Court
Having exhausted his appeals and obtained a final conviction, Miller obtained

new counsel and filed a timely Petition under Rule 32 of the Alabama Rules of
Criminal Procedure on May 19, 2006. (Rule 32 C.R. Vol. 19, Tab. 44, at 1–93).
Miller’s Rule 32 petition alleges ineffective assistance of trial counsel, ineffective
assistance of appellate counsel, and various violations of Miller’s constitutional
rights. (Rule 32 C.R. Vol. 19, Tab. 44, at 1–93). The State answered Miller’s

move for a change of venue; (4) failed to present a defense during the guilt phase of trial; (5)
undermined the mitigation case during his penalty-phase opening argument; (6) failed to object
to victim impact testimony during the penalty phase; (7) failed to adequately investigate and
present a penalty phase defense; and (8) failed to challenge the constitutionality of the heinous,
atrocious, or cruel aggravating circumstance. (C.R. Vol. 43, Tab. 72, at 9–10).
14

petition on August 18, 2006, arguing that the ineffective assistance of trial counsel
claims were barred from review and all of Miller’s claims should be rejected on the
merits. (Rule 32 C.R. Vol. 19, Tab. 45). On April 4, 2007, Miller filed his First
Amended petition, responding to some of the State’s criticisms of his original
petition. (Rule 32 C.R. Vol. 20, Tab. 46, at 1–100). On April 18, 2007, the State
answered Miller’s amended petition and moved to dismiss his claims. (Rule 32 C.R.
Vol. 23, Tab. 49, at 925–1006). On June 25, 2007, the Circuit Court held a hearing
on the State’s motion to dismiss and some outstanding discovery disputes. (Rule 32.
C.R. Vols. 36–37, Tab. 61–62). On July 31, 2007, the Circuit Court issued a
preliminary ruling on Miller’s Rule 32 petition denying certain claims4 as
procedurally barred, granting Miller’s request for “necessary” discovery, and
scheduling an evidentiary hearing to determine whether the facts supported Miller’s
claim that his appellate counsel was ineffective. (Rule 32 C.R. Vol. 25, Tab. 55, at
1327–29).

4

The court summarily dismissed Miller’s ineffective-assistance-of-trial-counsel claims
(Claim I(A)); his claim that the imposition of the death penalty in his case would violate Ring v.
Arizona, 536 U.S. 584 (2002) (Claim II); and his claim that lethal injection (a change in the law
made lethal injection the method of execution instead of electrocution) is unconstitutional (Claim
III). (Rule 32 C.R. Vol. 25, Tab. 55, at 1327); (C.R. Vol. 43, Tab. 75, at 1957). In addition, the
court dismissed both Miller’s Brady claim (Claim IV) and his claim of juror misconduct (Claim V)
for failing to plead the claims with specificity. (C.R. Vol. 43, Tab. 75, at 1957).
15

The court held hearings on the remaining claims on February 11, 2008 and
August 6, 2008. (See Rule 32 C.R. Vol. 26, Tab. 55, at 1403–05 & Rule 32 C.R.
Vol. 34, Tab. 60, at 4, respectively).
Following the hearings, both parties submitted extensive briefing to the
Circuit Court.5 On May 5, 2009, the Circuit Court issued its final order denying
Miller’s Amended 32 Petition and summarily dismissing all of Miller’s claims with
the exception of his claim that he was denied effective assistance of appellate
counsel. (Rule 32 C.R. Vols. 28–29, Tab. 58, at 1951–2107). As to that claim, the
court considered the evidence presented at the evidentiary hearings and denied relief
on the merits. (Rule 32 C.R. Vols. 28–29, Tab. 58, at 1951–2107).
The Circuit Court adopted the State’s proposed order, which was itself almost
a verbatim copy of the State’s post-Rule-32-hearing response brief. (Compare Rule
32 C.R. Vols. 27–28, Tab. 57, at 1702–1800 (State’s Post-Rule-32-Hearing
Response Brief) with Rule 32 C.R. Vol. 35, at 29–185 (State’s Proposed Order) and
Rule 32 C.R. Vols. 28–29, at 1951–2107 (Rule 32 Circuit Court’s Final Judgment).
On May 18, 2009, Miller objected to the Court’s adoption of the State’s proposed

5

On October 9, 2008, Miller filed a post-hearing brief in support of his First Amended
Petition for Relief from Judgment pursuant to Rule 32 of the Alabama Rules of Criminal
Procedure. (Rule 32 C.R. Vols. 26–27, Tab. 56, at 1520–1695). The State issued its response to
Miller’s brief on December 8, 2008. (Rule 32 C.R. Vols. 27–28, Tab. 57, at 1702–1800). On
February 10, 2009, Miller filed his reply brief. (Rule 32 C.R. Vol. 28, Tab. 58, at 1895–1950).
16

final order denying Rule 32 relief. (Rule 32 C.R. Vol. 29, Tab. 58, at 2108). On
June 4, 2009, the court denied the objection, pointing out that it had authority to
adopt a proposed order in whole. (Rule 32 C.R. Vol. 29, Tab. 58, at 2117).
On June 9, 2009, Miller filed a notice indicating that he was appealing both
the Circuit Court’s final order denying Rule 32 relief and the Court’s order denying
Miller’s objection to adopting the proposed order nearly verbatim. (Rule 32 C.R.
Vol. 29, Tab. 58, at 2119; see also Rule 32 R. Vol. 38, Tab. 63). The Alabama Court
of Criminal Appeals denied his appeal on July 8, 2011. (Rule 32 R. Vol. 43, Tab.
76). Miller subsequently filed an application for rehearing on August 17, 2011,
which was denied by the Alabama Court of Criminal Appeals on October 21, 2011.
(Rule 32 R. Vol. 40, Tab. 66).
On November 30, 2011, Miller filed a petition for a writ of certiorari in the
Alabama Supreme Court, citing two grounds for issuance of a writ. (Rule 32 R.
Vols. 40–42, Tab. 67). The Alabama Supreme Court initially granted review
regarding whether “the Court of Criminal Appeals’ rejection of Miller’s claim that
the Circuit Court’s verbatim adoption of the State’s proposed order, which was
word-for-word identical to the State’s Post-Hearing Brief, denied him due process
in conflict with [the Alabama Supreme] Court’s decisions in Ex Parte Ingram, 51 So.
3d 1119 (Ala. 2010), and Ex Parte Scott, 2011 Ala. LEXIS 37 (Ala. March 18,
17

2011)?” The Alabama Supreme Court quashed the writ on July 22, 2012 without
opinion. (Rule 32 R. Vol. 43, Tab. 77).
V. LEGAL STANDARD
“The habeas statute unambiguously provides that a federal court may issue the
writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.’” Wilson v. Corcoran, 526 U.S.
1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s review of claims
seeking habeas relief is limited to questions of federal constitutional and statutory
law. Claims that turn solely upon state law principles fall outside the ambit of this
court’s authority to provide relief under § 2254. See Alston v. Dep’t of Corrs., 610
F. 3d 1318, 1326 (11th Cir. 2010).
A.

Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review
A habeas petitioner must present his federal claims to the state court, and to

exhaust all of the procedures available in the state court system, before seeking relief
in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666
(2005) (holding that a petitioner “can seek federal habeas relief only on claims that
have been exhausted in state court”). This requirement serves the purpose of
ensuring that state courts are afforded the first opportunity to address federal

18

questions affecting the validity of state court convictions and, if necessary, correct
violations of a state prisoner’s federal constitutional rights. Snowden v. Singletary,
135 F.3d 732, 735 (11th Cir. 1998).
In determining whether a claim is properly exhausted, the Supreme Court has
stated that “[i]t is not enough that all the facts necessary to support the federal claim
were before the state courts or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 5–6 (1982) (citations omitted). Instead, “an 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, 1286–87 (11th Cir. 2012)
(quoting Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004)).
B.

The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review
Under the procedural default doctrine, federal review of a habeas petitioner’s

claim is barred if the last state court to examine the claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
and that procedural bar provides an adequate and independent state ground for
denying relief. See Cone v. Bell, 556 U.S. 449, 465 (2009); Coleman v. Thompson,
501 U.S. 722, 731 (1991).

The Supreme Court defines an “adequate and

19

independent” state court decision as one that “‘rests on a state law ground that is
independent of the federal question and adequate to support the judgment.’” Lee v.
Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)) (emphasis in Lee)).
To be considered “independent,” the state court’s decision “must rest solidly
on state law grounds, and may not be ‘intertwined with an interpretation of federal
law.’” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (quoting Card v.
Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). To be considered “adequate” to
support the state court’s judgment, the state procedural rule must be both “‘firmly
established and regularly followed.’” Lee v. Kemna, 534 U.S. at 375 (quoting James
v. Kentucky, 466 U.S. 341, 348 (1984)).
C.

Overcoming procedural default: The Cause and Prejudice Analysis
“A federal court may still address the merits of a procedurally defaulted claim

if the petitioner can show cause for the default and actual prejudice resulting from
the alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir.
2010) (citing Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977)) (emphasis supplied).
The Supreme Court has recognized that constitutionally ineffective assistance of
counsel on direct appeal can constitute “cause” to excuse procedural default.
McCleskey v. Zant, 499 U.S. 467, 493–94 (1991). However, any attorney error short
20

of ineffective assistance does not constitute cause and will not excuse a procedural
default. Id.
In addition to proving the existence of “cause” for a procedural default, a
habeas petitioner must show that he was actually “prejudiced” by the alleged
constitutional violation. To show prejudice, a petitioner must show “not merely that
the errors at his trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis supplied); see also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir.
1992) (per curiam). In the context of a defaulted ineffective-assistance-of-trialcounsel claim, a petitioner must show now only “cause,” but also “that the
underlying ineffective-assistance-of-trial -counsel claim is a substantial one, which
is to say that the prisoner must demonstrate that the claim has some merit.” Martinez
v. Ryan, 566 U.S. —, 132 S. Ct. 1309, 1318–19 (2012).
D.

The Statutory Overlay: The Effect of “the Antiterrorism and Effective
Death Penalty Act of 1996” on Habeas Review
Miller’s case is governed by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). To “prevent
federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to

21

the extent possible under the law,” the AEDPA establishes a deferential standard of
review of state habeas judgments. Bell v. Cone, 535 U.S. 685, 693 (2002).
1.

28 U.S.C. § 2254(e)(1)

Section 2254(e)(1) requires district courts to presume that a state court’s
factual determinations are correct, unless the habeas petitioner rebuts the
presumption of correctness with clear and convincing evidence. See 28 U.S.C. §
2254(e)(1); see also, e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001)
(observing that § 2254(e)(1) provides “a highly deferential standard of review for
factual determinations made by a state court”). The deference that attends state court
findings of fact pursuant to Section 2254(e)(1) applies to all habeas claims,
regardless of their procedural stance. Thus, a presumption of correctness must be
afforded to a state court’s factual findings, even when the habeas claim is being
examined de novo. See Mansfield v. Secretary, Department of Corrections, 679 F.3d
1301, 1313 (11th Cir. 2012).
2.

28 U.S.C. § 2254(d)

The presumption of correctness also applies to habeas claims that were
adjudicated on the merits by the state court and, therefore, are claims subject to the
standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2). “By its terms §
2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court,
22

subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter,
— U.S.—, 131 S. Ct. 770, 784 (2011).
The provisions of 28 U.S.C. § 2254(d)(1) and (d)(2) provide that when a state
court has made a decision on a petitioner’s constitutional claim, habeas relief cannot
be granted, unless the federal court determines that the state court’s adjudication of
the claim either:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d) (emphasis supplied).
The Supreme Court has explained the deferential review of a state court’s
findings:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached by
this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 519 U.S. 362, 412–13 (2000).

23

The court should remember that “an unreasonable application of federal law
is different from an incorrect application.” Id. at 410 (emphasis in original). A
federal habeas court “may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also
be unreasonable.” Id. at 411 (emphasis supplied).6 o demonstrate that a state court’s
application of clearly established federal law was “objectively unreasonable,” the
habeas petitioner “must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786–87 (emphasis supplied).

6

The Eleventh Circuit has observed that § 2254(d)(1)’s “unreasonable application”
provision is the proper statutory lens for viewing the “run-of-the-mill state-court decision
applying the correct legal rule.” Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006).
In other words, if the state court identified the correct legal principle but
unreasonably applied it to the facts of a petitioner’s case, then the federal court
should look to § 2254(d)(1)’s “unreasonable application” clause for guidance. “A
federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was
objectively unreasonable.”
Id. (quoting Williams, 529 U.S. at 409) (emphasis in original).
24

E.

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

because of the relationship between such claims — which are governed by a highly
deferential standard of constitutional law — and 28 U.S.C. § 2254(d), which is itself
an extremely deferential standard of habeas review. Additionally, because the
majority of Miller’s petition is based on allegations of ineffective assistance of
counsel, a general discussion also provides a central reference point.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-pronged analysis for determining whether counsel’s performance
was ineffective. “First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Id. at 687. Both parts of the Strickland standard must be
satisfied:

that is, a habeas petitioner bears the burden of proving, by “a

preponderance of competent evidence,” that the performance of his trial or appellate
attorney was deficient; and, that such deficient performance prejudiced his defense.
Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus,
a federal court is not required to address both parts of the Strickland standard when
the habeas petitioner makes an insufficient showing on either one of the prongs. See,
e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts
25

of the test must be satisfied to show a violation of the Sixth Amendment, the court
need not address the performance prong if the defendant cannot meet the prejudice
prong, or vice versa.”) (citation to Strickland omitted).
1.

The performance prong

To satisfy the performance prong, the petitioner must “prove by a
preponderance of the evidence that counsel’s performance was unreasonable.”
Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209 (11th Cir.
2007) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)). The
Sixth Amendment does not guarantee a defendant the very best counsel or the most
skilled attorney, but only an attorney who performed reasonably well within the
broad range of professional norms. Steward, 476 F.3d at 1209. “The test has
nothing to do with what the best lawyers would have done. Nor is the test even what
most good lawyers would have done. We ask only whether some reasonable lawyer
at the trial could have acted, in the circumstances, as defense counsel acted at trial.”
White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). Judicial scrutiny of
counsel’s performance must be “highly deferential,” because representation is an art,
and an act or omission that is unprofessional in one case may be sound or even
brilliant in another. See Strickland, 466 U.S. at 697.

26

Indeed, reviewing courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at
689. “Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d
at 1209 (quoting Chandler, 218 F.3d at 1315) (emphasis supplied). “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can
be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer,
in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994) (emphasis supplied).
2.

The prejudice prong

“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318,
1322 (11th Cir. 2002). “It is not enough for the [habeas petitioner] to show that the
errors had some conceivable effect on the outcome of the proceeding.” Strickland,
466 U.S. at 693 (alteration supplied). Instead, to prove prejudice, the habeas
petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the results of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
27

outcome.” Strickland, 466 U.S. at 694. When that standard is applied in the context
of the death sentence itself, “‘the question is whether there is a reasonable
probability that, absent the errors, the sentencer [i.e., in Alabama, the trial court
judge] . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Stewart, 476 F.3d 1193, 1209 (11th Cir.
2007) (quoting Strickland, 466 U.S. at 695) (alteration supplied).
That standard is high and to satisfy it a petitioner must present competent
evidence proving that trial counsel’s errors were “so egregious that the trial was
rendered unfair and the verdict rendered suspect.” Johnson v. Alabama, 256 F.3d
1156, 1177 (11th Cir. 2001).
3.

Deference accorded state court findings of historical fact, and decisions
on the merits, when evaluating ineffective assistance of counsel claims
A reviewing court must give state court findings of historical fact made in the

course of evaluating a claim of ineffective assistance of counsel a presumption of
correctness under 28 U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley,
255 F.3d 1292, 1297 (11th Cir. 2001). To overcome a state-court finding of fact, the
petitioner bears a burden of proving contrary facts by “clear and convincing
evidence.”

28

Additionally, under the AEDPA, a federal habeas court may grant relief based
on a claim of ineffective assistance of counsel only if the state-court determination
involved an “unreasonable application” of the Strickland standards to the facts of the
case. Strickland itself, of course, also requires an assessment of whether counsel’s
conduct was professionally unreasonable.

Those two assessments cannot be

conflated into one. See Harrington, 131 S. Ct. 77, 786 (2011). Thus, habeas relief
on a claim of ineffective assistance of counsel can be granted with respect to a claim
actually decided by the state courts only if the habeas court determines that it was
“objectively unreasonable” for the state courts to find that counsel’s conduct was not
“professionally unreasonable.” Id. at 788. (“The standards created by Strickland and
§ 2254(d) are ‘highly deferential,’ . . . and when the two apply in tandem, review is
‘doubly’ so.”).
VI. THE LIST OF MILLER’S CLAIMS
Miller’s habeas petition alleges three primary grounds for relief—ineffective
assistance of trial counsel, ineffective assistance of appellate counsel, and that his
death sentence violates the Sixth, Eighth, and Fourteenth Amendments under Ring
v. Arizona, 536 U.S. 584 (2002). Miller’s ineffective-assistance-of-trial-counsel
claim and his ineffective-assistance-of-appellate-counsel claim each contain

29

numerous distinct subclaims. These subclaims, as stated by Miller, are set forth
below.
A.

Mr. Miller was denied effective assistance of counsel by his trial counsel in
violation of the Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution. (Doc. 1, 15–123).
I.

Trial counsel denied Mr. Miller effective assistance when he failed to
conduct an adequate investigation and, as a result, failed to uncover a
wealth of relevant evidence that could have led the jury to find Mr.
Miller not guilty of capital murder or to recommend that he not receive
the death penalty or could have led the Court to sentence him to life in
prison rather than death. (Doc. 1, 16–48)
a.

Mr. Miller’s impoverished and unstable upbringing. (Doc. 1,
25–27).

b.

The Miller family history of mental illness. (Doc. 1, 27–33).

c.

The physical and emotional abuse Mr. Miller received from his
father. (Doc. 1, 33–36).

d.

Mr. Miller’s exposure to the criminal and antisocial behavior of
members of his family. (Doc. 1, 36–38).

e.

Mr. Miller’s good employment history. (Doc. 1, 38–39).

f.

Mr. Miller’s loving relationship with family members. (Doc. 1,
39–45).

g.

The changes in Mr. Miller’s behavior prior to the shootings.
(Doc. 1, 45–46).

h.

Mr. Miller’s behavior in connection with the shootings at
Ferguson Enterprises and Post Airgas. (Doc. 1, 46–48).

30

ii.

Trial counsel denied Mr. Miller effective assistance by sabotaging the
work of the defense psychiatric expert, Dr. Scott, and then withdrawing
Mr. Miller’s insanity defense. (Doc. 1, 48–66).

iii.

Trial counsel denied Mr. Miller effective assistance by failing to
investigate or develop mitigation evidence following the withdrawal of
the insanity defense. (Doc. 1, 66–67).

iv.

Trial counsel denied Mr. Miller effective assistance during juror voir
dire. (Doc. 1, 67–78).

v.

Trial counsel denied Mr. Miller effective assistance in his guilt-phase
opening statement. (Doc. 1, 78–80).

vi.

Trial counsel denied Mr. Miller effective assistance during the
presentation of the State’s guilt-phase evidence. (Doc. 1, 80–87).

vii.

Trial counsel denied Mr. Miller effective assistance by failing to
present available mental health evidence during the trial’s guilt phase.
(Doc. 1, 87–90).

viii. Trial counsel denied Mr. Miller effective assistance by failing to object
to improper statements in the State’s guilt-phase closing argument.
(Doc. 1, 90).
ix.

Trial counsel denied Mr. Miller effective assistance during his guiltphase closing argument. (Doc. 1, 90–92).

x.

Trial counsel denied Mr. Miller effective assistance by failing to
request guilt-phase jury instructions necessary to protect Mr. Miller’s
rights. (Doc. 1, 92–94).

xi.

Trial counsel denied Mr. Miller effective assistance during their lastminute penalty-phase “preparation.” (Doc. 1, 94–96).

xii.

Trial counsel denied Mr. Miller effective assistance in his penaltyphase opening statement. (Doc. 1, 96–101).
31

xiii. Trial counsel denied Mr. Miller effective assistance by failing to
present readily available mitigating evidence during the trial’s penaltyphase. (Doc. 1, 101–08).
xiv.

Trial counsel denied Mr. Miller effective assistance in connection with
his penalty-phase directed verdict motion. (Doc. 1, 108–12).

xv.

Trial counsel denied Mr. Miller effective assistance in his penaltyphase closing argument. (Doc. 1, 112–15).

xvi.

Trial counsel denied Mr. Miller effective assistance by failing to object
to improper penalty-phase jury instructions. (Doc. 1, 115–18).

xvii. Trial counsel failed to request a special verdict form that was necessary
to protect Mr. Miller’s rights. (Doc. 1, 118–20).
xviii. Trial counsel denied Mr. Miller effective assistance in connection with
the sentencing hearing. (Doc. 1, 120–23).
B.

Mr. Miller was denied effective assistance of counsel by his appellate counsel
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
U.S. Constitution. (Doc. 1, 123–149).
I.

Appellate counsel denied Mr. Miller effective assistance by raising the
issue of trial counsel’s ineffectiveness in the Motion for New Trial,
thereby precluding Mr. Miller from raising this issue in his Rule 32
proceedings. (Doc. 1, 124–28).

ii.

Appellate counsel denied Mr. Miller effective assistance when they
failed to conduct an adequate investigation concerning the ineffective
assistance Mr. Miller had received from trial counsel. (Doc. 1,
128–132).

iii.

Appellate counsel denied Mr. Miller effective assistance when they
failed to present evidence at the hearing on the motion for new trial
establishing the prejudice Mr. Miller had received as a result of trial
counsel’s ineffectiveness. (Doc. 1, 132–34).
32

iv.

v.

Appellate counsel denied Mr. Miller effective assistance when they
failed to raise the many other ways in which trial counsel had
ineffectively represented Mr. Miller. (Doc. 1, 142–45).

vi.

C.

Appellate counsel denied Mr. Miller effective assistance in the
arguments they presented to the Circuit Court in support of the few
aspects of trial counsel ineffectiveness they had identified. (Doc. 1,
134–42).

Appellate counsel denied Mr. Miller effective assistance in their appeal
to the Alabama Court of Criminal Appeals. (Doc. 1, 145–49).

Mr. Miller’s death sentence violates the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. (Doc. 1, 149–54).
VII. MILLER’S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
CLAIMS
Miller’s ineffective-assistance-of-trial-counsel claims can be divided into three

distinct categories. First, Miller presents claims that were properly exhausted before
the Alabama state courts on direct appeal. Second, Miller presents claims that he
raised for the first time on collateral appeal. Finally, Miller presents claims that he
failed to raise before the state courts on either direct or collateral appeal. This court
will address each group of claims in turn.
A.

Claims Raised and Exhausted On Direct Appeal
Five of Miller’s ineffective-assistance-of-trial-counsel claims are properly

before this court because Miller fully exhausted the claims on direct appeal. See
Claims A(ii), A(v), A(vi), A(vii), & A(xii). Miller asserted these claims before the
33

Circuit Court in his motion for new trial. The Circuit Court conducted a hearing on
these claims and subsequently denied all of the claims on the merits. (C.R. Vol. 43,
Tab. 72). Miller then appealed to the Alabama Court of Criminal Appeals, which
upheld the lower court’s determination. (C.R. Vol. 43, Tab. 73). Finally, Miller
sought review of these claims before the Alabama Supreme Court, which denied cert.
(C.R. Vol. 43, Tab. 74). Because these claims were fully exhausted on direct appeal,
this court will review the state court’s determination under AEDPA deference. See
Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (recognizing that a petitioner need
only present a claim through a single state proceeding to properly exhaust it).
In reviewing the state court’s decision, this court is limited to consideration
of the record as it was before the state court on direct review. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1400 (2011) (“If a claim has been adjudicated on the
merits by a state court, a federal habeas petitioner must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court.”). Miller presented a
large amount of evidence at the Rule 32 hearings, and Miller’s habeas petition relies
heavily on this evidence. Nevertheless, this court must limit its review of Miller’s
fully exhausted ineffective-assistance-of-trial-counsel claims to the record before the
state court on direct appeal.

34

For Miller to prevail on an ineffective-assistance-of-appellate-counsel claim,
he must demonstrate that his underlying ineffective-assistance-of-trial-counsel
claims have merit. Because the state court reviewed Miller’s ineffective-assistanceof-appellate-counsel claims on collateral appeal, this court will consider the fully
developed record that was before the Rule 32 Circuit Court in reviewing Mr. Miller’s
ineffective-assistance-of-counsel-claims. Further, because review of Mr. Miller’s
ineffective-assistance-of-appellate-counsel claims will require this court to review
his underlying ineffective-assistance-of-trial-counsel claims, the court will review
Miller’s ineffective-assistance-of-trial-counsel claims in light of the record before
the Rule 32 Circuit Court. Having set forth the parameters of this court’s review,
this court will now address Miller’s fully exhausted claims.
1.

Claim A(ii): Miller’s Claim That Trial Counsel Was Ineffective For
Sabotaging the Work of the Defense Psychiatric Expert and For
Withdrawing the Plea of Not Guilty by Reason of Mental Disease
or Defect

Within this claim, Miller combines two different instances in which he alleges
trial counsel was ineffective. First, Miller alleges that trial counsel provided
ineffective counsel by failing to provide sufficient evidence to the defense
psychiatric expert, Dr. Scott, to allow Dr. Scott to determine whether Miller was sane
at the time of the shootings. (Doc. 1, at 48–66). Second, Miller alleges that trial

35

counsel was ineffective for subsequently withdrawing Miller’s insanity defense.
(Doc. 1, at 66).
On direct appeal, Miller only asserted that trial counsel was ineffective for
withdrawing Miller’s insanity defense and did not allege that trial counsel was
ineffective for failing to provide specific documents to defense expert, Dr. Scott.
(C.R. Vol. 16, Tab. 32, at 20–21). Not until collateral appeal did Miller add within
this claim the argument that trial counsel should have provided additional
information to Dr. Scott. (Rule 32 C.R. Vol. 19, Tab. 44, at 38–41). Because Miller
failed to argue on direct appeal that trial counsel was ineffective for failing to
provide documents to Dr. Scott, this portion of the claim is procedurally defaulted.7
See Baldwin v. Johnson, 152 F.3d 1304, 1311 (11th Cir. 1998) (“A habeas corpus
petitioner may not present instances of ineffective assistance of counsel in his federal
petition that the state court has not evaluated previously.”); Hunt v. Commissioner,
Ala. Dep’t of Corr., 666 F.3d 708, 730–31 (11th Cir.2012) (holding that “[t]o satisfy
the exhaustion requirement, petitioners must present their claims to the state courts
such that the reasonable reader would understand each claim’s particular legal basis

7

Alternatively, this court finds this claim due to be denied on the merits. This court will
address the underlying merits of the claim in connection with Miller’s ineffective-assistance-ofappellate-counsel claims. See Part VIII.
36

and specific factual foundation”); Johnson v. Alabama, 256 F.3d 1156, 1170 (11th
Cir. 2001).
To the extent that Miller did raise this claim on direct appeal, this court finds
that the state court’s rejection of the claim was reasonable under Strickland. In
addressing this claim, the Alabama Court of Criminal Appeals noted that,
After talking with Dr. Scott and reviewing Dr. Scott’s written report,
[trial counsel] determined that there was insufficient evidence to raise
an insanity defense during the guilt phase. In his opinion, it was better
to present Dr. Scott’s testimony at the penalty phase because presenting
his testimony during the guilt phase would have negated Dr. Scott’s
credibility and lessened the impact of the evidence during the penalty
phase. [Trial counsel] made this decision after reviewing the reports
from other mental-health evaluations of Miller, which were consistent
with Dr. Scott’s findings.
(C.R. Vol. 43, Tab. 73, at 15). The court stated that trial counsel’s decision to
withdraw the insanity defense was part of a “well-reasoned decision” to focus on the
penalty phase of trial. (C.R. Vol. 43, Tab. 73, at 16).
Miller fails to meet his heavy burden of proving that his trial counsel
performed unreasonably by pursuing the strategy that he did. On the record before
the state court, the strategic choices made by trial counsel were reasonable and
constitutionally adequate in the circumstances. In preparation for Miller’s trial, trial
counsel hired Dr. Scott to conduct an evaluation of Miller to determine whether
Miller was legally insane at the time of the murders. (C.R. Vol. 9, Tab. 30, at
37

17–18). After evaluating Miller, Dr. Scott concluded that Miller did not meet the
definition of insanity under Alabama law. (C.R. Vol. 9, Tab. 30, at 28–29). Trial
counsel also reviewed the reports of a state psychologist and state psychiatrist, both
of which were consistent with Dr. Scott’s determination. (C.R. Vol. 9, Tab. 30, at
93–94). Given that no mental health expert determined Miller to meet the definition
of insanity, trial counsel’s decision to withdraw the insanity defense was reasonable.
See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“[T]his court has never
required defense counsel to pursue every claim or defense, regardless of its merit,
viability, or realistic chance of success.”). Likewise, the state court’s determination
that trial counsel was not ineffective for withdrawing the insanity defense was also
reasonable.
2.

Claim A(v): Miller’s Claim That Trial Counsel Was Ineffective In
His Guilt-Phase Opening Statement

Miller alleges that trial counsel was ineffective in his opening statement and
“did little more than act as a second prosecutor.” (Doc. 1, at 78). Specifically,
Miller alleges that trial counsel was ineffective because he failed to challenge the
facts as presented by the State and failed to present any defense theory to the jury.
(Doc. 1, at 78–80; Doc 22, at 152–53). Miller also claims that trial counsel

38

encouraged the jury to feel contempt for Miller by describing the killings as “brutal”
and “inhumane.” (Doc. 1, at 80).
In his opening statement, trial counsel said:
We are at a part of the process here that the law says is necessary. We
all, at this point, have been assigned responsibilities. My responsibility
and Mr. Blackwood's responsibility is to make sure that in this case, as
in any other case, that we keep the burdens where the law says the
burdens belong, that we challenge any evidence or any statement that
is made that we think is wrong.
Our responsibility, however, is not—and is not ever the responsibility
of a lawyer to do things frivolous. And we will not do that in this case.
Since August the 5th of 1999, I have probably had dozens, if not
hundreds, of cameras and microphones and tape recorders stuck in my
face asking me what happened here, I guess presumably on the theory
that I would disclose something that would make all of this seem
logical.
I have not said anything that makes this seem logical and reasonable
because I don't know anything. You won't hear anything coming from
the defense that makes this seem logical and reasonable. To present
anything in that regard would be frivolous. We will not engage in
frivolity.
The responsibility that Mr. Blackwood and I have we accept and we
will do what our responsibility is, but we will not do anything frivolous.
That would be irresponsible.
I will not offer you any evidence in this case that would make this act
seem any less brutal and any less inhumane than it was. If you want to
know what happened in this case, I think you just got a pretty good
recitation of what happened in this case. I think Mr. Owens [the
prosecutor] got most of it right. Some of it seems to me to be a little
39

embellished, but so what. Fundamentally, you heard what happened.
Now, the most serious responsibility in this case is placed on you. And
you have gone through the process of jury selection and you are the
ones who survived the process of jury selection.
And you did not survive because you don't have opinions about this
case. You would be—it would be unnatural, from what most of you
have seen and heard, not to have an opinion in this case. You survived
because you have said we will not let our opinions affect the
responsibility that is placed on us in this case.
The responsibility that is placed on you in this case will be an awesome
one, but I suggest this to you, at the end of this case—you will have to
make at least two decisions in this case that places more responsibility
on you than I will ever have in any case I will ever stand for in a
courtroom.
But at the end, if you accept your responsibility in the same way I—that
everyone else, not just me, that everyone else in this courtroom is
accepting theirs, then at the end of this, when this is all over, you will
be proud. You won't be ashamed, you will be proud of at least what you
have done.
I don't expect that at any point in this case you will ever be anything but
ashamed of what happened that caused us to be here. I'm not going to
ask—for me to suggest anything to the contrary would be frivolous.
You won't see anything frivolous done in this case.
You will see a lot of meaningful things, though, presented to you. There
will be a lot of meaningful evidence and a lot of meaningful arguments
made to you. The only thing I ask at this point is that you accept your
responsibility as jurors and then we will all be proud that we
participated in this. Thank you.
(R. Vol. 5, Tab. 8, at 813–15).

40

In reviewing trial counsel’s opening statement, the Alabama Court of Criminal
Appeals stated: “[Trial counsel] focused his efforts during the guilt phase on
maintaining credibility with the jury. In accordance with this strategy, he admitted
to the jury early on in the proceedings that the evidence of Miller’s guilt was strong
because he wanted to lessen the impact of the evidence against Miller.” (C.R. Vol.
43, Tab. 73, at 15). The court described this strategy as “well-reasoned.” (C.R. Vol.
43, Tab. 73, at 16).
After reviewing the record, this court finds the state court’s determination
reasonable under Strickland. Trial counsel faced the significant challenge of
defending a client who had murdered three individuals at two different locations,
was observed by eye-witnesses at both locations, and was determined to be sane by
every expert who examined him. Under the circumstances, trial counsel’s decision
to acknowledge the evidence against his client to save credibility for the penalty
phase does not constitute deficient performance. See Parker v. Head, 244 F.3d 831,
840 (11th Cir. 2001) (recognizing that counsel’s strategic decision to concede the
defendant’s guilt during opening statement to maintain credibility with the jury was
reasonable in light of the substantial evidence against the defendant); Florida v.
Nixon, 543 U.S. 175, 191–92 (2004) (recognizing that in light of substantial
evidence of guilt in a capital trial, “counsel cannot be deemed ineffective for
41

attempting to impress the jury with his candor and his unwillingness to engage in ‘a
useless charade’”).
Additionally, even if trial counsel’s opening statement was unreasonable,
Miller cannot show prejudice. In view of the entire record, Miller has not shown a
reasonable probability that trial counsel’s opening statement affected the jury’s
guilty verdict. See United States v. Hatcher, 541 F. App’x 951, 953 (11th Cir. 2013)
(holding that a petitioner’s ineffective assistance claim failed because petitioner
failed to prove prejudice in light of overwhelming evidence of guilt). The evidence
of Miller’s guilt is simply overwhelming. One eye-witness saw Miller with a pistol
at the location where the bodies of the first two victims were discovered. At the
second location, an eye-witness saw Miller shoot the third victim. Finally, police
found a firearm in Miller’s truck that matched the spent shell casings found at the
crime scenes. In light of the strong evidence of his guilt, Miller cannot establish any
prejudice resulting from trial counsel’s opening statement.
Miller fails to demonstrate that the state court’s adjudication of the claim
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law or that it resulted in a decision that was based on
an unreasonable determination of facts in light of the evidence presented in the state

42

court proceedings. See 28 U.S.C. § 2254(d). Thus, Miller is not entitled to habeas
relief on this claim.
3.

Claim (vi): Miller’s Claim That Trial Counsel Was Ineffective
During The Presentation of The State’s Guilt-Phase Evidence

Within this claim, Miller asserts two different instances in which he alleges
trial counsel was ineffective. First, Miller alleges that trial counsel was ineffective
for failing to object to the admission of crime scene photographs as well as to
testimony from State experts Dr. Stephen Pustilnik and Dr. Angello Della Manna.
(Doc. 1, 81). Miller alleges that such evidence was irrelevant, inadmissible and
“served no purpose other than to inflame the jury against Mr. Miller.” (Doc. 1, 81).
Second, Miller alleges that his trial attorney failed to adequately cross-examine
numerous state witnesses. (Doc. 1, 80–87)
In his motion for new trial and on direct appeal, Miller only raised the claim
that trial counsel was ineffective for failing to effectively cross-examine the State’s
witnesses. (R. Vol. 16, Tab. 32, at 22–23). Miller’s direct appeals briefs contain no
mention of trial counsel’s failure to object to any of the State’s evidence. Therefore,
to the extent that Miller asserts that his trial counsel was ineffective for failing to
object to the State’s evidence, this court finds the claim procedurally barred.8 See

8

Alternatively, this court finds this claim due to be denied on the merits. This court will
address the underlying merits of the claim in connection with Miller’s ineffective-assistance-of43

Johnson v. Alabama, 256 F.3d 1156, 1170 (11th Cir. 2001).
Turning then to Millers contention that trial counsel was ineffective for failing
to adequately cross-examine the State’s witnesses, this court finds that the state
court’s rejection of this claim was reasonable under Strickland. In rejecting the
claim, the Alabama Court of Criminal Appeals stated that trial counsel realized that
the evidence of guilt in Miller’s case was “too overwhelming to seriously contest,”
and therefore, trial counsel made the strategic decision to concede guilt early on and
focus on the penalty phase of trial. (C.R. Vol. 43, Tab. 73, at 16). The Court’s
determinations are supported by the record. Additionally, even assuming that trial
counsel was ineffective in his cross-examination of the State’s witnesses, the claim
is due to be denied because he has not shown a reasonable probability that the
outcome of the proceeding would have been different if trial counsel had conducted
a more thorough cross-examination. The evidence leaves no doubt of Miller’s guilt
in the case. See United States v. Hatcher, 541 F. App’x 951, 953 (11th Cir. 2013).
Therefore, the state court’s rejection of this claim was reasonable, and Miller is not
entitled to habeas relief on this claim.
4.

Claim A(vii): Miller’s Claim That Trial Counsel was Ineffective for
Failing to Present Mental-Health Evidence During the Guilt Phase

appellate-counsel claims. See Part VIII.
44

Miller claims that trial counsel was ineffective for failing to present evidence
during the guilt phase to allow the jury to convict Miller of anything less than capital
murder. (Doc. 1, 87–90). The capital murder offense with which Miller was charged
required the jury to find that Miller had the specific intent to cause the death of at
least two of his three victims pursuant to one scheme or course of conduct. Ala.
Code § 13A-3-1. Miller contends that his trial counsel should have called Dr. Scott
to testify that Miller suffered from a severe mental illness that prevented him from
appreciating the nature and quality of his actions during the first two shootings.9
Miller argues that Dr. Scott’s testimony could have shown that Miller lacked the
specific intent to cause the death of at least two of his three victims.
Both the Circuit Court and the Alabama Court of Criminal Appeals rejected
this claim, finding that Miller failed to show that trial counsel was ineffective for
failing to present a guilt phase defense, and finding that Miller suffered no resulting
prejudice. (C.R. Vol. 43, Tab. 72, at 17–18; C.R. Vol. 43, Tab. 73, at 16–17). For
the reasons discussed below, the state court’s rejection of this claim was reasonable.

9

Dr. Scott stated in his report that, “It is also my opinion that at the moment of the first
shooting, Mr. Miller may not have appreciated the nature and quality of his actions as he
expressed that he suddenly found himself shooting without the intention of doing so.” PX 290022. Dr. Scott’s report also stated that Miller heard “noises” and experienced tunnel vision at
the time of the first two shootings. PX 29-0009–0010.
45

A review of the record shows that trial counsel chose not to present the
testimony of Dr. Scott or challenge the mens rea element of the murders for sound
strategic reasons. During the hearing on the motion for new trial, Miller asked trial
counsel why he did not present Dr. Scott’s testimony during the guilt phase of trial:
Q.

Let me ask you this. Was there a particular reason why you decided to
introduce Dr. Scott’s testimony only in the mitigation phase and not in
the trial in chief?

A.

Yes, sir.

Q.

Why is that?

A.

Actually I discussed it with Dr. Scott as to what my thinking was.
What my thinking was was that I did not want him to lose his
credibility in the guilt phase when I did not think that that testimony
would have any particular bearing at that point in time. If the jury
heard it in the guilt phase at a time when I believed that the evidence
would have been pretty much conclusory at that point, then I thought
it would have lost its impact for whatever benefit I could get out of it
in the sentencing phase.

(C.R. Vol. 9, at 21).
Trial counsel Johnson also testified at the Rule 32 hearing that he chose to
limit Dr. Scott’s testimony to the penalty phase because much of Dr. Scott’s
testimony was based on hearsay, which was only admissible during the penalty
phase. (Rule 32 C.R. Vol. 31, Tab. 59, at 285). He also considered the fact that Dr.
Scott would be subject to a more thorough cross-examination if he was called to

46

testify during the guilt phase. (Rule 32 C.R. Vol. 31, Tab. 59, at 284). Additionally,
trial counsel Blackwood testified that he did not want to raise mental health evidence
during the guilt phase because Shelby County jurors “are very solid people, hard
working, that don’t believe a lot of hullabaloo about these things they can’t see.”
(Rule 32 C.R. Vol 34, Tab. 59, at 892–93).
Based on these concerns, as well as the strong evidence that the shootings
were part of a single course of conduct, Miller’s trial counsel chose to forego a guilt
phase defense to focus on saving Miller’s life during the penalty phase. As
recognized by the Alabama Court of Criminal Appeals, this decision was “made only
after a thorough investigation of the relevant law and facts of Miller’s case.” (C.R.
Vol. 43, Tab. 73, at 16). The Supreme Court has recognized this exact type of
strategic trial decision to be “virtually unchallengeable.” Strickland, 466 U.S. at
690–91. Because Miller fails to show that no reasonable attorney would have chosen
to defer Dr. Scott’s testimony to the penalty phase of trial, Miller cannot show that
his trial counsel’s performance was deficient in this regard.
Miller also fails to show that he suffered prejudice as a result of trial counsel’s
decision to not present mental health evidence during the guilt phase. Significant
evidence shows that Miller intended to commit at least two of the three murders
pursuant to a single course of conduct. Miller specifically sought out Christopher
47

Yancy and Lee Holdbrook and shot them multiple times. He then drove to a second
location where he specifically sought out Terry Jarvis and shot him multiple times.
A reasonable jurist could conclude that a different outcome of the trial was not a
reasonable probability had trial counsel argued that Miller lacked the mens rea for
capital murder. Therefore, the state court’s rejection of this claim was not an
unreasonable application of Strickland.
5.

Claim A(xii): Miller’s Claim that Trial Counsel Denied Miller
Effective Assistance in His Penalty-Phase Opening Statement

Miller next alleges that trial counsel failed to present an effective penaltyphase opening statement by failing to present a coherent preview of the mitigation
case, undermining Dr. Scott’s credibility, and conceding the aggravating
circumstance required for Miller to be eligible for the death penalty. (Doc. 1, at 96).
In support of his argument, Miller points to trial counsel’s statement made in
response to the state’s query regarding what was in Miller’s heart at the time of the
shooting: “I think I can answer what was in Mr. Miller’s heart . . the overwhelming
desire to take a life, that’s what was in Alan Miller’s heart.” (Doc. 22, at 143).
Miller also faults trial counsel for stating that Miller “believed in the death penalty.”
(Doc. 22, at 144). Finally, Miller argues that trial counsel described Miller as
“atrocious” and “vile” by telling the jurors, “And I want you to be able to say . . .

48

what my vote meant was no matter what anybody does, no matter how vial [sic] they
are, they don’t deserve to die.” (Doc. 22, at 145).
The following is trial counsel’s penalty-phase opening statement:
Ladies and gentlemen, let me see if I can help the state in one respect
and that is I think I can answer what was in Mr. Miller’s heart. Same
thing that this kind of impassion the [sic] argument was designed to put
in your heart and that is the desire, the overwhelming desire to take a
life, that’s what was in Alan Miller’s heart.
I don’t think we need any experts up here to tell us that, I think every
one of you will come to that conclusion and it would be a very logical
one.
But there are a couple of words that have been used here too that I just
want to talk about briefly. First one being, first question that was posed
is what is justice?
Well, I really think that there is only one way to get real justice out of
this and that would be the taking Alan Miller’s life would restore those
other three, that would be real justice. And if you had - - if there was
some option, some verdict form that could be given to you that would
bring that back, make that happen, then I would sit here and beg you to
sign that and not even go back to the room before you did, that all
twelve of you do that and if you needed thirteen, I would sign it with
you because that would be real justice. Anything else that comes out
of this case is going to be imperfect justice.
Mr. Bostick talked about mercy. Now, there is no secret to you that the
State of Alabama is asking you to recommend that the state take the life
of Alan Miller.
I am asking you to recommend that the state not take his life, that is not
mercy because I will never stand here and define merciful with locking
someone up in a cage for the rest of their life. I see nothing merciful
49

about that. This is not about mercy. It’s about some form of imperfect
justice that we have in our - - in the wisdom of those minds that we
have elected to send to our legislatures, they have decided that this is
our system of justice.
Now, it is no great surprise to me what your verdict was going to be in
this case, but still when I hear it it hurts me, shocks me because your
verdict is already decided, you have already decided by your verdict
that Mr. Miller will die in prison. It’s just a question now of whose
hands will it be at, will it be at your hands or at the hands of someone
who I think wants to withhold - - to keep those decisions for
themselves.
So that’s the decision that you have to make now, not whether Mr.
Miller dies in prison because he will, you’ve already - - you’ve dictated
that by your verdict.
What we have now, though, is that part of the trial that has been what
this trial has been about from the start, and that is what do we do about
this man, what do we do in our service here for an imperfect justice.
And at this point we will be a little more active than we have been until
now. We will put on a witness, Dr. Scott, who is a psychiatrist. Dr.
Scott was employed to be perfectly frank with you in the hope that he
would find that Alan Miller met the legal definition of being insane,
because had he done that, and had we been able to prevail, none of this
would have happened, he wouldn’t be dying in prison, that’s why he
was brought here.
But Dr. Scott enjoys a very good reputation of being thorough and
being objective. And despite what I know his efforts were to try to get
there, he couldn’t, he just couldn’t be objective about it.
Because of that - - but he did learn a lot of things and this is where this
case rests at this point and that is, why did all of this happen and what
meaning can we make of any of this?

50

And Alan Miller has shared with Dr. Scott and he will share with you
what was on his mind that day and he will tell you that despite all of
these things that were on his mind and despite the rather significant
emotional and psychological problems that disturb Alan Miller, he
wasn’t insane but he was suffering from a personality disorder and that
personality disorder is one that the law recognizes not as a defense to
doing what Alan Miller did, there is no defense to that, but as a
mitigating circumstance.
Now, Mr. Bostick challenged me to explain to you why this was not
atrocious, especially atrocious, cruel, heinous and I really don’t - - I
mean, I will accept that challenge by saying this, I’ve never seen a
murder that wasn’t. And I don’t think that Mr. Bostick or any
prosecutor that I have ever known has ever stood up in a trial where
their job was to prosecute someone who murdered someone and say,
well, this one is not too bad; as murders go, this one is on the light side.
You’re not going to see that in any case. Murder is just not that way.
What you have been failed - - or what you have failed to be informed
of at this point is, that in a capital sentence, the type of exceptional
cruelty, heinousness, atrocity that we’re talking about is something that
goes above and beyond those facts which simply amount to capital
murder. Because we continue here to strain in trying to reach some
balance, we continue to strain, we’re trying to quantify which type of
murder is heinous, which type - - I guess contrary that, well, which type
is just okay, as if there is such a thing. I don’t even know how you
explain all of that. I don’t know how the law explains that in all
honesty.
Nonetheless, we sit here with this to face in our system of justice. If
anyone, Alan Miller or anyone else, had shot one of these victims on
Monday, come back the next day and for a completely different reason
shot another one, and come back the next day and for a completely
different reason shot another one, we wouldn’t be in this part of the trial
because that wouldn’t be capital murder.

51

Now, somebody explain to me what sense that makes. Somebody
explain to me you leave the same number of victims out there, the same
number of victims’ families out there but by some definition of justice
those victims and those families don’t deserve the same treatment.
So I am saying that any effort we make to quantify what is atrocious
and cruel and heinous is a folie, it all leaves.
What Dr. Scott will tell you, though, is that on August the 5th and
probably for many years prior to August the 5th that Alan Miller was
just a tortured soul. You’ve heard the testimony about Alan Miller’s
belief, and I think Dr. Scott’s opinion will be that to a great extent Alan
Miller’s belief was on perceived events and probably not even real
events, but you will hear him talk about how Alan believed and you’ve
heard the testimony that people were spreading rumors about him,
people were picking on him, that type of thing. Because of that belief,
whether it’s a fact or not, it was a belief, and based on that belief his
tortured soul took the lives of three people that day.
And this is - - this is where - - I don’t know any other fact that
demonstrates the falling [sic] of this part of the law in this, if Alan
Miller were not sitting at that table right there, it’s been stated that Alan
Miller had been called here like he might have been on August the 4th
of last year to be a juror because he would have been the state’s ideal
pick. He would have been the foreman of a capital murder jury because
he believed in the death penalty. He just decided that he couldn’t
impose it.
And we can labor all we want to in this courtroom, he’d be ideal,
because that’s the right that is reserved to the state and I will reject that
today, I reject it out, I will reject if for the rest of my life. I don’t
believe that that is a decision that can be made by anyone and still
justify a value system that we want everybody out there to have. We
want our children to have it. But more than that, we want everybody
else’s children to have it because if all children had that, we wouldn’t
see children killing other children, it would just make no sense.

52

Because a couple of years ago I would have been - - I know how all of
you feel about the death penalty because we asked questions about it
and you answered the questions about it.
A couple of years ago I would have been one of those that said I was
strongly in favor of that and I would not be sitting here today saying
things that I’m saying. But today I am opposed to it and not because
I’m representing Alan Miller, it wasn’t that at all, it hasn’t been this
event that caused me to change my mind. It is because I come to the
realization of something when I watched children killing children
because they were tortured souls.
And there is one fundamental notion that is necessary to explain what
all of this is about and that is that we all, there are always going to be
people out there, always going to be tortured souls out there who agree
with the notion that the death penalty is appropriate. And we can sit
here and try to make - - define that to a sophisticated system, if we want
to, but we won’t. Unless we live in a world where everyone has one
value in their value system and that is no matter how atrocious, no
matter how vial [sic] a person is, they don’t deserve to die, they deserve
to live.
As long as we attempt to try to quantify the way that you will have to
try to quantify in your deliberations whether this is a person who
deserves to live, then we will always have that. We can’t eliminate that
idea from our system of values. We can’t eliminate it from our national
conscience, it seems to me. And we can believe that, well, it might
work out fine if we could confine it to a courtroom but we can’t.
So we will put on one witness. We’ll put on Dr. Scott who will take
you through, and I think you will find his testimony most interesting
because of the openness of which Alan talked to him about what was
on his mind, about why. And I just know you’ve got to be sitting here
in puzzlement like I am, how can something like this happen.
Well, explanation is not a justification, is not an excuse, it’s not to
arouse sympathy for Alan Miller. It is to try to explain to you that yes,
53

there are tortured souls out there that believe in the death penalty and
they are willing everyday to administer that somebody does not satisfy
their definition of a good person. Once you cross that line of being
violent, once you cross that line of being mean and cruel, then it’s time
to invoke the death penalty.
And at the end I will ask you to consider that your verdict would be
most meaningful in this case. And you’re on stage, you know that. The
media is out here. When you get through, they will probably want to
ask you questions and you can answer their questions, if you want to,
of whatever your verdict is.
But the question that you will have - - in my heart of hearts I believe the
only question that really matters that you will have to answer is to your
children or your grandchildren what did you do, what did your vote say,
not what you selectively do as a jury but what you, every one of you,
what your vote meant.
And I want you to be able to say and this is what I’m asking you to say,
to go home and you say, what my vote meant was no matter what
anybody does, no matter how vial [sic] they are, they don’t deserve to
die. And that I suggest to you is what this part of the case is about and
what this case have been about from the start.
Thank you very much.
(C.R. Vol. 8, Tab. 20, at 1323–34).
In addressing the claim, the Circuit Court held:
A review of the penalty phase opening argument reveals that counsel
did not undermine the mitigation case. Instead, the opening argument
was consistent with counsel’s strategy to ask the jury to spare Miller’s
life. [Trial counsel] acknowledged the overwhelming evidence of his
client’s guilt. He then asked the jury to be merciful and spare Miller’s
life. Contrary to Miller’s assertion, counsel did not attack Dr. Scott’s
credibility but emphasized his credibility. (R. 1326–27) Counsel
54

informed the jury that, after conducting his review, Dr. Scott could not
testify that Miller met the legal definition of insanity. However, [trial
counsel] then informed the jury that Dr. Scott was going to testify to
matters that were pertinent for the jury’s penalty phase deliberations.
(R. 1326–27). Finally, while Mr. Johnson acknowledged that he was
not surprised at the jury’s verdict, he then explained to the jury that they
had already found that Miller would spend the rest of his life in prison.
[Trial counsel] portrayed Miller as a “tortured soul” and then asked the
jury to spare his life.
Counsel’s penalty phase closing argument was not deficient nor was
Miller prejudiced by this argument. [Trial counsel] did not undermine
the mitigation case. Instead, he asked the jury to extend mercy to
Miller even though Miller had not extended mercy to his victims. [Trial
counsel]’s argument was an impassioned plea that, despite Miller’s
actions, the jury should refuse to participate in recommending that he
be sentenced to death.
(C.R. Vol. 43, Tab. 72, at 17–18). The Alabama Court of Criminal Appeals affirmed
the denial of this claim. (C.R. Vol. 43, Tab. 73, at 18).
This court finds that, although trial counsel’s opening statement may not have
been perfect, a reasonable jurist could conclude that trial counsel’s statement was not
professionally unreasonable. In his opening statement, trial counsel argued the
absence of any good reason for the jury to recommend the death penalty in Miller’s
case. Trial counsel pointed out that taking Miller’s life could not bring back the
lives of any of the three victims and that the jury, by finding Miller guilty, had
already sentenced Miller to life in prison. (C.R. Vol. 8, Tab. 20, at 1323–26). Trial
counsel then argued that, regardless of what the jury might think of Miller
55

personally, he did not deserve the death penalty. (C.R. Vol. 8, Tab. 20, at 1327–32).
Finally, trial counsel previewed Dr. Scott’s testimony and stated that, although Dr.
Scott was hired by the defense to determine whether Miller was sane, Dr. Scott
ultimately concluded that Miller did not meet the definition of insanity under
Alabama law. (C.R. Vol. 8, Tab. 20, at 1332–33). Although some of trial counsel’s
statements seem odd when viewed individually, the statements are reasonable when
placed in the context of trial counsel’s entire statement.10 See Harvey v. Warden,
Union Corr. Inst., 629 F.3d 1228, 1253 (11th Cir. 2011) (holding that counsel’s
individual statements were not unreasonable when placed in context).
Having reviewed the transcript, this court finds that a reasonable jurist could
conclude that trial counsel’s penalty-phase opening statement was not unreasonable.
Additionally, this court concludes that given the brutal nature of this crime, a
reasonable jurist could conclude that the outcome of the penalty phase would not
have been different but for trial counsel’s statement. Therefore, Miller fails to
demonstrate that the state court’s adjudication of this claim was unreasonable.

10

When asked about his statement that all murders were atrocious, trial counsel stated,
“I was telling the jury that Alan Miller didn’t deserve to die whether [the jury] thought he was
atrocious or not.” (Rule 32 C.R. Vol. 30, Tab. 59, at 152).
56

B.

Claims Raised For the First Time On Collateral Appeal
Miller raised eleven of his ineffective-assistance-of-trial-counsel claims for

the first time on collateral appeal. In reviewing these claims, the Rule 32 Circuit
Court determined that the claims were procedurally barred under Rule 32.2(a) of the
Alabama Rules of Criminal Procedure because Miller could have raised the claims
on direct appeal but failed to do so. (C.R. Vol. 43, Tab. 75, at 1968–70). Federal
review of a habeas petitioner’s claim is barred by the procedural default doctrine if
the last state court to review the claim states clearly and expressly that its judgment
rests on a procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989). Because the
Rule 32 Circuit Court was the last state court to address these claims and because it
determined that the claims were procedurally barred under Rule 32.2(a), this court
finds the claims are barred from federal habeas review.11 See Brownlee v. Haley, 306
11

Miller argues in his reply brief that the Alabama Court of Criminal Appeals addressed
Miller’s ineffective-assistance-of-trial-counsel claims on the merits, and, therefore, the claims are
not procedurally barred. (Doc. 22, at 100–01). However, this argument lacks merit. The
Alabama Court of Criminal Appeals examined Miller’s ineffective-assistance-of-trial-counsel
claims, but did so for the limited purpose of reviewing Miller’s ineffective-assistance-ofappellate-counsel claims. (Rule 32 C.R. Vol. 38, Tab. 63, at 1–148). The Alabama Court of
Criminal Appeals never addressed Miller’s trial-counsel claims independently because Miller
abandoned his ineffective-assistance-of-trial-counsel claims following the Rule 32 Circuit
Court’s determination that the claims were procedurally barred. Miller only raised claims of
ineffective assistance of appellate counsel in his brief to the Alabama Court of Criminal Appeals.
(Rule 32 C.R. Vol. 38, Tab. 63, at 1–148). Therefore, the Rule 32 Circuit Court was the last
court to address these claims on the merits, and its express invocation of a state procedural bar is
sufficient to preclude habeas review. See Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.
1991). Additionally, as will be discussed in connection with Miller’s ineffective-assistance-ofappellate-counsel claims, these ineffective-assistance-of-trial-counsel claims would be due to be
57

F.3d 1043, 1065–66 (11th Cir. 2002) (holding that Rule 32.2(a) of the Alabama
Rules of Criminal Procedure is an independent and adequate state law ground);
Borden v. Allen, 646 F.3d 785, 814 (11th Cir. 2011).
With this backdrop, the court finds the following of Miller’s ineffectiveassistance-of-trial-counsel claims are procedurally barred:
1.

Claim A(I): Miller’s Claim That Trial Counsel Failed to Conduct an
Adequate Investigation and Failed to Uncover Evidence That Would
Have Led the Jury to Find Him not Guilty of Capital Murder or Would
Have led the Trial Court to Sentence Him to Life Without Parole

2.

Claim A(iv): Miller’s Claim That Trial Counsel Was Ineffective During
Jury Voir Dire.

3.

Claim A(viii): Miller’s Claim That Trial Counsel was Ineffective for
Failing to Object to Improper Statements Made in the State’s GuiltPhase Closing Argument

4.

Claim A(ix): Miller’s Claim That Trial Counsel was Ineffective During
the Guilt-Phase Closing Arguments

5.

Claim A(x): Miller’s Claim That Trial Counsel was Ineffective During
the Guilt-Phase Closing Arguments

6.

Claim A(xi): Miller’s Claim That Trial Counsel was Ineffective in
Preparing for the Penalty Phase

7.

Claim A(xiii): Miller’s Claim that Trial Counsel Failed to Present
Readily Available Evidence During the Penalty Phase

denied on the merits even if not procedurally barred.
58

8.

Claim A(xv): Miller’s Claim that Trial Counsel was Ineffective during
Penalty-Phase Closing Arguments

9.

Claim A(xvi): Miller’s Claim that Trial Counsel was Ineffective for
Failing to Object to Improper Penalty-Phase Jury Instructions

10.

Claim A(xvii): Miller’s Claim that Trial Counsel was Ineffective for
Failing to Request a Special Verdict Form

11.

Claim A(xviii): Miller’s Claim that Trial Counsel was Ineffective in
Connection with the Sentencing Hearing

Miller argues in his reply brief that the procedural default is excused because
his appellate counsel’s performance constitutes cause and prejudice. (Doc. 22, at
101–04); see Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002) (“A
petitioner can establish cause by showing that a procedural default was caused by
constitutionally ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 690 . . . (1984).”). However, as will be discussed in Part VIII, Miller
does not have any meritorious ineffective-assistance-of-appellate-counsel claims.
Therefore, he cannot show cause and prejudice to excuse the procedural default.12

12

Analysis of Miller’s ineffective-assistance-of-appellate-counsel claims will be identical
to the cause and prejudice analysis. To determine whether Miller is correct that cause and
prejudice exists, this court must determine whether appellate counsel’s performance was
ineffective. Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008). To determine whether
appellate counsel was ineffective in raising issues concerning trial counsel’s performance, this
court must determine whether Miller’s ineffective-assistance-of-trial-counsel claims are
meritorious. Id. Thus, this court’s review, whether for the purposes of establishing cause and
prejudice or for the purpose of analyzing Miller’s independent ineffective-assistance-ofappellate-counsel claims, ultimately turns on whether Miller’s underlying ineffective-assistanceof-trial-counsel claims are meritorious. Id. Because the review will be the same, this court will
59

Alternatively, these ineffective-assistance-of-trial-counsel claims would be due to
be denied notwithstanding the procedural bar because the claims lack merit.13
C.

Claims Raised For the First Time Before This Court
Miller asserts two ineffective-assistance-of-trial-counsel claims in his petition

that he failed to raise either on direct or collateral appeal. Miller’s failure to present
these claims to the state courts precludes Miller from now raising these claims for
the first time before this court. See Footman v. Singletary, 978 F.2d 1207, 1211
(11th Cir. 1992) (“[A] habeas petitioner may not present instances of ineffective
assistance of counsel in his federal petition that the state court has not evaluated
previously.”). This court finds the following of Miller’s claims to be procedurally
barred for failure to exhaust them:
1.

Claim A(iii): Miller’s Claim That Trial Counsel Was Ineffective For
Failing to Investigate or Develop Mitigation Evidence Following the
Withdrawal of the Insanity Defense

2.

Claim A(xiv): Miller’s Claim that Trial Counsel was Ineffective in
Connection with His Penalty-Phase Directed Verdict Motion14

not address the cause and prejudice analysis at this time but, instead, will do so in connection
with Miller’s ineffective-assistance-of-appellate-counsel claims. See Part VIII.
13

See Part VIII.

14

In his brief to the Alabama Court of Criminal Appeals on collateral appeal, Miller argued
that appellate counsel was ineffective for failing to raise this claim. (Rule 32 R. Vol. 38, Tab. 63,
at 139–42). However, Miller never presented this claim as an independent ineffective-assistance-oftrial-counsel claim before any of the state courts. Thus, the claim is not exhausted.
60

Although these claims are procedurally barred, this court will nevertheless
address the underlying merits of these claims in connection with Miller’s ineffectiveassistance-of-appellate-counsel claims in Part VIII.
VIII. MILLER’S INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL CLAIMS
Before reviewing Miller’s ineffective-assistance-of-appellate-counsel claims,
this court will address Miller’s contention that the determinations of the Alabama
Court of Criminal Appeals in the Rule 32 proceeding do not deserve deference under
the AEDPA because the decision does not constitute an adjudication on the merits.
(Doc. 22, at 104).
Miller asserts that the decision of the Alabama Court of Appeals was not an
adjudication on the merits because the Court adopted large portions of the Rule 32
Circuit Court’s opinion, which was itself an almost verbatim adoption of the State’s
proposed order. (See Doc. 22, at 104). However, the Eleventh Circuit has held that
a state court’s verbatim adoption of a state’s proposed order is an “adjudication on
the merits” and is entitled to AEDPA deference when both the petitioner and the
State had an opportunity to present their version of facts to the court. See Jones v.
GDCP Warden, 746 F.3d 1170, 1183–84 (11th Cir. 2014) (“Considering that a
summary disposition of a Strickland claim qualifies as an adjudication on the merits,

61

. . . , we can discern no basis for saying that a state court’s fuller explanation of its
reasons—albeit reasons drafted for the court by the State—is not entitled to AEDPA
deference.”); Brownlee v. Haley, 306 F.3d 1043, 1067 n.19 (11th Cir. 2002)
(upholding the use of proposed orders adopted verbatim by trial judges “as long as
they were adopted after adequate evidentiary proceedings and are fully supported by
the evidence”) (citations omitted); Rhodes v. Hall, 582 F.3d 1273, 1281–82 (11th
Cir. 2009).
In the case at hand, the determinations of the Rule 32 Circuit Court were
made after conducting multiple days of hearings and allowing the parties to submit
extensive briefing on all of Miller’s claims. Likewise, the determinations of the
Alabama Court of Criminal Appeals were made after each party submitted extensive
briefing. Therefore, the Alabama Court of Criminal Appeals’ determinations are
entitled to AEDPA deference. Having concluded that the determinations of the state
court are entitled to deference, this court turns to the applicable standard of review
for Miller’s ineffective-assistance-of-appellate-counsel claims.
Claims of ineffective assistance of appellate counsel are analyzed under the
same Strickland standard that is applicable to ineffective-assistance-of-trial-counsel
claims. Johnson v. Alabama, 256 F.3d 1156, 1188 (11th Cir. 2001). To show
entitlement to relief for his ineffective-assistance-of-appellate-counsel claims, Miller
62

must demonstrate both that appellate counsel performed deficiently and that the
deficient performance resulted in prejudice. Heath v. Jones, 941 F.2d 1126, 1130
(11th Cir. 1991). To demonstrate prejudice, Miller must show a reasonable
probability that, but for his appellate counsel’s performance, Miller would have
prevailed on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000). To
demonstrate a reasonable probability that Miller would have prevailed on appeal, he
must demonstrate that at least one of his ineffective-assistance-of-trial-counsel
claims is meritorious. See Payne v. Allen, 539 F.3d 1297, 1314–15 (11th Cir. 2008)
(“[T]o determine whether [petitioner] has shown ineffective appellate counsel, we
must determine whether [petitioner] has shown underlying meritorious ineffectivetrial-counsel claims.”). Because Miller’s ineffective-assistance-of-appellate-counsel
claims require this court to determine whether Miller’s ineffective-assistance-oftrial-counsel claims are meritorious, much of this court’s review will focus on
Miller’s ineffective-assistance-of-trial-counsel claims. With this introduction, the
court turns to Miller’s ineffective-assistance-of-appellate-counsel claims.
A.

Claim B(I): Miller’s Claim That Appellate Counsel was Ineffective for
Raising the Issue of Ineffective Assistance of Trial Counsel In the Motion
for New Trial
Miller claims that appellate counsel acted unreasonably by presenting Miller’s

ineffective-assistance-of-trial-counsel claims on direct appeal at the expedited
63

motion-for-new-trial stage, thereby precluding appellate counsel from raising
Miller’s ineffective-assistance-of-trial-counsel claims before the Rule 32 Circuit
Court. (Doc. 1, at 125–28). Miller argues that under the Alabama Supreme Court
decision in Ex parte Ingram, 675 So. 2d 863 (Ala. 1996), the proper procedure for
presenting claims of ineffective assistance of counsel for appellate review was to
present the claims on collateral appeal. Miller alleges that as a result of appellate
counsel’s decision to raise the ineffective-assistance-of-trial-counsel claims at the
motion for new trial stage, the claims were found to be procedurally barred under
Ala. R. Crim. P. 32.2(a)(2) and (a)(4) at the Rule 32 proceeding. Miller contends
that appellate counsel’s decision was especially egregious given the fact that
appellate counsel did not have a copy of the trial transcript at the point that they
raised the issue of trial counsel’s ineffectiveness.
1.

No Procedural Default

Respondent contends that this claim is procedurally defaulted because Miller
did not raise the claim in his Rule 32 petition to the Circuit Court. (Doc. 16, 63).
However, as Respondent concedes, the Alabama Court of Criminal Appeals found
that Miller raised this claim before the Circuit Court, and the Alabama Court of
Criminal Appeals addressed the claim on the merits. (Rule 32 R. Vol. 43, Tab. 76,
at 17). Because the Alabama Court of Criminal Appeals did not rely on a state
64

procedural bar in addressing this claim, but addressed this claim on the underlying
merits, the claim is not procedurally defaulted. This court will review the Alabama
Court of Criminal Appeals’ decision under AEDPA deference. See Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir. 2001).
2.

Merits

The last state court to issue a reasoned opinion on this claim was the Alabama
Court of Criminal Appeals, which found that appellate counsel could properly assert
the ineffective-assistance-of-trial-counsel claims on direct appeal. (C.R. Vol. 43,
Tab. 76, at 18–21). The Court pointed to Rule 32.2 of the Alabama Rules of
Criminal Procedure, which states that “[a]ny 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 practicable.” Ala. R. Crim. P. 32.2(d). The Court also
concluded that regardless of whether appellate counsel’s performance was defective,
Miller suffered no prejudice because none of his ineffective-assistance-of-trialcounsel claims were meritorious. (C.R. Vol. 43, Tab. 76, at 21). Because this court
finds that Miller did not suffer any prejudice, this court will not address whether
appellate counsel performed unreasonably by raising the ineffective-assistance-oftrial-counsel claims at the motion-for-new-trial stage. See Duren v. Hopper, 161

65

F.3d 655, 660 (11th Cir. 1998) (“[I]f a defendant cannot satisfy the prejudice prong,
the court need not address the performance prong.”).
Although the Rule 32 Circuit Court found that Miller’s claims of ineffective
assistance of trial counsel were procedurally barred, the court nevertheless heard
evidence regarding trial counsel’s performance because Miller incorporated all of his
ineffective-assistance-of-trial-counsel claims into his ineffective-assistance-ofappellate-counsel claims. Indeed, the majority of the evidence presented at the Rule
32 hearing was related to trial counsel’s performance. After hearing evidence
regarding the trial counsel claims, the Circuit Court reviewed and denied all of
Miller’s trial counsel claims for the purpose of establishing that Miller was not
prejudiced by his appellate counsel’s performance.
Because Miller had the opportunity to present evidence related to the
ineffective-assistance-of-trial-counsel claims, and because the Rule 32 Circuit Court
reviewed Miller’s ineffective-assistance-of-trial-counsel claims and found the claims
to be without merit, Miller did not suffer any resulting prejudice. Whether the Rule
32 Circuit Court denied the trial-counsel claims in connection with Miller’s
appellate-counsel claims or denied the trial-counsel claims outright, the result of the
proceeding would have been the same—Miller’s appeal would have been denied.
Thus, Miller suffered no prejudice and is not entitled to habeas relief on this claim.
66

B.

Claim B(ii & iii): Miller’s Claim That Appellate Counsel was Ineffective
for Failing to Conduct an Adequate Investigation Concerning the
Ineffective Assistance Miller Received from Trial Counsel AND Failing
to Present Sufficient Evidence During the Hearing on the Motion for New
Trial to Establish That Miller Suffered Prejudice as a Result of Trial
Counsel’s Performance15
Miller contends that appellate counsel, having raised the issue of ineffective

assistance of trial counsel during the motion for new trial, was ineffective in
investigating and presenting the ineffective-assistance-of-trial-counsel claims.16
(Doc. 1, at 128). Specifically, Miller contends that appellate counsel was ineffective
for failing to adequately investigate and present evidence related to any prejudice
that Miller suffered as a result of trial counsel’s performance. Miller contends that

15

Miller’s brief to the Alabama Court of Criminal Appeals did not discuss appellate
counsel’s presentation at the hearing, but the Court nevertheless addressed the issue because it
was raised before the Rule 32 Circuit Court. (C.R. Vol 43, Tab. 76, at 21–22). Miller now
separates appellate counsel’s investigation and presentation into two separate claims, Claim
(B)(ii) and Claim (B)(iii). Because the state court’s decision does not lend itself to piecemeal
review and the analysis of the claims is similar, this court will address the two claims in tandem.
16

Miller alleges that appellate counsel was deficient in the following ways: (1) appellate
counsel only spent one hour with Miller prior to the motion-for-new-trial hearing; (2) appellate
counsel did not conduct sufficient legal research to prepare for the case; (3) appellate counsel did not
interview any of Miller’s family or friends and thus did not learn of possible mitigating evidence that
trial counsel failed to present at trial; (4) appellate counsel failed to speak with Dr. Scott and thus
did not learn that trial counsel had retained Dr. Scott only to evaluate Mr. Miller’s sanity; (5)
appellate counsel failed to gather any records, mitigation information, or materials that trial counsel
should have gathered but did not; (6) appellate counsel did not effectively evaluate trial counsel’s
performance; and (7) appellate counsel failed to present evidence at the hearing to demonstrate that
trial counsel’s performance prejudiced Miller. (Doc. 1, at 128–32).
67

but for these deficiencies, appellate counsel would have been able to show that trial
counsel was ineffective under Strickland. (Doc. 1, at 131–32).
1.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
21–26). Therefore, this court will review the determinations of the state court under
AEDPA deference.
2.

Merits

The Rule 32 Circuit Court rejected this claim, holding that Miller failed to
demonstrate that appellate counsel’s performance was deficient or that Miller
suffered any resulting prejudice. (C.R. Vol. 43, Tab. 75, at 27–40). The Alabama
Court of Criminal Appeals affirmed the Rule 32 Circuit Court, finding both that
appellate counsel was not ineffective and that, even if appellate counsel were
ineffective, Miller suffered no prejudice. (C.R. Vol 43, Tab. 76, at 26).
Although the state court found that appellate counsel reasonably investigated
and presented Miller’s ineffective-assistance-of-trial-counsel claims on appeal,
serious questions remain regarding appellate counsel’s performance. One of the
main arguments that appellate counsel presented on appeal was that trial counsel was
ineffective for failing to adequately investigate and present mitigating evidence.
68

(See R. Vol. 16, Tab. 32, at 22). However, appellate counsel did not attempt to
investigate or present evidence demonstrating any prejudice that Miller may have
suffered as a result of trial counsel’s performance.
At the motion-for-new-trial hearing, appellate counsel called Aaron McCall
of the Alabama Prison Project to testify that he had been available to conduct a
mitigating investigation for Miller’s case and had offered his services to trial
counsel. (Rule 32 C.R. Vol. 34, Tab. 60, at 36–37). Appellate counsel, however,
never requested that McCall conduct an investigation into what mitigating evidence
could have been presented. (Rule 32 C.R. Vol. 34, Tab. 60, at 48–49). Appellate
counsel also called clinical psychologist Dr. Bob Wendorf, who reviewed Dr. Scott’s
report and testified about a “distinct possibility” that Miller and his father suffered
from schizophrenia. (C.R. Vol. 9, Tab. 30, at 122). Dr. Wendorf also testified that
Miller may have had some other mental illnesses. (C.R. Vol. 9, Tab. 30, at 112–19).
However, appellate counsel never asked Dr. Wendorf to perform an independent
assessment of Miller to diagnose whether Miller did in fact have a mental illness.
(Rule 32 C.R. Vol. 34, Tab. 60, at 48–50). When asked about his strategy, appellate
counsel Hill testified, “In retrospect[,] . . . it would have probably been a better
practice” to have had Dr. Wendorf actually perform an assessment of Miller. (Rule
32 C.R. Vol. 34, Tab. 60, at 48). This court agrees.
69

Because appellate counsel failed to investigate any of the mitigating evidence
that they argued should have been presented, appellate counsel could not show that
Miller suffered any prejudice—one of the two prongs required to demonstrate
ineffective assistance of counsel. The court questions whether any reasonable jurist
could conclude that appellate counsel’s failure in this regard would constitute
reasonable performance under Strickland. See Ferrell v. Hall, 640 F.3d 1199,
1236–39 (holding appellate counsel’s performance unreasonable when counsel failed
to sufficiently investigate the petitioner’s background and mental health). However,
this claim is still due to be denied because, as will be discussed below, none of
Miller’s ineffective-assistance-of-trial-counsel claims are meritorious.17 Therefore,
Miller cannot demonstrate any resulting prejudice.
C.

Claim B(iv): Miller’s Claim that Appellate Counsel was Ineffective for
Failing to Adequately Present the Claims of Ineffective Assistance of Trial
Counsel That Were Raised in Miller’s Motion for New Trial
Miller alleges that appellate counsel ineffectively presented and argued the

following claims in his motion for new trial: (1) that trial counsel was ineffective in
his guilt phase opening statement; (2) that trial counsel was ineffective for
withdrawing the insanity defense; (3) that trial counsel was ineffective for failing to
present mental health evidence during the guilt phase; (4) that trial counsel was
17

See infra Parts VIII C & D.
70

ineffective in his penalty phase opening statement; and (5) that trial counsel was
ineffective in failing to adequately investigate and present mitigation evidence
during the penalty phase. (Doc. 1, at 134–42). Miller presented this same claim
before the state court, and therefore this court must determine whether the state
court’s rejection of this claim was reasonable under AEDPA deference.
In reviewing this claim, the Alabama Court of Appeals recognized that for
appellate counsel to have been ineffective in the manner in which they presented the
ineffective-assistance-of-trial-counsel claims, Miller had to demonstrate that he
suffered prejudice as a result of appellate counsel’s performance—i.e., that Miller’s
underlying ineffective-assistance-of-trial-counsel claims had merit. (C.R. Vol. 43,
Tab. 76, at 27). Thus, the Alabama Court of Criminal Appeals turned its attention
to Miller’s trial counsel claims. This court will do the same, giving AEDPA
deference to the state court’s determination.
1.

Miller’s claim that trial counsel’s opening statement during the
guilt phase was ineffective

Miller alleges that trial counsel was ineffective in his opening statement and
“did little more than act as a second prosecutor.” (Doc. 1, at 78). Miller contends
that trial counsel was ineffective because he failed to challenge the facts as presented
by the State and failed to present any defense theory to the jury. (Doc. 1, at 78–80;

71

Doc 22, at 152–53). Miller also asserts that trial counsel encouraged the jury to feel
contempt for Miller by describing the killings as “brutal” and “inhumane” and telling
the jurors that he did not believe they would feel “anything but ashamed of what
happened that caused all of us to be here.” (Doc. 1, at 80).18
a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
45–48). Therefore, this court will review the determinations of the state court under
AEDPA deference.
b.

Merits

The Rule 32 Circuit Court denied this claim, holding that trial counsel’s
opening statement was “the product of a reasonable, strategic decision to win favor
with the jury by not presenting frivolous arguments to spare Miller’s life.” (C.R.
Vol. 43, Tab. 75, at 98). The Court also held that Miller failed to establish prejudice
because he did not point to any evidence that the outcome of the trial would have
been different but for trial counsel’s opening statements. The Alabama Court of
Criminal Appeals affirmed the determinations of the Rule 32 Circuit Court,

18

For the full text of trial counsel’s guilt-phase opening statement, see supra Part

VII.A.1.
72

emphasizing the difficult task trial counsel faced in defending a case in which the
evidence clearly established Miller’s guilt. (C.R. Vol. 43, Tab. 76, at 47–48).
After reviewing trial counsel’s opening statement, this court cannot say that
the state court’s decision was unreasonable. At the Rule 32 hearing, trial counsel
explained that his trial strategy throughout the trial was to focus on the penalty phase
of trial and avoid presenting frivolous arguments to the jury that would diminish his
credibility. (Rule 32 C.R. Vol. 30, Tab. 59, at 220). This strategy was based in part
on the fact that a veniremember told the Circuit Court that he had overheard another
veniremember expressing his opinion that the trial was a waste of time because the
evidence in the case was overwhelming. (Rule 32 C.R. Vol. 30, Tab. 59, at 236).
Trial counsel stated that his purpose in making his opening statement was to
emphasize to the jury that although the evidence of Miller’s guilt was “largely
uncontradicted,” the jury process was not a waste of time. (C.R. Vol. 9, Tab. 30, at
63).
Trial counsel’s opening statement followed this strategy. He emphasized that
he would not present any “frivolous” arguments to the jury and emphasized the
important role the jury played in the trial. (C.R. Vol. 5, Tab. 9, at 813–16). Trial
counsel’s decision not to contest guilt to maintain credibility with the jury and focus
on the penalty-phase of trial was not unreasonable. See Harvey. v. Warden, Union
73

Corral. Inst., 629 F.3d 1228, 1243 (11th Cir. 2011) (holding that “conceding guilt
and focusing on the penalty phase is a valid trial strategy for Strickland analysis”).
To the extent that Miller faults trial counsel for stating that, “I will not offer
you any evidence in this case that would make this act seem any less brutal and any
less inhumane than it was,” this court finds trial counsel’s statement not to be
unreasonable when viewed in context of trial counsel’s full opening statement. At
the motion-for-new-trial hearing, trial counsel testified that his purpose in making
this statement was to communicate to the jury that he was not contesting the terrible
nature of the crime. (C.R. Vol. 9, at 58). This theme was in keeping with that of trial
counsel’s opening statement as a whole.
Additionally, even if trial counsel’s performance in connection his guilt-phase
opening statement was defective, Miller cannot show that the outcome of the guilt
phase would have been different but for trial counsel’s statements. As this court has
stated repeatedly, the evidence of Miller’s guilt was overwhelming. Therefore, this
ineffective-assistance-of-trial-counsel claim lacks merit.
2.

Miller’s claim that trial counsel was ineffective for withdrawing the
insanity defense

Miler alleges that trial counsel was ineffective for failing to present an insanity
defense during the guilt phase of trial. (Doc. 1, at 135).

74

a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
28–45). Therefore, this court will review the determinations of the state court under
AEDPA deference.
b.

Merits

The Rule 32 Circuit Court denied this claim, finding that Miller failed to show
both that trial counsel’s withdrawal of the insanity defense was unreasonable and
that trial counsel’s withdrawal of the insanity defense prejudiced Miller. (C.R. Vol.
43, Tab. 75, at 99). In determining that trial counsel was not ineffective for
withdrawing the insanity defense, the Rule 32 Circuit Court stated:
Miller's trial counsel could not be deficient for withdrawing the insanity
defense because none of the psychological or psychiatric experts who
evaluated Miller before trial concluded that Miller met the legal
definition for insanity.
Miller, through counsel, originally pled not guilty by reason of mental
disease or defect. [Direct Appeal, C. 1.] To qualify under the legal
definition of insanity, Miller bore the burden [of] demonstrating that he
‘was unable to appreciate the nature and quality or wrongfulness of his
acts.’ Ala. Code § 13A–3–1. However, as demonstrated during trial and
the [Rule 32] evidentiary hearing, none of the four mental health
experts who examined Miller concluded that he was unable to
appreciate the nature and quality of his actions. [Direct Appeal, R.
1384; Motion for New Trial Hearing, R. 72–74; February 2008 Rule 32
Hearing, R. 248.] . . .
75

Thus, trial counsel could not have provided any expert opinion
testimony to credibly argue to the jury that Miller was legally insane.
Any argument that Miller was legally insane could have been
effectively rebutted from Miller's own expert's conclusion that he was
not insane. [Direct Appeal, R. 1384.] Johnson testified that he was
aware of each of these reports and that neither Dr. Hooper's, nor Dr.
McClaren's, nor Dr. Scott's reports conflicted on the issue of Miller's
sanity at the time of the offense. [Motion for New Trial Hearing, R.
73–74; February 2008 Rule 32 Hearing, R. 251.] Johnson testified that
after receiving Dr. Scott's report, he discussed the findings with Dr.
Scott and ultimately decided to withdraw the insanity defense on May
24, 2000 [February 2008 Rule 32 Hearing, R. 91–92.] Johnson stated
during the [Rule 32] evidentiary hearing that if any of the four doctors
who evaluated Miller had declared that Miller was insane at the time of
the offense, such a finding would have altered his strategy and that he
would have used that opinion as part of his defense. [February 2008
Rule 32 Hearing, R. 248.]
(C.R. Vol. 43, Tab. 75, at 80–83).
The Rule 32 Circuit Court also found that Miller failed to establish any
resulting prejudice:
Although Miller now claims that his trial counsel should have presented
more information to Dr. Scott or obtained additional expert opinion
regarding Miller's sanity, the record indicates that even if such
additional measures were taken, the result would be the same: that
Miller does not meet the requirements for insanity under Alabama law.
At the evidentiary hearing, Dr. [Catherine] Boyer [Miller's Rule 32
psychologist] testified that in her opinion, Miller experienced a
dissociative episode at the time of the shootings and that this opinion
would be important as a mental health professional in determining
whether Miller was sane or insane at the time of the shootings.
[February 2008 Rule 32 Hearing, R. 719–20.]
However, incredibly, Dr. Boyer never testified that in her opinion,
Miller was legally insane at the time of the shootings. When pressed on
76

this crucial question by counsel for the State, Dr. Boyer stated ‘I really
don't know if I can answer it.’ [February 2008 Rule 32 Hearing, R.
757.] ) Most importantly, Dr. Boyer testified that after her complete
investigation, if she had been called to testify as to Miller's sanity at the
time of trial, she would have had no opinion. [February 2008 Rule 32
Hearing, R. 758.] Therefore, Miller has failed to present any evidence
that a mental health expert would have been available to testify at trial
that Miller was insane at the time of the shootings.
Miller also failed to present any evidence during the evidentiary
hearing that conflicts with the evidence and expert opinion regarding
Miller's sanity at the time of trial. Dr. Scott never testified that his
opinion at the time of trial that Miller was not unable to appreciate the
nature and quality or wrongfulness of his actions had changed.
Although Dr. Scott stated that it was ‘possible’ that had he obtained
additional information and conducted additional testing relating to a
dissociated disorder his diagnosis could have changed, he failed to
testify that such information did in fact change his opinion. [February
2008 Rule 32 Hearing, R. 364.] Like Dr. Boyer, Dr. Scott never
testified that in his opinion, Miller met the requirements for insanity
under Alabama law.
Equally as important in determining that Miller was not prejudiced by
the withdrawal of the insanity plea was the testimony of Dr. McClaren
during the [Rule 32] evidentiary hearing. Before trial in the fall of
1999, Dr. McClaren was hired to conduct a forensic psychological
evaluation of Miller. [February 2008 Rule 32 Hearing, R. 773.] After
conducting his evaluation, Dr. McClaren concluded that Miller was a
‘non psychotic man of average intelligence.’ [February 2008 Rule 32
Hearing, R. 778.] Dr. McClaren also concluded that Miller was not
insane under Alabama law at the time of the offense. [February 2008
Rule 32 Hearing, R. 780.]
After becoming involved in the case again for purposes of this Rule 32
proceeding, Dr. McClaren testified that he reviewed additional
testimony, the reports of Dr. Scott and Dr. McDermott, additional
psychological testing, school records as well as the testimony during
the evidentiary hearing. [February 2008 Rule 32 Hearing, R. 783–84.]
77

Dr. McClaren then testified that after his review of this new
information, nothing had changed his opinion that Miller was not
legally insane at the time of the shootings. [February 2008 Rule 32
Hearing, R. 792–93.]
The testimony of all three mental health experts during the evidentiary
hearing as well as the evidence contained in the mental health reports
issued during the trial and the trial record itself are consistent: all
indicate that Miller was not unable to appreciate the nature and quality
or wrongfulness of his actions. No testimony has even been presented
during trial or in this Rule 32 proceeding that Miller was insane at the
time of the shootings under Alabama law. Therefore, Miller has failed
to demonstrate a reasonable probability that the outcome of his
proceeding would have been different had trial counsel not withdrawn
the insanity plea because the record resoundingly evidences that Miller
was in fact not insane at the time of the shootings. Accordingly,
because Miller has failed to demonstrate prejudice under Strickland,
this claim is denied.
(C.R. Vol. 43, Tab. 75, at 84–87). The Alabama Court of Criminal Appeals
affirmed the Rule 32 Circuit Court’s determinations. (C.R. Vol. 43, Tab. 76,
at 31).
After reviewing the record, this court finds that the state court’s determination
was reasonable under Strickland. The record reflects that trial counsel considered
presenting an insanity defense and retained Dr. Scott for the express purpose of
determining whether Miller met the legal definition of insanity at the time of the
shootings. However, Dr. Scott determined that Miller did not meet the legal
definition of insanity under Alabama law. Dr. Scott’s determinations were the same
as those of the three other mental health experts who examined Miller prior to the
78

start of trial. Trial counsel’s decision to withdraw the insanity defense after
reviewing the opinions of four experts is by no means an unreasonable decision.
See Brownlee v. Haley, 306 F.3d 1043, 1061 (11th Cir. 2002) (finding that a defense
attorney’s decision not to pursue an alibi defense he deemed to be implausible and
unlikely to succeed to be the type of strategic decision on which a court should
defer to the judgment of counsel); Williams v. Head, 185 F.3d 1223, 1237 (11th Cir.
1999) ([T]o be effective a lawyer is not required to pursue every path until it bears
fruit or until all hope withers.”) (internal quotations omitted).
Further, as highlighted by the Circuit Court, Miller cannot demonstrate any
prejudice resulting from trial counsel’s decision to withdraw the insanity defense.
Miller failed to produce a single expert willing to testify that Miller was legally
insane at the time of the shootings. No evidence was ever presented that would
demonstrate that Miller met the legal definition of insanity at the time of the
murders. Thus, the court finds no reasonable probability that the jury would have
found Miller to be legally insane, and Miller cannot show a reasonable probability
that the outcome of the proceeding would have been different but for trial counsel’s
decision to withdraw the insanity defense.
Within Miller’s claim that trial counsel was ineffective for failing to present
an insanity defense, Miller alleges that trial counsel was ineffective for failing to
79

provide Dr. Scott with various documents that Miller claims were necessary to
determine Miller’s sanity. Miller contends that trial counsel should have provided
Dr. Scott with the following: (1) a file created by Dr. Hooper following his
evaluation of Miller; (2) Dr. McClaren’s report of his evaluation of Miller; (3) the
recording of Miller’s post-arrest police interrogation; (4) records of Miller’s
medical/psychological records and those of his family; and (5) information
concerning the abuse Miller suffered at the hands of his father. (Doc. 1, 48–66).
The Rule 32 Circuit Court rejected this argument and found that Miller failed
to show both that trial counsel was deficient and that Miller suffered any resulting
prejudice. (C.R. Vol. 43, Tab. 75, at 59–73). Although the Rule 32
Circuit Court and the Alabama Court of Criminal Appeals discussed the
performance prong of Strickland at length in relation to this ineffective-assistanceof-trial-counsel claim, this court will limit its discussion of the claim to the
prejudice prong, Miller clearly failed to meet this prong. See Duren v. Hopper, 161
F.3d 655, 660 (11th Cir. 1998) (“[I]f a defendant cannot satisfy the prejudice prong,
the court need not address the performance prong.”).
In discussing the prejudice prong, the Rule 32 Circuit Court stated:
Miller has failed to demonstrate a reasonable probability that the
outcome of his proceeding would have been different had his trial
counsel investigated more mental health evidence because he has failed
to prove that he met the legal definition of insanity under Ala. Code
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[1975] § [13A–3–1]. None of the five psychological and psychiatric
experts who evaluated Miller during the course of his trial or his Rule
32 proceedings, including Drs. Hooper, Scott, McDermott, McClaren,
and Boyer concluded that Miller was legally insane. Therefore, even if
trial counsel had conducted a more thorough mental health
investigation, the result would be the same: Miller could not have
proven that he did not appreciate the wrongfulness of his actions and
thus could not have sustained a not-guilty by reason of insanity defense.
Miller's failure to demonstrate prejudice is highlighted by the testimony
of Miller's own expert, Dr. Boyer, during the evidentiary hearing.
Despite her opinion that Miller suffered from post-traumatic stress
disorder, incredibly, Dr. Boyer failed to testify that Miller was legally
insane. [February 2008 Rule 32 Hearing, R. 757–58.] Notably, Dr.
Boyer failed to even provide an opinion. Clearly evading the issue of
Miller's sanity, in response to a question regarding whether she
disagreed with Dr. Scott's testimony during trial that Miller was not
insane, Dr. Boyer testified ‘I really don't know if I can answer it.’
[February 2008 Rule 32 Hearing, R. 757.]
As Dr. Boyer stated in response to a question from counsel for the
State, if she had been called to testify on Miller's behalf during trial, she
would have had no opinion as to whether he could appreciate the
wrongfulness of his conduct at the time of the shootings:
Q: So in this case it's fair to say that had you been there you
would have said I have no opinion [as to Miller's sanity] one way or the
other?
A: Yes.
[February 2008 Rule 32 Hearing, R. 758.] Without offering an opinion,
let alone an opinion that conflicted with the evaluations performed
during trial, even if a mental health investigation was performed in the
manner in which Miller now alleges it should have been conducted,
Miller has failed to demonstrate a reasonable probability that additional
mental health evidence would have been uncovered that would have
affected the outcome of his trial. It is also significant that Dr. Scott
failed to state during the evidentiary hearing that his opinion that Miller
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was not insane at the time of the shootings had changed. No evidence
has been presented that Miller was legally insane and ample mental
health evidence was already available for trial counsel to effectively
argue during the penalty phase that Miller satisfied the requirements for
the statutory mitigating circumstances under Ala.Code [1975] §
13A–5–51(2) and (6).
Three psychologists and one psychiatrist evaluated Miller at the time
of trial; none of these four doctors, whether hired by the defense or
appointed by the trial court, found that Miller was insane. [February
2008 Rule 32 Hearing, R. 248.] Miller has offered nothing in the
testimony of either Dr. Boyer or Dr. Scott to call these evaluations into
question. There is no evidence that Dr. Boyer's testimony would have
benefitted Miller's defense, nor would it have impacted the outcome of
the proceedings. Miller has failed to meet his burden of proof of
demonstrating how he was prejudiced under Strickland by his trial
counsel's investigation into his mental health. Therefore, Miller cannot
demonstrate that his trial counsel's performance in this regard was
constitutionally ineffective. . . .
(C.R. Vol. 43, Tab. 75, at 73–76). The Alabama Court of Criminal Appeals
affirmed the Rule 32 Circuit Court’s determination. (C.R. Vol. 43, Tab. 76, at 39).
This court agrees with the state court’s conclusion. As noted previously,
Miller fails to point to a single expert who determined that he was unable to
appreciate the nature and quality or wrongfulness of his acts at the time of the
shootings. Dr. Boyer conducted an extensive review of Miller’s record, including
the items that Miller alleges trial counsel should have provided to Dr. Scott. (Rule
32 C.R. Vol. 32, Tab. 59, at 599–630). Based on her investigation, Dr. Boyer
concluded that Miller suffered from a post-traumatic stress disorder. (Rule 32 C.R.
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Vol. 32, Tab. 59, at 757–58). However, Dr. Boyer refused to testify that Miller was
unable to appreciate the nature and quality or wrongfulness of his acts at the time
of the shootings. (Rule 32 C.R. Vol. 32, Tab. 59, at 757–58). Miller also called Dr.
Scott at the Rule 32 hearing, and he likewise failed to state that he believed Miller
was unable to appreciate the nature and quality or wrongfulness of his acts at the
time of the shootings. In total, Miller was examined by five different mental health
experts in the course of his trial and the Rule 32 proceedings. None of these experts
testified that Miller was unable to appreciate the nature and quality or wrongfulness
of his acts at the time of the shootings.
Because Miller fails to point to any evidence that he met the legal definition
of insanity, he has failed to establish a reasonable probability that the outcome of
his trial would have been different had trial counsel provided Dr. Scott with
additional evidence and decided not to withdraw the insanity defense. Therefore,
Miller has failed to show that his trial counsel was ineffective and cannot show that
his appellate counsel was ineffective in presenting this claim on direct appeal.
3.

Miller’s claim that trial counsel was ineffective for failing to
present mental health evidence during the guilt phase of trial

Miller alleges that trial counsel was ineffective for failing to present mental
health evidence to the jury that would have allowed them to find that Miller lacked
the mens rea required for a conviction of capital murder. (Doc. 1, at 87–90, 138).
83

Miller maintains that trial counsel should have presented the findings of Dr. Scott’s
that Miller, although not legally insane, suffered from a mental illness and
experienced tunnel vision and heard “noises” at the time of the first two shootings.
Miller argues that had this testimony been presented at the guilt phase of trial, trial
counsel could have argued that Miller lacked the necessary mens rea to be guilty of
capital murder.
a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
40–45). Therefore, this court will review the determinations of the state court under
AEDPA deference.
b.

Merits

The Rule 32 Circuit Court rejected Miller’s argument that trial counsel should
have presented a defense during the guilt phase. The court stated:
Trial counsel Johnson had reasonable strategic reasons for not
presenting evidence during the guilt phase of trial. Johnson testified
that his trial strategy focused on presenting the best evidence and
testimony that would save Miller's life. [Motion for New Trial hearing,
R. 80.] Based on the facts and circumstances of his case, Johnson
determined that his best opportunity and most effective method of
presenting such testimony would be during the penalty phase. [Motion
for New Trial Hearing, R. 80; February 2008 Rule 32 Hearing, R. 219.]
Part of this strategy also involved gaining credibility and favor with the
jury by not presenting frivolous arguments during the guilt phase such
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as challenging the blood spatter expert's testimony. [February 2008
Rule 32 Hearing, R. 219–26.] . . .
[T]his decision was made ‘after a thorough investigation of the relevant
law and facts of Miller's case’ and Johnson's focus on the penalty phase
‘was part of his strategy to spare Miller's life.’ Miller, 913 So.2d at
1161 (holding that ‘[u]nder the circumstances of this case, defense
counsel made a well-reasoned decision to focus his efforts on that part
of the trial that he believed offered the greatest chance of success. We
see no reason to second-guess defense counsel's decisions regarding
this strategy.’). Miller has failed to offer any proof that this trial
strategy was not the product of a reasonably competent attorney.
(C.R. Vol. 43, Tab. 75, at 99–104).
The Rule 32 Circuit Court also held that Miller suffered no prejudice as a
result of trial counsel’s decision to not present a defense during the guilt phase,
reasoning that any argument that Miller lacked the intent to commit capital murder
“would have run contrary to the overwhelming evidence indicating Miller’s intent
to commit murder.” (C.R. Vol. 43, Tab. 75, at 104–05). In support of this
conclusion, the Rule 32 Circuit Court noted that Miller “specifically sought out two
victims, shot them multiple times, proceeded to another location, specifically sought
out another victim, and shot him multiple times.” (C.R. Vol. 43, Tab. 75, at 105).
Based on the significant amount of evidence supporting Miller’s conviction of
capital murder, the Rule 32 Circuit Court found that Miller failed to demonstrate a
reasonable probability that the jury would have found him not guilty of capital
murder. (C.R. Vol. 43, Tab. 75, at 105). The Court, therefore, concluded that
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Miller failed to establish prejudice under Strickland. (C.R. Vol. 43, Tab. 75, at
105). The Alabama Court of Criminal Appeals affirmed the lower court’s rejection
of this claim. (C.R. Vol. 43, Tab. 76, at 43).
This court cannot say that the determinations of the state courts as to either
prong of the Strickland analysis are unreasonable. In this case, trial counsel made
a strategic decision not to contest Miller’s guilt and to limit Dr. Scott’s testimony
to the penalty phase portion of the trial. Trial counsel had sound reasoning for
adopting this approach. At the Rule 32 hearing, trial counsel testified that he
decided not to present mental health evidence during the guilt phase because he
believed it would have had less of an impact on the jury than if it was presented
during the penalty phase. (Rule 32 C.R. Vol. 30, Tab. 59, at 225). He also testified
that he was concerned that contesting Miller’s guilt could have appeared to be
frivolous to the jury in light of the great weight of the evidence establishing Miller’s
guilt. (Rule 32 C.R. Vol. 30, Tab. 59, at 220). Finally, trial counsel testified that
he believed Dr. Scott’s testimony was more valuable at the penalty phase because
Dr. Scott would have been allowed to testify more freely and would be subject to
a less rigorous cross-examination. (Rule 32 C.R. Vol. 31, Tab. 59, at 285).
These concerns are all valid. Recognizing that the evidence of his client’s
guilt was significant, trial counsel made a strategic decision not to pursue the ill86

supported argument that Miller was not guilty of capital murder. This strategy was
by no means an unreasonable decision. See Bell v. Cone, 535 U.S. 685, 702 (2002)
(holding that a “tactical decision about which competent lawyers might disagree”
does not qualify as objectively unreasonable).
Miller also fails to prove that he was prejudiced as a result of trial counsel’s
decision to not present any mental health evidence at the guilt phase. Even looking
to Dr. Scott’s testimony that Miller experienced tunnel vision and heard “noises”
during the first two shootings, not enough evidence shows a reasonable probability
that the jury would not have found Miller guilty of capital murder. The evidence
in this case establishes that Miller entered Ferguson Enterprises and shot
Christopher Yancy and Lee Holdbrooks multiple times at close range. Miller then
got into his vehicle, drove to another location, sought out Terry Jarvis and shot Mr.
Jarvis multiple times. Given the factual circumstances of this case, Miller has not
shown a reasonable probability that the outcome of the guilt phase would have been
different if trial counsel had presented Dr. Scott’s testimony during the guilt phase.
Therefore, because this ineffective-assistance-of-trial-counsel claim is
without merit, Miller cannot show that his appellate counsel was ineffective in the
manner in which they presented this claim in the post-sentencing proceedings.

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4.

Miller’s claim that trial counsel’s penalty-phase opening statement
was ineffective

Miller alleges that trial counsel rendered ineffective assistance during his
penalty-phase opening statement. (Doc. 1, at 96–101, 138–39). Miller contends
that trial counsel “vilified Mr. Miller, undermined the credibility of Dr. Scott, and
effectively conceded the only aggravating factor on which the State relied.” (Doc.
1, at 138–39).19
a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
67–68). Therefore, this court will review the determinations of the state court under
AEDPA deference.
b.

Merits

The Rule 32 Circuit Court rejected this claim, finding that trial counsel’s
penalty-phase opening statement was an “impassioned plea that the jury spare
Miller’s life.” (C.R. Vol 43, Tab. 75, at 120). The Rule 32 Circuit Court noted that
the purpose of trial counsel’s opening statement was to convey to the jury that
Miller did not deserve the death penalty regardless of whether they thought he was

19

For the full text of trial counsel’s opening statement, see PART VII.A.5.
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atrocious or not, and that Miller did not deserve death regardless of how the jurors
might feel about him. (C.R. Vol. 43, Tab. 75, at 118). The Court also found that
trial counsel attempted to portray Miller as a “‘tortured soul’ whose delusions drove
him to commit a series of horrific acts.” (C.R. Vol. 43, Tab. 75, at 120). The Court
concluded that Miller failed to meet his burden of establishing that no reasonable
attorney would have pursued this course of action, and that Miller failed to show
that the outcome of the penalty phase would have been different but for trial
counsel’s opening penalty-phase statement. (C.R. Vol. 43, Tab. 75, at 122). The
Alabama Court of Criminal Appeals affirmed the Rule 32 Circuit Court’s
determination. (C.R. Vol. 43, Tab. 76, at 68).
After reviewing the record, this court finds the state court’s determination
reasonable under Strickland. The record reflects that trial counsel argued in his
opening statement that Miller should not be put to death regardless of the jurors’
personal feelings about Miller. Trial counsel pointed out that Miller’s execution
could not bring back the lives of his three victims and that Miller would already
receive punishment for his actions by spending the remainder of his life in prison.
Contrary to Miller’s contentions, trial counsel did not undermine Dr. Scott’s
credibility, but presented him as a competent neutral expert. Trial counsel stated
that, although Dr. Scott had been hired to determine whether Miller was insane, he
89

ultimately concluded that Miller did not meet the legal definition of insanity. Trial
counsel then previewed to the jury Dr. Scott’s testimony that Miller suffered from
a mental and emotional disturbance on the day of the shootings.
After reviewing trial counsel’s opening statement as a whole, this court finds
that the Alabama Court of Criminal Appeals’ determination that Miller failed to
establish that trial counsel was ineffective was a reasonable application of
Strickland. Thus, appellate counsel could not have been ineffective in the manner
in which they presented this ineffective-assistance-of-trial-counsel claim.
5.

Miller’s claim that trial counsel failed to adequately investigate
and present mitigation evidence during the penalty phase

Miller alleges that trial counsel should have investigated and presented a
“veritable mountain of mitigating evidence” during the penalty phase of trial. (Doc.
1, at 139). In particular, Miller alleges that trial counsel’s investigation was
ineffective because it failed: 1) to adequately interview Miller and Miller’s close
relatives and 2) to collect Miller’s “employment, education, and medical records,
and medical records of his numerous family members with documented serious
mental illness.” (Doc. 1, at 17). Miller alleges that as a result of this inadequate
investigation, trial counsel did not learn about the following evidence:
(I) the extent of instability, poverty and hardship Mr. Miller suffered in
childhood as a result of his father’s constant uprooting of the family
and erratic employment history; (ii) the well-documented history of
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mental illness that traced back through at least four generations of the
Miller family; (iii) the extreme physical and psychological abuse Ivan
[Miller’s father] inflicted on the family, including the particular wrath
he reserved for Mr. Miller; (iv) the criminal behaviors to which Mr.
Miller was exposed during his formative years; (v) notwithstanding this
adversity, Mr. Miller’s strong work ethic and good employment history;
(vi) the financial support he provided his family and the loving
relationships he had with his brothers, sisters, nieces and nephews; (vii)
the radical changes in Mr. Miller’s behavior in the days leading up to
the shootings; and (viii) Mr. Miller’s bizarre behavior at the time of the
shootings.
(Doc. 1, at 24). According to Miller, he would not have been sentenced to death if
trial counsel had presented this mitigating evidence during the penalty phase. (Doc.
1, at 101–08).
a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
48–67). Therefore, this court will review the determinations of the state court under
AEDPA deference.
b.

Merits

This court begins and ends its analysis of this claim with the prejudice prong
of Strickland. Both Miller’s contention that trial counsel failed to conduct an
adequate investigation and his contention that trial counsel failed to adequately
present mitigating evidence require this court to reweigh the aggravating and
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mitigating evidence to determine whether Miller suffered prejudice. See Brooks v.
Comm’r, Ala. Dep’t. of Corrs, 719 F.3d 1292, 1301 (11th Cir. 2013). Therefore, this
court will address these claims together. Since Miller fails to establish prejudice,
this court need not determine whether trial counsel’s performance in connection with
his investigation and presentation of mitigating evidence was deficient. See
Holladay v. Haley, 209 F.3d 1242, 1248 (11th Cir. 2000).
“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 the aggravating and mitigating circumstances did not
warrant death.” Evans v. Sec’y, Dep’t. Of Corr., 703 F.3d 1316, 1326–27 (11th Cir.
2013) (alteration in original) (internal quotations omitted). The Alabama Court of
Criminal Appeals held that even if Miller had presented all of the additional
mitigating evidence that Miller alleges should have been presented, no reasonable
probability suggested that the outcome of the penalty phase would have been
different. (C.R. Vol. 43, Tab. 76, at 67). In reviewing the opinion of the Alabama
Court of Criminal Appeals, this court must determine whether a reasonable jurist
could conclude that no reasonable probability existed that the totality of Miller’s
mitigating evidence would have altered the outcome of the penalty phase. See
Cummings v. Sec’y of Dep’t. of Corr., 588 F.3d 1331, 1367 (11th Cir. 2009) (“Given
92

the strength of the . . . aggravating circumstances, the proposed mitigation evidence
must be strong enough to outweigh them, and therefore to raise a reasonable
probability that the balance of aggravating and mitigating circumstances did not
warrant death.”). Thus, this court will compare the evidence elicited during the Rule
32 hearings that Miller alleges should have been presented at trial with the evidence
that actually was presented at trial.
I.

The abuse Miller suffered at the hands of his father

Testimony from the Rule 32 hearings showed that Miller suffered extensive
abuse at the hands of his father, Ivan. Ivan frequently hit his wife and children for
no reason and was especially abusive towards Miller. (Rule 32 C.R. Vol. 31, Tab.
59, at 546). Ivan would also threaten his children with guns and knives; on one
occasion he threatened Miller and his siblings with a gun, telling them that he did not
know which of them he wanted to kill. (Rule 32 C.R. Vol. 31, Tab. 59, at 406). Ivan
was also verbally abusive, calling Miller a “little bastard” and a “little son of a
bitch.” (Rule 32 C.R. Vol. 32, Tab. 59, at 550–52). He also abused Miller’s mother,
Barbara, and would frequently call her a “fucking whore, a fucking slut, [and]
tramp.” (Rule 32 C.R. Vol. 31, Tab. 59, at 395).
At trial, Dr. Scott presented the following testimony to the jury regarding the
abuse Miller suffered:
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To try to understand a little bit more about his relationship with his
father, I asked [Miller] to describe his dad, what was it like growing up
with his father. And rather kind of quietly, reluctantly but in a straight
forward manner he described him as verbally abusive. I said, give me
an example. He would frequently, even at a very young age, say things
like you’re no good, you’ll never amount to nothing, you’re a God
damn son of a bitch. He was very physically abusive to him, hit him on
various areas of his body and he was frequently bullied and left bruises
on him.
...
[Miller] described that when he was a junior in high school one time his
father came home and had a large butcher knife from the kitchen and
began lounging [sic] at him and he would say things like, it’s only
God’s will that is keeping me from cutting you now.
...
His father was also described as very verbally abusive to his mom,
frequently called her a whore. And he witnessed his father physically
abusing his mom and hitting her very hard.
(C.R. Vol. 8, Tab. 22, at 1350–51).
ii.

Miller’s impoverished childhood and exposure to the
criminal behavior of his family members

Miller grew up in an impoverished environment and the family lived in a
rent-controlled community. (Rule 32 C.R. Vol. 31, Tab. 59, at 398–99). Barbara
Miller and her children were on welfare, and Barbara’s father and brother had to
provide necessities to the family. (Rule 32 C.R. Vol. 31, Tab. 59, at 460–61).
Barbara Miller described the homes the family lived in as “junky, rat infested, roach
infested, just falling in.” (Rule 32 C.R. Vol. 31, Tab. 59, at 416).

94

Ivan provided little support to the family, moving from job to job with
periods of unemployment. (Rule 32 C.R. Vol. 31, Tab. 59, at 414). He also would
pawn valuables from the house to pay for drugs. (Rule 32 C.R. Vol. 31, Tab.59, at
414). Ivan was frequently in and out of prison for drunken disorderly conduct and
had a criminal record. (Rule 32 C.R. Vol. 31, Tab. 59, at 421–22). As a child,
Miller observed his father and uncles using marijuana, cocaine, and intravenous
drugs. (Rule 32 C.R. Vol. 31, Tab. 59, at 419–20).
At the penalty phase of trial, Dr. Scott presented testimony relating to the
poverty that Miller suffered as a child. Dr. Scott testified that Ivan would frequently
quit jobs and that the family was frequently on the verge of poverty. (C.R. Vol. 8,
Tab. 22, at 1349). He also stated that Miller was forced to drop out of high school
to work a job to earn money for his family. (C.R. Vol. 8, Tab. 22, at 1350).
Additionally, Dr. Scott also testified that Ivan frequently used marijuana and that
on one occasion Miller witnessed his father inject a substance into his arm
intravenously. (C.R. Vol. 8, Tab. 22, at 1350).
iii.

The Miller family history of mental illness

During the Rule 32 hearings, Miller present evidence that numerous members
of his family suffered from mental illness, including his great-grandmother, his
grandfather, and two of Miller’s uncles. (Rule 32 C.R. Vol. 32, Tab. 59, at 646–48).
95

Ivan, although not diagnosed with a mental illness, was often paranoid that people
were plotting again him. (Rule 32 C.R. Vol. 31, Tab. 59, at 403). He believed that
his wife had tried to poison him and accused her of having affairs. (Rule 32 C.R.
Vol. 31, Tab.59, at 403 & 393). He also believed that he had the power to heal and
would try to “heal” his children’s illnesses. (Rule 32 C.R. Vol. 31, Tab. 59, at 410).
He also would tell his children that God had told him to kill them and he hoped that
God would tell him to stop. (C.R. Vol. 32, Tab. 59, at 550–51).
At the penalty phase of trial, Dr. Scott presented testimony related to the
history of mental illness present in Miller’s family. Dr. Scott testified that, although
Ivan had never been diagnosed with a mental illness, Ivan was often suspicious of
other people and believed that Miller’s mother had tried to poison him. (C.R. Vol.
8, Tab. 22, at 1362). Additionally, Dr. Scott testified that Miller’s grandfather was
committed to a psychiatric institution and that Miller’s younger brother, Richard,
was “slow.” (C.R. Vol. 8, Tab. 22, at 1363). He also told the jury that Ivan had an
“interesting take on religion.” (C.R. Vol. 8, Tab. 22, at 1350). He told the jury that
Ivan believed he had the power to heal and would tell his children that he believed
they were devils. (C.R. Vol. 8, Tab. 22, at 1351). He also told the jury that Ivan
would walk around the house and spray “holy water.” (C.R. Vol. 8, Tab. 22, at
1351).
96

iv.

Miller’s good employment history and relationship
with his family

The evidence presented during the Rule 32 hearings showed that Miller went
to work at an early age to support his family and typically would only leave a job
when he had found a better paying position. (Rule 32 C.R. Vol. 31, Tab. 59, at 425;
Rule 32 C.R. Vol. 32, Tab. 59, at 560). The evidence also showed that Miller had
a close relationship with his siblings and would provide financial assistance when
a family member was in need. (Rule 32 C.R. Vol. 32, Tab. 59, at 511 & 560).
Miller had a strong relationship with his niece, Alicia Sanford, and his nephew, Jake
Connell. Alicia Sanford testified that she considered Miller to be like a father to her
and felt that Miller had raised her. (Rule 32 C.R. Vol. 31, Tab. 59, at 474–75).
Jake Connell testified that he spent a great deal of time around Miller and that
Miller was like an older brother to him. (Rule 32 C.R. Vol. 32, Tab. 59, at 579).
Regarding Miller’s employment history, Dr. Scott testified that Miller had
been fired from a couple of jobs for fights at work, but he usually left jobs to take
a better paying position elsewhere. (C.R. Vol. 8, Tab. 22, at 1363). Dr. Scott’s
testimony relating to Miller’s relationship with his family members was limited to
discussing Miller’s strong relationship with his mother. (C.R. Vol. 8, Tab. 22, at
1354).

97

v.

Miller’s behavior prior to the shootings

At the Rule 32 hearing, Miller’s niece, Alicia Sanford, testified that Miller
began to act strangely in the weeks leading up to the shooting, and that he would
often daydream and suffered from frequent headaches. (Rule 32 C.R. Vol. 32, Tab.
59, at 511–13). She also testified that Miller also spoke about a ringing in his ears
and let his beard grow long. (Rule 32 C.R. Vol. 32, Tab. 59, at 511 & 562).
Dr. Scott did not present testimony at trial related to any of these specific
facts.
vi.

Miller’s behavior on the day of the shootings

Although Miller alleges that trial counsel should have presented additional
evidence related to Miller’s behavior on the day of the shootings, he does not point
to any new information in his petition that was not addressed by Dr. Scott in his
penalty-phase testimony.
vii.

Prejudice analysis

After comparing the evidence that was presented at the Rule 32 hearings with
the evidence actually presented at trial, this court finds that a reasonable jurist could
conclude that no reasonable probability suggested the outcome of the penalty-phase
would have been different if the addition mitigating evidence had been presented.
The only additional information that could have been presented at trial was
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additional instances of abuse Miller suffered, additional information related to the
history of mental illness present in some of Miller’s extended family members,
additional evidence related to Miller’s employment history (including that he had
been fired numerous times), and additional information related to Miller’s close
relationship with his family. Because Dr. Scott, in his penalty-phase testimony,
presented similar information regarding Miller’s background, those additional
accounts would be merely cumulative of the testimony already presented and
insufficient to establish prejudice. See Rose v. McNeil, 634 F.3d 1224, 1243 (11th
Cir. 2011) (“Obviously, a petitioner cannot satisfy the prejudice prong of the
Strickland test with evidence that is merely cumulative of evidence already
presented at trial.”); Holsey v. Warden, GA Diagnostic Prison, 694 F.3d 1230,
1260–61 (11th Cir. 2012) (recognizing that “evidence presented in postconviction
proceedings is ‘cumulative’ or ‘largely cumulative’ to . . . that presented at trial
when it tells a more detailed version of the same story told at trial or provides more
or better examples or amplifies the themes presented to the jury”); Boyd v. Allen,
592 F.3d 1274, 1297–98 (11th Cir. 2010) (finding that much of the evidence
presented by the petitioner during postconviction proceedings “was in some
measure cumulative” of the trial evidence because “much (although not all) of the

99

‘new’ testimony introduced at the post-conviction hearing would simply have
amplified the themes already raised at trial”) (emphasis added).
Additionally, the value of the mitigating evidence Miller alleges should have
been presented at trial is minimal when weighed against the brutal nature of Miller’s
crime. In its order denying Miller’s motion for new trial, the trial court provided the
following description of the crime in support of its determination that the murders
were “especially heinous, atrocious, or cruel”:
On the morning of August 5, 1999, [Miller] shot and killed three men,
namely, Christopher Yancy (“Yancy”), age 28 years; Lee Holdbrooks
(“Holdbrooks”), age 32; and Terry Jarvis (“Jarvis”), age 39 years.
Yancy and Holdbrooks were both shot at one location and thereafter
Jarvis was shot at another location. Each of those victims sustained
multiple wounds.
Yancy suffered three wounds to his body. It appears the first shot
entered his leg and traveled through his groin and into his spine,
paralyzing him. He was unable to move, unable to defend himself and
was trying to hide from [Miller] under a desk. Yancy had a cell phone
an inch or two from his hand, but because of his paralysis was unable
to reach it and call for help. Yancy had to have been afraid his life was
about to be taken. Moments elapsed. [Miller] appeared to have then
stooped under the desk and have made eye contact with Yancy before
shooting him twice more causing his death.
Holdbrooks suffered six wounds to his body. [Miller] shot Holdbrooks
several times. Holdbrooks crawled down a hallway for about
twenty-five feet. Holdbrooks was uncertain whether he would live or
die as he crawled down the hallway and quite possibly his life was
flashing by in his mind. [Miller] took his gun and within two inches of
Holdbrooks' head, pulled the trigger for the sixth and final time, the
bullet entering Holdbrooks' head causing him to die in a pool of blood.
100

Jarvis was shot five times, the last shot being no more than 46 inches
away from his body. Before Jarvis was shot, [Miller] had pointed a gun
at him in the presence of a witness. [Miller] had accused Jarvis of
spreading rumors about him which Jarvis had denied. [Miller] shot
Jarvis four times in the chest. [Miller] allowed the witness to leave. No
one knows at that point what went through Jarvis' mind. Having denied
he spread any rumors, he must have wondered why [Miller] had not
believed him and as the witness was allowed to leave that maybe there
would be no more shooting and his life would be spared. [Miller] then
shot Jarvis through his heart ending Jarvis' life.
It appears all three of [Miller's] victims suffered for a while not only
physically, but psychologically. In each instance, there appeared to
have been hope for life while they were hurting, only to have their fate
sealed by a final shot, execution style.
Based upon the facts presented at this trial, these murders were
calculated, premeditated and callous, with utter disregard of human life.
The taking of these lives was among the worst in the memory of this
Court and was well beyond the level of being especially heinous,
atrocious or cruel.
(Rule 32 C.R. Vol. 43, Tab. 72, at 1–3).
In light of the extensive evidence presented regarding the brutal nature of this
crime, the Alabama Court of Criminal Appeals reasonably concluded that no
reasonable probability existed that the outcome of the penalty-phase would have
been different if trial counsel had presented additional mitigating evidence. See
Brooks v. Comm’s Ala. Dep’t. of Corr., 719 F.3d 1292, 1302–03) (finding no
prejudice from counsel’s failure to present evidence showing that defendant was
nice, good natured, and nonviolent, in light of the heinousness of the defendant’s

101

crime); Boyd v. Allen, 592 F.3d 1274, 1303 (11th Cir. 2010); Dill v. Allen, 488 F.3d
1344, 1360 (11th Cir. 2007). Thus, this ineffective-assistance-of-trial-counsel claim
lacks merit, and appellate counsel could not be ineffective in the manner in which
they presented this claim.
D.

Claim B(v): Miller’s Claim that Appellate Counsel was Ineffective for
Failing to Raise Other Claims of Ineffective Assistance of Trial Counsel
Miller alleges that trial counsel was ineffective for failing to raise the

following claims of ineffective assistance of trial counsel: (a) trial counsel’s
ineffective performance during the jury voir dire; (b) trial counsel’s ineffective
performance in failing to object to the admission of irrelevant and prejudicial
testimony and photographs during the guilt phase of trial; (c) trial counsel’s
ineffective cross-examination of crucial prosecution witnesses; (d) trial counsel’s
failure to object to misleading portions of the State’s guilt-phase closing argument;
(e) trial counsel’s ineffective guilt-phase closing argument; (f) trial counsel’s failure
to request guilt-phase jury instructions necessary to protect Mr. Miller’s rights; (g)
trial counsel’s reliance on Dr. Scott as the sole mitigation witness during the
penalty-phase of trial; (h) trial counsel’s failure to move for a directed verdict based
on the State’s failure to present comparative evidence necessary for the jury to
determine that the killings were “especially heinous, atrocious, or cruel compared
to other crimes;” (I) trial counsel’s penalty phase closing argument; (j) trial
102

counsel’s failure to object to the court’s penalty phase jury instructions; (k) trial
counsel’s failure to request a special verdict form to establish that the jury had
unanimously found the sole alleged aggravating circumstance; (l) trial counsel’s
ineffectiveness at the sentencing hearing; and (m) trial counsel’s failure to bring the
Supreme Court’s decision in Apprendi v. New Jersey to the attention of the Circuit
Court prior to the sentencing phase.
The Alabama Court of Criminal Appeals rejected this claim, holding that
appellate counsel could not have been deficient for failing to raise these claims
because none of Miller’s claims of ineffective assistance of trial counsel were
meritorious. This court, therefore, will examine the state court’s determinations
regarding each of Miller’s ineffective-assistance-of-trial-counsel claims with
deference.
1.

Trial Counsel’s performance during jury voir dire

Miller claims that appellate counsel should have argued that trial counsel’s
voir dire was inadequate and that trial counsel was ineffective for failing to ask
questions related to the jurors’ exposure to media coverage of the trial. Miller also
contends that trial counsel did not effectively ask questions designed to uncover
potential bias against Miller’s case.
a.

No Procedural Default
103

This claim was properly raised on collateral appeal and fully exhausted.
Therefore, this court will review the determinations of the state court under AEDPA
deference.

b.

Merits

In addressing the underlying ineffective-assistance-of-trial-counsel claim, the
Rule 32 Court held:
This Court denies Miller's claim because he has failed to meet his
burden of proof of demonstrating that his trial counsel's performance
was deficient under Strickland, 466 U.S. at 687. Ala. R. Crim. P.,
32.7(d). Because of the extensive publicity in this case, Johnson, along
with the District Attorney's office, developed a written questionnaire
that was provided to the entire jury panel. [February 2008 Rule 32
Hearing, R. 236.] Within the questionnaire, question # 68 specifically
asked the jurors to answer whether they had seen anything about the
case in any newspaper. [February 2008 Rule 32 Hearing, R. 237.]
Additional questions were included in the questionnaire to determine
whether a particular juror had such strong fixed opinions about the case
or could not be fair or impartial as a juror. [February 2008 Rule 32
Hearing, R. 238.]
Johnson testified that he had an opportunity to review the responses to
the questionnaires for all members of the jury panel and that he knew
the jurors' responses identifying what they saw in the newspapers about
the case. [February 2008 Rule 32 Hearing, R. 237–38.] During trial, the
trial court and counsel for both parties conducted an extensive
individual voir dire of the jury panel. [Direct Appeal, R. 130–763.]
As the record indicates, Johnson strategically conducted voir dire to
determine whether any juror had a fixed opinion, for any reason, of the
case. Johnson alerted the trial court to questions # 68, # 69 and # 70 of
the juror questionnaire that pertained to the juror's opinions of the case
104

and implored the trial court to focus its questions on whether the jurors
had ‘fixed opinions' of the case. [Direct Appeal, R. 146–47.] As a
result, the trial court determined that it would examine each juror's
response to question # 68 and if the juror indicated they had heard
something about the case, the trial court would inquire what the juror
heard and whether the juror could set aside what they had heard. [Direct
Appeal, R. 148.]
During the evidentiary hearing, Miller's [Rule 32] counsel questioned
Johnson about specific newspaper articles and then questioned Johnson
on whether he asked eight jurors about what they had read about the
case in the newspaper. [February 2008 Rule 32 Hearing, R. 127–34.]
However, as the record indicates, as a result of Johnson's effort, during
individual voir dire, the trial court noted each of the eight juror's
responses to question # 68 indicating that the juror had seen or read
something about the case and then asked each juror whether they could
set what they had learned aside and base their verdict solely on the
evidence presented. [Direct Appeal, R. 337–38, 345–46, 376–77,
446–47, 449–50, 625–26, 638–39, 666–67.] All eight jurors indicated
that they could set aside what they had learned and sit as a fair and
impartial juror. Id.
Therefore, information about the jurors' opinions about the case was
brought out during the voir dire and Miller has failed to demonstrate
that Johnson's method of conducting voir dire was deficient. Miller has
failed to present any evidence that a reasonable attorney would have
asked these eight jurors about specific newspaper articles. Furthermore,
Miller failed to ask Johnson why he did not strike these eight jurors
from the panel, nor did Miller ask any specific question regarding
Johnson's strategy for using the defense's peremptory strikes. Therefore,
because the record is silent, trial counsel's questioning of the jury panel
and the subsequent peremptory strikes is presumed to be reasonable.
See Chandler [v. United States ], 218 F.3d 1305, 1315 n. 15 [ (11th Cir.
2000) ].
In paragraph 162 of his amended petition, Miller claims that his trial
counsel failed to question and remove Juror [G.J.] who Miller alleges
was biased because Juror [G.J.] favored the death penalty. [Amended
105

Rule 32 Petition, C. 315.] However, trial counsel's questioning of Juror
[G.J.] was not deficient and the record directly refutes Miller's claim
that Juror [G.J.] was biased. Juror [G.J.] stated during voir dire that he
could follow the trial court's instructions and listen to the evidence in
recommending a sentence in Miller's case. [Direct Appeal, R. 377–78.]
Juror [G.J.] also stated that where it was appropriate under the law and
evidence he could vote for either life imprisonment or the death
penalty. [Direct Appeal, R. 378.] Furthermore, trial counsel Johnson
specifically questioned Juror [G.J.] about his views on the death penalty
and elicited from Juror [G.J.] that he had no fixed opinions about what
an appropriate punishment should be. [Direct Appeal, R. 387–90.]
Accordingly, Miller's claim is directly refuted by the record and is
denied. See Gaddy v. State, 952 So.2d 1149, 1161 (Ala. Crim. App.
2006).
....
This claim is also denied because Miller has utterly failed to meet his
burden or proof of demonstrating that he was prejudiced by his trial
counsel's performance during voir dire. See Strickland, 466 U.S. at 695;
Ala. R. CRIM. P., 32.7(d). Although Miller claims that trial counsel
was ineffective for failing to asks [sic] eight of the fourteen jurors
seated in his case about what they read or remembered about Miller's
case, Miller has failed to present any evidence whatsoever about what
these eight jurors actually read or remembered about Miller's case prior
to trial. [February 2008 Rule 32 Hearing, R. 134.] None of the jurors
who sat at Miller's trial testified during the evidentiary hearing.
Therefore, no evidence was presented that the eight jurors actually read
or were exposed to the newspaper articles introduced into evidence by
Miller during the evidentiary hearing. [February 2008 Rule 32 Hearing,
R. 127–34, 289–95.] Even if the eight jurors had read these newspaper
articles, no evidence was presented that the jurors considered these
articles harmful to Miller or that they had fixed opinions about Miller
because of these articles.
There is nothing in the record regarding what the jurors read about
Miller's case; accordingly, ‘[t]he mere fact that some of the jurors that
sat for [Miller's] trial had pretrial knowledge of his case is not enough
106

to establish they were biased against him.’ Duncan v. State, 925 So.2d
245, 267 (Ala. Crim. App. 2005). Therefore, because there is no
evidence about what the jurors read and whether they were actually
biased against Miller because of what they read, Miller has failed to
demonstrate that he was prejudiced by this trial counsel's performance
during voir dire. Miller's claim is denied.
(C.R. Vol. 43, Tab. 75, at 2039–45).
The Alabama Court of Criminal Appeals affirmed the Rule 32 Circuit Court’s
determination that trial counsel was not ineffective. (C.R. Vol. 43, Tab. 76, at 70).
The record supports the determinations of the state courts.
In examining an attorney’s performance during jury selection, this court must
begin with the strong presumption that trial counsel acted properly and that his jury
selection decisions were sound trial strategy. Harvey v. Warden, Union Corr. Inst.,
629 F.3d 1228, 1245 (11th Cir. 2011) (recognizing that trial counsel’s actions
during voir dire are presumed to be reasonable); Manning v. State, 373 F. App’x
933, 935 (11th Cir. 2010) (affirming dismissal of ineffective-assistance-of-counselclaim when counsel failed to strike juror who did in fact express a bias on ground
that petition failed to establish prejudice). To overcome this presumption, Miller
bears the burden of demonstrating that trial counsel’s actions were so unreasonable
that no competent attorney would have taken the actions that trial counsel took. See
Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000). Miller cannot
meet this burden.
107

The record reflects that trial counsel took steps to insure that the jurors
selected could be fair and impartial. Potential jurors were first required to fill out
an extensive juror questionnaire created by trial counsel and the District Attorney’s
Office. (Rule 32 C.R. Vol. 30, Tab. 59, at 237). Trial counsel reviewed the jurors’
completed questionnaires prior to individual juror voir dire and considered the
information that he learned from the questionnaire in making his decision to strike
jurors. (Rule 32 R. Vol, 30, Tab. 59, at 239–40).
After reviewing the jury questionnaire, trial counsel engaged in the voir dire
process. He understood that many of the jurors likely had been exposed to some
media coverage. Because of this concern, trial counsel asked the Circuit Court to
focus on whether the specific juror had developed a “fixed opinion” about the case.
(C.R. Vol. 2, at 146–47). The court agreed to do so, and stated that it would
specifically examine each potential juror on whether the juror had heard anything
regarding Miller’s case, and if so, whether the juror had formed any opinion as a
result. (C.R. Vol 2, at 148–49).
Although Miller alleges that trial counsel should have asked the jurors
additional questions, Strickland does not ask whether an attorney could have done
more, but only whether the attorney’s performance was so unreasonable that no
competent attorney would have performed as trial counsel did. See Chandler, 218
108

F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in every
case, could have done something more or something different. . . . But, the issue is
not what is possible or ‘what is prudent or appropriate, but only what is
constitutionally compelled.’”) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
After reviewing the record, this court concludes that no evidence shows that trial
counsel’s performance during voir dire was such that no reasonable attorney would
have approached voir dire in this manner.
Further, Miller fails to establish the prejudice prong of Strickland. To
establish prejudice resulting from counsel’s performance during voir dire, a
petitioner “must show that at least one juror was biased” because “if no juror [was]
biased, then there is no ‘reasonable probability that . . . the result of the proceeding
would have been different.’” Owen v. Florida Dep’t. Of Corrs., 686 F.3d 1181,
1201 (11th Cir. 2012). All eight of the jurors who were exposed to pretrial publicity
were questioned regarding whether they could put aside anything they had learned
from the publicity the case received, and all eight jurors responded that they could
be impartial.20 (C.R. Vol. 3, Tab. 6, at 337–38, 345–46, 376–77, 446–47, 449–50,
20

Juror E.H. indicated in his juror questionnaire that he had formed an opinion as to who
was responsible for the deaths of Holdbrooks, Yancy, and Jarvis. (C.R. Vol. 3, Tab. 6, at 337).
When asked by the Circuit Court whether he could put aside any pre-existing opinions or
impressions and base his decision solely on the evidence presented in court, Juror E.H. responded
that he could do so. The Eleventh Circuit has held that “‘the mere existence of any preconceived
notion [by a juror] as to . . . guilt or innocence, without more’ is insufficient to establish a claim
109

625–26, 638–39, 666–67). Miller fails to offer any evidence that any of the jurors
were biased against him. Instead, he simply points out that some of the jurors were
exposed to pretrial publicity about the case. However, the mere fact that some
jurors were exposed to pretrial publicity about Miller’s case does not establish that
any juror was biased again him. See Bertolotti v. Dugger, 883 F.2d 1503, 1521
(11th Cir. 1989) (“[I]f jurors can lay aside preconceptions and base their verdict on
the evidence adduced at trial, they need not be completely unaware of the facts of
a given case.”).
Based on the lack of evidence demonstrating bias, this court concludes that
the state court reasonably determined that trial counsel’s performance during voir
dire did not prejudice Miller. See Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir.
2001) (holding that petitioner did not establish prejudice when he failed to adduce
any evidence that a juror was biased in favor of the death penalty); Van Poyck v.
Fla. Dep’t. Of Corr., 290 F.3d 1318, 1328–29 (11th Cir 2002) (finding no prejudice
when each juror unequivocally stated that he or she could render a verdict based
solely on the evidence and instructions given by the trial judge). Likewise, the state

of prejudicial pretrial publicity.” Devier v. Zant, 3 F.3d 1445, 1462 (11th Cir. 1993) (alterations
in original) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961).
110

court reasonably determined that appellate counsel was not ineffective for failing
to present this claim.
2.

Miller’s claim that trial counsel was ineffective in failing to object
to the admission of testimony and photographs during the guilt
phase of trial

Miller alleges that appellate counsel should have argued that trial counsel
was ineffective for failing to object to gruesome testimony and photographs of the
victims introduced during the testimony of the state’s forensic scientists, Dr.
Angello Della Manna and Dr. Stephen Pustilnik. (Doc. 1, at 143, 80–87). During
the guilt phase, Dr. Della Manna presented testimony concerning blood patterns at
the crime scene. The State used Dr. Della Manna’s testimony to introduce graphic
photographs of the victims and the crime scenes. Similarly, Dr. Pustilnik analyzed
photos of the gunshot wounds and testified as to the pain the victims would have
suffered prior to death. Miller argues that the evidence admitted through the
testimony of Dr. Della Manna and Dr. Pustilnik was irrelevant to the issue of
Miller’s guilt and only served to inflame the jury against Miller.
a.

Procedural Default

Respondent contends that this claim is procedurally defaulted from habeas
review because the state court determined that Miller failed to comply with state

111

procedural rules by abandoning the claim on appeal. Respondent is correct. The
Rule 32 Circuit Court observed:
Miller failed to ask trial counsel a single question regarding why trial
counsel did not object to certain testimony or allegedly prejudicial
photographs. Nor did Miller offer any evidence that would establish
that the testimony and photographs of the victims and crime scene were
actually irrelevant and inflammatory in this case. Therefore, this Court
denies this claim because Miller has abandoned the claim.
(C.R. Vol. 43, Tab. 75, at 2057) (citing Brooks v. State, 929 So. 2d 491, 498 (Ala.
Crim. App. 2008) (holding that a Rule 32 petitioner’s failure to ask counsel “any
questions concerning her reasons for not pursuing any of the claims” in the Rule 32
petition constituted an abandonment of those issues)). See also, e.g., Hooks v. State,
21 So. 3d 772, 788 (Ala. Crim. App. 2008) (holding that when an appellant does not
present evidence addressing certain claims at an evidentiary hearing on a Rule 32
petition, the state court can conclude that he has abandoned the claims, and is no
required to review them). Because the Rule 32 Circuit Court determined that Miller
abandoned this claim, the claim is procedurally defaulted from habeas review. See
Brownlee v. Haley, 306 F.3d 1043, 1066–67 (11th Cir. 2002) (finding that state
court’s determination that a claim was abandoned barred federal habeas review).
b.

Merits

Alternatively, the claim would be due to be denied because it is without merit.
Although finding the claim to be procedurally barred, the Rule 32 Circuit Court
112

stated that this claim was also due to be denied because the testimony and
photographs relating to the crime scene were properly admissible under Alabama
law. The court pointed out that under Alabama law, “gruesome and ghastly”
photographs showing external wounds, even though cumulative or related to
undisputed matters, are nevertheless admissible “so long as they shed some light on
the issues being tried.” (C.R. Vol. 43, Tab. 75, at 2058) (citing Sneed v. State, 1 So.
3d 104, 132 (Ala. Crim. App. 2007)). The court concluded that because the
evidence would have been admitted notwithstanding trial counsel’s objection, trial
counsel could not be ineffective for failing to make such an objection. (C.R. Vol.
43, Tab. 75, at 2059).
This court agrees with the state court’s reasoning. Because counsel had no
basis for objecting to the admission of the photographs and testimony under
Alabama law, trial counsel could not have been ineffective for failing to object. See
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (holding that counsel was
not ineffective for failing to raise a non-meritorious objection). Because no
objection would have been successful, Miller was not prejudiced by trial counsel’s
failure to object. Therefore, this ineffective-assistance-of-trial-counsel claim is
without merit, and appellate counsel could not have been ineffective for failing to
raise it.
113

3.

Miller’s claim that trial counsel conducted an ineffective crossexamination of crucial prosecution witnesses.

Miller alleges that appellate counsel should have argued that trial counsel was
ineffective for failing to effectively cross-examine crucial prosecution witnesses.
(Doc. 1, at 83–87, 144). Specifically, Miller argues that trial counsel should have
cross-examined: (1) Dr. Angello Della Manna; (2) Dr. Steven Pustilnik regarding
his foundation for asserting that the victims felt severe pain as result of the gunshot
wounds they suffered; (3) Johnny Cobb regarding the fact that neither Holdbrooks
nor Yancy had been spreading rumors about Miller; (4) David Andrew Adderhold
regarding, (a) the fact that Miller allowed Adderhold to leave the scene of the
shootings unharmed, and (b) Miller’s good work performance at Post Airgas prior
to the shootings; and (5) Sergeant Stuart Davidson regarding the fact that Miller did
not attempt to escape during the lengthy time period that police pursued him down
the interstate after he committed the shootings. (Doc. 1, 80–87).
a.

Procedural Default

Respondent contends that this claim is procedurally defaulted because the
state court determined that this claim was abandoned. (Doc. 16, at 91). This court
agrees.
The Rule 32 Circuit Court observed that Miller failed to ask trial counsel any
questions regarding trial counsel’s strategy or offer any evidence as to how he was
114

prejudiced by trial counsel’s lack of a cross-examination of the State’s witnesses.
(C.R. Vol. 43, Tab. 75, at 2059). The court concluded that Miller had abandoned
the claim, and the Alabama Court of Criminal Appeals affirmed the Rule 32 Circuit
Court’s determination.
As discussed previously, the state court’s determination that a petitioner
abandoned a claim on appeal bars habeas review. See Brownlee v. Haley, 306 F.3d
1043, 1066–67 (11th Cir. 2002). Thus, to the extent that Miller alleges that
appellate counsel was ineffective for failing to assert that trial counsel was
ineffective in the manner in which he conducted cross-examination, the claim is
procedurally barred under adequate and independent state grounds.
b.

Merits

Additionally, even if not for the procedural bar, this claim would be due to
be denied. The record reflects that during the motion-for-new-trial hearing, Miller
questioned trial counsel regarding his performance in cross-examining the State’s
witnesses. However, Miller only asked trial counsel about his decision not to crossexamine Dr. Della Manna, and his decision not to question Dr. Pustilnik about Dr.
Pustilnik’s testimony that Miller shot Holdbrooks at close range.
When asked about his decision to not cross-examine Dr. Della Manna, trial
counsel stated that he believed that Dr. Della Manna’s testimony was frivolous and
115

that the best approach to countering Dr. Della Manna’s testimony was to “mock”
his testimony before the jury in trial counsel’s closing statement. (C.R. Vol. 9, Tab.
30, at 41). When asked about his decision not to challenge Dr. Pustilnik’s
testimony regarding the distance from which Miller shot Holdbrooks, trial counsel
stated that he believed the important thing to the jury would have been that Miller
killed Holdbrooks while Holdbrooks was struggling for his life, not the distance
from which Miller fired the final shot.21 (C.R. Vol. 9, Tab. 30, at 43–45).
Thus, to the extent that Miller questioned trial counsel about his performance
in connection with cross-examination, the record reflects that trial counsel made a
strategic decision to limit his cross-examination of the State’s witnesses.
Additionally, because the record is silent as to trial counsel’s strategy in not
questioning the remainder of the State’s witnesses, this court must assume that trial
counsel had sound reasons for limiting his cross-examination. See Chandler v.
United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (“An ambiguous or silent
record is not sufficient to disprove the strong and continuing presumption [of
effective representation.]”).

21

Appellate counsel could not remember Holdbrooks’ name during his questioning of
trial counsel, but instead referred to him as “the gentleman that was crawling up the hall.” (C.R.
Vol. 9, Tab. 30, at 42).
116

Finally, the claim is due to be denied because Miller cannot show any
resulting prejudice. Overwhelming evidence supports Miller’s guilt that crossexamination of these witnesses could not overcome. See Waters v. Thomas, 46 F.3d
1506, 1510 (11th Cir. 1995). Because this trial-counsel claim is without merit,
appellate counsel cannot be ineffective for failing to raise it.
4.

Miller’s claim that trial counsel was ineffective for failing to object
to portions of the State’s guilt phase closing argument

Miller alleges that his appellate counsel should have argued that trial counsel
was ineffective for failing to object to the prosecution’s statements in the guiltphase closing argument that Miller made eye contact with Yancy and Holdbrooks
at the time that he fatally shot each of them. (Doc. 1, at 90).
a.

Procedural Default

Respondent again contends that this claim is procedurally barred because the
Rule 32 Circuit Court found the claim to be procedurally barred. Respondent is
again correct. The Rule 32 Circuit Court observed that Miller failed to present any
evidence regarding this claim at the Rule 32 hearings and held that Miller had
abandoned the claim. (C.R. Vol. 43, Tab. 75, at 2064–65). Therefore, habeas
review of this claim is barred.
b.

Merits

117

Alternatively, this claim would also be due to be dismissed on the merits
because, even assuming that the State’s guilt-phase argument was improper, Miller
fails to allege any prejudice stemming from trial counsel’s decision not to object.
Indeed, Miller cannot establish any resulting prejudice as the outcome of the guilt
phase would not have been different if trial counsel would have objected. Because
Miller cannot show the requisite prejudice to establish his underlying ineffectiveassistance-of-trial-counsel claim, he cannot show prejudice resulting from appellate
counsel’s failure to present this claim.
5.

Miller’s claim that trial counsel was ineffective in his guilt-phase
closing argument

Miller alleges that his appellate counsel should have argued that his trial
counsel was ineffective in his guilt-phase closing argument. (Doc. 1, at 143).
Specifically, Miller contends that his trial counsel was ineffective for failing to
argue that Miller lacked the mens rea to commit capital murder, for essentially
conceding that Miller was responsible for the killings, and for distancing himself
from Miller by stating that he was not proud to represent Miller. (Doc. 1, 91–92).
a.

No Procedural Default

This claim was properly raised on collateral appeal and fully exhausted.
Therefore, this court will review the state court’s decision under AEDPA deference.
b.

Merits
118

The Rule 32 Circuit Court held:
This Court denies Miller's claim because he has failed to meet his
burden of proof of demonstrating that his trial counsel's performance
was deficient under Strickland, 466 U.S. at 687. Ala. R. CRIM. P.,
32.7(d). Johnson's closing argument was reasonable based both on the
tactical decision to focus on the penalty phase of trial and his overall
strategy of not presenting frivolous arguments in order to win
credibility with the jury. [Direct Appeal, R. 1261–64.] As noted above,
Johnson continually testified that he strategically chose to focus on the
penalty phase of Miller's trial in order to save Miller's life. [Motion for
New Trial Hearing, R. 80; February 2008 Rule 32 Hearing, R. 219.] In
an attempt to bolster his chances of success during the penalty phase,
Johnson made a tactical decision to emphasize to the jury that he would
not be presenting frivolous evidence or arguments during the guilt
phase. [February 2008 Rule 32 Hearing, R. 143, 219.]
Similar to his comments during opening statements, Johnson echoed to
the jury during closing arguments that he was not going to present a
frivolous defense such as arguing a second gunman existed or
challenging the fact that the prosecution could not match the bullets
taken from the victims to Miller's gun. [Direct Appeal, R. 1261–62.]
Johnson reminded the jury of the State's burden and implored the jury
to listen to the judge's instructions on the law and render a verdict based
on the facts and consistent with their oath. [Direct Appeal, R. 1263.]
Miller has failed to present any evidence which would establish that
[Johnson's] continual effort during closing arguments to gain credibility
with the jury in order to make an effective penalty phase argument was
unreasonable.
Johnson's decision to not argue that Miller did not have intent to
commit capital murder during closing arguments was consistent with
his overall trial strategy of focusing on the penalty phase of the trial.
[February 2008 Rule 32 Hearing, R. 219.] Moreover, Johnson's
comments about his representation of Miller were consistent with this
strategy as well. Johnson told the jury that he was proud of his
representation of Miller, but in an effort to win favor with the jury, also
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stated he was still not proud of what happened during the shootings:
‘And I at least am proud at this point that I have participated in this. It
does not remove any degree the shame of what happened. It does not
make me proud that I'm representing someone who the evidence is
fairly convincing, I must concede to you, did what he did.’
[Direct Appeal, R. 1263–64.] During the evidentiary hearing, Johnson
explained that this statement could not be viewed in isolation, but as
part of a larger goal of not alienating the jury during the guilt phase to
attempt to win favor with the jury. [February 2008 Rule 32 hearing, R.
142–43.]
When viewed in the context of Johnson's entire trial strategy, Johnson's
closing argument was reasonable attempt to gain credibility with the
jury during the guilt phase in order to attempt to get a favorable result
in the penalty phase—the focus of Johnson's strategy. Based on this
approach, Miller has failed to demonstrate that trial counsel's decision
was unreasonable or that his performance during closing arguments was
deficient under Strickland. Therefore, this claim is denied.
This claim is also denied because Miller failed to meet his burden of
proof of demonstrating that he was prejudiced by his trial counsel's
closing argument. See Strickland, 466 U.S. at 695; Ala. R. CRIM. P;
32.7(d). Miller has presented no evidence concerning the impact of
Johnson's statements on the jury, nor has Miller demonstrated a
reasonable probability that the outcome of the guilt phase of his trial
would have been different had Johnson not conducted his closing
argument in this manner. In general, statements of counsel ‘are usually
valued by the jury at their true worth and are not expected to become
factors in the formation of the verdict.’ Minor, 914 So.2d at 417. Miller
offered nothing more in support of his claim of ineffectiveness than the
bare, conclusory allegation that Johnson's closing argument was
improper and that it prejudiced the jury, without proving specific facts
that demonstrate prejudice. Accordingly, Miller has not met his burden
of demonstrating prejudice under Strickland and therefore, this claim
is denied.
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(C.R. Vol. 43, Tab. 75, at 110–14).
The Rule 32 Appellate Court affirmed the Circuit Court’s ruling, holding that
“[b]ecause [Miller] failed to establish that his ineffective-assistance-of-trial-counsel
claim is meritorious, he has failed to prove by a preponderance of the evidence that
his appellate counsel was ineffective for failing to present this claim.” (C.R. Vol.
43, Tab 76, at 72) (internal citation omitted).
After reviewing the record, this court concludes that the state court’s
determination was reasonable. Trial counsel’s guilt-phase closing argument was
consistent with trial counsel’s overall strategy of maintaining credibility with the
jury for the penalty phase of trial. This court has already stated that this approach
to trying the case was not unreasonable, and Miller fails to demonstrate that trial
counsel’s performance was a professionally unreasonable error under Strickland.
Moreover, as the Rule 32 Circuit Court found, Miller failed to demonstrate
that the outcome of the proceeding would have been different but for trial counsel’s
closing statement. The evidence of Miller’s guilt is overwhelming, and he has not
offered a reasonable probability that the outcome of the proceeding would have
been different but for trial counsel’s statement.
Because the underlying ineffective-assistance-of-trial-counsel claim is not
meritorious, appellate counsel could not have been ineffective for failing to raise the
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claim. Therefore, the state court’s determination was reasonable, and Miller is not
entitled to habeas relief.
6.

Miller’s claim that trial counsel was ineffective for failing to
request jury instructions to protect Miller’s rights.

Miller claims that appellate counsel should have argued that trial counsel was
ineffective for requesting certain jury instructions and failing to request others.
(Doc. 1, 92–94, 144). First, Miller faults trial counsel for requesting that the court
instruct the jury that even if a defendant pleads guilty to capital murder, the state
must prove the defendant’s guilt beyond a reasonable doubt. Miller contends that
this instruction implied that Miller was not contesting his guilt of capital murder.
Next, Miller argues that trial counsel was ineffective for asking the court not to
instruct the jury on the impermissibility of drawing an adverse inference from
Miller’s decision not to take the stand. Miller argues that the court’s failure to
provide this instruction would also have misled the jury into believing that Miller
was not contesting his guilt. Finally, Miller argues that trial counsel was ineffective
for failing to request a clarifying instruction on the heightened mens rea
requirement for the offense of capital murder, which Miller argues was necessary
for the court to distinguish between capital and non-capital intentional murder.
(Doc. 1, at 144).
a.

Procedural Default
122

The Rule 32 Circuit Court denied this claim, holding that Miller had
abandoned this claim because he failed to present any evidence relating to this claim
during the Rule 32 hearings. (C.R. Vol. 43, Tab. 75, at 2066-67). The Alabama
Court of Criminal Appeals also denied the claim because Miller failed to comply
with state procedural rules. (C.R. Vol. 43, Tab. 76, at 76). Therefore, this court
finds that this claim is barred from habeas review. See Brownlee v. Haley, 306 F.3d
1043, 1066–67 (11th Cir. 2002).
b.

Merits

Even assuming this claim were not procedurally defaulted and reviewing the
claims de novo, Miller still has failed to demonstrate that he is entitled to habeas
relief because he has failed to produce evidence sufficient to meet either prong of
Strickland. As the Rule 32 Circuit Court pointed out, Miller failed to present any
evidence at the Rule 32 hearing regarding trial counsel’s strategy in requesting or
failing to request specific jury instructions. (C.R. Vol. 43, Tab. 75, at 116). A silent
record as to an attorney’s motives for taking a particular action is insufficient to
overcome the presumption that the attorney had good reasons for acting as he did.
See Massaro v. United States, 538 U.S. 500, 505 (2003) (“The appellate court may
have no way of knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive or was taken because the counsel’s alternatives
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were even worse.”). Thus, this court must assume that trial counsel pursued a
reasonable strategy in the absence of any evidence to the contrary.
Additionally, Miller fails to demonstrate a reasonable probability that the
outcome of the proceeding would have been different but for the jury instructions
that were given. The jury instructions clearly stated that Miller was not pleading
guilty to the charged offenses and that the jury must determine Miller’s guilt beyond
a reasonable doubt. The Circuit Court provided the following instruction:
Now, to the charge of capital murder, the defendant has entered a plea
of not guilty. And, of course, that applies to the charge of capital
murder and any lesser included offenses.
The plea of not guilty casts the burden of proof on the State of Alabama
to convince you, the jury, beyond a reasonable doubt . . . that the
defendant is guilty as charged in the indictment.
(C.R. Vol. 8, R. 16, at 1287–88) (emphasis added).
The Circuit Court also distinguished between the elements of capital murder
and the elements of the lesser offense of intentional murder:
Now, in order to find the defendant guilty of this lesser included
offense of intentional murder, you must find the defendant committed
an intentional murder of only one person or that, should you find an
intentional murder or two or more persons, that the state failed to prove
beyond a reasonable doubt that the murders of two or more persons
were not - - were pursuant to one scheme or course of conduct.
(C.R. Vol. 8, R 16, at 1286). Thus, the Circuit Court’s guilt-phase jury instructions
sufficiently informed the jury that Miller was not pleading guilty and provided the
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jury with the necessary information to differentiate between capital and non-capital
murder. Because the Circuit Court correctly instructed the jury, and the jury still
found Miller guilty, this court finds that Miller would not be entitled to habeas relief
even if his claim were not procedurally defaulted.
7.

Miller’s claim that trial counsel was ineffective for relying on Dr.
Scott as the sole mitigation witness during the penalty phase of
trial

Miller contends that appellate counsel should have argued that trial counsel
was ineffective for relying solely on Dr. Scott during the penalty phase. (Doc. 1,
at 144). First, Miller argues that Dr. Scott’s testimony was insufficient because he
was not hired as a mitigation expert and had not conducted a sufficient investigation
to present the full range of evidence that a mitigation expert would be expected to
present at trial.22 (Doc. 1, 101). Next, Miller argues that trial counsel was deficient
for failing to call the following members of Miller’s family: “Mr. Miller’s mother,
Barbara Miller, half-sister, Cheryl Ellison, half-brother, Jeff Carr, Jeff’s wife,
Sandra Carr, Barbara’s brother, George Carr, aunt Hazel Miller, and cousin, Cindy
Carr . . . Mr. Miller’s brother, Richard Miller, niece, Alicia Sanford, nephew, Jacob
22

Trial counsel did not employ Dr. Scott to put on a mitigation case. Instead, he hired Dr.
Scott for the purpose of establishing two mitigating factors under Alabama law—first, that Miller
was under the influence of an extreme mental or emotional disturbance at the time of the
shootings, and second, that Miller’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was substantially impaired. (C.R. Vol. 8,
Tab. 30, at 187–88).
125

Connell, and cousin Brian Miller . . . .” (Doc. 1, at 106). Miller contends that as a
result of trial counsel’s decision to only present Dr. Scott’s testimony during the
penalty phase, the jury never heard about the criminal environment Miller
experienced as a child, the extent of physical abuse Miller suffered, Miller’s
positive work history, Miller’s good character, and Miller’s positive relationships
with his family.
a.

No Procedural Default

Respondent contends that this claim is not properly exhausted because Miller
never argued that trial counsel was ineffective for relying on Dr. Scott as the sole
mitigation witness. (Doc. 16). However, after reviewing the record, this court finds
that Miller did raise this claim in both his Rule 32 petition as well as his petition to
the Alabama Court of Criminal Appeals. (Rule 32 C.R. Vol. 21, Tab. 46, at 443–51;
Rule 32 R. Vol. 32, Tab. 63, at 82–104). Thus, this court will review the state
court’s rejection of this claim under AEDPA deference.
b.

Merits

In discussing this claim, the Rule 32 Circuit Court addressed both the
prejudice and performance prong of Strickland, and the Rule 32 Appellate Court
affirmed the Circuit Court’s reasoning as to both prongs. However, because lack
of prejudice is clear, this court will limit its analysis to the prejudice prong. The
126

Rule 32 Circuit Court found that Miller failed to establish prejudice because the
evidence that Miller alleges should have been presented through Miller’s family
members or through a mitigation expert would simply be cumulative of the evidence
presented by Dr. Scott and would have been insufficient to establish any other
mitigating factor. (C.R. Vol. 43, Tab. 75, at 2085–95). The court concluded by
stating that Miller failed to show that the admission of additional mitigating
evidence would have altered the outcome of the proceeding in light of the strength
of the aggravating circumstances that the murders were heinous, atrocious, and
cruel. (C.R. Vol. 43, Tab. 75, at 2096–97).
As discussed by this court in Part VIII.C.5, Miller cannot show a reasonable
probability that the admission of additional mitigating evidence would have altered
the court’s decision to sentence Miller to death. Therefore, regardless of whether
trial counsel acted unreasonably in only calling Dr. Scott to testify during the
penalty phase, Miller cannot establish prejudice. See Crawford v. Head, 311 F.3d
1288, 1322 (11th Cir. 2002) (holding that even if trial counsel acted unreasonably,
petitioner was not entitled to habeas relief because no reasonable probability existed
that additional mitigating evidence would have led the jury to sentence the
petitioner to life rather than death. Accordingly, the state courts reasonably
determined that Miller’s trial counsel was not ineffective, and, therefore, the state
127

courts reasonably determined that Miller’s ineffective-assistance-of-trial-counsel
claim was also without merit.
8.

Miller’s claim that trial counsel was ineffective in failing to move
for a directed verdict during the penalty phase

Miller alleges that appellate counsel should have argued that trial counsel was
ineffective for failing to move for a directed verdict based on the State’s failure to
present comparative evidence necessary for the jury to determine that the killings
were “especially heinous, atrocious, or cruel compared to other capital crimes.”
(Doc. 1, at 144). Miller argues that by its very terms, the “especially heinous,
atrocious or cruel” aggravating factor requires the jury to compare the heinousness
of the crime with the heinousness of other capital offenses.
a.

Procedural Default

Respondent contends that this claim is procedurally defaulted from habeas
review based on Miller’s failure to comply with state rules. (Doc. 16, at 96).
However, the Alabama Court of Criminal Appeals, although noting that Miller
failed to raise this claim sufficiently in his Rule 32 petition, nevertheless addressed
the claim on the merits. Because the last state court to examine this claim did not
rely on a procedural rule, this court finds that the claim is not procedurally
defaulted. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (recognizing that
a claim is procedurally defaulted when the last state court to examine a claim states
128

clearly and explicitly that the claim is barred based on petitioner’s failure to follow
state procedural rules).

Therefore, the court will review the state court’s

determination under AEDPA deference.
b.

Merits

In addressing the claim, the Alabama Court of Criminal Appeals pointed out
that the Alabama Supreme Court had previously rejected a defendant’s argument
that the “especially heinous, atrocious or cruel” aggravating factor required a
comparative case. (C.R. Vol. 43, Tab. 76, at 74); see Ex Parte Bankhead, 585 So.
2d 112, 125 (Ala. 1991). In Bankhead, the Alabama Supreme Court stated that
“[a]lthough a very narrow and literal reading of the statute may suggest that such
a comparison is required, it would be virtually impossible for [Circuit Courts] to
implement.” 585 So. 2d at 125. Instead, the Alabama Supreme Court instructed
that the question under the “especially heinous, atrocious or cruel” aggravating
factor was whether the murder was “conscienceless or pitiless” and “unnecessarily
torturous to the victim,” and that the statute did not require the state to present
comparator cases to establish the factor. Id. (internal quotations omitted). Relying
on Bankhead, the Alabama Court of Criminal Appeals concluded that trial counsel
could not have been ineffective for failing to move for a directed verdict on this

129

ground because the State was not required to present other capital cases for
comparison under Alabama law.
In his reply brief, Miller argues that, although Bankhead recognized that
Alabama law did not require a comparative case to establish the aggravating factor,
subsequent cases have reached the opposite conclusion. (Doc. 22, at 170).
Specifically, Miller points to Smith v. State, 756 So. 2d 892, 912–13 (Ala. Crim.
App. 1998), aff’d, 756 So. 2d 957 (Ala. 2000).
The issue in Smith was whether the State improperly solicited testimony from
a police officer comparing the murder in that case with murders in other capital
crimes in terms of heinousness, atrociousness, and cruelty. Id. at 912. The Alabama
Court of Criminal Appeals determined that the police officer’s testimony was
properly admissible because “[i]n determining whether a capital crime is especially
heinous, atrocious, or cruel, the fact finder can compare the murder at issue with
other capital crimes.” Id. at 912 (emphasis added). However, contrary to Miller’s
contention, Smith does not stand for the proposition that Alabama law requires a
comparative case to establish the “especially heinous, atrocious, and cruel”
aggravating factor. Instead, Smith stands for exactly what it says it stands for—that
“the factfinder can compare the murder at issue with other capital crimes.” Id.
Indeed, subsequent to the Alabama Court of Criminal Appeals’ decision in Smith,
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the Alabama Supreme Court affirmed its decision in Bankhead that the “especially
heinous, atrocious, and cruel” aggravating factor did not require that the State to
present comparative criteria for the jury to find the aggravating factor. See Ex parte
Key, 891 So. 2d 384, 389 (Ala. 2004).
Because Alabama law does not require the State to present a comparative case
to establish the “especially heinous, atrocious, and cruel” aggravating factor, Miller
was not entitled to a directed verdict based on the lack of a comparative case. See
Hallford v. Culliver, 379 F. Supp. 2d 1232, 1268–69 (M.D. Ala. 2004) (rejecting
argument that Alabama law requires a comparative case to determine whether a
crime was “especially heinous, atrocious, or cruel”). Thus, trial counsel was not
ineffective for failing to argue that Miller was entitled to a directed verdict on this
ground, and appellate counsel could not be ineffective for failing to present this
ineffective-assistance-of-trial-counsel claim on appeal. Thus, the court finds that
the states courts reasonably determined this claim to be without merit.
9.

Miller’s claim that trial counsel was ineffective in connection with
his penalty-phase closing argument

Miller next contends that appellate counsel should have argued that trial
counsel was ineffective in his penalty-phase closing argument for failing to focus
on Miller’s good character and his diminished capacity at the time of the offense.

131

(Doc. 1, at 144). Miller contends that trial counsel made numerous unreasonable
statements in his penalty-phase closing argument. (Doc. 1, at 112–15).
First, Miller argues that trial counsel conceded the existence of the
“especially heinous, atrocious or cruel” aggravating factor when he stated:
[T]here is only one possible aggravating circumstance in this case and
that is that this is an extremely heinous, atrocious or cruel crime as
compared to other capital murders . . . I can’t imagine any crime where
a life is taken that wouldn’t be cruel. I can’t imagine any crime where
victims don’t suffer and their families don’t suffer.
(Doc. 1, at 113). Next, Miller alleges that trial counsel was ineffective for failing
to point out that the State had failed to produce any evidence showing how Miller’s
case compared to other capital offenses. Miller also faults trial counsel for failing
to argue that the mitigating factors outweighed the aggravating factor. Finally,
Miller argues that the theme of trial counsel’s argument—that “no matter what
someone does, they don’t deserve to die”—was unreasonable given the fact that 10
out of the 14 jurors and alternates had stated during voir dire that they were not
opposed to the death penalty.
a.

Procedural Default

Respondent contends that this claim is procedurally barred because Miller
failed to comply with state procedural rules. The record supports Respondent’s
contention. The Rule 32 Circuit Court held that Miller had abandoned this claim
132

because he failed to ask trial counsel a single question regarding why trial counsel
adopted this particular approach to his closing argument. (C.R. Vol. 43, Tab. 75,
at 2098–99). The court also pointed out that Miller failed to present any evidence
showing what a reasonable attorney would have argued during closing arguments
or how Miller suffered prejudice as a result of trial counsel’s actions. (C.R. Vo. 43,
Tab. 75, at 2099). The Alabama Court of Criminal Appeals likewise found that this
claim was procedurally barred from review because Miller had abandoned the
claim. (C.R. Vol. 43, Tab. 76, at 76). Thus, this court finds that this claim is
procedurally barred from habeas review. See Brownlee v. Haley, 306 F.3d 1043,
1066–67 (11th Cir. 2002).
b.

Merits

Even without the procedural bar, this claim would still be due to be dismissed
on the merits under a de novo review. Miller’s argument is essentially that trial
counsel should have presented different arguments to the jury. However, because
Miller failed to question trial counsel about his strategy regarding his closing
statement, no evidence regarding why trial counsel adopted this particular approach
to his closing argument. This silent record cannot overcome the presumption that
trial counsel acted reasonably in choosing his approach to his closing argument.
See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (“Counsel’s competence .
133

. . is presumed and the defendant must rebut this presumption by proving that his
attorney’s representation was unreasonable under prevailing professional norms and
that the challenged action was not sound strategy.”).
Additionally, a review of Miller’s closing statement demonstrates that it was
not so poor as to be objectively unreasonable. The following is the entirety of trial
counsel’s closing argument:
May it please the court, ladies and gentlemen.
I know by now you have been sitting for a long time, a long number of
days and you don’t want anybody else to be long winded; however,
please grant me whatever time it takes, and I will be just as brief as I
can, to say what I’ve got to say and what I’m feeling about this at this
point.
We are at that stage where it is - - something of a balancing act here and
- - but there is a very mechanical part of this and it almost seems to me
to be obscene to talk about the mechanics of doing this, but here are the
mechanics and the judge will tell you what they are after we get through
here, but here are the mechanics.
You first have got to make a decision as a group and it has to be a
unanimous decision, the same way your verdict was unanimous, but
there is an aggravating circumstance in this case. The judge will tell
you if you cannot first unanimously agree that there is an aggravating
circumstance in this case, then you must simply say life, we recommend
life without parole.
If you unanimously agree that there is an aggravating circumstance,
then at that point the team effort is over, everything you’ve done up
until this point has been something of a team effort, you had to have a
unanimous verdict of guilt, you have to have a unanimous verdict on
the aggravating circumstance, but at that point you are one on one with
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Alan Miller because at that point you are deciding what you in your
conscience to do with him.
And if it was humanly possible to make eye contact with twelve people
at once, that’s what I would be doing at this point because I want to talk
to you now about that decision if you get that far.
Remember to get that far you’ve got to unanimously decide that there
is an aggravating circumstance and there is only one possible
aggravating circumstance in this case and that is that this is an
extremely heinous, atrocious or cruel crime as compared to other capital
murders.
There again, it seems obscene to me to talk about the atrocity of crimes
of the heinousness of the crime.
I can’t imagine any crime where a life is taken that wouldn’t be cruel.
I can’t imagine any crime where victims don’t suffer and their families
don’t suffer. But what you’re dealing with here now is not whether a
crime in and of itself is atrocious, heinous and cruel, it’s whether this
particular crime is extremely heinous, atrocious or cruel as compared
to other capital murders.
So already you’ve got a relative term there. If you find unanimously
that yes, this one is, then you consider mitigating circumstances. Some
of them are set out in the law. I have read to Dr. Scott two of them.
There is a third one, the judge will charge you that there are three
mitigating circumstances that have been presented to you for your
consideration. One of them has been - - at least one has been agreed
upon and that is that Alan Miller has no prior criminal history. The law
considers that a mitigating circumstance.
Another one has to do - - I will have to read them because I just can’t
recall them. Second one if it was committed while the defendant was
under the influence of extreme mental or emotional disturbance; that is
a mitigating circumstance.

135

The rational [sic] I don’t need to sit here and tell you. Greatest injustice
of all is the equal treatment of unequals. If you think that you are
dealing with an unequal here, don’t treat them equally, the same way
you would to me.
The third one of the statutory mitigating circumstances is whether
capacity of the defendant to appreciate the criminality of his conduct or
to conform his conduct to requirements of law which was substantially
impaired.
For reasons that Dr. Scott stated to you and he can present those to you
much more eloquently than I can and did. Those are three that at this
point I suggest to you are rebutted.
Now, it’s not a mathematical test anyway. The fact that we have three
to possibly their one doesn’t mean that this - - that you can’t impose the
death penalty. But actually Mr. Ladner - - what I suggest to you is the
most mitigating of all circumstance is that we’re on the same page on
one thing, what Mr. Ladner said was the reason that you impose this
death penalty is to prevent Mr. Miller and others like him from doing
these kinds of things.
Now, think about that a minute. Is that going to prevent what Mr.
Miller did? Is it going to prevent anyone else from doing it? It has
nothing to do with prevention. But perhaps we can do something here
that might and wouldn’t that be the most mitigating circumstance of all
because the only way it seems to me that you can prevent an offense
from being committed is to impose the penalty before the crime and
surely we haven’t become that blood thirsty.
But there perhaps may be a way to use this to prevent something and
that would be somewhere we have to start, we have to work into our
national character, this notion that it really doesn’t matter what you do,
you deserve to live. That is not a sympathetic approach. That, I
suggest to you, is the only approach that keeps anyone from going out
and doing what we see and hear and read about in the papers day after
day and we keep pulling our hair out and we keep sitting around and
saying, how in the world, what is wrong. Because in all my young life,
136

I grew up like all of you did, I’m sure, around all types of people, some
of them pretty doggone mean, I wouldn’t fool with them.
But not one person in my young life do I ever remember suggesting that
they wanted to kill their parents, that they wanted to blow up a school,
that they wanted to just go in and mow down people because they might
belong into a particular group.
And that mentality, however, has become pervasive in our society. And
when I struggle, like I’m sure you must, with how do we stop this stuff,
I can only come to one answer and that is we have to set as our number
one priority when we define values for ourselves and our children that
no matter what someone does, they don’t deserve to die because any
other - - by any other definition, we get down to quantifying this stuff
which seems to me just not to make good sense.
Because if we believe, if we continue to believe that we can refine our
system here and we can sit here and use terms like I’ve used, I can’t
even remember the terms that I’ve already said here, and say, okay, this
is death, this is life, this is death, this is life, depends on whether these
words mean what they mean or this particular situation fits into these
words. As long as we’re willing to do that, and as long as we can
confine that analysis to the sophistication of a courtroom, then we’re
going to continue to see what we see every day. And we’re going to
struggle with children when we try to explain or understand how in the
world could you kill a classmate, well, they deserve to die.
Just like I said to you before, the only way to have prevented this crime
- - and I know everyone of you right now just like - - all of your hearts
have got to hurt, wishing that you could have prevented this crime. Just
like I wish I could have prevented this crime.
But I suggest to you that the only way this crime could have been
prevented was on the morning of August the 5th, I believe that if Alan
Miller, if I had known what was going to go on, and I’m sure
everybody in here would do the same thing, if you had known that this
was about to happen, you would have done what you could to prevent
it.
137

So ask yourself this, if you had seen Alan Miller that morning and had
a clue that this was going to go on and you could have told him one of
two things, you could have said, Alan, if you go in there and do this,
you may lose your own life or you could have said, Alan, no matter
what anyone has done to you, they don’t deserve to die for it.
Now, which one of those two ideas would have prevented this from
happening. I will reiterate what I said earlier and that is that you’re on
a stage, there’s a crowd out here and the crowd is screaming for you to
kill him, but you have got to think long and hard, please, about what I
have said.
Now, you may have noticed that every time I have spoken here the state
has come up right behind me, they will do it again. That’s because
that’s the mechanics of a trial. And then I will sit there and I will bite
my tongue while they talk to you and bite my lip and I won’t get a
chance to stand back up, it won’t be because that I agree with what
they’re saying, it won’t be because I do not believe I have a better
answer for anything they might say, it will be because there has to be
a stopping point and that is it.
Please, all I ask of you is to consider those things that you have heard
in this courtroom in this phase of the hearing, consider those things that
I have suggested to you might not just mitigate this offense but that
might mitigate any future victims. Let’s think about those people,
okay.
Thank you very much.
(C.R. Vol 8, Tab. 24, at 1409–17).
Trial counsel’s theme in his penalty-phase closing argument echoed that of
his penalty-phase opening statement—that no one deserves to die regardless of what
they have done or what the jurors might think about them. Although Miller

138

contends that this approach was unreasonable given that ten of the fourteen jurors
and alternates had stated they favored of the death penalty, this court finds that such
an approach falls within the broad range of reasonable professional conduct.
Additionally, given the strength of the State’s case showing the brutal nature of
Miller’s crimes, the court finds that a different closing argument would not have
resulted in a lesser sentence or that Miller’s remarks in any way undermined the
reliability of the outcome of the penalty phase. See Windom v. Sec’y, Dep’t. Of
Corrs, 578 F.3d 1227, 1251–52 (11th Cir 2009). Therefore, the ineffectiveassistance-of-trial-counsel claim would be due to be denied on the merits even if not
procedurally barred.
10.

Miller’s claim that trial counsel was ineffective for failing to object
to the court’s penalty-phase jury instructions

Miller alleges that appellate counsel should have argued that trial counsel was
ineffective for failing to object to the court’s instruction that the jury was making
a “recommendation.” (Doc. 1, at 144). Miller alleges that the Circuit Court
diminished the jury’s sense of sentencing responsibility by repeatedly emphasizing
that the jury would be making only a recommendation to the court regarding the
death sentence and failing to advise the jurors that any aspect of their decision was
binding on the Circuit Court. According to Miller, these actions violated Miller’s
Eighth Amendment rights under Caldwell v. Mississippi, 472 U.S. 320, 328–29
139

(1985) (holding that “it is constitutionally impermissible to rest a death sentence on
a determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s death rests
elsewhere”).
a.

Procedural Default

This claim is procedurally defaulted for failure to exhaust because Miller,
although raising this claim in his Rule 32 petition, failed to raise this claim before
the Alabama Court of Criminal Appeals. (See Rule 32 R. Vol. 38, Tab. 63, at viii).
Thus, this claim is barred from habeas review. See Woodford v. Ngo, 548 U.S. 81,
92 (2006) (“A state prisoner is generally barred from obtaining federal habeas relief
unless the prisoner has properly presented his or her claim through one ‘complete
round of the State’s established appellate review process.’”) (quoting O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)).
b.

Merits

Alternatively, this claim is due to be dismissed on the merits under a de novo
review because the Circuit Court’s jury instructions were proper, and therefore, trial
counsel could not have been ineffective for failing to object. Under Alabama law,
the jury’s role in sentencing is to render an advisory verdict recommending a
sentence to the trial judge. Ala. Code 1975 §13A-5-46. Alabama courts have

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repeatedly recognized that “the instructions of the trial court accurately informing
the jury . . . that its sentence verdict was ‘advisory’ and a ‘recommendation’ . . .
does not violate Caldwell.” Martin v. State, 548 So. 2d 488, 494 (Ala. Crim. App.
1988), affirmed, 548 So. 2d 496 (Ala. 1988), cert. denied, 493 U.S. 970 (1989); see
also Harris v. State, 2 So. 3d 880, 906 (Ala. Crim. App. 2007). Because the Circuit
Court’s instructions were proper, trial counsel could not have been ineffective for
failing to raise an objection. See Bearden v. State, 825 So. 2d 868, 872 (Ala. Crim.
App. 2001) (“[C]ounsel could not be ineffective for failing to raise a baseless
objection.”); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel is not
ineffective for failing to raise a non-meritorious objection). Thus, Miller cannot
demonstrate that appellate counsel was ineffective based on his failure to raise this
claim, and Miller is not entitled to habeas relief on this ground. See Hallford v.
Culliver, 379 F. Supp. 2d 1232, 1281–82 (M.D. Ala. 2004) (rejecting identical
argument).
11.

Miller’s claim that trial counsel was ineffective in failing to request
a special verdict form

Miller next alleges that appellate counsel was ineffective for failing to argue
that trial counsel was ineffective regarding the verdict form the trial court provided
to the jurors. (Doc. 1, at 11, 144). At the close of the penalty phase, the court

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provided the jurors a general jury form that asked only the number of votes for life
imprisonment and the number of votes for the death penalty.
Miller alleges that trial counsel should have requested a special verdict form
that would have required the jurors to first explicitly indicate whether they had
unanimously found the existence of the aggravating circumstance—a prerequisite
finding necessary for Miller to be eligible for the death sentence—before
determining whether to recommend life or death. (Doc. 1, at 118). Miller
highlights the fact that only ten out of the twelve jurors voted for death, and argues
that because of trial counsel’s failure to request a special verdict form, the record
is unclear whether all twelve jurors found the existence of an aggravating factor.
(Doc. 1, at 144).
a.

Procedural Default

Respondent correctly asserts that this claim is procedurally barred from
review because Miller failed to raise the claim in compliance with state procedural
rules. (Doc. 16, at 96). The Rule 32 Circuit Court determined that Miller had
abandoned this claim because he failed to ask trial counsel any questions regarding
his decision not to request a special verdict form and because Miller failed to ask
any questions that would establish how he was prejudiced by his trial counsel’s
decision. (C.R. Vol. 43, Tab. 75, at 2100–01). The Alabama Court of Appeals also

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found that this claim was procedurally barred from review because Miller had
abandoned the claim. (C.R. Vol. 43, Tab. 76, at 76). Thus, the claim is barred from
habeas review. See Brownlee v. Haley, 306 F.3d 1043, 1066–67 (11th Cir. 2002).
b.

Merits

Absent a procedural bar, this claim would also be due to be dismissed
because the ineffective-assistance-of-trial-counsel claim is without merit. The trial
court adequately instructed the jury that they must first unanimously find the
existence of an aggravating factor before determining whether to recommend the
death penalty. The Circuit Court instructed the jury that
the burden of proof is on the State of Alabama to convince each of you
beyond a reasonable doubt as to the existence of any aggravating
circumstance considered by you in determining what punishment is to
be recommended in this case. This means that before you can even
consider recommending the defendant’s punishment to be death, each
and every one of you must be convinced beyond a reasonable doubt
based on the evidence that an aggravating circumstance exists.
...
In order to consider an aggravating circumstance, it is necessary that
the jury unanimously agree upon its existence. All twelve of you must
be convinced beyond a reasonable doubt that an aggravating
circumstance exists in order for any of you to consider that
aggravating circumstance in determining what the sentence should be.
...
There must be a unanimous agreement on the existence of a particular
aggravating circumstance before it can be considered by any juror.
There need not be a unanimous agreement on the existence of any
particular mitigating circumstance before it can be considered.
(R. Vol. 8, Tab. 27, at 1433, 1438) (emphasis added).
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Thus, the court adequately informed the jurors that they must first
unanimously find the existence of an aggravating circumstance before
recommending death. Additionally, the State’s penalty-phase opening statement as
well as Miller’s counsel’s penalty-phase closing argument reminded the jurors that
the existence of an aggravating factor was a prerequisite to recommending a death
sentence. (C.R. Vol. 8, Tab. 19, at 1314–15;C.R. Vol. 8, Tab. 24, at 1409–10). In
the State’s opening statement, the prosecutor stated that the State bore the burden
of establishing beyond a reasonable doubt the existence of the aggravating
circumstance and that the jurors must first find the “existence of an aggravating
factor to even consider the imposition or the recommendation of the death penalty
in this case.” (C.R. Vol. 8, Tab. 19, at 1314–15). Miller’s trial counsel reiterated
this rule in his closing argument when he stated, “[t]he judge will tell you if you
cannot first unanimously agree that there is an aggravating circumstance in this
case, then you must simply say life, we recommend life without parole.” (C.R. Vol.
8, Tab. 24, at 1409–10).
Based on the instructions of the court, as well as the repeated reminders of
both the prosecution and defense, Miller has offered nothing to raise even a doubt
that the jurors understood the determinations they had to make during the penalty
phase. See Evans v. Sec’y, Fla. Dep’t. Of Corr., 699 F.3d 1249, 1260 (11th Cir.

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2012) (“The jury’s verdict necessarily contained [findings than an aggravating
circumstance existed] because the jury was instructed that it could not recommend
a death sentence unless it found beyond a reasonable doubt that one or more
aggravating circumstances existed.”).

The jury’s recommendation of death,

although not unanimous, proves that the jury must have unanimously found the
existence of the aggravating circumstance. Thus, regardless of whether a special
verdict form had been provided to the jury, the outcome of the proceeding would
have been the same. Because Miller suffered no prejudice under Strickland, the
ineffective-assistance-of-trial-counsel claim is without merit and appellate counsel
cannot be ineffective for failing to raise it. Therefore, the court concludes that this
claims is due to be dismissed.
12.

Miller’s claim that trial counsel was ineffective at the sentencing
hearing

Miller alleges that appellate counsel was ineffective for failing to argue that
trial counsel was ineffective for failing to present mitigating evidence at the
sentencing hearing. (Doc. 1, 145; 120–23; Doc. 22, 172–78). He alleges that the
pre-sentencing investigative report prepared by the Alabama Board of Pardons and
Paroles “woefully understated the horrible abuse Mr. Miller had suffered at the
hands of his father.” (Doc. 1, at 121). Miller also points out that trial counsel failed
to introduce either Dr. Scott’s or Dr. McDermott’s reports that contained detailed
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summaries of Miller’s family and background. Miller argues that the prejudice he
suffered as a result of trial counsel’s failure to present additional mitigating
evidence is apparent from Judge Crowson’s statement at sentencing that his
decision was “probably the most difficult sentence that I’ve ever had to consider”
and that “I’ve been wrestling with it for a long time.” (C.R. Vol. 8, Tab. 28, at
1471, 1472).
a.

No Procedural Default

Miller properly raised this claim on collateral appeal, and the Alabama Court
of Criminal Appeals addressed the claim on the merits. (C.R. Vol. 43, Tab. 76, at
74–76). Therefore, the court reviews the determinations of the state court under
AEDPA deference.
b.

Merits

The Rule 32 Circuit Court denied this claim, making the following
determinations:
The Court denies Miller's claim because he has failed to meet his
burden of proof of demonstrating that his trial counsels’ performance
was deficient under Strickland, 466 U.S. at 687. Ala. R. Crim. P.,
32.7(d). Alabama courts have held that ‘counsel does not necessarily
render ineffective assistance simply because he does not presented all
possible mitigating evidence.’ McGahee v. State, 885 So.2d 191, 221
(Ala. Crim. App. 2003). However, as noted above, trial counsel
presented a competent mitigating case concerning Miller's mental
health and background during the penalty phase of the trial. The trial
court presided over Miller's trial and heard all of the mitigating
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evidence presented. Simply the fact that Miller's trial counsel could
have presented more mitigation evidence during the sentencing hearing
does not establish deficient performance under Strickland, See
McGahee, 885 So.2d at 221 (‘Trial counsel could have called more
witnesses at the penalty-phase hearing before the trial judge, with the
hope that the additional information would have convinced the trial
judge to agree with the jury's recommendation and to sentence
McGahee to life imprisonment without parole. The same can be said
after any sentencing hearing in a capital case in which a death sentence
is imposed after the jury recommended a sentence of life imprisonment
without parole.’ (emphasis in original)).
Miller failed to ask trial counsel any questions regarding the reasons
why he did not call any witnesses or present evidence during the
sentencing hearing. [February 2008 Rule 32 Hearing, R. 200–01.]
Therefore, trial counsel's performance must be presumed to be
reasonable. . . .
This claim is also denied because Miller has failed to meet his burden
of proof of demonstrating that he was prejudiced. See Strickland, 466
U.S. at 695; Ala. R. Crim. P., 32.7(d). Miller failed to establish what
additional evidence could have been submitted during the sentencing
hearing. Miller asked trial counsel whether he submitted Dr. Scott or
Dr. McDermott's report during the sentencing hearing before the trial
court; however, the substance of both reports had already [been]
presented during the penalty phase. Furthermore, the trial court found
three statutory mitigating circumstances to exist. Miller, 913 So.2d at
1169. Miller has failed to demonstrate what additional mitigating
circumstances could have been proven during the sentencing hearing.
Accordingly, Miller has failed to establish proof that he was prejudiced,
and this claim is denied.
(C.R. Vol. 43, Tab. 75, at 2103–05). The Alabama Court of Criminal Appeals
affirmed the Rule 32 Circuit Court. (C.R. Vol. 43, Tab. 75, at 76).

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Although the state court addressed both the performance and prejudice prong
of Strickland, this court will limit its analysis to determining whether Miller suffered
any prejudice as a result of trial counsel’s performance. See Waters v. Thomas, 46
F.3d 1506, 1510 (11th Cir. 1995) (“[a] court may decline to reach the performance
prong of the ineffective assistance test if convinced that the prejudice prong cannot
be satisfied”). To establish prejudice under Strickland, Miller bears the burden of
demonstrating a “reasonable probability” that he would not have received a death
sentence if trial counsel had presented the mitigating evidence that was presented
during the Rule 32 hearings. This burden becomes even greater in the context of the
AEDPA, where Miller must demonstrate that no reasonable jurist could determine
that there was not a reasonable probability that the outcome of the proceeding would
have been different but for trial counsel’s performance. See Brooks v. Comm’r, Ala.
Dep’t. of Corrs, 719 F.3d 1292, 1300 (11th Cir. 2013). Although the prejudice
question in this case may be close given the Circuit Court’s statements about its
struggle in deciding to sentence Miller to death, the court is persuaded that a
reasonable jurist could conclude that Miller did not suffer any prejudice.
As this court discussed previously, the additional evidence that Miller
presented during the Rule 32 hearings was largely cumulative of the evidence that
trial counsel presented through the testimony of Dr. Scott in the penalty phase.

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Although the pre-sentencing report did not accurately portray the abuse that Miller
suffered at the hands of his father, the Circuit Court judge heard Dr. Scott’s penaltyphase testimony during which he testified about the physical and emotional abuse
that Miller suffered. Although the court may not have heard of all of the specific
examples of abuse that Miller suffered, the court was aware that Ivan frequently hit
Miller and had even threatened him with a knife. (See C.R. Vol. 8, Tab. 22, at
1350–51).

The court was also aware that Miller had observed Ivan using

intravenous drugs and that Miller was raised in poverty. (See Rule 32 C.R. Vol. 31,
Tab. 59, at 416).
Given the largely cumulative nature of the mitigating evidence Miller
presented at the Rule 32 hearings, this court concludes a reasonable jurist could
conclude that the “new” mitigating evidence—evidence of Miller’s loving
relationships with his family members, his strong work history, and his family’s
history of mental illness—would have been insufficient to sway the sentencing judge
to recommend a different sentence. Thus, a reasonable jurist could concludes that
Miller’s trial counsel was not in ineffective, and, likewise, that appellate counsel was
not ineffective for failing to this claim. Accordingly, Miller fails to show that the
state court’s rejection of this claim was unreasonable, and Miller is not entitled to
habeas relief on this ground.

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13.

Miller’s claim that trial counsel was ineffective in failing to bring
the Supreme Court’s decision in Apprendi v. New Jersey to the trial
court’s attention

Miller alleges that appellate counsel should have argued that trial counsel was
ineffective for failing to notify the trial court of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). (Doc. 1, at 145). In Apprendi, the
Supreme Court held that “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.” Id. at 492. Miller argues that if trial counsel had presented this
argument at the sentencing hearing, he would have been able to obtain a new
penalty-phase trial before a jury that had been informed that their determination
regarding the aggravating factor was not merely a “recommendation.” (Doc. 1, at
122).
a.

Procedural Default

Respondent correctly contends that this claim is procedurally defaulted
because Miller failed to comply with state procedural rules. (Doc. 16, at 96). Miller
failed to raise this claim in his Rule 32 petition or in the Rule 32 hearing, raising this
claims for the first time before the Alabama Court of Criminal Appeals. In
reviewing the claim, the Alabama Court of Criminal Appeals held that Miller’s
failure to raise the claim before the Rule 32 Circuit Court barred review of the claim.

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(C.R. Vol. 43, Tab. 76, at 76) (citing Arrington v. State, 716 So .2d 237, 239 (Ala.
Crim. App. 1997) (“An appellant cannot raise an issue on appeal from the denial of
a Rule 32 which was not raised in the Rule 32 petition.”). Because the Alabama
Court of Criminal Appeals stated clearly that this claim is barred based upon Miller’s
failure to follow state procedural rules, the procedural default doctrine precludes
federal review of this claim. See Coleman v. Thompson, 501 U.S. 722, 731 (1991)
(“When a petitioner fails to raise his federal claims in compliance with relevant state
procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies
as an independent and adequate ground for denying federal review.”); Cone v. Bell,
556 U.S. 449, 465 (2009).
b.

Merits

Even without the procedural default, this claim is without merit. If trial
counsel had brought Apprendi to the attention of the court, Miller still would not
have been entitled to a new penalty-phase trial because the court and both counsels
informed the jurors that they must find the existence of the aggravating factor—that
the crime was especially heinous, atrocious, or cruel—beyond a reasonable doubt
before they could even consider whether to recommend the death penalty. The
Circuit Court instructed the jurors:
Now, as I stated to you before, the burden of proof is on the State of
Alabama to convince each of you beyond a reasonable doubt as to the
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existence of any aggravating circumstance considered by you in
determining what punishment is to be recommended in this case. This
means that before you can even consider recommending the defendant’s
punishment be death, each and every one of you must be convinced
beyond a reasonable doubt based upon the evidence that an aggravating
circumstance exists.
(C.R. Vol. 8, Tab. 27, at 1433).
Based on this instruction, the court submitted to the jurors the question of
whether the state proved the existence of the aggravating circumstance beyond a
reasonable doubt. This instruction reflects what Apprendi requires. See Apprendi,
530 U.S. at 490 (“[A]ny fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”). The fact that ten out of the twelve jurors recommended
sentencing Miller to death demonstrates that all of the jurors must have determined
that the aggravating circumstance existed beyond a reasonable doubt. See Brown v.
Jones, 255 F.3d 1273, 1280 (11th Cir. 2001) (“[J]urors are presumed to follow the
court’s instructions.”); Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985
(“Jurors are presumed to follow the law as they are instructed.”); Ingram v. Zant, 26
F.3d 1047, 1053 (11th Cir. 1994). Therefore, because Miller was not entitled to a
new trial under Apprendi, trial counsel was not ineffective for failing to bring the
case to the attention of the court. Likewise, appellate counsel could not be
ineffective for failing to present this ineffective-assistance-of-trial-counsel claim.
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Therefore, this court finds this claim would be due to be denied on the merits even
if it were not procedurally defaulted.
E.

Miller’s Claim that Appellate Counsel was Ineffective in the Appeal to the
Alabama Court of Criminal Appeals
In this claim, Miller sets forth numerous arguments as to appellate counsel’s

ineffectiveness regarding the brief appellate counsel submitted to the Alabama Court
of Criminal Appeals. (Doc. 1, at 145–49). Specifically, Miller alleges that appellate
counsel’s brief presented truncated and cursory challenges to trial counsel’s guiltphase opening statement, trial counsel’s failure to present an insanity defense, trial
counsel’s failure to investigate and present mitigating evidence, and trial counsel’s
penalty-phase opening statement. Miller contends that but for appellate counsel’s
unreasonable representation, a reasonable probability exists that he would have been
granted either a new trial or a new sentencing hearing.
1.

Procedural Default

Miller failed to present this claim before either the Rule 32 Circuit Court or
the Alabama Court of Criminal Appeals. His failure to properly exhaust this claim
bars this court from granting habeas corpus relief. See Snowden v. Singletary, 135
F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of state remedies requires that the state
prisoner ‘fairly presen[t] federal claims to the State courts to give the State the

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opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.’”) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
2.

Merits

Alternatively, this claim would also be due to be denied on the merits under
a de novo standard of review. This court has examined all of the ineffectiveassistance-of-trial-counsel claims that Miller alleges appellate counsel failed to
adequately present in his brief and has determined all of the claims lack merit.
Therefore, this court finds this ineffective-assistance-of-appellate-counsel claim also
lacks merit.
VIII. MILLER’S CLAIM THAT HIS DEATH SENTENCE VIOLATES
THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS
Miller presents numerous arguments that his death sentence is
unconstitutional. First, Miller alleges that the trial judge’s penalty-phase instructions
improperly reduced the jury’s sense of responsibility by repeatedly reminding the
jurors that their verdict was merely a recommendation. (Doc. 1, at 149–50). Second,
Miller contends that under the Supreme Court’s decision in Ring v. Arizona, 536
U.S. 584 (2002), the jury was required to determine beyond a reasonable doubt both
that an aggravating circumstance existed and that the aggravating factors outweighed
the mitigating factors. (Doc. 1, at 150–52). Finally, Miller argues that “Miller’s
death sentence is unsupported by any verifiable jury findings as required under
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Ring.” (Doc. 1, at 152–54). The Alabama Court of Criminal Appeals reviewed and
rejected these arguments on direct appeal, and, as discussed below, the state court’s
rejection of these claims did not result “in a decision that was contrary to, or involve
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
States court proceedings.” 28 U.S.C. § 2254(d)(1)–(d)(2).
In his first argument, Miller cites Caldwell v. Mississippi, 472 U.S. 320,
328–29 (1985) for the proposition that “it is constitutionally impermissible to rest
a death sentence on a determination made by a sentencer who has been led to believe
that the responsibility for the defendant’s death rests elsewhere.” To establish a
Caldwell violation, “a defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local law.” Duggers v. Adams,
489 U.S. 401, 407 (1989). In this present case, Miller’s claim of Caldwell error must
fail because the Circuit Court correctly informed the jurors of their advisory function
under Alabama law. Under Alabama law, the jury’s sentencing determination is
“advisory.” See Ala. Code § 13A–5–46 ( describing the jury’s sentencing role as
“advisory” ten separate times). Thus, the Circuit Court’s instruction informing the
jury that they were making a recommendation as to Miller’s sentence does not

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constitute a Caldwell violation. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th
Cir. 1997) (“The infirmity identified in Caldwell is simply absent in a case where the
jury was not affirmatively misled regarding its role in the sentencing process.”)
(internal quotation omitted). Therefore, this argument is without merit.
Next, Miller argues that Ring requires that the jury find beyond a reasonable
doubt both the existence of an aggravating circumstance and that the aggravating
circumstances outweigh the mitigating circumstances. Miller contends that, because
the jury was not instructed that it must find beyond a reasonable doubt that the
aggravating factor outweighed the mitigating factors, his death sentence violates
Ring. This claim is also without merit.
Ring only requires that “[i]f a State makes an increase in a defendant’s
authorized punishment contingent on [a] finding of fact, that fact—no matter how
the State labels it—must be found by a jury beyond a reasonable doubt.” 536 U.S.
at 602. Under Alabama’s sentencing scheme, the jury’s weighing of the aggravating
and mitigating circumstances does not make a defendant eligible for a death
sentence.

Instead, the jury’s finding of an aggravating circumstance is

determinative. See Ala. Code § 13A–5–45(f) (“Unless at least one aggravating
circumstance as defined in Section 13A–5–49 exists, the sentence shall be life
imprisonment without parole.”). The trial judge may disregard the jury’s balancing

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of the mitigating and aggravating factors. See Ala Code § 13A–5–47(e) (“While the
jury’s recommendation concerning sentence shall be given consideration, it is not
binding upon the court.”). Accordingly, the jury’s determination of whether the
aggravating factors outweighed the mitigating factors could not have increased the
maximum sentence for which Miller was eligible. Therefore, Ring does not require
a jury to find beyond a reasonable doubt that the aggravating factors outweigh the
mitigating factors, and this claim lacks merit.
Finally, Miller contends that “[t]he jury’s 10-2 vote, as reflected in the general
verdict form used in Mr. Miller’s case, failed to indicate what findings, if any, the
jury made in support of Mr. Miller’s death sentence.” (Doc 1, at 152). Miller argues
that verifiable jury findings do not support his death sentence as required by Ring
because the jury was not required to enumerate explicitly in its advisory verdict that
it unanimously found the existence of a statutory aggravating factor beyond a
reasonable doubt. Miller contends that the jury’s split recommendation creates doubt
as to whether all of the jurors found the aggravating circumstance. In support of this
contention, Miller points out that during the course of the jury’s deliberations, the
jury sent a note to the court that read, “[C]an we have a sentence if we have the
appropriate number of required votes but we have one juror undecided?” (C.R. Vol.
8, Tab. 27, 1446).

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This court recognizes that a system in which the jury must explicitly indicate
that it found the existence of an aggravating factor would be preferable. Indeed, the
Alabama Supreme Court has recognized as much. See Ex Parte McGriff, 908 So. 2d
1024, 1038 (Ala. 2004) (directing lower court to provide a jury form requiring the
jury to indicate whether it found the existence of an aggravating factor beyond a
reasonable doubt). However, as addressed previously, the Circuit Court instructed
the jury that before determining whether to recommend the death sentence, the jury
must first unanimously find the existence of an aggravating factor beyond a
reasonable doubt. (R. Vol. 8, Tab. 27, at 1433, 1438). The fact that ten out of the
twelve jurors recommended death demonstrates that the jurors must have found the
existence of the aggravating circumstance beyond a reasonable doubt. See Evans v.
Sec’y, Fla. Dep’t. Of Corr., 699 F.3d 1249, 1260 (11th Cir. 2012) (“The jury’s
verdict necessarily contained [findings than an aggravating circumstance existed]
because the jury was instructed that it could not recommend a death sentence unless
it found beyond a reasonable doubt that one or more aggravating circumstances
existed.”); United States v. Townsend, 630 F.3d 1003, 1013–14 (11th Cir. 2011)
(finding that because the court instructed the jury that it must make a prerequisite
finding as to the existence of an element before convicting the defendant, the jury’s
guilty verdict necessarily meant the jurors found the element). Because the jury must

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have found the existence of the aggravating factor beyond a reasonable doubt,
Miller’s death sentence does not violate Ring. Therefore, the state court’s rejection
of this claim was reasonable, and Miller is not entitled to relief.
IX. CONCLUSION
In conclusion, all of Miller’s underlying ineffective-assistance-of-trial-counsel
claims are without merit. Accordingly, Miller is not entitled to habeas relief for
either his ineffective-assistance-of-trial-counsel claims or his ineffective-assistanceof-appellate-counsel claims. Therefore, this court ORDERS that Miller’s Petition
for Writ of Habeas Corpus is DENIED.
DONE and ORDERED this 4th day of August, 2015.

___________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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