Marshall v. Dunn
Filing
60
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/23/2020. (AKD)
FILED
2020 Oct-23 PM 03:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM BRUCE MARSHALL,
)
)
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
JEFFERSON S. DUNN,
Commissioner of the Alabama
Department of Corrections
Respondent.
Civil Action Number
2:15-CV-1694-AKK
MEMORANDUM OPINION
William Bruce Marshall, an Alabama death row inmate, has petitioned for a
writ of habeas corpus under 28 U.S.C. § 2254. Doc. 7. Marshall challenges his 2005
capital murder conviction and death sentence, contending that a variety of
constitutional violations require reversal of his conviction and/or sentence. The court
held an evidentiary hearing regarding two of Marshall’s claims related to alleged
ineffective assistance of trial counsel, specifically the introduction of mitigation
evidence and forensic testing of a tissue sample. Docs. 23; 45.
Marshall’s guilt is not in dispute – he confessed to the murder and led law
enforcement to the victim’s body. And his allegations of alleged error at the guilt
phase of his trial are without merit and do not warrant any relief from the underlying
conviction. However, he is entitled to relief on his allegations related to the failure
1
of his trial counsel to present mitigation evidence at the penalty phase of the trial.
As the state trial judge noted during the Rule 32 proceedings, “trial counsel presented
no mitigation evidence during the penalty phase [and] mitigation evidence is
presented during the penalty phase of most capital murder trials.” Vol. 15 at 1004.
Certainly, as the state trial judge noted, trial counsel are not “per se ineffective for
not presenting mitigation evidence.” Id. After all, “no absolute duty exists to
introduce mitigating or character evidence.” Chandler v. United States, 218 F.3d
1305, 1319 (11th Cir. 2000). But, where, as here, the failure to do so was based on
an inadequate investigation and trial counsel overlooked potential mitigation
evidence in their files, their performance rises to the level of unconstitutional
ineffectiveness.
An attorney representing a capital defendant has an “obligation to conduct a
thorough investigation of the defendant’s background,” Williams v. Taylor, 529 U.S.
362, 396 (2000), “or to make a reasonable decision that makes particular
investigations unnecessary,” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quotation
and citation omitted). And when counsel fails to “conduct an adequate background
investigation,” Cooper v. Sec'y, Dep't of Corr., 646 F.3d 1328, 1351 (11th Cir.
2011), or declines to pursue “all reasonably available mitigating evidence,” their
assistance may be deemed ineffective, see Wiggins v. Smith, 539 U.S. at 524
(emphasis and citation omitted). Therefore, after careful consideration of the record,
2
the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court grants
Marshall’s petition for a writ of habeas corpus, doc. 7, solely as to his claim related
to trial counsel’s failure to adequately investigate and present mitigating evidence at
the penalty phase of his trial. In all other respects, the petition is due to be denied.
I.
On April 22, 2005, a grand jury in Jefferson County, Alabama indicted
Marshall on three counts of murder in the death of Alicia Nicole Bentley: (1) Ala.
Code § 13A-5-40(a)(4)—murder in conjunction with an unlawful entry into a
dwelling with the intent to cause assault (Count I); (2) Ala. Code § 13A-5-40(a)(3)—
murder in conjunction with an attempt to engage in forcible sexual intercourse
(Count II); and (3) Ala. Code § 13A-5-40(a)(8)—murder in conjunction with an
attempt to sexually assault a minor (Count III). Vol. 1, Tab 1 at 17-18.1 Erskine
Mathis and Linda Hall represented Marshall at trial. Id. at 7, 54. The jury convicted
Marshall on two counts of capital murder (Counts I and III), and one count of murder
(Count II). Vol. 6, Tab 14 at 735-738. The jury subsequently voted 11 to 1 during
the penalty phase to recommend a sentence of death. Vol. 7, Tab 24 at 808-809. The
1
References to the record are designated “(Vol. _ ).” The court will list any page number
associated with the court record by reference to the number in the upper right-hand corner of the
page, if available. Otherwise, the page number will correspond with the number at the bottom of
the page. Additionally, citations to the record will include an easily identifiable tab number close
to the cited material where available. And “ACCA,” which is used throughout this opinion, refers
to the Alabama Court of Criminal Appeals.
3
trial court followed the recommendation and sentenced Marshall to death, and the
ACCA affirmed. See Marshall v. State, 992 So. 2d 762 (Ala. Crim. App. 2007). The
Supreme Court of Alabama denied Marshall’s application for certiorari on April 25,
2008, and the United States Supreme Court also denied review. See Marshall v.
Alabama, 555 U.S. 918 (2008).
On April 23, 2009, Marshall, through new counsel, 2 filed a timely Rule 32
petition for post-conviction relief pursuant to the Alabama Rules of Criminal
Procedure. Vol. 10, Tab 41. Marshall filed an amended petition on July 10, 2009,
Vol. 10, Tab 42, and the State moved to dismiss thereafter, Vol. 11, Tabs 43-44.
Although the trial court summarily dismissed the majority of Marshall’s claims at a
hearing that September, Vol. 12, Tab 46 at 495; Vol. 35, Tab 58, the court also
allowed Marshall to amend some of the claims he raised in his petition. Vol. 10,
Tabs 39 and 40. Thereafter, the court dismissed Marshall’s ineffective assistance
claims related to appellate counsel. Vol. 10, Tab 40 at 29.
On February 16 and 17, 2010, the circuit court held an evidentiary hearing on
trial counsel’s failure to secure a forensic pathologist to challenge the forcible sexual
intercourse charge (Count 1),3 and to investigate mitigation evidence during the
2
Glenn E. Glover, C. Jason Avery, and Tiffany DeGruy filed the Rule 32 petition on behalf
of Marshall. Vol. 10 at 1-2.
3
“Dr. Art Shores, a forensic pathologist with the Alabama Department of Forensic
Sciences, testified that he performed an autopsy on the body, which revealed that Alicia had been
strangled to death. Dr. Shores also testified that Alicia had a small vaginal mucosal tear. The tear
4
penalty phase of the trial. Vol. 35-38. Two of Marshall’s expert witnesses were
unable to attend the hearing, and the court refused to continue the hearing or allow
counsel to offer the experts’ deposition testimony in evidence. Vol. 35-38. The court
also denied Marshall’s request for his forensic pathologist to examine the wet tissue
samples collected from the victim. Vol. 37 at 391-92. Ultimately, the court denied
the Rule 32 petition, holding, in relevant part, that Marshall had failed to establish
that trial counsel’s failure to hire a forensic pathologist rose to a constitutional
violation under Strickland v. Washington, 466 U.S. 668 (1984), or that counsel’s
investigation into a mitigation case was deficient and prejudicial. Vol. 14, Tab 56.
The ACCA affirmed, Marshall v. State, 182 So. 3d 573 (Ala. Crim. App. 2014), and
the Alabama Supreme Court denied certiorari, Vol. 46, Tab 67.
Marshall filed this petition for writ of habeas corpus on September 28, 2015,
doc. 1, and an amended petition thereafter. The Respondent filed an answer and
brief, docs. 11 and 12, and Marshall filed a reply, doc. 17. Marshall then moved for
an evidentiary hearing pursuant to 28 U.S.C. §2254(e)(1)-(2), 4 arguing that he did
probably occurred within 24 to 48 hours of Dr. Shores’s examination of the body, which was
conducted on December 30, 2004.” Marshall v. State, 992 So. 2d 762, 767 (Ala. Crim. App. 2007).
Marshall contends that “based on [Dr. Nichol’s] review of the trial testimony, the autopsy report,
and his ‘education, experience, knowledge, background, training and skills, in the field of forensic
pathology, it is [his] opinion that Dr. Shores did not have an adequate foundation for opining that
the genital lesion on [Alicia] occurred 24–48 prior to his examination of [Alicia], because he did
not perform a histological examination of the tissue samples of the lesion.’” Marshall v. State, 182
So. 3d 573, 585 (Ala. Crim. App. 2014).
4
28 U.S.C. §2254(e)(2):
5
not receive a full, fair, and complete hearing in state court and that the records of
those proceedings are insufficient to determine the issues in his 2254 habeas petition.
Doc. 16. In support of the motion, Marshall filed an affidavit from Dr. George R.
Nichols, II (forensic pathologist licensed in Kentucky) and testimony from Janet
Vogelslang (clinical social worker and mitigation expert licensed in South Carolina).
This court granted the motion for a discovery and evidentiary hearing with
respect to two claims. See doc. 23. Using the Section 2254(e)(2) framework, the
court found that Marshall had established that (1) his claims relied on facts
previously unavailable to him despite an exercise of due diligence and (2) the
proffered evidence, if true, would entitle him to habeas relief. Id. (citing 28 U.S.C.
2254(e)(2)). The court subsequently held an evidentiary hearing, and the parties filed
post-hearing briefs, docs. 46; 48; 50.
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
6
II.
For general background, the court turns to the ACCA, which explained the
offense, proceedings, and sentence as follows:
In 2005, Marshall was convicted of two counts of capital murder for the killing
of his stepdaughter, Alicia Nicole Bentley—one count of murder made capital
because it occurred during a burglary, see § 13A–5–40(a)(4), Ala.Code 1975,
and one count of murder made capital because it occurred while Marshall,
who was over the age of 19 years, sexually abused or attempted to sexually
abuse Alicia, who was between the ages of 12 and 16 years, see § 13A–5–
40(a)(8), Ala.Code 1975.1 This Court, on direct appeal, summarized the facts
underlying Marshall’s convictions as follows:
Marshall did not deny that he killed 15–year–old Alicia. Indeed, while
in police custody he confessed to the killing and eventually led police
to Alicia’s body. His attorneys, however, presented a defense in which
Marshall attempted to call into question the allegation that he had had
any kind of sexual contact with Alicia.
The evidence adduced at trial tended to show the following facts.
On December 28, 2004, Tonya Bentley called the Vestavia Hills
Police Department to report that her daughter, Alicia, was
missing from their apartment. Tonya Bentley and Marshall had
separated in early December 2004. Tonya, Alicia, and Tonya's
newborn son had moved from the apartment they had shared with
Marshall into an apartment in a different complex. Tonya still
had personal belongings at Marshall’s, and her name was on the
lease for that apartment.
Tonya told police that she believed that Marshall may have
known of Alicia’s whereabouts. She based her belief on the fact
that she had discovered a videocassette recorder, or VCR, that
Alicia had left at the old apartment in a chair in the new
apartment when she got home. Tonya was positive that the VCR
had not been in the apartment when she left for work that
morning. When Tonya called Marshall to ask whether he had
seen Alicia that day, however, he denied having come to the
apartment.
7
Further, Tonya and Marshall had spoken earlier that day about
the possibility of Marshall bringing Tonya the washer and dryer.
Tonya said that Marshall asked her when she would be home so
that he could bring the appliances over. He also said he was going
to rent an appliance dolly to make the move easier.
After speaking with Tonya, police alerted other law-enforcement
agencies to be on the lookout for Alicia. Police went to
Marshall’s apartment, where they could hear the dryer running
inside, but no one answered the door when they knocked.
Marshall’s truck was parked outside the apartment, and
neighbors said that they had seen him go into the apartment but
had not seen him come back out. Police attempted to call
Marshall and have neighbors call Marshall, but no one answered
the telephone inside the apartment.
Tonya attempted to open the front door with her key, but the lock
had been changed. The manager of the apartment complex also
attempted to open the lock with the master key, but that key did
not work, either. After receiving permission from Tonya to enter
the apartment, police simultaneously broke down the front and
back doors to the apartment and found Marshall inside.
Detective Mike O’Connor of the Vestavia Hills Police
Department testified that, as police searched the apartment,
Marshall was handcuffed both for his safety and for the safety of
the police. Alicia was not found in Marshall’s apartment, and
O’Connor asked Marshall to come to city hall with him. Marshall
agreed and the police took him to city hall. O’Connor said that
he told Marshall that he was not under arrest at that time and
removed the handcuffs from him before he got into the car.
O’Connor said that even though Marshall had not been arrested
at that point, he was advised of his rights pursuant to Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
while they were still at the apartment. O’Connor said that he
advised Marshall of his rights again once they reached his office.
Marshall signed a waiver-of-rights form and initially denied
knowing anything about Alicia's whereabouts. O’Connor said
that he explained to Marshall that he was not under arrest and
that he was free to leave, but because the doors were broken at
the apartment, Marshall chose to stay at city hall. O’Connor
testified that the only place he had for Marshall to stay was in a
8
cell, but that Marshall only had to ask to leave and he would have
been free to go that night.
Police continued to investigate Alicia’s disappearance
throughout the night of December 28 and into the morning hours
of December 29, 2004. During their investigation, they
discovered clothes, shoes, a purse, and a comforter identified as
Alicia’s in a dumpster at an apartment complex next to the
apartment complex where Marshall lived. Their investigation
also showed that Marshall left work and was unaccounted for
during several hours the afternoon of December 28.
On the morning of December 29, after finding the comforter,
clothes, and purse, police got an arrest warrant for Marshall
based on kidnapping. In addition, law-enforcement officials
discovered Alicia’s driver’s license and her library card in a
dumpster at Marshall’s job site. Once police obtained the
kidnapping warrant, O’Connor said, Marshall was arrested, and
he was no longer free to leave. Marshall was not questioned again
until about 1:00 p.m. on the afternoon of December 29.
Agents from the Federal Bureau of Investigation (‘FBI’) assisted
the Vestavia Hills Police Department in questioning Marshall.
When FBI agents interrogated Marshall, they also advised him
of his Miranda rights. Marshall signed a form indicating that he
understood his rights. While the agents were questioning
Marshall the evening of December 29, one day after Alicia had
been reported missing, Marshall admitted that he ‘had done a
terrible thing.’ (R. 444.) Agent Scott Keeler of the FBI said that
Marshall told him he ‘had gotten into a verbal argument with
Alicia that had become violent and he had struck her in the head
with his fist.’ (R. 444.) He said he was not sure whether she was
okay and that he had taken her out in the country and dropped
her off.
Marshall rode with law-enforcement officials to an area outside
Columbiana. After searching off various side roads, Marshall
was finally able to lead authorities to Alicia’s body. She was
nude, except for a pair of white socks.
Dr. Art Shores, a forensic pathologist with the Alabama
Department of Forensic Sciences, testified that he performed an
autopsy on the body, which revealed that Alicia had been
strangled to death. Dr. Shores also testified that Alicia had a
small vaginal mucosal tear. The tear probably occurred within 24
9
to 48 hours of Dr. Shores’s examination of the body, which was
conducted on December 30, 2004.
Marshall v. State, 992 So. 2d 762, 765–67 (Ala. Crim. App. 2007). The
jury, by a vote of 11 to 1, recommended that Marshall be sentenced to
death. The trial court followed the jury's recommendation and
sentenced Marshall to death, finding
the existence of the following statutory aggravating
circumstances: (1) that the capital offense was committed while
Marshall was under sentence of imprisonment; (2) that Marshall
had previously been convicted of a felony involving the use or
threat of violence to the person; and (3) that Marshall was
engaged in the commission of a burglary at the time the capital
offense was committed.
The trial court found no statutory mitigating circumstances
existed. It further found that there were no nonstatutory
mitigating circumstances.
Marshall, 992 So. 2d at 779 (alterations in original).
III.
“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, 562
U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s review is limited
to questions of federal constitutional and statutory law. Claims that turn solely upon
state law principles – e.g. a state court’s “interpretation of its own law or rules” or
“an alleged defect in a collateral proceeding” – fall outside the ambit of this court’s
authority to provide relief under § 2254. See Alston v. Department of Corrections,
610 F.3d 1318, 1326 (11th Cir. 2010) (citations omitted).
10
A.
A habeas petitioner “can seek federal habeas relief only on claims that have
been exhausted in state court.” Medellin v. Dretke, 544 U.S. 660, 666 (2005). In
other words, he is required to present his federal claims to the state court and to
exhaust all of the procedures available in the state court system before seeking relief
in federal court. 28 U.S.C. § 2254(b)(1). That requirement ensures that state courts
are afforded the first opportunity to address federal questions affecting the validity
of state court convictions and, if necessary, correct violations of a state prisoner’s
federal constitutional rights. As the Eleventh Circuit has explained:
In general, a federal court may not grant habeas corpus relief to a state
prisoner who has not exhausted his available state remedies. . . .
Exhaustion of state remedies requires that the state prisoner “fairly
presen[t]5 federal claims to the state courts in order to give the State the
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing
Picard v. Connor, 404 U.S. 270, 275-76 (1971) (internal quotation
marks omitted). The Supreme Court has written these words:
[T]hat the federal claim must be fairly presented to the
state courts . . . . it is not sufficient merely that the federal
habeas applicant has been through the state courts. . . .
Only if the state courts have had the first opportunity to
hear the claim sought to be vindicated in a federal habeas
proceeding does it make sense to speak of the exhaustion
of state remedies.
5
The phrases “fairly presented” and “properly exhausted” are synonymous. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999) (observing that the question is “not only whether a prisoner
has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state courts”) (emphasis in original).
11
Picard, 404 U.S. at 275. See also Duncan, 513 U.S. at 365, 115 S. Ct.
at 888 (“Respondent did not apprise the state court of his claim that the
evidentiary ruling of which he complained was not only a violation of
state law, but denied him the due process of law guaranteed by the
Fourteenth Amendment.”).
Thus, to exhaust state remedies fully the petitioner must make the state
court aware that the claims asserted present federal constitutional
issues. “It is not enough that all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar
state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6
(1982) (citations omitted).
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (first and third alterations
and redactions in original) (footnote added).
B.
The next condition precedent to federal review is the procedural default
doctrine. This requires that Marshall show that he has not procedurally defaulted his
claims by failing to properly raise them for review in the state courts.
1.
It is well established that if a habeas petitioner fails to raise his federal claim
in the state court system at the time and in the manner dictated by the state’s
procedural rules, the state court can decide the claim is not entitled to a review on
the merits. Stated differently, “the petitioner will have procedurally defaulted on that
claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2009). The Supreme Court
explained the so-called “procedural default” doctrine as follows:
12
In habeas, the sanction for failing to exhaust properly (preclusion of
review in federal court) is given the separate name of procedural
default, although the habeas doctrines of exhaustion and procedural
default “are similar in purpose and design and implicate similar
concerns,” Keeney v. Tamayo-Reyes, 504 U.S. 1, 7 (1992). See also
Coleman v. Thompson, 501 U.S. 722, 731–732, 111 S. Ct. 2546 (1991).
In habeas, state-court remedies are described as having been
“exhausted” when they are no longer available, regardless of the reason
for their unavailability. See Gray v. Netherland, 518 U.S. 152, 161, 116
S. Ct. 2074, 135 L. Ed. 2d 457 (1996). Thus, if state-court remedies are
no longer available because the prisoner failed to comply with the
deadline for seeking state-court review or for taking an appeal, those
remedies are technically exhausted, ibid., but exhaustion in this sense
does not automatically entitle the habeas petitioner to litigate his or her
claims in federal court. Instead, if the petitioner procedurally defaulted
those claims, the prisoner generally is barred from asserting those
claims in a federal habeas proceeding. Id., at 162, 116 S. Ct. 2074;
Coleman, supra, at 744–751, 111 S. Ct. 2546.
Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).
Generally, if the last state court to examine a claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
and that procedural bar provides an adequate and independent state ground for
denying relief,6 then federal review of the claim also is precluded by procedural
default principles. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). As the
Eleventh Circuit put it,
The federal courts’ authority to review state court criminal convictions
pursuant to writs of habeas corpus is severely restricted when a
6
See Cone v. Bell, 556 U.S. 449, 465 (2009) (“[W]hen a petitioner fails to raise his federal
claims in compliance with relevant state procedural rules, the state court’s refusal to adjudicate the
claim ordinarily qualifies as an independent and adequate state ground for denying federal
review.”).
13
petitioner has failed to follow applicable state procedural rules in
raising a claim, that is, where the claim is procedurally defaulted.
Federal review of a petitioner’s claim is barred by the procedural
default doctrine if the last state court to review the claim states clearly
and expressly that its judgment rests on a procedural bar, Harris v.
Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308
(1989), and that bar provides an adequate and independent state ground
for denying relief. See Id. at 262, 109 S. Ct. at 1042-43; Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100 L. Ed. 2d
575 (1988). The doctrine serves to ensure petitioners will first seek
relief in accordance with state procedures, see Presnell v. Kemp, 835
F.2d 1567, 1578-79 (11th Cir. 1988), cert. denied, 488 U.S. 1050, 109
S. Ct. 882, 102 L. Ed. 2d 1004 (1989), and to “lessen the injury to a
State that results through reexamination of a state conviction on a
ground that a State did not have the opportunity to address at a prior,
appropriate time.” McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454,
1470, 113 L. Ed. 2d 517 (1991).
Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991).7
Federal deference to a state court’s clear finding of procedural default under
its own rules is strong:
“[A] state court need not fear reaching the merits of a federal claim in
an alternative holding. Through its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law.” Harris, 489 U.S.
at 264 n.10, 109 S. Ct. 1038 (emphasis in original). See also Alderman
v. Zant, 22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia
habeas corpus court found that the petitioner’s claims were
procedurally barred as successive, but also noted that the claims lack
When the last state court rendering judgment affirms without an explanation, “the federal
court should ‘look through’ the unexplained decision to the last related state-court decision that
does provide a relevant rationale,” and “should then presume that the unexplained decision adopted
the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The state can “rebut the
presumption by showing that the unexplained affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
7
14
merit based on the evidence, “this ruling in the alternative did not have
an effect . . . of blurring the clear determination by the [Georgia habeas
corpus] court that the allegations was procedurally barred”), cert.
denied, 513 U.S. 1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (alterations and emphasis in
original).
The Supreme Court defines an “adequate and independent” state court
decision as one that “rests on a state law ground that is independent of the federal
question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375
(2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)) (emphasis in Lee).
The questions of whether a state procedural rule is “independent” of the federal
question and “adequate” to support the state court’s judgment, so as to have a
preclusive effect on federal review of the claim, “is itself a federal question.” Id.
(quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965)).
To be considered “independent” of the federal question, “the state court’s
decision must rest solidly on state law grounds, and may not be ‘intertwined with an
interpretation of federal law.’” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
(quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). An example of
intertwining would be when “the State has made application of the procedural bar
depend on an antecedent ruling on federal law, that is, on the determination of
whether federal constitutional error has been committed.” Ake v. Oklahoma, 470
U.S. 68, 75 (1985). Stated differently, if “the state court must rule, either explicitly
15
or implicitly, on the merits of the constitutional question” before applying the state’s
procedural rule to a federal constitutional question, then the rule is not independent
of federal law. Id.
To be considered “adequate” to support the state court’s judgment, the state
procedural rule must be both “firmly established and regularly followed.” Lee v.
Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In
other words, the rule must be “clear [and] closely hewn to” by the state for a federal
court to consider it as adequate. James, 466 U.S. at 346. That does not mean that the
state’s procedural rule must be rigidly applied in every instance, or that occasional
failure to do so will render the rule inadequate. “To the contrary, a [state’s]
discretionary [procedural] rule can be ‘firmly established’ and ‘regularly followed’
– even if the appropriate exercise of discretion may permit consideration of a federal
claim in some cases but not others.” Beard v. Kindler, 558 U.S. 52, 60-61 (2009).
Rather, the adequacy requirement means only that the procedural rule “must not be
applied in an arbitrary or unprecedented fashion.” Judd, 250 F.3d at 1313.
Thus, in summary, if the procedural rule is not firmly established, or if it is
applied in an arbitrary, unprecedented, or manifestly unfair fashion, it will not be
considered adequate, and the state court decision based upon such a rule can be
reviewed by a federal court. Card, 911 F.2d at 1517. Conversely, if the rule is
deemed adequate, the decision will not be reviewed by this court.
16
2.
Generally, there are three circumstances in which an otherwise valid state-law
ground will not bar a federal habeas court from considering a constitutional claim
that was procedurally defaulted in state court: (1) where the petitioner demonstrates
that he had good “cause” for not following the state procedural rule, and, that he was
actually “prejudiced” by the alleged constitutional violation; (2) where the state
procedural rule was not “firmly established and regularly followed”; or (3) where
failure to consider the petitioner’s claims will result in a “fundamental miscarriage
of justice.” See Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J.,
concurring). 8
a.
“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.
8
See, e.g., Coleman, 501 U.S. at 749-50 (holding that a state procedural default “will bar
federal habeas review of the federal claim, unless the habeas petitioner can show cause for the
default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim
will result in a fundamental miscarriage of justice”) (citations and internal quotation marks
omitted); Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]here a constitutional violation has
probably resulted in the conviction of one who is actually innocent, a federal habeas court may
grant the writ even in the absence of a showing of cause for the procedural default.”); Smith v.
Murray, 477 U.S. 527, 537 (1986) (same); Davis v. Terry, 465 F.3d 1249, 1252 n.4 (11th Cir.
2006) (“It would be considered a fundamental miscarriage of justice if ‘a constitutional violation
has probably resulted in the conviction of one who is actually innocent.’”) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995) (in turn quoting Murray, 477 U.S. at 496)).
17
2010) (citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added).
This so-called “cause and prejudice” standard is clearly framed in the conjunctive;
therefore, a petitioner must prove both parts.
To show “cause,” a petitioner must prove that “some objective factor external
to the defense impeded counsel’s efforts” to raise the claim in the state courts.
Carrier, 477 U.S. at 488.
Objective factors that constitute cause include “‘interference by
officials’” that makes compliance with the State’s procedural rule
impracticable, and “a showing that the factual or legal basis for a claim
was not reasonably available to counsel.” In addition, constitutionally
“[i]neffective assistance of counsel . . . [on direct review] is cause.”
Attorney error short of ineffective assistance of counsel [on direct
review], however, does not constitute cause and will not excuse a
procedural default.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (citations omitted) (first alteration
in original, all other alterations added).
Generally, the constitutional ineffectiveness of post-conviction counsel on
collateral review will not support a finding of cause and prejudice to overcome a
procedural default. Coleman, 501 U.S. at 754. After all, “[t]here is no right to counsel
in state post-conviction proceedings.” Id. at 752 (citing Pennsylvania v. Finley, 481
U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989)). But, in two recent
landmark cases, the Supreme Court extended its prior decision in Coleman by
deciding that, as a matter of equity, and, under specific, limited circumstances, errors
by counsel on post-conviction collateral review could establish the necessary
18
“cause” to overcome a procedurally defaulted claim. In the first such case, Maples
v. Thomas, 565 U.S. 266 (2012), the Court found that post-conviction counsel’s
gross professional misconduct (e.g., abandonment of the petitioner) severed the
agency relationship between counsel and the petitioner and, thus, established the
necessary “cause” to overcome a procedural default. Id. at 281. And, in Martinez v.
Ryan, 566 U.S. 1 (2012), the Court held that post-conviction counsel’s failure to
raise an ineffective assistance of trial counsel claim at an initial review collateral
proceeding could serve as the necessary “cause” to overcome the procedural default
of that type of claim when the state prohibits it from being raised during the direct
review process. Id. at 11-12.
In addition to proving the existence of “cause” for a procedural default, a
habeas petitioner must show actual prejudice. He must show “not merely that the
errors at his trial created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis added). If
the “cause” is of the type described in Martinez v. Ryan, then the reviewing court
should consider whether the petitioner can demonstrate “that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at
19
12-15 (citing for comparison Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing
standards for certificates of appealability to issue)).
b.
In a “rare,” “extraordinary,” and “narrow class of cases,” a federal court may
consider a procedurally defaulted claim in the absence of a showing of “cause” for
the default if either: (a) a fundamental miscarriage of justice “has probably resulted
in the conviction of one who is actually innocent,” Smith, 477 U.S. at 537-38
(quoting Carrier, 477 U.S. at 496); or (b) the petitioner shows “by clear and
convincing evidence that[,] but for a constitutional error, no reasonable juror would
have found the petitioner eligible for the death penalty.” Schlup, 513 U.S. at 323-27
& n.44 (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).
C.
The writ of habeas corpus “has historically been regarded as an extraordinary
remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true
when federal courts are asked to engage in habeas review of a state court conviction
pursuant to 28 U.S.C. § 2254.
Direct review is the principal avenue for challenging a conviction.
“When the process of direct review . . . comes to an end, a presumption
of finality and legality attaches to the conviction and sentence. The role
of federal habeas proceedings, while important in assuring that
constitutional rights are observed, is secondary and limited. Federal
courts are not forums in which to relitigate state trials.”
20
Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)). “Those few who are
ultimately successful [in obtaining federal habeas relief] are persons whom society
has grievously wronged and for whom belated liberation is little enough
compensation.” Fay v. Noia, 372 U.S. 391, 440-41 (1963).
“Accordingly, . . . an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634.
That is due to the fact that, under our federal system of government,
[t]he States possess primary authority for defining and enforcing the
criminal law. In criminal trials they also hold the initial responsibility
for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitutional rights.
Engle v. Isaac, 456 U.S. 107, 128 (1982). “The reason most frequently advanced in
[Supreme Court] cases for distinguishing between direct and collateral review is the
State’s interest in the finality of convictions that have survived direct review within
the state court system.” Brecht, 507 U.S. at 635 (citing Wright v. West, 505 U.S.
277, 293 (1992).
Congress legislated these principles in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). In several provisions, AEDPA requires federal
courts to give even greater deference to state court determinations of federal
21
constitutional claims than before. AEDPA governs Marshall’s petition since he filed
it after AEDPA became law. 9
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 with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). This
provision provides “a highly deferential standard of review for factual
determinations made by a state court.” Fugate v. Head, 261 F.3d 1206, 1215 (11th
Cir. 2001). Put simply, Section 2254(e)(1) “modified a federal habeas court’s role
in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’
and to ensure that state-court convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S.
362, 403-04 (2000)).
The deference that attends state court findings of fact pursuant to § 2254(e)(1)
applies to all habeas claims, regardless of their procedural stance. Thus, federal
courts must afford a presumption of correctness to a state court’s factual findings,
See, e.g., McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (applying AEDPA
to habeas petitions filed after Act’s effective date); Hightower v. Schofield, 365 F.3d 1008, 1013
(11th Cir. 2004) (same). See also Martin v. Hadix, 527 U.S. 343, 356 (1999) (discussing
retroactivity of AEDPA amendments to § 2254). Cf. Lindh v. Murphy, 521 U.S. 320, 327 (1997)
(holding that AEDPA’s amendments do not apply to habeas petitions filed prior to the Act’s
effective date); Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir. 2001) (same); Thompson v.
Haley, 255 F.3d 1292, 1295 (11th Cir. 2001) (same).
9
22
even when examining the habeas claim de novo. See Mansfield v. Sec’y, Dep’t of
Corr., 679 F.3d 1301, 1313 (11th Cir. 2012). And, the presumption of correctness
also applies to habeas claims that were adjudicated on the merits by the state court.
Therefore, those claims are subject to the standards of review set out in § 2254(d)(1)
or (d)(2), which the court addresses next.
2.
“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the
merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington v. Richter, 562 U.S. 86, 98 (2011). It does not matter whether the state
court decision contains a lengthy analysis of the claim or is a summary ruling
“unaccompanied by explanation.” Id. Further, the “backward-looking language” of
AEDPA requires an examination of the state court decision on the date rendered.
Cullen v. Pinholster, 563 U.S. 170 (2011). That is, “[s]tate court decisions are
measured against [the Supreme] Court’s precedents as of ‘the time the state court
renders its decision.’” Id. at 182 (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72
(2003)). Also, “review under § 2254(d)(1) [and (d)(2)] is limited to the record that
was before the state court that adjudicated the claim on the merits.” Id. at 181.
Therefore, a federal habeas court conducting 2254(d) review should not consider
new evidence “in the first instance effectively de novo.” Id. at 182.
23
A closer look at the separate provisions of § 2254(d)(1) and (d)(2) reveals that
when a state court has ruled on a petitioner’s constitutional claim, the petitioner is
entitled to habeas relief only if the 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).10 Moreover, the “contrary to” and “unreasonable application”
clauses are “independent statutory modes of analysis.” Alderman v. Terry, 468 F.3d
775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07). 11 Therefore, when
considering a state court’s adjudication of a petitioner’s claim, the court must not
conflate the two.
Section 2254(d)(1)’s reference to “clearly established federal law, as determined by the
Supreme Court of the United States” has been interpreted to reference only “the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412 (O’Connor, J., majority opinion) (emphasis added); see also,
e.g., Carey v. Musladin, 549 U.S. 70, 74 (2006) (same); Osborne v. Terry, 466 F.3d 1298, 1305
(11th Cir. 2006) (same); Warren v. Kyler, 422 F.3d 132, 138 (3rd Cir. 2005) (“[W]e do not consider
those holdings as they exist today, but rather as they existed as of the time of the relevant statecourt decision.”) (internal quotation marks and citation omitted).
10
See also Williams, 529 U.S. at 404 (“Section 2254(d)(1) defines two categories of cases
in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on
the merits in state court. Under the statute, a federal court may grant a writ of habeas corpus if the
relevant state-court decision was either (1) ‘contrary to . . . clearly established Federal law, as
determined by the Supreme Court of the United States,’ or (2) ‘involved an unreasonable
application of . . . clearly established Federal law, as determined by the Supreme Court of the
United States.’”) (emphasis added).
11
24
a.
A state court determination can be “contrary to” clearly established Supreme
Court precedent in at least two ways:
First, a state-court decision is contrary to this Court’s precedent if the
state court arrives at a conclusion opposite to that reached by this Court
on a question of law. Second, a state-court decision is also contrary to
this Court’s precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to ours.
Williams, 529 U.S. at 405. But, Williams does not limit the construction of §
2254(d)(1)’s “contrary to” clause to these two examples. Instead, the statutory
language “simply implies that ‘the state court’s decision must be substantially
different from the relevant precedent of [the Supreme] Court.’” Alderman, 468 F.3d
at 791 (quoting Williams, 529 U.S. at 405).
And, a state court’s determination of a federal constitutional claim can result
in an “unreasonable application” of clearly established Supreme Court precedent in
either of two ways:
First, a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing legal
rule from this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court decision also
involves an unreasonable application of this Court’s precedent if the
state court either unreasonably extends a legal principle from our
precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.
Williams, 529 U.S. at 407.
25
It is important to note that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, 529 U.S. at 410
(emphasis in original). A federal habeas court “may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.” Id. at 411. In other words, “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. at 409. The “focus” of the inquiry into the reasonableness of a
state court’s determination of a federal constitutional issue “is on whether the state
court’s application of clearly established federal law is objectively unreasonable,”
and “an unreasonable application is different from an incorrect one.” Bell, 535 U.S.
at 694. 12
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).
12
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).
26
To demonstrate that a state court’s application of clearly established federal
law was “objectively unreasonable,” the habeas petitioner “must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. 86, 103 (2011). Stated another way, if the state-court’s resolution of a claim is
debatable among fairminded jurists, it is not objectively unreasonable.
“By its very language, [the phrase] ‘unreasonable application’ refers to mixed
questions of law and fact, when a state court has ‘unreasonably’ applied clear
Supreme Court precedent to the facts of a given case.” Neelley v. Nagle, 138 F.3d
917, 924 (11th Cir. 1998) (citation and footnote omitted). Mixed questions of
constitutional law and fact are those decisions “which require the application of a
legal standard to the historical-fact determinations.” Townsend v. Sain, 372 U.S. 293,
309 n.6 (1963).
b.
Section 2254(d)(2) “imposes a ‘daunting standard – one that will be satisfied
in relatively few cases.’” Cash v. Maxwell, 565 U.S. 1138 (2012) (Sotomayor, J.,
respecting denial of certiorari) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir.
2010)). As the Supreme Court has noted,
in related contexts, “[t]he term ‘unreasonable’ is no doubt difficult to
define.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 146 L.
27
Ed. 2d 389 (2000). It suffices to say, however, that a state-court factual
determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.
Cf. Id., at 411, 120 S. Ct. 1495.
Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore, “even if ‘[r]easonable minds
reviewing the record might disagree’ about the finding in question, ‘on habeas
review that does not suffice to supersede the trial court’s . . . determination.’” Id.
(quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (alteration in original).
Conversely, “when a state court’s adjudication of a habeas claim result[s] in a
decision that [i]s based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding, this Court is not bound to defer to
unreasonably-found facts or to the legal conclusions that flow from them.” Adkins
v. Warden, Holman Corr. Facility, 710 F.3d 1241, 1249 (11th Cir. 2013) (quoting
Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc)) (alterations in
original).
Section 2254(d)(2) limits the availability of federal habeas relief on any
claims by a state prisoner that are grounded in a state court’s factual findings. To
obtain relief, the petitioner must show that the state court’s findings were “based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Moreover, § 2254(e)(1) provides
that factual determinations made by a state court are “presumed to be correct,” and
that the habeas petitioner bears “the burden of rebutting the presumption of
28
correctness by clear and convincing evidence.” See 28 U.S.C. § 2254(e)(1); Ward,
592 F.3d at 1155 (holding that the presumption of correctness attending a state
court’s findings of fact can be overcome only by clear and convincing evidence).
“[N]o court has fully explored the interaction of § 2254(d)(2)’s
‘unreasonableness’ standard and § 2254(e)(1)’s ‘clear and convincing evidence’
standard.” Cave v. Sec’y, Dep’t of Corr., 638 F.3d 739, 744-45 (11th Cir. 2011)
(quoting Gore v. Sec’y, Dep’t of Corr., 492 F.3d 1273, 1294 n.51 (11th Cir. 2007)).
Even so, in Ward v. Hall, the Eleventh Circuit clearly held that federal habeas courts
“must presume the state court’s factual findings to be correct unless the petitioner
rebuts that presumption by clear and convincing evidence.” 592 F.3d at 1177 (citing
§ 2254(e)(1); Parker v. Head, 244 F.3d 831, 835-36 (11th Cir. 2001)). Ward also
observed that § 2254(e)(1) “commands that for a writ to issue because the state court
made an ‘unreasonable determination of the facts,’ the petitioner must rebut ‘the
presumption of correctness [of a state court’s factual findings] by clear and
convincing evidence.’” Ward, 592 F.3d at 1155 (alteration in original).
D.
Federal habeas “exists only to review errors of constitutional dimension.”
McFarland v. Scott, 512 U.S. 849, 856 (1994); see also 28 U.S.C. § 2254(a). Further,
“[w]hen the process of direct review . . . comes to an end, a presumption of finality
29
and legality attaches to the conviction and sentence.” Barefoot v. Estelle, 463 U.S.
880, 887 (1983). Two consequences flow from those fundamental propositions.
First, “[t]he burden of proof in a habeas proceeding is always on the
petitioner.” Hill v. Linahan, 697 F.2d 1032, 1036 (11th Cir. 1983) (citing Henson v.
Estelle, 641 F.2d 250, 253 (5th Cir. 1981)). Stated differently, the habeas petitioner
bears the burden of overcoming the presumption of “legality” that attaches to the
state court conviction and sentence, and of establishing a factual basis demonstrating
that federal post-conviction relief should be granted. See, e.g., 28 U.S.C. § 2254(d)
and (e)(1).13 And, second, the habeas petitioner must meet “heightened pleading
requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). The mere assertion
of a ground for relief, without sufficient factual detail, does not satisfy either the
petitioner’s burden of proof under § 2254(e)(1), or the requirements of Rule 2(c) of
the Rules Governing Section 2254 Cases in the United States District Courts. Rule
2(c) requires a state prisoner to “specify all the grounds for relief available to the
As discussed previously, § 2254(d) provides that the state courts’ adjudication of a habeas
petitioner’s claims can be overturned only if the petitioner carries the burden of demonstrating that
a particular determination either (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,” or (2) that the ruling “resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Further, § 2254(e)(1) provides that:
13
In a proceeding instituted by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence.
30
petitioner,” and to “state the facts supporting each ground.” Rule 2(c)(1) and (2),
Rules Governing Section 2254 Cases in the United States District Courts. See also
28 U.S.C. § 2242 (stating that an application for writ of habeas corpus “shall allege
the facts concerning the applicant’s commitment or detention”).
In short, a habeas petitioner must include in his statement of each claim
sufficient supporting facts to justify a decision for the petitioner if the alleged facts
are proven true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)
(observing that a habeas petition must “state facts that point to a ‘real possibility of
constitutional error’”) (quoting Advisory Committee Notes to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts). And, “[c]itation
of the controlling constitutional, statutory, or other bases for relief for each claim
also should be stated.” 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice and Procedure § 11.6, at 654 (5th ed. 2005). As another district court has
held:
It is not the duty of federal courts to try to second guess the meanings
of statements and intentions of petitioners. Rather the duty is upon the
individual who asserts a denial of his constitutional rights to come forth
with a statement of sufficient clarity and sufficient supporting facts to
enable a court to understand his argument and to render a decision on
the matter.
Nail v. Slayton, 353 F. Supp. 1013, 1019 (W.D. Va. 1972).
31
E.
The court will discuss ineffective assistance of counsel claims here because
of the relationship between these types of claims, which are governed by a highly
deferential standard of constitutional law, and Section 2254(d), which is itself an
extremely deferential standard of habeas review.
The “benchmark” standard for determining ineffective assistance is wellestablished. 14 The question is whether a trial or appellate attorney provided
representational assistance to a state prisoner that was so professionally incompetent
as to create issues of federal constitutional proportions. In other words, the court
asks, “whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). If an objective answer
to that question is “yes,” then counsel was constitutionally ineffective.
Strickland requires a two-step approach:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
14
“There is no constitutional right to an attorney in state post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such
proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991). And, federal ineffective assistance
of counsel claims are specifically limited to the performance of attorneys who represented a state
prisoner at trial, or on direct appeal from the conviction. See 28 U.S.C. § 2254(i).
32
defense. This requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687. The petitioner must satisfy both parts of the Strickland standard: that is,
he bears the burden of proving, by “a preponderance of competent evidence,” that
(1) the performance of his trial or appellate attorney was deficient; and (2) that such
deficient performance prejudiced his defense. Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000) (en banc). Thus, “[b]ecause both parts of the test must
be satisfied in order to show a violation of the Sixth Amendment, the court need not
address the performance prong if the defendant cannot meet the prejudice prong, or
vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation
omitted).
1.
“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Sec’y, Dep’t
of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler, 218 F.3d at 1313).
To satisfy the performance prong, a defendant must prove that counsel made errors
so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. The standard for gauging attorney
performance is “reasonableness under prevailing professional norms.” Id. at 688.
33
“The test of reasonableness is not whether counsel could have done something more
or different,” but whether counsel’s performance “fell within the broad range of
reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d
at 1313). Furthermore, courts must “recognize that ‘omissions are inevitable, but,
the issue is not what is possible or ‘what is prudent or appropriate, but only what is
constitutionally compelled.’” Id. (quoting Burger v. Kemp, 483 U.S. 776, 794
(1987)). In fact, the Sixth Amendment does not guarantee the very best counsel or
the most skilled attorney, but only an attorney who performed reasonably well within
the broad range of professional norms. “The test has nothing to do with what the best
lawyers would have done. Nor is the test even what most good lawyers would have
done. [Courts] ask only whether some reasonable lawyer at the trial could have acted,
in the circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d
1218, 1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective
of the attorney at the time of the alleged error and in light of all the circumstances.15
And
Under this standard, there are no “absolute rules” dictating what
reasonable performance is or what line of defense must be asserted.
[Chandler, 218 F.3d] at 1317. Indeed, as we have recognized,
15
See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (giving lawyers
“the benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v. Singletary, 161 F.3d
1273, 1285-86 (11th Cir. 1998) (noting that Strickland performance review is a “deferential review
of all of the circumstances from the perspective of counsel at the time of the alleged errors”).
34
“[a]bsolute rules would interfere with counsel’s independence – which
is also constitutionally protected – and would restrict the wide latitude
counsel have in making tactical decisions.” Putman v. Head, 268 F.3d
1223, 1244 (11th Cir. 2001).
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (first alteration added,
second alteration in original). Judicial scrutiny of counsel’s performance must be
“highly deferential,” because representation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another. See Strickland,
466 U.S. at 697. Indeed, reviewing courts “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689. After all,
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. There are
countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client
in the same way.
Id. (citations and internal quotation marks omitted).
35
“When reviewing whether an attorney is ineffective, courts should always
presume strongly that counsel’s performance was reasonable and adequate.” Rogers
v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). And, “[b]ased 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 added). “Even if many reasonable lawyers would not have done as
defense counsel did at trial, no relief can be granted on ineffectiveness grounds
unless it is shown that no reasonable lawyer, in the circumstances, would have done
so.” Rogers, 13 F.3d at 386.
2.
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). The habeas petitioner “must affirmatively
prove prejudice, because ‘[a]ttorney errors come in an infinite variety and are as
likely to be utterly harmless in a particular case as they are to be prejudicial.’”
Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (quoting Strickland, 466 U.S.
at 693) (alteration in original). “It is not enough for the [habeas petitioner] to show
that the errors had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Instead, “[t]he likelihood of a different result must be
36
substantial, not just conceivable.” Harrington, 562 U.S. at 111-112 (citing
Strickland, 466 U.S. at 693).
To prove prejudice, the habeas petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the results of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. When that
standard is applied in the context of the death sentence itself, “‘the question is
whether there is a reasonable probability that, absent the errors, the sentencer [i.e.,
in Alabama, the trial court judge] . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.’” Stewart, 476 F.3d
at 1209 (quoting Strickland, 466 U.S. at 695).
To satisfy this high standard, a petitioner must present competent evidence
proving “that trial counsel’s deficient performance deprived him of ‘a trial whose
result is reliable.’” Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir. 2001) (quoting
Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice requires proof
of unprofessional errors so egregious that the trial was rendered unfair and the
verdict rendered suspect.” Johnson, 256 F.3d at 1177 (quoting Eddmonds v. Peters,
93 F.3d 1307, 1313 (7th Cir. 1996) (in turn quoting Kimmelman v. Morrison, 477
U.S. 365, 374 (1986))) (internal quotation marks omitted).
37
3.
State court findings of historical fact made in the course of evaluating a claim
of ineffective assistance of counsel are subject to a presumption of correctness under
28 U.S.C. § 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292,
1297 (11th Cir. 2001). To overcome a state-court finding of fact, the petitioner bears
the burden of proving contrary facts by “clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
Additionally, under AEDPA, a federal habeas court may grant relief on a
claim of ineffective assistance of counsel only if the state-court determination
involved an “unreasonable application” of the Strickland standard to the facts of the
case. Strickland also requires an assessment of whether counsel’s conduct was
professionally unreasonable. Those two assessments cannot be conflated into one.
See Harrington, 562 U.S. at 101-02. 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.” As the Harrington Court explained:
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. [356], [371-372], 130 S. Ct. 1473, 1485, 176 L. Ed.
2d 284 (2010). An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise issues not presented
at trial, and so the Strickland standard must be applied with scrupulous
care, lest “intrusive post-trial inquiry” threaten the integrity of the very
38
adversary process the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690, 104 S. Ct. 2052. Even under de novo review, the
standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with
the client, with opposing counsel, and with the judge. It is “all too
tempting” to “second-guess counsel’s assistance after conviction or
adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v. Cone,
535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart
v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993). The question is whether an attorney’s representation amounted
to incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466
U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” Id.,
at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117
S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles [v. Mirzayance], 556 U.S., at
[125], 129 S. Ct. at 1420 [(2009)]. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 556 U.S., at
[123], 129 S. Ct. at 1420. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question
is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
562 U.S. at 105 (alterations added); see also Premo v. Moore, 562 U.S. 115, 121-23
(2011). However, “a federal court may grant relief when a state court has misapplied
a governing legal principle to a set of facts different from those of the case in which
the principle was announced [so long as] the state court’s application [was]
39
objectively unreasonable.” Wiggins v. Smith, 539 U.S. at 520-21 (citations and
quotation marks omitted).
IV.
With these general principles in mind, the court turns now to Marshall’s
claims, A–F, which he maintains entitle him to relief. The court will address the
claims in alphabetical order.
A.
Marshall contends in Claim A that his trial counsel’s performance at both the
guilt and penalty phases of his trial fell below “an objective standard of
reasonableness” and “was deficient by any measure.” Doc. 7 at 9. The court agrees
in part.
1.
The court begins with the penalty phase claims. Marshall argues that counsel
failed to investigate his family history, present as mitigation an expert report from a
clinical psychologist, hire a neuropsychologist, properly use expert investigators, or
to present any mitigation evidence during his penalty phase. Doc. 7 at 10-15, 27-38.
Allegedly, “it is probable that additional jurors would have voted to spare Marshall’s
life” had his defense counsel presented mitigation evidence. Id. Because all of these
alleged failures culminate in Marshall’s ultimate argument—that his counsel offered
40
the jury no mitigating evidence that could have persuaded them to spare his life—
the court considers these claims together.
a.
The court declines to adopt the Respondent’s position that Marshall failed to
exhaust several of his ineffective assistance claims by briefing them as penalty phase
rather than guilt phase issues. Docs. 11 at 10, 12, 15, 17, 18; 12 at 31, 32, 35, 36. All
of these claims relate to alleged ineffective assistance for the failure to develop and
present mitigating evidence at both the guilt and penalty phases of trial. Id. Marshall
fairly presented this claim to the state courts. See Vol. 10, Tab 42 at 150; Vol. 44,
Tab 61 at 41-48, 50-51, 54-58; Vol. 45, Tab 65, at 43-44. Also, because a habeas
claim is exhausted if the petitioner presented the substance of the claim to the courts
“despite variations in the … factual allegations urged in its support,”16 the court
disagrees with the Respondent’s contention that Marshall failed to exhaust specific
factual allegations in his mitigation claims. See docs. 11 at 3-7; 12 at 18-19.
b.
Turning now to the merits of Marshall’s specific claim, “no absolute duty
exists to introduce mitigating or character evidence.” Chandler v. United States, 218
F.3d 1305, 1319 (11th Cir. 2000). But, an attorney representing a capital defendant
has an “obligation to conduct a thorough investigation of the defendant’s
16
Picard v. Connor, 404 U.S. 270, 277–78 (1971).
41
background.” Williams v. Taylor, 529 U.S. at 396. Thus, the principal concern is not
whether counsel should have presented mitigation evidence; rather it is whether “the
investigation supporting counsel’s decision not to introduce mitigating evidence of
[Marshall’s] background was itself reasonable.” Johnson v. Secretary, DOC, 643
F.3d 907, 931 (11th Cir. 2011).
The Eleventh Circuit has found ineffective assistance in instances where
attorneys failed to present sufficient mitigating evidence at sentencing.17 The Circuit
has rarely had to address the complete failure to present any mitigation evidence,18
with the most analogous case being Hardwick v. Sec’y, Fla. Dep’t of Corr., 803 F.3d
17
See, e.g., Maples v. Comm’r, Alabama Dep’t of Corr., 729 F. App’x 817 (11th Cir. 2018)
(finding petitioner stated facts that, if true, would entitle him to habeas relief where counsel failed
to contact willing family members or investigate records); Daniel v. Commissioner, Alabama Dept.
of Corrections, 822 F.3d 1248 (11th Cir. 2016) (counsel’s failure to investigate or present
mitigation was deficient and prejudicial where mitigating evidence was available); Williams v.
Allen, 542 F.3d 1326 (11th Cir. 2008) (counsel’s failure to follow up on red flags in files counsel
already possessed resulted in mitigating evidence going undiscovered); Hardwick v. Crosby, 320
F.3d 1127 (11th Cir. 2003) (counsel failed to investigate or present mitigating evidence at the
penalty phase regarding petitioner’s mental health, alcohol, drug abuse, erratic behavior,
dysfunctional family life, mental and physical abuse, and suicide attempts); Jackson v. Herring,
42 F.3d 1350 (11th Cir. 1995) (counsel failed to present evidence related to petitioner’s upbringing
at sentencing phase); Cave v. Singletary, 971 F.2d 1513 (11th Cir. 1992) (counsel failed to prepare
for penalty phase or offer willing family member character witnesses); Middleton v. Dugger, 849
F.2d 491 (11th Cir. 1989) (counsel ineffective for failure to seek out or present mitigating evidence
of mental illness and childhood abuse).
18
See Wilson v. Warden, Georgia Diagnostic Prison, 898 F.3d 1314, 1322-23 (11th Cir.
2018) (ineffective assistance claim denied where new mitigation evidence petitioner argued should
have been presented at trial was cumulative and a “double-edged sword” that would have hurt his
as much as it helped); Tharpe v. Warden, 834 F.3d 1323, 1335 (11th Cir. 2016) (finding counsel
who interviewed multiple friends and family members but found no evidence of a “troubled or
deprived background . . . undertook a meaningful investigation and thereafter developed a
mitigation strategy in line with what they discovered”).
42
541 (11th Cir. 2015). In that trial, despite “having ample information signaling the
existence of potential significant mitigation evidence,” 803 F.3d at 554, the attorneys
(1) failed to obtain any school, medical, mental health, or juvenile justice records, or
any social service records about Hardwick’s foster home placements and abuse; (2)
did not ask their expert or anyone else to investigate or evaluate mitigation evidence
relative to the sentencing phase; and (3) failed “to present any mitigating evidence
to the jury, let alone the powerful mitigating evidence, including Hardwick’s
deprived and abusive upbringing,” id. at 547. In finding counsel’s failure to present
“even the least bit of . . . mitigating evidence” deficient, id. at 559, the Circuit
reasoned that Hardwick’s defense counsel “appeared to have given up on defending
Hardwick and seemingly expended no effort, either in presentation of mitigating
evidence or in understanding mitigation law,” id. at 547.
In Ferrell v. Hall, the Circuit held that counsel’s performance was deficient
where they “conducted a profoundly incomplete investigation, and [his] judgment
to . . . sharply limit [his] inquiry fell far outside the wide range of professional
competence.” 640 F.3d at 1227. The Circuit found that counsel’s failure to “speak
with any penalty-phase witnesses, or potential witnesses, aside from the parents,
until immediately following the guilt-innocence phase” constituted an unreasonable
investigation, despite evidence that counsel’s investigator interviewed between 4045 witnesses about the defendant’s character. Id. at 1228, 1230-31. And, in Williams
43
v. Allen, the Circuit found counsel’s investigation unreasonable when they relied
entirely on an account from the petitioner’s mother, leaving them with “an
incomplete and misleading understanding of [his] life history.” 542 F.3d 1326, 1340
(11th Cir. 2008). The Circuit concluded “trial counsel abandoned their investigation
at an unreasonable point, particularly in light of the information about [the
defendant’s] background that the investigation revealed.” Id. at 1341.
Generally, “thorough investigations are virtually unchallengeable.” Wiggins,
539 U.S. at 522. But when counsel fails to “conduct an adequate background
investigation,” Cooper v. Sec'y, Dep't of Corr., 646 F.3d 1328, 1351 (11th Cir.
2011), or declines to pursue “all reasonably available mitigating evidence,” their
assistance may be deemed ineffective, see Wiggins v. Smith, 539 U.S. at 524.
Notably, the Supreme Court has held that “[s]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Strickland, 466
U.S. at 690–91. Furthermore, counsel “must not overlook evidence of abuse that was
documented extensively in available records.” Morrow v. Warden, 886 F.3d 1138,
1147 (11th Cir. 2018). Such evidence showing the defendant’s background and
character “is relevant because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged background . . .
may be less culpable” and such evidence “might well . . . influence[] the jury’s
44
appraisal of [a defendant’s] moral culpability.” Porter v. McCollum, 558 U.S. 30, 41
(2009) (citations and quotation marks omitted).
c.
Even the Rule 32 trial court noted that Marshall’s trial was unusual in that
“trial counsel presented no mitigation evidence during the penalty phase [and]
mitigation evidence is presented during the penalty phase of most capital murder
trials.” Vol. 15 at 1004. And while the trial court correctly stated that trial counsel
are not “per se ineffective for not presenting mitigation evidence,” 19 id., the relevant
inquiry is whether counsel made their rare choice to forego mitigating evidence at
the penalty phase based on an inadequate investigation. As this court stated in its
order granting the evidentiary hearing, though attorneys need not investigate every
evidentiary lead, the decision to limit an investigation “must flow from an informed
judgment.” Doc. 23 at 9 (quoting Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.
1989)).
To “determine whether trial counsel should have done something more in their
investigation, [the court] first look[s] at what the lawyer[s] did in fact.” Raulerson
v. Warden, 928 F.3d 987, 997 (11th Cir. 2019) (citations and quotation marks
omitted). Marshall’s counsel’s investigation consisted entirely of hiring two
individuals: Alfred Armour, a private investigator charged with finding family
19
See Chandler, 218 F.3d at 1319.
45
members who might testify on Marshall’s behalf, and Dr. Kimberly Ackerson, a
clinical psychologist who prepared a mitigation report. For her part, Dr. Ackerson
prepared her mitigation report, 20 Vol. 36 at 124-26, based on “(1) information
provided by defense counsel including a summary report dated January 6, 2005 and
prepared by defense counsel; [a] letter from Office of District Attorney addressed to
Seminole County (Florida) dated March 23, 2005; copies of Affidavit of Complaint;
copies of summaries prepared by law enforcement officials; [] Interview of
defendant at the Jefferson County Jail on December 15, 2005” as well as Personality
Assessment Inventory completed by Marshall. Vol. 16 at 1248. Her sole interview
with Marshall lasted for four hours. Id. at 1251.
20
The court does not address whether counsel acted ineffectively when they decided not
to use Dr. Ackerson’s report as mitigation for two reasons. First, as the Respondent notes, Marshall
failed to exhaust this claim when he did not raise it before the Rule 32 court. See doc. 11 at 14.
Alternatively, even if Marshall had exhausted the claim, he could not successfully argue that
counsel’s decision met the deficiency prong of Strickland. Though Dr. Ackerson was Marshall’s
sole source of mitigation and her report contained some information that may have proved helpful
to Marshall at sentencing, her report contained several negative conclusions about Marshall,
including that Marshall was “remarkable for antisocial behaviors, substance abuse and narcissistic
personality traits . . . [as well as] a significant history of violence against women, including sexual
aggression.” As the ACCA found:
Although Dr. Ackerson's report contained information that may have been used in
mitigation—e.g., information regarding Marshall's childhood and his history of abuse—
trial counsel determined that they could not use Dr. Ackerson’s information as mitigation
evidence because “the report could not be submitted a piece at a time. It had to be
submitted, the whole hog. The whole hog would have killed us. It would have put him in
the electric chair.” (R2. 131–32.)
Marshall v. State, 182 So. 3d 573, 603 (Ala. Crim. App. 2014). The ACCA reasonably determined
that the decision not to present Ackerson’s report to the jury was a strategic one, and therefore not
deficient under Strickland.
46
Despite the professional trend at the time to include collateral information
such as school, social service, and medical records in a mitigation report, Vol. 37 at
357-58, counsel did not direct Armour to retrieve school records or social services
records, Vol. 36 at 134, or provide Dr. Ackerson with medical records he had in his
file, id. at 150-51; see Vol. 16 at 1248 (statement from Dr. Ackerson that she did not
base her report on any records). Dr. Ackerson reported:
[Marshall] described a chaotic and periodically abusive childhood. He
was approximately five years of age when his biological parents
divorced and . . . prior to that time there was a great deal of marital
strife. A short time later [Marshall’s mother] married Dean Johnson . .
. [who] began drinking heavily and became physically and mentally
abusive towards family members. [Marshall] specifically recalled
having been hit by Mr. Johnson on all areas of his body, including the
face with an assortment of objects including belts and switches. He
noted further, “It seemed like we were getting whippings all the time”
and he also acknowledged taking the blame for his younger sister at
times to prevent her from being “hurt.” Most notable, [Marshall]
explained that he had been “hit” so many times by his stepfather that
“it got to the point where I didn’t cry.” He affirmed having runaway
[sic] from the home at times to avoid the abuse . . .
[Marshall’s] mother and [stepfather] eventually separated and [she] was
left financially destitute and with poor prospects for employment, the
family “moved around a lot.” . . . [Marshall] was approximately
fourteen years of age when the couple’s divorce was final. At the same
time of the . . . divorce[,] [Marshall] . . . began displaying problem
behaviors including truancy, disobedience, destruction of property, and
physical aggression. It appears around this same time he left the family
home and moved in with a school friend. According to [Marshall] he
left home “because [he] was tired of not feeling loved.” A month or two
later he was “picked up” by a child welfare agency official and was
transported to a juvenile detention center. He remained in the detention
center for two to three weeks before being placed in a “boy’s home” in
Virginia. Until age eighteen he remained at this facility, spending some
time with a foster family as well . . .
47
Following completion of the ninth grade, [Marshall] ceased attending
school. He claimed to have been enrolled in at lease [sic] fifteen
different schools during his academic career secondary to numerous
relocations . . .
[Marshall] was enlisted in the Army National Guard for approximately
two years . . .
He [is] prescribed an antidepressant medication at this time for “sleep.”
Vol. 16 at 1248-51.
i.
Lead trial counsel admitted at the Rule 32 hearing that he read Dr. Ackerson’s
report and appreciated the mitigating potential of the background information. Vol.
36 at 131. Still, despite having evidence in the report of potential mitigation
information, including Marshall’s violent and unstable upbringing, counsel declined
to do any further investigation. Id. at 134-35. Basically, he did not seek medical
records, school records, or social services records from Marshall’s childhood, see
id., – records that he admitted he knew may have had some mitigation potential. The
failure to do so is unreasonable because, as the Supreme Court held long before
Marshall’s trial, lawyers representing capital defendants have an “obligation to
conduct a thorough investigation of the defendant’s background.”21 Williams v.
Taylor, 529 U.S. at 396.
21
And recently in Andrus v. Texas, 590 U.S. __ , 140 S. Ct. 1875 (2020), the Court granted
relief in part because
Over and over during the habeas hearing, counsel acknowledged that he did
not look into or present the myriad tragic circumstances that marked Andrus’ life.
. . . Counsel uncovered none of that evidence. Instead, he “abandoned [his]
48
Moreover, the facts outlined by Dr. Ackerson mirrored those the Eleventh
Circuit has consistently held warranted further investigation. For example, in
Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), the Circuit found counsel acted
deficiently where he “had a small amount of information regarding possible
mitigating evidence regarding [the defendant’s] history, but he inexplicably failed to
follow up with further interviews and investigation.” 42 F.3d at 1367. And in Elledge
v. Dugger, 823 F.2d 1439 (11th Cir. 1987), the Circuit found that counsel performed
deficiently when, despite being informed by the defendant about his abusive
background, counsel “did not even interrogate [the defendant’s] family members to
ascertain the veracity of the account or their willingness to testify.” 823 F.2d at
1145. 22 In short, under the prevailing law at the time, counsel provided ineffective
investigation of [Andrus’] background after having acquired only rudimentary
knowledge of his history from a narrow set of sources.” Wiggins, 539 U.S., at 524.
On top of that, counsel “ignored pertinent avenues for investigation of which
he should have been aware,” and indeed was aware. Porter, 558 U.S., at 40. At
trial, counsel averred that his review did not reveal that Andrus had any mentalhealth issues. But materials prepared by a mitigation expert well before trial had
pointed out that Andrus had been “diagnosed with affective psychosis,” a mental
health condition marked by symptoms such as depression, mood lability, and
emotional dysregulation . . .
140 S. Ct. at 1882-83 (alterations in original).
And, albeit after Marshall’s conviction, the Circuit again held that facts similar to those in
Dr. Ackerson’s report were exactly the types of “red flags” that should have prompted counsel to
investigate further. Specifically, in Williams v. Allen, the Circuit found counsel provided
ineffective assistance when they knew the defendant was abused as a child and suffered from
mental health issues, including depression and suicide risk, and yet failed to present this evidence
at the mitigation phase. 542 F.3d 1326, 1340 (11th Cir. 2008). The court noted also that “nothing
in [counsel’s] limited inquiry into Williams’ background . . . suggest[ed] that further investigation
22
49
assistance when they failed to investigate further after receiving Dr. Ackerson’s
report.
ii.
Counsel’s performance fared no better with the investigator they engaged to
find useful people and information for Marshall’s mitigation case. Vol. 36 at 13436. Armour testified at the Rule 32 hearing that he had never previously investigated
family members for a death penalty case. Id. at 211. Marshall’s attorneys instructed
Armour to focus on finding immediate family members that might speak on
Marshall’s behalf. Id. at 213. Though at the time of the Rule 32 hearing Armour
could not recall his efforts in Marshall’s case, the defense file showed that Armour
began by collecting from Marshall a list of names, addresses, and telephone numbers
of family members to contact. Vol. 36 at 209-210. From that list, the only person
with whom Armour made contact was Marshall’s father, who made clear he was not
interested in helping Marshall and that he believed Marshall should face punishment
for the crime. Id. at 211-28. Still, based on Armour’s notes, Marshall’s father
provided Armour the names of other family members and their places of residence.23
would have been fruitless.” Id. And, the Circuit instructed that “[i]n assessing the reasonableness
of an attorney’s investigation, . . . a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further . . . Strickland does not establish that a cursory investigation automatically
justifies a tactical decision with respect to sentencing strategy.” Id. at 527.
23
Armour’s notes from his conversations with Marshall Sr. include several family members’
names and useful information for locating them. He lists:
50
Id. Despite admitting that he remembered receiving a list of names, id. at 216-28,
Armour testified that he never called any of them because he was “not . . . able to
contact” them, id. at 228, purportedly due to Marshall, Sr.’s failure to provide
specific contact information for other family members. But Armour’s notes, which
show that Marshall, Sr. provided phone numbers for Tonya Marshall, belie his
contention. Moreover, Armour’s notes reveal that although he managed to locate
Marshall’s brother, Charles Allan Wilkins, id. at 218-19, he failed to contact
Wilkins, Vol. 37 at 259-60. And yet, although he spoke to no one other than Marshall
Sr., Armour stated at the end of his report, “[i]t is the humble opinion of this agent
that Mr. William Marshall, Sr., nor any family member of his family, would provide
any positive input which would help Mr. Marshall during the case.” Vol. 36 at 227.
Critically, Armour admitted at the Rule 32 hearing that Marshall, Sr. did not share
an opinion regarding whether other family members were willing to testify, and that
•
“Charles Allan-Marshall Wilkins, Brother, Salisbury, North Carolina.” Vol. 36 at 216.
•
“Beverly Wilkins, Charleston (mom),” along with a note that she had moved near
Winchester, Virginia. Id. at 219-20.
•
“Bergeta [sic], sister” Id. at 220-23.
•
“Tonya Marshall (ex-wife) 68 Wideway, Crossfield, Tennessee 38572,” along with a
home and cell phone number. Id. at 223.
Armour attributed his inability to locate Marshall’s sister, Berguitta Marshall, to his misspelling
of her name. Id. at 220-23. Although trial counsel had documents containing the correct spelling
of Berguitta’s name and more information on several other family members, Armour testified that
he never saw those documents. Id. at 220-28.
51
he based his opinion that no member would help Marshall on his inability to reach
them. Id. at 227-28.
For his part, Mathis testified at the Rule 32 hearing that Armour’s
investigation “didn’t get anything that was worthwhile at all . . . that [he] could use.”
Id. at 136. When asked why he never reviewed Armour’s list or did his own follow
up even though he knew Armour had in his file a list of family members and potential
witnesses, Mathis stated simply, “I did not ask for it. I don’t know why.” Id. at 138.
And Mathis testified that he failed to take any further action even though he had read
a supportive letter that Marshall’s brother, Charles Allan Wilkins, sent to Marshall
a month before trial with the brother’s correct address, as well as letters from
Marshall’s ex-wife naming family members available to help in his case.24 Id. at
138-46. As Mathis acknowledged at the Rule 32 hearing, “I knew there was family
out there . . . We did not track them down.” Id.
iii.
The ACCA found that Mathis’s reliance on Armour’s investigation was
reasonable, stating:
Investigator Armour attempted to contact . . . family members for
purposes of discovery of mitigation evidence, but they were either
24
Marshall’s brother testified at the Rule 32 hearing that he was willing and able to testify
on Marshall’s behalf, and had contact information for multiple members who were similarly
willing to aid Marshall through either deposition or trial testimony. Vol. 37 at 259-70. These family
members included Marshall’s niece, Vol. 39 at 111-16, aunt, Vol. 34 at 4987-91, and his
grandmother, id. at 4972-79.
52
unwilling to assist in Marshall’s defense, did not return telephone calls,
or were unable to be located . . .
At the evidentiary hearing, Mathis testified that Investigator Armour
was tasked with locating family members for mitigation. Mathis stated
that Investigator Armour provided him with a letter, which was
introduced by Marshall during the evidentiary hearing and admitted as
“Petitioner’s Exhibit 3,” and provides:
“During my initial interview with [Marshall], he provided me with a
list of names of family members and friends that might wish to speak
on his behalf at his sentencing hearing. The list of names included
several members of his family that reside outside the State of Alabama.
Many of the addresses and telephone numbers were old and had
change[d] from the time [Marshall] obtained them.”
“I have placed numerous calls to relatives thought to be residing in
Crossville, Tennessee, but was unable to get in contact with any of his
siblings that were listed. After a number of attempts, I was able to
contact Mr. William Marshall, Sr. [, Marshall’s father,] by telephone
on at least three occasions during the course of the investigation.
[Marshall’s father] stated to me during each conversation that he was
aware of the case involving [Marshall. He] also stated to me that it is
an unfortunate circumstance in which [Marshall] was involved in, but
believes that if he did the crime, he needs to do the time.”
“I informed [Marshall’s father] that his son could possible be facing the
death penalty in the State of Alabama. [Marshall’s father] replied that
he loves his son and wish that the events leading up to this point had
not taken place, but believes that if he has to pay for his crime with his
life, that is what he will have to do. [Marshall’s father] stated that he
did not intend to be present at the sentencing hearing for [Marshall,] but
asked that he be kept informed of the status of the disposition of the
case.”
“When asked about the biological mother of [Marshall, Marshall’s
father] stated that they had been divorced for many years and that he
has lost contact with her, but believes that she is located in the State of
Florida. [Marshall’s father] stated that his son was raised by his
biological mother and he felt that the mother did not do a sufficient job
raising him. He could not provide a name the biological mother might
be listed under, and attempts to locate her using the last name Marshall
were unsuccessful.”
“[Marshall’s father] informed me that he does not even know how to
contact the biological brothers and sister of [Marshall] or a step-sister
53
[Marshall] has. He stated that one of his brothers was believed to be
home at Fort Bragg, North Carolina from military duty in Iraq. A search
of the Fort Bragg post locator was unable to confirm any member of the
Fort Bragg community as being a relative of [Marshall.]
“[Marshall’s father] did mention that [Marshall] ... appeared to have
had some mental stability issues during his childhood which might have
contributed to the case involving him in Birmingham. [Marshall’s
father] provided me with the name an[d] telephone number of the
physician for [Marshall,] which I contacted and requested a copy of the
medical records for [Marshall] be sent to your office.”
“It is the humble opinion of this agent that [Marshall’s father], nor any
member of his family would provide any positive input to a judge or
jury that would cause them to see any reason why [Marshall] should
receive any relief in this case.”
Marshall v. State, 182 So. 3d at 598–99.
In determining that Marshall’s counsel’s investigation was adequate, the
ACCA stated:
Initially, we note—just as the circuit court did in its order denying
Marshall’s Rule 32 petition—that “[t]he circumstances of this case are
extraordinary. Marshall murdered Alicia Bentley, who was his stepdaughter. However, because Marshall married his first cousin, Tonya
Bentley, Alicia was not only Marshall’s step-daughter but also his first
cousin once removed. Therefore, trial counsel were tasked with
convincing Marshall's family members to testify for Marshall during
the penalty phase, where, to do so, would mean testifying in favor of
the murderer of another one of their family members.
Trial counsel retained two experts in an effort to obtain mitigation
evidence, trial counsel spoke with the experts, reviewed their reports,
determined that family members did not want to participate in the
presentation of mitigation evidence, and determined that it would be
detrimental to Marshall to call Dr. Ackerson as a witness during the
penalty phase of Marshall’s trial. Thus, like Hall, Marshall’s trial
counsel was not ineffective for relying on Dr. Ackerson and
Investigator Armour to investigate mitigation evidence. Investigator
Armour attempted to contact those family members for purposes of
54
discovery of mitigation evidence, but they were either unwilling to
assist in Marshall’s defense, did not return telephone calls, or were
unable to be located. Although Mathis testified that he believed that
Investigator Armour’s assessment that the family members would be
unwilling to assist during trial was correct, Mathis attempted, during
trial, to persuade Marshall’s sister, Berguitta Marshall, to testify on
Marshall’s behalf, but—just as Investigator Armour concluded—
Berguitta was unwilling to help. Additionally, Mathis testified that he
spoke with Marshall about his family’s unwillingness to assist in the
proceedings, and no evidence was presented indicating that Marshall
provided trial counsel with any further information about people he
wanted trial counsel to contact to assist in his defense.
Id. at 600-603.
This assessment, however, is based on a set of facts that is at best incomplete.
To begin, only one family member, Marshall, Sr. – rather than multiple family
members – refused to help. Other than Marshall, Sr., no other family members
received notice from counsel or from Armour that they could testify on Marshall’s
behalf. And, while Armour stated in his letter to counsel that he could not reach the
persons Marshall gave him due to incorrect contact information, he neglected to
point out that Marshall, Sr. also gave him names and contact information and that he
failed to contact this second set of individuals. Vols. 36 at 216-28; 37 at 259-60. The
court recognizes that lawyers generally cannot and should not try to do everything
on their own. Indeed, counsel should in fact rely on other professionals on their team
to help them provide adequate representation for their clients. But, counsel must not
blindly rely on their team. And where, as here, counsel knew that at least one person,
Marshall’s brother, had reached out to Marshall and was willing to help, see Vol. 36
55
at 143, this fact should have provided counsel good cause to doubt Armour’s
contention and to do their own follow up.
Similarly, while Berguitta Marshall indeed expressed an unwillingness to
testify, the ACCA overlooked that counsel approached her for the first time during
the trial at the courthouse. Vol. 37 at 289-91. Berguitta testified at the Rule 32
hearing that counsel never contacted her before that day at the trial. Id. And she
added that when she traveled to Alabama for the trial, she had no idea that she was
even allowed to testify, and she refused to get on the stand when asked because she
“wasn’t prepared,” and “hadn’t had any phone calls from [her brother’s] attorney to
prepare [her] for anything [she] needed to say, or what was going to go on in the
courtroom.” Id. at 290. Berguitta testified that “if [she] had been prepared or
contacted before the day of trial, . . . [she] would . . . have been willing” to testify at
the trial. Id. at 291. Put simply, her decision not to testify was not made out of malice,
and proper efforts undertaken by counsel prior to the trial may have yielded a
different response.
And Berguitta was not the only one. At the Rule 32 hearing, five other
members of Marshall’s immediate and extended family provided testimony or
depositions for Marshall, including his brother, who had written him before the trial,
Vol. 37 at 259-60, and his mother, Beverley Charlton, id. at 315-18. See also vol. 34
at 4972-91; vol. 39 at 111-16. Marshall also presented affidavits and depositions
56
from his foster parents, Marlene Scott, Vol. 34 at 4998-5000, and Gerald Scott, Vol.
35 at 5008-5011, and the director of the children’s home where he lived as an
adolescent, Louise Huffstuttler, Vol. 39 at 106-10. These individuals testified or
attested that neither Marshall’s counsel nor investigator Armour contacted them
about testifying on Marshall’s behalf. Each claimed they would have testified for
Marshall if asked.25
iv.
Foundational to the ACCA’s assessment of Marshall’s counsel’s investigation
and the purported unwillingness of Marshall’s family to help was the intermingled
family relationships between Marshall’s family and the victim’s. Missing from the
ACCA’s assessment however is the failure to analyze whether Marshall’s counsel
made a reasonable effort to engage these family members before trial and if they
25
The Respondent argues that even Marshall saw little value in continuing to contact
family, stating in their brief that when Mathis informed Marshall of his difficulties in contacting
his family, “Marshall ‘figured if [his family] didn’t care anymore about their son than to contact
his lawyer when he’s charged with capital murder, he sure as hell didn’t need to contact them.’”
Doc. 12 at 20-21 (citing Vol 45, Tab. 65 at 24) (emphasis added). But it was counsel, rather than
Marshall, who “figured . . . he sure as hell didn’t need to contact” Marshall’s family. Vol. 36 at
130 (“I recall talking to Bruce about the fact that his family didn’t want to have anything to do
with him. That they knew what was going on and they knew where he was. I figured if they didn’t
care anymore about their son than to contact his lawyer when he’s charged with capital murder, I
sure as hell didn’t need to contact them”). The Supreme Court has held that a clear instruction
from a capital defendant to his counsel not to present mitigating evidence can relieve the attorneys
of ineffective assistance charges. Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (reasoning that
the client would likely obstruct any efforts by the attorneys to admit such evidence). However, the
statement here by counsel does not rise to the clear instruction from the defendant contemplated
in Schriro.
57
repeatedly rebuffed him. If the facts showed this, this relationship may be more
relevant to the inquiry of ineffective assistance. But Marshall’s counsel did not
engage in an adequate investigation, and unreasonably relied on his investigator even
though counsel had facts that questioned the veracity of the investigator’s report.
Therefore, the ACCA was unreasonable in their assumption “that the trial counsel’s
investigation was adequate . . . without considering the reasonableness of counsel’s
decision to limit the scope of their inquiry.” Daniel v. Commissioner, Alabama Dept.
of Corrections, 822 F.3d 1248, 1272 (11th Cir. 2016).
In the end, “counsel chose to abandon their investigation at an unreasonable
junction, making a fully informed decision with respect to sentencing strategy
impossible.” Wiggins, 539 U.S. at 527. And by adopting counsel’s post-hoc
rationalization of why they were unable to turn up mitigating evidence without
considering the other evidence presented at the Rule 32 hearing, the ACCA engaged
in an unreasonable application of clearly established law to the facts in this case.
Once a federal court determines that a state court decision is unreasonable
under § 2254(d), it is “unconstrained by § 2254’s deference and must undertake a de
novo review of the record.” Adkins v. Warden, Holman CF, 710 F.3d 1241, 1255
(11th Cir. 2013) (quotation omitted).
58
v.
Marshall’s counsel also failed to uncover any documentation of Marshall’s
adult life, including military records, probation records, and medical records. Vol 36
at 150-54. The Constitution requires that the trial court and the jury consider “as a
mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). Any reasonable attorney
would have obtained complete and accurate records regarding Marshall’s medical,
education, employment, and family history. Borden v. Allen, 646 F.3d 785, 801–02
(11th Cir. 2011) (citing Woodson v. North Carolina, 428 U.S. 280 (1976)). In fact,
here, counsel’s investigator actually provided the medical records to counsel. Vol.
36 at 150-54. And, had Marshall’s counsel reviewed the medical records secured by
Armour and performed even a cursory investigation into Marshall’s physical
conditions, counsel would have discovered that Marshall suffered from two medical
conditions, sleep apnea and a thyroid condition, id., both of which purportedly have
cognitive and emotional effects, Vol. 37 at 343-350, 26 and which may have
supported Marshall’s contention for a sentence less than death.
At the Rule 32 hearing, Dr. Carol Walker, an expert in the field of neuropsychology,
testified that Marshall’s thyroid condition, Graves’ disease, causes emotional and cognitive
symptoms including agitation, executive dysfunction, and significant anxiety, as well as negative
impacts on judgment and impulse control. Vol. 37 at 336, 344-48. Dr. Walker explained that
Marshall’s severe obstructive sleep apnea could also cause psychological and emotional problems.
26
59
Perhaps recognizing trial counsel’s failures, the Respondent asserts that these
medical and psychological challenges did not “support an insanity defense.” Doc.
12 at 36. True, indeed. But, Marshall never alleged an insanity defense. And, the
Respondent overlooks that the Supreme Court has noted, “the sentencer in capital
cases must be permitted to consider any relevant mitigating factor.” Porter, 558 U.S.
at 42 (citation omitted). Consequently, in Porter, the Court found that the Florida
Supreme Court was “not reasonable to discount entirely the effect [mental health
evidence] might had had on the jury or the sentencing judge” simply because it did
not “rise to the level of establishing a statutory mitigative circumstance.” Id. at 4243 The same is true here—Marshall’s trial counsel should have presented the
evidence to the jury for the jury to consider its mitigating effect, if any.
vi.
There are additional reasons to support a finding of ineffective assistance by
counsel. Beyond hiring these two experts, counsel performed no other investigation
into potential mitigating evidence for the penalty phase. This is not a case where
counsel had already “gleaned a portrait of [Marshall’s] life.” Raulerson v. Warden,
928 F.3d at 997. For example, in Raulerson, the court found counsel’s investigation
reasonable because counsel engaged multiple experts, interviewed several family
Id. at 348-50, 354-58. What weight, if any, this type of evidence is entitled to is a matter that
Marshall’s jury should have had the opportunity to decide.
60
members, and reviewed extensive records. Id. at 997. In Marshall’s case, the
investigation’s inadequacy is further underscored by counsel’s notes, which show
that counsel had “evidence that would lead a reasonable attorney to investigate
further.” Id. at 998. More specifically, as noted previously, Armour had names and
contact information of family members who were willing to testify on Marshall’s
behalf, Vol. 36 at 136-46, 209-28, counsel knew that Marshall’s brother had written
Marshall and offered to help, id. at 138-46, and Dr. Ackerson’s report showed that
Marshall suffered a “chaotic and periodically abusive childhood,” Vol. 16 at 124851. “In light of what counsel actually discovered” in Dr. Ackerson’s report and
Armour’s investigation, Marshall’s counsel should have continued looking into
leads. See Wiggins, 539 U.S. at 525. After all, as the Supreme Court has held,
counsel’s knowledge, for example, that “Petitioner’s mother was a chronic alcoholic;
[he] was shuttled from foster home to foster home and displayed some emotional
difficulties while there; he had frequent, lengthy absences from school; and, on at
least one occasion, his mother left him and his siblings alone for days without food”
was sufficient to alert any reasonably competent attorney to the need for further
investigation. Id.
vii.
The Respondent asserts that trial counsel simply made a strategic decision
against hiring a mitigation expert. The ACCA agreed with this point:
61
[T]rial counsel did not hire a “mitigation expert” to assist in investigating and
presenting mitigation evidence. Trial counsel instead retained both a private
investigator and a clinical psychologist to assist in the mitigation phase of
Marshall’s trial—which was a reasonable decision. Simply because trial
counsel did not retain the same type of expert to assist in the mitigation phase
that Rule 32 counsel would have retained does not render Marshall's trial
counsel ineffective. Accordingly, the circuit court did not err when it denied
these claims,
Marshall v. State, 182 So. 3d 573, 605 (Ala. Crim. App. 2014). This court agrees
that Marshall’s counsel certainly reasonably made the strategic decision to rely only
on the investigator and the psychologist. But, having done so, counsel were not
relieved of their obligation to actually look at the reports their professionals
prepared. Dr. Ackerson’s report is replete with red flags that courts have held warrant
further investigation. Again, this is not to suggest that counsel should have offered
the report at the trial or call Dr. Ackerson as a witness. To the contrary, opting not
to admit Dr. Ackerson’s report at the penalty stage was a strategic decision for
counsel to make based on their professional expertise. See, e.g., n. 20 supra.
However, counsel unreasonably chose not to follow up on the information contained
in that report. Under then prevailing standards, knowing of Marshall’s abusive,
neglected childhood, any reasonable attorney would have engaged in a more
thorough investigation, by either talking to family members (at least one of whom
counsel knew had written Marshall) or revisiting the decision whether to hire a
mitigation expert. The failure to use the information provided by the two individuals
counsel hired is the error rather than counsel’s failure to hire a mitigation expert.
62
viii.
To close, given what counsel describes as “overwhelming” evidence of guilt,
Vol. 7, Tab 24 at 770-72, any reasonable attorney would have known that the
sentencing phase presented the only realistic opportunity for Marshall to obtain a
“favorable” result.27 And yet, despite “potentially powerful mitigating evidence
star[ing] [them] in the face,” i.e. Dr. Ackerson’s report and Armour’s investigation,
Marshall’s counsel “unreasonably decided to end [their] investigation after only
talking to” Marshall’s father. Maples v. Comm’r, Alabama Dep’t of Corr., 729 F.
App’x 817, 824 (11th Cir. 2018). They made this decision despite acknowledging
they had no mitigation strategy to offer at sentencing. Vol. 36 at 117.28 And, this is
not an example of a reasonable decision made after counsel gathered a substantial
amount of information about their client. 29 To the contrary, counsel made the
decision to stand down even though they had pertinent information that may have
In Johnson, the Eleventh Circuit held “[n]o reasonable attorney who has every
expectation that his client will be convicted and will be facing a death sentence would wait until
the guilt stage ended before beginning to investigate the existence of non-statutory mitigating
circumstances. No reasonable attorney, after being told by his client that he had an abusive
upbringing, would fail to interview members of his client’s family who were readily available and
could corroborate or refute the allegations of abuse. No reasonable attorney told by his client that
he had an alcoholic and abusive father would fail to pursue those non-statutory mitigating
circumstances simply because the father denied it.” 643 F.3d at 932-33.
27
28
Compare Jenkins v. Commissioner, Alabama Department of Corrections, 936 F.3d 1252,
1269-70 (finding counsel’s failure to investigate defendant’s background was strategic where
counsel prioritized raising a residual doubt mitigation theory at sentencing).
29
Compare Bobby v. Van Hook, 558 U.S. 4, 9-12 (2009) (finding lawyers who spoke with
multiple family members “early and often” and employed multiple expert witnesses months before
trial were reasonable in deciding not to pursue more evidence).
63
proved useful, such as evidence that Marshall had an abusive upbringing and an
alcoholic father. In short, trial counsel failed to pursue leads on family members who
could “corroborate or refute [these] allegations.” Johnson, 643 F.3d at 932.
The failure of counsel is not in dispute. The state trial judge noted that it was
unusual that trial counsel presented no mitigation evidence. Vo. 15 at 1004. Also,
Marshall’s counsel basically conceded their shortcomings. Lead trial counsel
admitted at the Rule 32 hearing that he “d[idn]’t know that [he] had” a theory of
mitigation for the penalty phase. Vol. 36 at 117. And in a sad indictment of the
process, he added further that he did not have a sense of how long his investigator
would have needed to investigate mitigation for the case because “[w]e, in Jefferson
County, Alabama, don’t know a whole lot about mitigation, because we don’t get
any money to hire anybody to do mitigation.” Vol. 36 at 183. The lack of resources
is not an excuse here, however, where counsel actually had information that should
have caused them to inquire further, i.e. multiple red flags indicating readily
available and compelling mitigation evidence, as well as leads on where to find that
evidence. No reasonable attorney would have failed to investigate Marshall’s
background further. In light of this unreasonable investigation, counsel’s failure to
develop or present mitigating evidence at the sentencing stage was deficient.
64
d.
In addition to showing that counsel acted deficiently, Marshall must also show
prejudice. Strickland’s prejudice prong requires that Marshall show that “but for
[this] deficient performance, there is a reasonable probability that the result of his
penalty phase proceeding would have been different.” Johnson, 643 F.3d at 928
(citations omitted). This requires that the court “evaluate the totality of the available
mitigation evidence—both that adduced at trial, and the evidence adduced in the
habeas proceeding [and] reweigh it against the evidence in aggravation.” Maples v.
Comm’r, Alabama Dep’t of Corr., 729 F. App’x 817, 823 (11th Cir. 2018). If this
reweighing shows “a breakdown in the adversarial process that our system counts
on to produce just results, such that the proceeding was fundamentally unfair,” then
the court must vacate the death sentence. Id.
However, a court may not consider “undiscovered and unpresented mitigating
evidence . . . in isolation.” Maples, 729 F. App’x at 823. Rather, the court must
address “what would be the combined effect of all mitigating evidence in producing
a different outcome at sentencing.” Daniel v. Commissioner, Ala. Dept. of
Corrections, 822 F.3d 1248, 1278 (11th Cir. 2016). In doing so, the court must
recognize that sentences at the penalty phase must be “individualized by focusing
on the particularized characteristics of the individual.” Armstrong v. Dugger, 833
F.2d 1430, 1433 (11th Cir.1987). For that reason, “[i]t is unreasonable to discount
65
to irrelevance the evidence of [a defendant’s] abusive childhood, . . .” Porter, 558
U.S. at 43. Moreover, a petitioner’s background that includes “severe privation,”
“abuse,” “physical torment,” and an “alcoholic, absentee [parent]” is the kind of
troubled history that the Supreme Court has “declared relevant to assessing a
defendant’s moral culpability.” Wiggins, 539 U.S. at 535. A defendant’s life history
is “a part of the process of inflicting the penalty of death.” Id. at 535.30
Here, Marshall’s jury heard nothing about him at the penalty phase. Had
Marshall’s counsel investigated the red flags before them in their records, they
would have had the following mitigating testimony, drawn from deposition and Rule
32 hearing testimony of family members who claimed trial counsel never contacted
them:
From age two to fifteen, Marshall’s father figure was his mother’s second
husband, Dean Johnson. At the Rule 32 hearing, the Marshall family
described Dean as “violent,” “a heavy drinker,” and a father who taught right
from wrong “with a belt,” often leaving physical evidence of beatings on his
victims, including Marshall.
As revealed at the Rule 32 Hearing, Dean even threatened Marshall’s mother
with a gun in front of Marshall when he was only 5 years old. Perhaps the
30
See also Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) (failure to present the available
evidence of defendant’s upbringing, compassion, his poverty, and gentle disposition rendered
performance ineffective); Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) (because the jury knew
little about defendant including that family members described him as a devoted father, husband,
and brother, counsel was ineffective); Armstrong, 833 F.2d at 1434 (finding the “demonstrated
availability of undiscovered mitigating evidence clearly met the prejudice requirement”
under Strickland ); Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991) (finding a
“reasonable probability” that “jury might have recommended a life sentence” had counsel
presented the mitigating evidence that would have been available “had they more thoroughly
investigated”).
66
most shocking episode of drunken violence witnessed by Marshall involved a
drunken Dean trying to run over Marshall’s mother with a car in which the
children were all riding.
Marshall often got the worst, and the most repeated beatings, from Dean. It
was not uncommon for Marshall to be hit, slapped, and punched in the face or
head. Beverley testified that Dean “hit Bruce upside his head with his fists.
He would use a belt or something. It didn’t make any difference where it hit,
a leg, an arm. It didn’t matter.” She testified that these “beatings” occurred
weekly. Dean would leave physical marks on Marshall during these beatings.
In fact, Marshall’s mother testified that she eventually stopped trying to get
Dean to quit beating Marshall or the other kids because, when she did try, the
beatings just got worse.
Despite knowing the violence towards Marshall, his mother voluntarily left
Marshall in the care of the very man perpetrating the violence. Mrs. Charlton
also gave up emotionally on Marshall, resulting in abandonment and extreme
emotional abuse towards Marshall. Once Mrs. Charlton’s marriage to Dean
ended, the family split up, with Marshall and his brother remaining in Dean’s
household, while Berguitta continued to live with their mother. For years
thereafter, Marshall had only limited contact with his mother.
The physical abandonment of Marshall came on the heels of severe neglect.
Specifically, Cleo testified regarding a time when Marshall was four or five
years old, and she was called over to his house by a neighbor because
something was wrong. When Ms. Brasted arrived, she found a little four or
five year-old at home while his mother was in bed with a random man and
“Bruce was drunk.” Based on this event, Ms. Brasted testified that after that
incident she contacted a lawyer and considered keeping the children since they
were not “taken care of.”
The violence and emotional and physical abuse did not end when Marshall
eventually returned to live with his mother. Rather, they continued at the
hands of Mrs. Charlton’s subsequent romantic partner, Jerry Aires. Berguitta
testified that Aires was “abusive and evil” to Marshall. She said he was “very,
very mean when he would drink. He would just hit for no reason.” He would
hit Marshall in the face and in the head. He would leave physical marks on
Marshall and would hit him with things other than his hands, including a belt
with metal rings. Ms. Marshall further testified that fear ruled the household
with Jerry, eventually leading Marshall to run away from home. She said that
67
she and Marshall “were always scared.” Marshall was not just the subject of
abuse, but he was a witness to the violence and abuse inflicted on his loved
ones, including his mother and sister, whom he oftentimes tried to protect.
Marshall, by the time he was a teenager, had lived in four states and
somewhere between ten and fifteen cities. In addition to his constant moves,
during Ms. Charlton’s time with Dean, the family went from place to place
within a city desperately looking for shelter. In the words of Marshall’s
brother, “we didn’t have a place to live.”
As a teenager, Marshall was sent to live at the Braddock House. Ms. Louise
Hostetler is the “former director of Braddock House, a state facility for
children who were designated as either CINS (“Child In Need of Services”)
cases or juvenile delinquents” . . . Hostetler’s affidavit was filed in open court
during the Rule 32 Hearing. Had Ms. Hostetler been asked to testify on
Marshall’s behalf, she would have testified that the Braddock House was not
a facility for children who had committed violent crimes, but rather a facility
for “basically good kids who needed structure to learn socially acceptable
ways to live.” Ms. Hostetler would have explained to the jury that in this
structured environment, Marshall “did not exhibit any really bad behavior”
and in fact counseled another boy into staying at the Braddock House instead
of running away.
Additionally, Ms. Hostetler could have told the jury of how Marshall’s mother
essentially abandoned him to the home. Although the Braddock House
encouraged family visits, Ms. Hostetler does “not recall Bruce’s mother or
any other family member visiting Marshall during the time he lived at
Braddock House.” After leaving the Braddock House, Marshall went to live
with his foster parents, the Reverend Gerald and Marlene Scott. Reverend
Scott has testified that Marshall lived with him and his wife in 1982 as a part
of a “Family Oriented Group Home” as a “family model home” after Marshall
completed his stay at the Braddock House in order for him to be better
equipped when he returned “into the family life.” Reverend Scott stated that
his role was to be “the father figure” and that the boys called him “dad.”
Had Reverend Scott been contacted for mitigation evidence, he would have
testified that in this structured environment with a family who loved and cared
for him, Marshall “was fabulous.” Reverend Scott would have testified that
they had “no difficulties with him” and that he cannot “remember any
68
situation that [he] even had to correct him” and noted that “he was super.”
Reverend Scott could have explained to the jury that Marshall would help look
after his mentally challenged son, Mikey, and that his daughter considered
Marshall another brother in the family. (C. 5009). Further, Reverend Scott
testified that he absolutely never saw any violent tendencies in Marshall. Id.
Reverend Scott would have told the jury that he does not recall Marshall ever
receiving a visit, telephone call, or single piece of mail from Beverley. (C.
5010). In fact, Reverend Scott explained that it was like there “was no home
for him to go to.”
Reverend Scott’s wife, Marlene Scott, testified that Marshall called her
“Mom.” Mrs. Scott would have explained that her role was to help boys such
as Marshall “see how an ordinary home functioned, how husband and wife
reacted and how they reacted with the children and how discipline came about,
and how there was much love, that love was something that could be
expressed.” Mrs. Scott would have testified that while Marshall lived with her
he did his chores and was always willing to do anything she asked. Mrs. Scott
could have explained to the jury that in such a structured environment
surrounded by a loving family, she did not recall any problems with Marshall
and that “[o]ut of the 44 boys” that she acted as a foster parent to, that “if you
would have ever asked me which ones would be in trouble, he would have
never made that list. He was just – he was what you wished all of them would
be.”
Doc. 7 at 12-15 (citing Vol. 34 at 4972-5000; Vol. 35 at 5008-11; Vol. 37 at 237334; Vol. 39 at 106-16).
i.
During his Rule 32 proceedings, Marshall wanted to call Jan Vogelsang, a
social worker and mitigation specialist, to testify about his background and the
impact it had on him. However, Vogelsang advised Marshall’s counsel that the threemonth window available for her assessment was too short, and counsel requested a
continuance to allow Vogelsang to complete her report. Vol. 39 at 128. The court
69
denied the continuance and foreclosed Vogelsang’s testimony as cumulative, Vol.
37 at 394-403, but allowed Marshall to proffer an affidavit from Vogelsang,31 vol.
39 at 117-66. And, because she did not have time to perform a full biopsychosocial
assessment, Vogelsang submitted instead a “modified” report that provided an
incomplete assessment of Marshall.32 Doc. 45 at 63-64.
31
The Respondent argued that Vogelsang’s testimony at the Rule 32 hearing was irrelevant
to the ineffective assistance claim, stating Marshall’s counsel could not have hired her during the
trial. Doc. 48 at 3-6, 23-24. But, the point is not whether Vogelsang herself could have testified
during the trial, but rather that Marshall’s counsel were deficient for failing to find the evidence
that Vogelsang found or hire a mitigation expert who could have done the same work, and that had
counsel presented this evidence to the jury, there existed a reasonable probability of a life sentence
instead of death. Furthermore, the court rejects the Respondent’s contention that the trial court
would have excluded Vogelsang’s testimony as hearsay. Id. at 21-22. Under Alabama law, “[t]he
trial court may properly consider hearsay at the penalty phase of trial if the defendant has an
opportunity to rebut the evidence.” Ex Parte McGahee, 632 So. 2d 981, 982-83 (Ala. 1993)); Ala.
Code §§ 13A-5-51–52 (stating that a defendant at sentencing may offer evidence of any aspect of
a defendant’s character or record and any other relevant mitigating circumstance); Ala. R. Evid.
1101 (establishing that the Rules of Evidence do not apply in sentencing proceedings).
32
This court granted an evidentiary hearing in part to allow the full testimony of Vogelsang.
The undersigned reasoned that “because Dr. Vogelsang’s proffer is consistent with the testimony
from Marshall’s family members during the Rule 32 hearing and is replete with potential
mitigating evidence that trial counsel purportedly erred in either not discovering or failing to
present at the penalty phase, Marshall has established that his trial counsel’s investigation into
potential mitigating evidence was so deficient that, if true, would entitle him to habeas relief.”
Doc. 23. And consistent with Marshall’s contention about the affidavit, at the hearing, Vogelsang
testified that due to time constraints and the denial of a continuance, the affidavit proffered at the
Rule 32 hearing provided only a truncated assessment of Marshall. Doc. 45 at 63-64. In any event,
between the Rule 32 hearing and this court’s evidentiary hearing, she gathered new records,
conducted additional research, interviewed additional witnesses, and performed multi-generational
histories of Marshall’s family and assessments of communities where he lived. Id. Because the
potency of the mitigation contained in Vogelsang’s report depended on its presentation as a whole,
and because none of the state courts had the opportunity to review this report, this court reviews
the mitigation evidence contained therein de novo. See Johnson v. Williams, 568 U.S. 289, 303
(2013) (“AEDPA permits de novo review in those rare cases when a state court decides a federal
claim in a way that is ‘contrary to’ clearly established Supreme Court precedent. When the
evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in
state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before
70
Through her assessment, Vogelsang identified five types of “psychological
battering” Marshall experienced as a child, as well as twenty risk factors in
Marshall’s life that impacted his psychological and emotional development. See
Doc. 47-11. Vogelsang testified that, taken together, certain features of Marshall’s
life accumulated to leave him with poor judgment, poor insight, a lack of resilience,
and a “complete[] [inability] to handle rejection or abandonment.” 33 Doc. 45 at 151.
Had Marshall’s counsel engaged in a reasonable investigation, the jury would have
heard from Marshall’s family and/or from someone like Vogelsang about Marshall’s
violent, deprived, and perilous childhood, and the impact it likely had on his
development. 34 But trial counsel presented no such evidence, and instead offered to
the jury that “the only way [he] c[ould] see that [the jury] might come back with a
a federal judge.”). See also Berghuis v. Thompkins, 560 U.S. 370 (2010); Pittman v. Sec’y, Fla
Dept. of Corr., 871 F.3d 1231, 1245 (11th Cir. 2017).
33
The features Vogelsang identified included: “Accumulation of Risk Factors,” including
being “[b]orn into an unstable home,” “[a]bandoned by father,” “[p]hysically abused by
stepfather,” “[a]bandoned by mother,” “[p]eriods of hunger,” “[w]itnessing violence to loved
ones,” “[p]hysically abused by mother’s violent boyfriend,” “[f]orced to steal to support mother
and her boyfriends,” “[w]itnessed stepfather attempt to run over mother,” and “[i]nappropriate
family sexual behavior.” Doc. 47-11 at 20-22.
34
None of this evidence presented the “double-edged-sword dilemma” contemplated by
the Eleventh Circuit in Peede v. Attorney General, 715 F. Appx. 923, 931 (11th Cir. 2017) (finding
new mitigation evidence was insufficient to grant habeas relief where it “could have hurt as much
as it helped”). See also Evans v. Sec’y, Fla. Dep’t of Corrs., 703 F.3d 1316, 1327 (11th Cir.
2013) (deferring to state court’s rejection of relief where new evidence was a double-edged sword
because evidence can be more harmful than helpful); Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 650 (11th Cir. 2016) (“And there is a real danger that
additional mitigation evidence, particularly if presented by testifying family members, would have
been a ‘double-edged sword,’ which argues against a showing of prejudice.” (citing cases)).
71
life without parole recommendation would be just out of compassion,” and
apologized that he had nothing else to give the jury. Vol. 7, Tab 24 at 770-72.
Counsel’s sincere apology does not excuse his failure to present available mitigation
evidence.35
ii.
To restate, Marshall’s jury heard no evidence that would “humanize [him] or
allow them to accurately gauge his moral culpability.” Porter, 558 U.S. at 41. Had
Marshall’s counsel performed a reasonable investigation, they would have had the
“kind of troubled history [the Supreme Court] ha[s] declared relevant to assessing a
defendant’s moral culpability.” Wiggins, 539 U.S. at 535. Instead, the picture the
jury received of Marshall’s life was nonexistent. This meant that the jury lacked “so
many important data points about [Marshall’s] background and character” that it
completely foreclosed their ability to “accurately gauge [his] moral culpability.”
Maples, 729 F. App’x at 827. The failure is not necessarily a non-factor or non-
35
The failure to present any mitigation evidence distinguishes this case from others in
which a habeas petitioner is seeking to introduce evidence that is cumulative to that presented in
his trial. Compare Cullen v. Pinholster, 563 U.S. 170, 200-01 (2011) (finding “no reasonable
probability that . . . additional evidence . . . would have changed the jury's verdict” when the
evidence “largely duplicated the mitigation evidence at trial” and was “of questionable mitigating
value”); Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1296 (11th Cir. 2012) (finding
new evidence could not show prejudice because it merely recapitulated evidence heard at trial).
72
prejudicial because the evidence in question may well have convinced a few more
jurors to recommend a sentence other than death.36
Moreover, “the weight of the evidence in aggravation is not as substantial as
the sentencing judge thought.” Daniel, 822 F.3d at 1277 (citing Porter, 558 U.S. at
41). One of the aggravating circumstances the State presented to the jury was
incorrect: Marshall was not “under a sentence of imprisonment” when he committed
the murder, a fact the ACCA acknowledged in their opinion. 37 Marshall v. State, 182
So. 3d 573 at 607, n.9 (Ala. Crim. App. 2014). This correction “reduce[s] the ballast
on the aggravating side of the scale.” Porter, 558 U.S. at 41. Reweighing the two
proper aggravating circumstances—that Marshall had a prior conviction for a violent
felony and was engaged in a burglary when he committed the murder—against a
36
In Alabama, a jury verdict for life without parole “must be based on a vote of a majority
of the jurors,” but a jury verdict for death “must be based on a vote of at least 10 jurors.” Ala.Code
§ 13A–5–46(f). If the jury is unable to reach a verdict as to sentence, the trial court is authorized
to declare a mistrial. Id. § 13A–5–46(g).
37
Marshall raised this point as a separate contention of alleged ineffective assistance –
counsel’s “fail[ure] to correct the trial court’s reliance on a critical aggravating factor,” namely,
that he was on probation at the time of the murder. Doc. 7 at 18. The trial court found that two
aggravating factors weighed against Marshall, in addition to his (ultimately erroneous)
probationary status. Marshall, 992 So. 2d at 779. As the ACCA found, the jury recommended
death “based on the weight given to the other two aggravating circumstances: (1) the Alabama
Code Section 13A–5–49(2) aggravating circumstance that Marshall had previously been convicted
of a felony involving the use or threat of violence to the person on two prior occasions and (2) the
Alabama Code Section 13A–5–49(4) aggravating circumstance that Marshall was engaged in the
commission of a burglary at the time of the commission of the capital offense.” Marshall v. State,
182 So. 3d 573, 594 (Ala. Crim. App. 2014). Therefore, because two other aggravating
circumstances existed, the ACCA dismissal of this claim on its merits was not “contrary to, or . . .
an unreasonable application of, clearly established federal law,” nor was it an “unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d).
73
competent closing statement and testimony from his family, foster parents,
children’s home director, as well as from medical records and a competent
mitigation specialist detailing his painful life history, this court finds that the wealth
of mitigating evidence Marshall’s counsel failed to find or present was both powerful
and significant, creating a “substantial likelihood of a different sentence.” Cullen,
563 U.S. at 202.
Based on both the amount and the kind of mitigation that counsel could have
presented at the penalty phase, this court cannot conclude that no reasonable
possibility existed that Marshall’s jury would not have recommended life in prison
instead of death. Accordingly, Marshall has also established the prejudice prong and
is entitled to relief on this claim.
2.
Also, in relation to the penalty phase, Marshall contends that his counsel
“improperly emphasized . . . the inculpatory evidence against [him]” in closing
statements. Doc. 7 at 19. At issue is the following portion of counsel’s closing:
The only thing I can say is . . . none of us know what the future is going
to bring . . . I don’t know if [Marshall] may somehow someday be able
to see the error of his ways and do right . . . In this situation the evidence
is overwhelming. The only way I can see that you might come back
with a life without parole recommendation would be just out of
compassion . . . I’m sorry I didn’t have anything else to say or give you.
Vol. 7, Tab 24 at 770-72.
74
a.
The Respondent contends that Marshall defaulted this claim when he failed to
properly raise it under Alabama Rule of Appellate Procedure 28(a)(10).38 Docs. 11
at 10; 12 at 28. Indeed, the ACCA dismissed this claim along with several others, on
procedural grounds:
Marshall, in raising these arguments, cites no authority supporting his
claims. It is well settled that “[i]t is not the function of this Court to do
a party’s legal research or to make and address legal arguments for a
party based on undelineated general propositions not supported by
sufficient authority or argument.”’ Borden, 60 So.3d at 943 (quoting
Butler, 871 So. 2d at 20, quoting in turn Dykes, 652 So. 2d at 251).
Consequently, these arguments do not satisfy Rule 28(a)(10), Ala.
R.App. P., and are deemed abandoned.
Marshall v. State, 182 So. 3d 573, 623 (Ala. Crim. App. 2014).
Marshall counters that the ACCA “did not clearly indicate its reliance on state
procedural grounds for its decision to reject [his] argument,” doc. 17 at 32, and
inaccurately found he insufficiently pleaded his claim under Rule 28(a)(10), id. at
33-34. But, as the ACCA noted, the burden is not on the court to make or flesh out
arguments for the parties. Rather, “[t]o obtain review of an argument on appeal, an
appellant must provide citations to relevant cases or other legal authorities and an
analysis of why those cases or other authorities support an argument that an error
38
Rule 28(a)(10) requires that an argument contain “the contentions of the appellant/
petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases,
statutes, other authorities, and parts of the record relied upon.”
75
occurred and that the alleged error should result in reversal.” Alonso v. State, 228
So. 3d 1093, 1108 (Ala. Crim. App. 2016) (citations omitted). Still, courts must not
liberally or gratuitously apply Rule 28(a)(10) for convenience or expedience as a
way to whittle down a voluminous appeal. Instead, “waiver of an argument for
failure to comply with Rule 28(a)(10) . . . has been limited to those cases where there
is no argument presented in the brief and there are few, if any, citations to relevant
legal authority, resulting in an argument consisting of undelineated general
propositions.” Borden, 60 So. 3d at 944.
A review of the relevant brief indicates that Marshall relied solely upon ABA
Guideline 10.11 to support his argument that “defense counsel should be an ardent
advocate for their client, especially when that client faces death.” Vol. 44 at 152–
53. Marshall then cites to the allegedly prejudicial closing argument and deems it
“devaluing to the client.” Id. at 152. Marshall cites no case law or statute supporting
his claim, and provided only the ABA guidelines and a vague, conclusory argument,
in clear violation of Rule 28(a)(10). See Vol. 44, Tab 61. “[P]revailing norms of
practice as reflected in American Bar Association standards . . . are guides to
determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at
688-89. By “explicitly invoking a state procedural bar rule as a separate basis for
decision,” the ACCA’s application of Rule 28(a)(10) to Marshall’s claim presents
an adequate and independent state procedural ground for dismissal. Harris v. Reed,
76
489 U.S. 255, 264 n.10 (1989). Accordingly, the court is unable to determine the
merits of this unexhausted (and now procedurally barred) claim. 39
b.
Alternatively, the claim fails for two additional reasons. First, Marshall
procedurally defaulted this claim by failing to raise it in his application for rehearing
to the ACCA. See generally Vol. 45, Tab. 64. The only mention of the claim is a
brief reference to counsel’s allegedly prejudicial closing argument in the Statement
of the Case. A federal court cannot grant habeas relief to a state prisoner “unless it
appears that the applicant has exhausted the remedies available in the courts of the
State or there is an absence of available State corrective process; or circumstances
exist that render such process ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1). This exhaustion requires the petitioner to “invoke[] one
complete round of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). And in Alabama, this complete round involves
an application for rehearing following an ACCA denial of a Rule 32 appeal, as well
39
Marshall’s petition contains both exhausted and nonexhausted claims. Ordinarily, “a
district court must dismiss such ‘mixed petitions,’ leaving the prisoner with the choice of returning
to state court to exhaust his claims or of amending or resubmitting the habeas petition to present
only exhausted claims to the district court.” Rose v. Lundy, 455 U.S. 509, 510 (1982). However,
“[d]ismissing a mixed petition is of little utility . . . when the claims raised for the first time at the
federal level can no longer be litigated on the merits in state court because they are procedurally
barred. In such a case, requiring the petitioner to return to state court only to make a futile
application for relief simply delays the federal courts’ adjudication of his petition.” Kelley v.
Secretary for Dep’t of Corrections, 377 F.3d 1317, 1351 (11th Cir. 2004).
77
as a petition for certiorari to the Alabama Supreme Court. Smith v. Jones, 256 F.3d
1135, 1140-41 (11th Cir. 2001). In each step, the petitioner must present the federal
claim so that “a reasonable reader would understand each claim’s particular legal
basis and specific factual foundation.” Kelley, 377 F.3d at 1344-45. Here, Marshall
failed to exhaust this claim by leaving it out of his application for rehearing.
Second, while the damning remarks made by counsel arguably run afoul of
the deficiency prong of Strickland, Marshall cannot show prejudice. Based on the
case Marshall’s counsel presented, the defense had little fodder for a closing
statement. As lead counsel admitted in his closing, “I didn’t have any witnesses to
call . . . I didn’t have anything else to say or give you.” Vol. 7, Tab 24 at 772. In that
respect, even if counsel had refrained from his more objectionable comments, 40 his
closing would still have lacked any substantive references that would have made a
difference. And, consequently, Marshall has not presented any specific evidence that
he would have received a different sentence but for the improper closing argument.
Therefore, he fails to satisfy the Strickland prejudice standard.
40
Counsel stated to the jury, “In this situation the evidence is overwhelming. The only way
I can see that you might come back with a life without parole recommendation would be just out
of compassion.” Vol 7, Tab 24 at 772. The court notes that in the context of counsel’s deficient
and prejudicial failure to develop and present mitigating evidence, counsel’s statement drawing
attention to the lack of evidence in his closing argument is even more egregious. Though this
argument does not rise to the level of ineffective assistance on its own, when taken in combination
with the counsel’s other failures, it adds to the picture of a set of attorneys who “g[ave] up” on
their client. Hardwick, 803 F.3d at 547. However, the court does not include this argument in its
assessment of Marshall’s successful ineffective assistance claim because it was defaulted and
therefore outside this court’s proper review.
78
3.
Turning next to Marshall’s contentions of alleged ineffective assistance at the
guilt phase claims, Marshall challenges counsel’s failure to hire a forensic expert to
rebut the State expert’s trial testimony regarding a vaginal lesion found on the
victim. Doc. 7 at 30-33. Marshall contends that the failure to offer a forensic witness
precluded counsel from “conduct[ing] even a minimally effective cross-examination
of the State’s witness, Dr. William Shores.” Id. at 30. Allegedly, Dr. Shores’
testimony that the vaginal lesion likely occurred within 24-48 hours before the
victim’s death, id., allowed the jury to infer that Marshall caused the lesion, id. at
33. The ACCA agreed with the State that counsel made a strategic choice on this
issue, noting Mathis’ testimony at the Rule 32 hearing that he had no reason to doubt
the State’s expert, did not believe the defense would benefit from delving into the
victim’s sexual history, and did not think hiring a forensic expert was “pertinent.”
Marshall v. State, 182 So. 3d 573, 586 (Ala. Crim. App. 2014) (citing Vol. 36 at
164-65). The court agrees.
a.
In his petition to this court, Marshall asserted that because the Rule 32 court
refused to allow his forensic rebuttal witness, Dr. George R. Nichols, to review tissue
samples from the victim or testify at the hearing, Vol. 37 at 390-92, he proffered an
affidavit from Dr. Nichols, id. at 393. And in that affidavit, Dr. Nichols stated that
79
Dr. Shores could not have had “any basis for concluding that the genital lesion . . .
occurred 24-48 [hours] prior to his examination” because he did not perform the
microscopic histological examination required to make such an assessment. Vol. 43
at 352. Dr. Nichols further stated that, had Marshall’s defense team contacted him
and put him up to testify at the 2006 trial, he would have “provided testimony
consistent with . . . [his] affidavit.” Id. at 352-53.
After finding that Marshall presented facts which, if proven true, would
demonstrate prejudice from his counsel’s failure to hire a forensic expert, this court
ordered an evidentiary hearing to allow Dr. Nichols to analyze wet tissue samples
from the victim and provide testimony. See Doc. 23 at 8-9. At the evidentiary
hearing, the court received Dr. Nichols as an expert witness in the area of clinical
and forensic pathology. Doc. 45 at 9. In his testimony, Dr. Nichols elaborated on the
statements in his affidavit, explained the process of a microscopic histological
examination, and opined that Dr. Shores could not have determined the timing of the
lesion because Dr. Shores “did an incomplete examination.” 41 Id. at 22-23.
41
Dr. Nichols explained, “Dr. Shores needed to evaluate in more detail the vaginal lesion.
I’ll use the word lesion, meaning anything other than normal. So he found a lesion, took
photographs of the lesion, made a diagram of the lesion, said a few words about the lesion, and
stopped. He didn’t see if there was deeper injury to vaginal or perivaginal tissues that could be
seen with further dissection. He made no attempt to retain the tissues and study it histologically to
make a determination of vital reaction occurring in the tissues, meaning that the heart was beating
after the injury and she was alive when it happened. He made no attempt to see if any form of
inflammatory response had occurred in the damaged tissues which would occur if she had lived
for about six hours or longer after the injury had occurred so you could begin to time when the
80
According to Dr. Nichols, his examination of the wet tissue samples provided no
clarity on the timing of the lesion, doc. 45 at 22-29, that Dr. Shores could not have
known from his examination whether the lesion occurred before or after the victim’s
death or the age of the lesion, id. at 31-32, and that the lesion could have resulted
from mishandling of the victim’s body after death, id. at 31. 42
b.
Dr. Nichols’ testimony at the evidentiary hearing largely tracked his affidavit
to the Rule 32 court. In light of this, the court finds that Marshall failed to present
any new evidence to this court that was not before the state courts. Therefore, the
court reviews the evidence with the deference required by § 2254, considering only
whether any reasonable jurist could have reached the same decision as the ACCA.
The answer is yes. To begin, as to the Strickland deficiency prong, counsel likely
made a strategic error by failing to call a forensics expert in light of counsel’s
opening statement in which counsel promised that the defense would prove “through
event happened if she was alive. And he made no attempt to see if the lesion was an artifact
occurring after death.”
42
The court notes that during this line of question, Marshall’s counsel referenced
Petitioner’s Exhibit 13, which contains a narrative written by an investigator in the original trial.
The investigator stated the following regarding Dr. Shores: “He found out that no semen was found
on the victim and now says he is not sure how the tear . . . happened. He says that might even have
come from the body bag . . . [H]e says that he is not very familiar with trauma related to sexual
assault. He would prefer we find an expert.” Doc. 47-2 at 11. Marshall contends in his postevidentiary hearing brief, doc. 46, that “no evidence was ever presented at . . . trial that the body
bag could have been a possible cause of the mucosal tear.” Id. at 6. To the extent that Marshall is
attempting to raise a Brady claim that the State failed to divulge this potentially favorable evidence
to the defense, the court finds Marshall fails to allege sufficient facts to state the claim.
81
a forensics examiner who does DNA testing” that Marshall had no sexual contact
with the victim. Vol. 4, Tab 8 at 252. Moreover, lead counsel admitted at the Rule
32 hearing that testimony from a forensic expert would have improved the defense’s
chances to successfully introduce sexually explicit letters from the victim to her
boyfriend. Vol. 36 at 205-07. These letters were the only evidence suggesting an
alternative source of the vaginal lesion, and their exclusion meant the defense had
no credible basis to raise the argument of an alternative source or to challenge the
State’s contention that Marshall sexually abused or assaulted the victim. In
discussing his decision not to hire a forensic expert, lead trial counsel further
admitted that “if [he] had it to do again, [he] would do just that, but [he] didn’t do
it,” commenting, “[i]t was not done. I can’t give an explanation as to why . . . I may
have just missed it. I don’t know.” Id. at 166-67.
However, despite counsel’s hindsight reflection and admission, a reasonable
jurist could still find that the decision not to hire a rebuttal expert was strategic, and
therefore outside the Strickland purview of deficiency. As the ACCA discussed:
Mathis testified at the evidentiary hearing that, ‘had [he] thought it was
pertinent, [he] would have hired [a forensic pathologist for the trial].’ (EH.
164–65.) Mathis’s testimony indicated that he did not think that a forensic
pathologist was necessary because he had no reason to doubt the State expert's
conclusions regarding the timing of the vaginal tear and that he thought it was
not in Marshall’s best interest to impugn the reputation of the 15–year–old
victim by suggesting that she was sexually active without presenting
compelling evidence of that fact, which trial counsel did not have. (EH. 189–
92.) ‘I did not want to be cast in the mold of somebody who comes up here
speaking ill of a dead child,’ said Mathis. (EH. 192.) Mathis testified that, with
82
regard to challenging the State’s forensic evidence by suggesting that the
victim might have had sex with her boyfriend around the time of the murder,
he ‘felt the negatives outweighed the positives and [he therefore] left it alone.’
Marshall v. State, 182 So. 3d 573, 586 (Ala. Crim. App. 2014). Strickland permits
counsel to “make reasonable decision[s] that make[] particular investigations
unnecessary.” 466 U.S. at 691. And, defense attorneys have “wide latitude [when]
making tactical decisions.” Id. at 689. Here, counsel indicated that they did not
pursue a rebuttal forensic expert because they believed an argument centering
around the victim’s sexual activity would impede their ability to advocate for
Marshall. Vol. 36 at 189-92. They instead cross-examined Dr. Shores to highlight
his uncertainty as to the timing of the lesion and show the lack of a direct link to
Marshall. Vol. 6 at 582-95. Accordingly, the ACCA could reasonably “conclude that
defense counsel could follow a strategy that did not require the use of experts.”
Harrington v. Richter, 562 U.S. 86, 106-07 (2011). Strategic decisions, even if
hindsight proves them in error, do not rise to a deficiency under Strickland.
c.
Alternatively, Marshall cannot demonstrate prejudice under Strickland for
two independent reasons. To begin, the jury heard evidence that Dr. Shores’
testimony regarding the source of the tear was inconclusive, and rebuttal testimony
on this point would not have meaningfully changed the evidence already before the
jury. The Rule 32 record demonstrates the evidence at trial showed that the forensic
83
report regarding the vaginal tear was inconclusive. Indeed, Dr. Shores testified at
trial that his findings did not prove sexual assault, that he found no trauma to the
vagina or semen therein, and that while the lesion “raise[d] the question of . . . sexual
activity or sexual abuse[,] [t]hat’s all it [did].” Vol 6. at 582-83. He further admitted,
“I’m not an expert in that area.” Id. at 583. And, in discussing the timing of the lesion
during both direct and cross examination, Dr. Shores expressed uncertainty. See
generally id. at 582-96.43 Moreover, the State presented other evidence, albeit
circumstantial, that Marshall sexually abused or assaulted the victim, including
testimony that Marshall had spied on the victim while she showered, Vol. 8, Tab at
12, that he kept photographs of her clad in a swimsuit stored in his dresser drawer,
id. at 10, and that the victim’s body was found naked except for her socks and her
jewelry, id. Finally, as Marshall concedes, the jury deliberated about the cause of the
vaginal tear, 44 suggesting that trial counsel succeeded in creating doubt as to Dr.
Shores’ contention. While one reasonable jurist could find that these deliberations
show the jury considered the lesion important to their decision, another could find
43
Dr. Shores testified “I [d]efer to those people that are much more of an expert in that
area than I am,” Vol. 6 at 582, “I think it’s probably less than 24 hours in age . . . I guess before
the time of examination . . . Who knows, basically, how much any changes are going to be retarded
by refrigeration and that type of stuff . . . It could potentially be older if it were very cold,” id. at
589-90.
44
Doc. 17 at 47-48 (One juror, M.J., mentioned “that when [a] male juror asked whether
the vaginal tear could have been caused by masturbation, she and another female juror informed
the rest of the jury that the vaginal tear could not have been caused by masturbation.”).
84
that the jury properly viewed the State expert’s testimony as inconclusive as to the
source of the tear. Indeed, ultimately, the jury did not find Marshall guilty of murder
while committing rape in the first degree and convicted him instead of the lesser
included offense of murder. Vol. 6, Tab 14 at 735.
For all these reasons, the ACCA reasonably held that Marshall was not
prejudiced by his counsel’s failure to hire a rebuttal forensic expert. Therefore, this
ineffective assistance claim is due to be denied.
4.
Marshall also alleges ineffective assistance at the guilt phase based on the
failure to “seek out and produce the lease to [his] apartment.” Doc. 7 at 37-38.
Marshall alleges that his arrest and ultimate confession resulted from police officers
unlawfully entering his home on the improper consent of his ex-wife, Tonya Bentley.
Id. Although Bentley had moved out of the apartment two weeks prior to the search,
she told law enforcement that she remained on the lease, that she still had belongings
in the apartment, and that she retained a key. Marshall v. State, 992 So. 2d at 76567. When Bentley’s key and the landlord’s key failed to open the door, the officers
requested and received Bentley’s permission to forcibly enter, at which point they
found and detained Marshall. Id. Marshall contends that this entry led to his
confession, and that his trial counsel acted deficiently in failing to secure the lease
and suppress the confession. Doc. 7 at 37-29. The court disagrees.
85
Habeas relief is generally unavailable on Fourth Amendment claims, but
petitioners may bring a Sixth Amendment ineffective assistance of counsel claim
based on an alleged failure to adequately litigate a Fourth Amendment violation.
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The petitioner must satisfy the
deficiency prong of Strickland and demonstrate actual prejudice by “prov[ing] that
his Fourth Amendment claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the excludable evidence.” Id. As
the ACCA noted:
[C]laims of failure to investigate must show with specificity what information
would have been obtained with investigation, and whether, assuming the
evidence is admissible, its admission would have produced a different result.
Because Marshall failed to produce the purported “new” lease, or any other
evidence that it ever existed, this issue would have had no affect on the
outcome of his trial. Hence, this sub-claim is denied.
Marshall v. State, 182 So. 3d 573, 587–88 (Ala. Crim. App. 2014).
To show that his claim has merit, Marshall would need to demonstrate the
officers conducted an unlawful search. The “determination of consent to enter must
‘be judged against an objective standard: would the facts available to the officer at
the moment warrant a man of reasonable caution in the belief’ that the consenting
party had authority over the premise?” Illinois v. Rodriguez, 497 U.S. 177, 188-89
(1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). If the officer answers this
question in the negative, “then warrantless entry without further inquiry is unlawful
unless authority actually exists. But if so, the search is valid.” Id. (emphasis added).
86
This creates a two-part inquiry into the lawfulness of the forcible entry into
Marshall’s apartment: (1) did the facts before the officers create a reasonable belief
that Bentley had the authority to consent and, if not, (2) did Bentley actually have
the authority to consent. An affirmative answer to either question is sufficient.
No relief is warranted because reasonable jurists could differ on both of these
questions.45 To begin, there is no proof that the lease would have supported
Marshall’s contentions. As the ACCA held, “Marshall . . . did not produce the
45
“Common authority [to consent to search] rest[s] on mutual use of the property by
persons generally having joint access or control for most purposes.” Rodriquez, 497 U.S. at 181.
In Rodriguez, the consenting party lacked common authority because she “had moved out . . .
almost a month before the search at issue [and] took her and her children’s clothing with her,
though leaving behind some furniture and household effects . . . [S]he sometimes spent the night
at [the] apartment, but never invited her friends there, and never went there herself when [the
resident] was not there. Her name was not on the lease nor did she contribute to the rent. She had
a key to the apartment.” Id. The search in Rodriguez bears substantial similarities to the search of
Marshall’s apartment. Bentley had moved out of the apartment two weeks prior to the search,
taking her children and many of her belongings with her. Marshall, 992 So.2d at 765-67. She
represented to the officers that she was on the lease, but the officers did not independently verify
this claim. Id. Though she had a key to the apartment, her key did not work when she arrived. Id.
Assuming her name was not on the lease, based on Rodriguez, Bentley may not have had actual
authority to consent to search. However, courts differ on whether these facts would present
apparent authority to consent to search such that an officer would reasonably believe the search
was lawful. Compare Koch v. Town of Brattleboro, Vermont, 287 F.3d 167, 167 n.4 (2d Cir. 2002)
(finding no apparent authority in a case with facts similar to Rodriguez but where officers knew
the consenting party did not live at the residence); United States v. Clay, 630 F. App’x 377, 383
(6th Cir. 2015) (“Factors we consider in determining whether a girlfriend had apparent authority
include whether she had a key . . . whether she provided a detailed description of the premises . . .
whether her name was on the lease . . . whether the police independently knew that she lived with
the defendant . . . [even when] the defendant changed the locks on the exterior doors of the searched
house [or] had expressly asked the police to bar the consenting girlfriend from the searched house”)
(citations and quotation marks omitted); United States v. Trzaska, 859 F.2d 1118, 1120 (2d
Cir.1988) (estranged wife had authority to consent to a search of her former husband's apartment
two weeks after she moved out, where she still had a key and collected personal belongings during
the search).
87
alleged lease purporting to remove Tonya as a tenant of the property—or any other
evidence demonstrating that Tonya was not longer a tenant on the lease[,]” and,
consequently, “Marshall failed to show that had his trial counsel obtained the lease
it would have, in fact, established that Tonya was no longer listed as a tenant on the
lease.” Marshall v. State, 182 So. 3d at 587. Moreover, even with the lease or
evidence of it, suppression of the confession is not automatic. Generally, “a
confession obtained through custodial interrogation after an illegal arrest should be
excluded unless intervening events break the causal connection between the illegal
arrest and the confession so that the confession is ‘sufficiently an act of free will to
purge the primary taint.’” Taylor v. Alabama, 457 U.S. 687, 690 (1982). Stated
differently, suppression of Marshall’s confession as “fruit of the poisonous tree . . .
[would] depend[] on whether the subsequent evidence to which instant objection is
made has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” United States v.
Cordova, 829 F. Supp. 2d 1342, 1348–49 (N.D. Ga. 2011) (citing Brown v. Illinois,
422 U.S. 590, 603 (1975)). Courts examine a variety of factors to assess whether
evidence is obtained by exploitation, including Miranda warnings, “the temporal
proximity of the arrest and the confession, the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the official
misconduct.” Id. Finally, “[i]n determining whether there is a nexus between the
88
evidence in question and the police conduct, [the] inquiry is essentially a common
sense evaluation of the facts and circumstances of the particular case.” United States
v. Kapperman, 764 F.2d 786, 793 (11th Cir. 1985).
Here again, Marshall would necessarily fail to establish prejudice because he
cannot show that suppressing the search would necessarily have excluded the
introduction of his confession. As the ACCA noted:
Here, if we were to consider Marshall to have been arrested from the
time police entered his apartment and handcuffed him on the evening
of December 28, 2004, then his confession was given some 30 hours
later—the night of December 29 or the earliest morning hours of
December 30. Several crucial intervening circumstances took place in
that time. Marshall was advised of his Miranda rights before leaving
the apartment. He spoke with Detective O’Connor at O’Connor’s office
after once again being advised of his rights and executing a waiver of
those rights. It was undisputed that O’Connor offered to drive Marshall
back to his apartment. Detective O’Connor also gave Marshall the
option of staying at the Vestavia City Hall that night, because the doors
to Marshall’s apartment had been broken when the police entered the
apartment. Police continued an independent investigation into Alicia’s
disappearance and discovered her clothing, her purse and the comforter
from her bed, which had been discarded near Marshall’s apartment.
From the evidence, police were able to obtain a kidnapping warrant for
Marshall’s arrest the morning of December 29. When FBI agents
questioned Marshall, they, too, advised him of his rights and had him
sign an acknowledgment that he understood those rights. All of these
facts, taken together, provide sufficient intervening circumstances that
would have broken the causal connection between the allegedly illegal
arrest and Marshall's confession.
Marshall v. State, 992 So. 2d 762, 769–70 (Ala. Crim. App. 2007).
89
Put simply, Marshall cannot establish the merits of his Fourth Amendment
claim or satisfy the prejudice prong of Strickland. The ACCA reasonably applied
the law on this matter, and Marshall’s claim is due to be dismissed.
To close, the alleged ineffective assistance claims are due to be denied except
for the claim related to the failure to present available mitigation evidence at the
penalty phase.
B.
Marshall contends in Claim B that four alleged instances of juror misconduct
compromised his right to a fair trial, citing to three jurors’ alleged dishonesty during
voir dire and that some jurors introduced extraneous information to the deliberations.
Doc. 7 at 39-51. No relief is warranted based on these contentions.
1.
As it relates to juror dishonesty during voir dire, “to obtain a new trial . . . a
party must first demonstrate that a juror failed to answer honestly a material question
. . . and then further show that a correct response would have provided a valid basis
for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556 (1984). The first prong requires a determination of whether the juror
answered honestly or was aware of the falsity of his or her answers. Id. The second
prong asks whether a correct response would provide a valid basis for a cause
challenge and a showing of actual bias because of the juror’s nondisclosure. United
90
States v. Burke, 724 F. App’x 837, 839 (11th Cir. 2018). “Bias may be shown either
by express admission or by proof of specific facts showing such a close connection
to the circumstances at hand that bias must be presumed.” Id. (citing United States
v. Carpa, 271 F.3d 962, 967 (11th Cir. 2001). In determining whether a defendant
was prejudiced, Alabama courts have looked at the following factors: “temporal
remoteness of the matter inquired about, the ambiguity of the question propounded,
the prospective juror’s inadvertence or willfulness in falsifying or failing to answer,
the failure of the juror to recollect, and the materiality of the matter inquired about.”
Ex parte Dobyne, 805 So. 2d 763, 772 (Ala. 2001).
a.
Marshall contends that Juror M.J. failed to truthfully answer a question about
being a victim of violence and that, if she had, his counsel would have struck her for
cause. Doc. 7 at 42-44. 46 The ACCA rejected this claim based on the ambiguity of
the question and M.J.’s honest belief that it did not apply to her situation:
Juror M.J. testified that she remembered being asked the above-listed
questions and that she did not respond to them. With regard to the
question about being the victim of a crime, juror M.J. explained that
when she “thought of a crime[, she] thought of being burglarized, or
having something stolen from [her] car. [She] just didn’t equate the
46
Marshall alleges M.J. deliberately failed to answer the following questions: “Do any of
the you have a bias or prejudice that would influence your verdict . . . in any way? . . . Do you
have any reason why you could not give both the State of Alabama and the defendant . . . a fair
and impartial trial? . . . If anyone has been the victim of a violent crime . . . Anyone a victim? . . .
Is there anybody here who feels like for whatever reason . . . you won’t be able to render a fair and
impartial verdict in this case? You won’t be able to sit as a fair and impartial juror? . . . Do you
feel you might require less proof than a case which did not involve violence?”
91
term ‘crime’ with the domestic situation.” (R2. 30–31.) Juror M.J.
further stated that she believed that the “closest” thing to a crime
involving her first husband was when she believed that he had
discharged a firearm after an altercation with her. Juror M.J. explained
that she did not answer the question because she did not believe that her
first husband had committed a crime. Juror M.J. further explained that
if an attorney had asked “if [she] had been in an abusive relationship,
[she] certainly would have said yes.” (R2. 33.)
On cross-examination, juror M.J. testified that she did not have any bias
against Marshall and that she had made her decision based on the facts
and the evidence that she heard at trial.
Although juror M.J. failed to respond to the above-listed questions, the
matter inquired about during voir dire—i.e., whether juror M.J. was a
victim of a crime—occurred approximately 35 years before Marshall’s
trial; juror M.J. did not consider what happened to her to, in fact, be a
crime; and juror M.J. stated that had she been asked whether she had
been subject to spousal abuse she would have responded to the
question. In other words, the matter inquired about was remote, the
question propounded was, in juror M.J.’s mind, ambiguous, and juror
M.J. did not willfully fail to answer the question.
Marshall v. State, 182 So. 3d at 610–11.
Marshall argues that the ACCA should have inferred that M.J. deliberately
chose not to disclose the matter for two reasons: (1) her admission at the Rule 32
hearing that she recalled the abuse she had experienced often during Marshall’s trial
and (2) that M.J. was present when another member of the panel stated she was a
victim of crime due to her experience with spousal abuse. Doc. 7 at 42-44. While a
reasonable jurist could have found that M.J. deliberately declined to disclose her
status as a victim of crime, and further that this disclosure would have likely resulted
in her exclusion for cause, see McDonough, 464 U.S. at 554, Marshall’s evidence
and proposed inferences are not so persuasive that no reasonable jurist could have
92
found otherwise. The McDonough bar is high and not easily met by a mere failure
to answer voir dire questions. See, e.g. United States v. Perkins, 748 F.2d 1519,
1532-33 (11th Cir. 1984). The ACCA considered the temporal remoteness of M.J.’s
victimhood and her own attestations of her unbiased approach to the case to find that
Marshall did not pass the first bar of proving dishonesty, thereby properly applying
the Dobyne factors. Accordingly, because fairminded jurists can disagree on this
issue, Marshall cannot succeed on this claim.
b.
Marshall contends that Juror T.C. failed to disclose his involvement in a
program supporting and fostering sexually abused children. Doc. 7 at 42.47 Marshall
argues that his counsel would have “certainly” stricken T.C. for cause if T.C. had
disclosed this information. Id. at 48. In contrast to Marshall’s description, the Rule
32 court offered a more nuanced version of T.C.’s involvement with the program:
Juror T.C. testified that he recalled being asked the above-listed
questions, that he understood the questions, that the questions
were not ambiguous, and that he did not respond to the questions
because, he said, he “didn’t see any connection with those
questions . . . and [his] experience with the foster care program.”
(Vol. 36 at 73.) . . . On cross-examination, juror T.C. testified
that he based his decision in both the guilt phase and penalty
47
The questions Marshall alleges T.C. deliberately declined to answer were: “Do any of
the you have a bias or prejudice that would influence your verdict . . . in any way? . . . Do you
have any reason why you could not give both the State of Alabama and the defendant . . . a fair
and impartial trial? . . . Is there anybody here who feels like for whatever reason . . . you won’t be
able to render a fair and impartial verdict in this case? You won’t be able to sit as a fair and
impartial juror?”
93
phase of trial on the evidence presented and the instructions
given by the trial court. Juror T.C. also testified that he did not
have any bias against Marshall; specifically, juror T.C. stated that
he “did not know Mr. Marshall before this, or did not have
anything against him.” [Vol. 36 at 85.] Although juror T.C. failed
to respond to the question inquiring about whether potential
jurors had children, at the time of trial juror T.C. had no children
living in his home. That question, therefore, did not apply to him,
and he did not engage in misconduct when he did not respond.
Additionally, with regard to the questions asked about general
bias, juror T.C. testified that he did not believe that his
participation in foster-care classes had any connection with the
above-listed questions. Thus, juror T.C. did not willfully fail to
answer the above-listed questions.
Marshall v. State, 182 So. 3d at 612.
No relief is warranted on this claim. The voir dire questions at issue did not
directly relate to T.C.’s work with foster children. The questions asked him instead
to make a subjective assessment about whether he could be fair and unbiased. See
doc. 7 at 42. The ACCA reasonably found that T.C. was not dishonest in failing to
respond to the questions, and simply believed instead that his experience was not
relevant to the questions. Moreover, even if Marshall could demonstrate T.C.
engaged in misconduct, the ACCA reasonably found that T.C.’s foster work
experience did not prejudice the verdict. T.C. testified at the Rule 32 hearing that he
based his decision “on the evidence that was presented in court,” Vol. 36 at 84, and
that he “followed the evidence of what was being presented here … where it was
found that [Marshall] had admitted, you know, the death, and you know, had taken
the sheriffs or the authorities to Shelby County where the body was found,” id. at
94
84-85. There is nothing in the record to dispute this testimony. Accordingly, the
ACCA acted reasonably in denying Marshall’s claim that T.C. engaged in
prejudicial juror misconduct.
c.
Marshall challenges next Juror W.P.’s failure to disclose that he was legally
blind. Doc. 7 at 46-47. W.P. wears strong magnifying glasses and is unable to drive
because he cannot see red lights or stop signs with his glasses. Vol. 36 at 90-95.
And, at the time of the trial, W.P. routinely used a round magnifying glass to read
items at hands length. Id. at 97. During voir dire, counsel asked the panel if any of
them had personal or other reasons that might cause them not to render a fair and
impartial verdict. Doc. 7 at 42. W.P. did not volunteer his visual impairments in
response, and during the trial, W.P. sat the furthest from the witness box and could
not see the witnesses, facial expressions, or the evidence presented. Vol. 36 at 97.
W.P. also did not use his magnifying glass to review exhibits because he was
embarrassed, opting to use his glasses alone. Id.
To support his contention that W.P. deliberately chose to hide his vision
impairments, Marshall argues another member of the panel disclosed a hearing issue
in response to a question about reasons to doubt his qualifications as a juror. Doc. 7
at 46. Marshall asks the court to infer that this juxtaposition with a similarly situated
juror shows that W.P. deliberately chose to stay silent. But, again, the questions
95
Marshall claims W.P. evaded were vague in their connection to W.P.’s vision
problems. See doc. 7 at 42. Counsel asked the panel whether they had any reasons
they believed would compromise their ability to be fair and impartial or if they had
any personal circumstances that caused them to not want to serve as a juror. Id. At
Marshall’s Rule 32 hearing, W.P. stated that he did not view his vision problems as
a “big problem.” Vol. 45, Tab 65 at 37-38. When asked if he would have responded
affirmatively to a question specifically asking the panel whether they “ha[d] a
physical disability or infirmity which would affect [their] review of the evidence,”
W.P. responded that he believed he would have “spoken up about [his] vision.” Vol.
36 at 104. Based on these responses, the ACCA found that W.P.’s failure to respond
was not “willful,” and that he “simply believed that he could serve as a juror.” Vol.
45, Tab 65 at 50. The record supports the ACCA’s finding.
But even assuming W.P. acted dishonesty, “not every failure to respond
properly to questions on voir dire automatically entitles the defendant to a new trial
. . . [Rather,] the proper standard to apply in determining whether a party is entitled
to a new trial . . . is whether the defendant might have been prejudiced.” Vol. 45,
Tab 65 at 46 (citations and quotation marks omitted). Marshall must demonstrate
“proof of actual bias” which “may be shown either by express admission or by proof
of specific facts showing such a close connection to the circumstances at hand that
bias must be presumed.” United States v. Burke, 724 F. App'x 837, 839 (11th Cir.
96
2018) (citing Bank Atlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467,
1473 (11th Cir. 1992)). Ultimately, district courts are not obligated to investigate
allegations
of
juror
misconduct
absent
“clear, strong,
substantial
and
incontrovertible evidence” that the jury committed an impropriety that might
undermine the verdict. United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990)
(internal quotation marks omitted).
The record belies contention that W.P.’s “physical impairment . . . impeded
his ability to evaluate the evidence.” Doc. 17 at 45. To begin, W.P. claimed that he
made his decision in both the guilt and penalty phases of the trial based “on the facts
and the evidence and the law that the judge explained,” that his vision problems did
not “cause him to be biased against [Marshall] in any way,” and that “[t]he guilty
part was not in question . . . the sentencing was what [he] was concerned about.”
Vol. 36 at 107. And W.P. testified that he “voted to give [Marshall] life,” id.,
meaning he was the sole juror who voted to spare Marshall’s life, and Marshall
offered nothing to rebut this testimony. Moreover, even if W.P. had disclosed his
vision impairment, Marshall’s trial counsel would not have removed W.P. from the
jury. “Marshall’s trial counsel testified that if he knew a potential juror had a vision
problem he ‘would leave them on’ the jury because, he said, ‘most of the evidence
is going to be coming from the State. Hell, if the juror can’t see it, he can’t use it
against [Marshall]. Leave them on there. I’d like for them to be deaf, too.’” Marshall
97
v. State, 182 So. 3d at 613 (quoting Vol. 36 at 187). Put simply, Marshall cannot
demonstrate that W.P. intentionally failed to disclose his disability, that the failure
caused prejudice, or would have resulted in a cause challenge.
To close, Marshall’s alleged juror misconduct claim related to the voir dire
fails. The ACCA accurately applied the law and found a reasonable basis for denying
Marshall’s claims: (1) counsel did not directly ask M.J. a question to elicit her
experience with domestic violence; (2) counsel would have kept W.P. on the jury
despite his vision disability; and (3) T.C. did not find his experience with Alabama
foster care programs relevant to his ability to view the evidence impartially.
Moreover, “it ill serves the important end of finality to wipe the slate clean simply
to recreate the peremptory challenge process because counsel lacked an item of
information which objectively he should have obtained from a juror on voir dire
examination.” Greenwood, 464 U.S. at 555. Therefore, relief is denied on these
issues.
2.
Marshall’s final claim related to the jury is based on his contention that the
jury relied on extraneous information in their deliberations. Doc. 7 at 50. In
particular, Marshall cites to M.J.’s contention that she and another female juror
98
explained to a male juror that, based on their own life experiences, masturbation
could not have caused the vaginal tear found on the victim. Id. 48
Though “[p]ost-verdict inquiries into the existence of impermissible
extraneous influences on a jury’s deliberations are allowed under appropriate
circumstances, . . . inquiries that seek to probe mental processes of jurors are
impermissible.” United States v. Ayarza–Garcia, 819 F.2d 1043, 1051 (11th
Cir.), cert. denied, 484 U.S. 969 (1987) (citations omitted). Consequently, courts are
required to “disregard the portions of the affidavits dealing with forbidden testimony
under Federal Rule of Evidence 606(b).” 49 United States v. Siegelman, 467 F. Supp.
2d 1253, 1272 (M.D. Ala. 2006). Relevant here, the Rule 32 court noted that
48
The Rule 32 court did not allow M.J. to testify about the deliberations, Marshall contends
M.J. would have testified “(i) an elderly male juror asked whether the vaginal tear could have been
caused by masturbation; (ii) M.J. and another female juror replied that the vaginal tear could not
have been caused by masturbation; and (iii) M.J.’s response that the vaginal tear could not have
been caused by masturbation was based on her general life experiences.” Vol. 36 at 39, 333–34.
49
Rule 606(b) states that:
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a
juror is called to testify, the court must give a party an opportunity to object outside the
jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of
a verdict or indictment, a juror may not testify about any statement made or incident
that occurred during the jury’s deliberations; the effect of anything on that juror’s
or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.
(2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial
information was improperly brought to the jury’s attention; (B) an outside influence
was improperly brought to bear on any juror; or (C) a mistake was made in entering
the verdict on the verdict form.
99
Alabama courts have found that jurors relied on extraneous information only in a
limited number of cases, citing a
distinction, under Alabama law, between “extraneous facts,” the
consideration of which by a jury or jurors may be sufficient to impeach
a verdict, and the “debates and discussions of the jury,” which are
protected from inquiry. This Court’s cases provide examples of
extraneous facts. This Court has determined that it is impermissible for
jurors to define terms, particularly legal terms, by using a dictionary or
encyclopedia. See Fulton v. Callahan, 621 So. 2d 1235 (Ala.1993);
Pearson v. Fomby, 688 So. 2d 239 (Ala.1997). Another example of
juror misconduct leading to the introduction of extraneous facts
sufficient to impeach a jury verdict is an unauthorized visit by jurors to
the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447
So. 2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710
So. 2d 472 (Ala.1997).
The problem characteristic in each of these cases is the extraneous
nature of the fact introduced to or considered by the jury. The improper
matter someone argues the jury considered must have been obtained by
the jury or introduced to it by some process outside the scope of the
trial. Otherwise, matters that the jurors bring up in their deliberations
are simply not improper under Alabama law, because the law protects
debates and discussions of jurors and statements they make while
deliberating their decision. CSX Transp. v. Dansby, 659 So. 2d 35
(Ala.1995). This Court has also noted that the debates and discussions
of the jury . . . are not extraneous facts that would provide an exception
to the general rule of exclusion of juror affidavits to impeach the
verdict. Weekley v. Horn, 263 Ala. 364, 82 So. 2d 341 (1955) . . . [I]n
order for information to come within the extraneous-information
exception to Rule 606(b), the information must come to the jurors from
some external authority or through some process outside the scope of
the trial, either (1) during the trial or the jury's deliberations or (2)
before the trial but for the purpose of influencing the particular trial . .
. personal experience[] . . . is not extraneous information under the
exception to Rule 606(b).
Marshall v. State, 182 So. 3d 573, 617-18 (Ala. Crim. App. 2014). The ACCA
reasonably found that M.J.’s statements reflect the debate and discussions of the
100
jurors for deliberation rather than extraneous information not presented in the trial.
And, the court did not err in excluding the testimony and rejecting the contention of
juror misconduct. Id. at 615–16. 50
C.
Marshall alleges in Claim C that Alabama’s lethal injection protocol “creates
a demonstrated risk of severe pain [that is] constitutionally unacceptable [and]
excessive and substantial when compared to known and available alternative
methods of execution.” Doc. 7 at 50-51. The Respondent contends that Marshall
failed to exhaust this claim because he first raised it in his 2014 petition for certiorari.
Docs. 11 at 23; 12 at 41-42. Marshall replies that the claim is not defaulted because
the lethal injection protocol changed in September 2014, and his claim “did not
accrue until after [his] Rule 32 hearing and the proceedings in the Court of Criminal
Appeals . . .” Doc. 17 at 49. But Marshall provides no further explanation for his
contention, and it is unclear to the court which procedural default exception he is
50
At the Rule 32 evidentiary hearing, the court engaged in the following discussion with
Marshall’s counsel:
[The Court]: I don’t see that as extraneous in the sense of somebody going out and
looking in a medical book and bringing it back.
[Marshall’s Rule 32 Counsel]: Or calling your doctor friend.
[The Court]: Exactly. If you had testimony of that, that’s different . . . You know, I
tried 20 years worth of sexual assault cases as a prosecutor and talked to jurors after
the fact, and those kind of things do come up. I disagree with you and I will sustain
your objection.
Vol. 45, Tab 65 at 52.
101
invoking. See Edwards, 529 U.S. at 455. In light of Marshall’s failure to adequately
argue his procedural default position, this court finds he failed to exhaust this claim.
Alternatively, this claim fails on the merits. “Federal habeas corpus law exists
to provide a prisoner an avenue to attack the fact or duration of physical
imprisonment and to obtain immediate or speedier release,” Valle v. Sec’y, Fla.
Dep’t of Corr., 654 F.3d 1266, 1267 (11th Cir. 2011). When a death row inmate
challenges a state’s execution protocol, he attacks “the means by which the state
intends to execute him, which is a circumstance of his confinement.” McNabb v.
Comm’r, Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013) (citing
Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006)). “Issues sounding in habeas
are mutually exclusive from those sounding in a § 1983 action.” Id. Therefore, “[a]
§ 1983 lawsuit, not a habeas proceeding, is the proper way to challenge lethal
injection procedures.” Id. (citing Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257,
1261 (11th Cir. 2009)). Because Claim C “does not attack the validity of [his]
conviction or death sentence,” Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015), it is
due to be denied.
D.
Marshall asserts in Claim D that Alabama’s lethal injection protocol is
unconstitutional because “his sentence to die is based on an advisory jury verdict
that was not unanimous.” Doc. 7 at 51. As Marshall puts it, allowing a death sentence
102
based on a non-unanimous jury recommendation violates his Sixth Amendment right
to a trial by jury. Id. at 52. In support of his proposition, Marshall cites Ring v.
Arizona, 536 U.S. 584, 588-89 (2002) and Apprendi v. New Jersey, 530 U.S. 466
(2000). However, Marshall fails to provide any analysis as to how these cases
support his position. Id. at 51. Instead, Marshall only quotes Justice Scalia’s
concurrence in Ring bemoaning the decline of the right of trial by jury and the
practice of “a judge [finding] that an aggravating factor existed.” Id. at 52 (citing
Ring, 536 U.S. at 612) (emphasis in original). The concurrence is not helpful.
1.
Marshall raised this issue for the first time in his Rule 32 proceedings, 51 doc.
13, Vol. 10, Tab 41 at 133-34; Vol. 44, Tab 61 at 145-47, citing Ring and Apprendi
to argue that because the jury’s recommendation of death was not unanimous and
because “it is impossible to determine whether the jury found [any aggravating
circumstance] beyond a reasonable doubt,” doc. 13, Vol. 10, Tab 41 at 133, the
“procedural safeguards were absent [and] Marshall’s death sentence violat[ed] the
51
On direct appeal, Marshall did not address the constitutionality of the State’s capital
sentence structure in his brief to the ACCA. Doc. 13, Vol. 8, Tab 29 at 2-50. Instead, his first attack
with any relation to the sentencing scheme arises in his petition for certiorari to the Alabama
Supreme Court, in which he challenges the then-extant judicial override provision: “the statutory
scheme for capital murder prosecutions in Alabama provides for judicial override of the verdict of
a trial jury [which] adversely affected the jury’s role in the sentencing process and . . . denied
[Marshall’s] constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.”
Doc. 13, Vol. 9, Tab 34 at 13-14. The Court denied Marshall’s petition and did not reach the merits
of his arguments. Doc. 13, Vol. 9, Tab 35 at 66.
103
Fifth, Sixth, Eighth, and Fourteenth Amendments,” id. at 134. While declining to
address specifically the merits of the unanimity argument, the ACCA denied
Marshall’s broader claim that Alabama’s capital sentencing scheme violated the
United States Constitution. Doc. 13, Vol. 45, Tab 65 at 40 (citing Ex parte Waldrop,
859 So. 2d 1181, 1190 (Ala. 2002) (“Ring and Apprendi do not require that a jury
weigh the aggravating circumstances and the mitigating circumstances.”)). The court
held that the Rule 32 trial court properly dismissed Marshall’s claim because
“Marshall could have, but did not, challenge the constitutionality of Alabama’s
capital sentencing scheme on [direct] appeal.” Doc. 13, Vol. 45, Tab 65 at 40.
Indeed, because Marshall failed to raise his claim in his direct appeal, the ACCA
reasonably found that it is preempted, and it is due to be denied.
2.
Alternatively, the claim fails on the merits. The holdings in Apprendi and Ring
are more limiting than Marshall contends. Apprendi held that “[o]ther than the fact
of a prior conviction, 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.” Apprendi, 530 U.S. at 490. And Ring applied Apprendi to the
death penalty context, holding that because aggravating circumstances are used to
justify increasing a defendant’s maximum punishment from life imprisonment
without parole to death, these circumstances are “the functional equivalent of an
104
element of a greater offense,” and must be found by a jury rather than a judge. Ring,
536 U.S. at 609. Thereafter, the Court applied Ring to find Florida’s capital
sentencing scheme violated the Sixth Amendment right to an impartial jury by
“requir[ing] the judge alone to find the existence of an aggravating circumstance.”
Hurst v. Florida, 136 S. Ct. 616, 624 (2016). 52
Alabama’s capital sentencing scheme at the time of Marshall’s direct appeal
mirrored Florida’s pre-Hurst scheme: the sentencing phase required the jury to “hear
the evidence and arguments of both parties, deliberate, and return an advisory verdict
recommending either life imprisonment without parole (if it determined that no
aggravating circumstances existed, or that the aggravating circumstances did not
outweigh the mitigating circumstances) or death (if it determined that one or more
aggravating circumstances existed, and that they outweighed the mitigating
52
Under Florida’s pre-Hurst capital sentencing scheme, the sentencing judge held an
evidentiary hearing, after which the jury would propose by majority vote an “advisory sentence”
without divulging the factual basis for their recommendation. 136 S. Ct. at 620 (citations and
quotation marks omitted). The sentencing judge would then independently weigh the aggravating
and mitigating circumstances and impose a sentence “notwithstanding the recommendation of the
jury.” Id. (citations and quotation marks omitted). Though the scheme required that the judge give
“great weight” to the jury’s recommendation, the sentence was “the trial judge’s independent
judgment.” Id. (citations and quotation marks omitted). The Supreme Court held that the Sixth
Amendment right to an impartial jury requires that a “death sentence [be based] on a jury’s verdict,
not a judge’s factfinding” and that by allowing “the judge alone to find the existence of an
aggravating circumstance,” the Florida scheme was unconstitutional. Id. at 624.
Because the Supreme Court decided Hurst after Marshall’s conviction became final on
direct appeal, the court considers Hurst “only to the extent it reflects an application and explication
of the Supreme Court’s holding in Ring.” Waldrop v. Comm’r, Alabama Dep’t of Corr., 711 F.
App’x 900, 923 n.6 (11th Cir. 2017).
105
circumstances).” Waldrop v. Comm’r, Alabama Dep’t of Corr., 711 F. App’x at 922
(citing the pre-2017 version of Ala. Code § 13A-5-46(e)). 53 The trial judge would
then “independently determine the appropriate sentence.” Id. (citing the pre-2017 §
13A-5-47(e)). The trial court could impose the death sentence “notwithstanding a
contrary jury recommendation” so long as “the court found that at least one
aggravating circumstance existed, and that they outweighed any mitigating
circumstances.” Id. (citing the pre-2017 § 13A-5-47(e)).
A death sentence in Alabama required that “at least one aggravating
circumstance as defined in 13A-5-49 [must] exist[].” 54 Ala. Code § 13A-5-45(f).
When a defendant is convicted of a capital offense for which one of the enumerated
aggravating circumstances is an element, “any aggravating circumstance which the
verdict convicting the defendant establishes was proven beyond a reasonable doubt
at trial shall be considered as proven beyond a reasonable doubt for purposes of the
53
Alabama amended its capital sentencing scheme in 2017, see S.B. 16, 2017 Leg., Reg.
Sess. (Ala. 2017), making the jury’s sentencing recommendation binding on the court. See Ala.
Code § 13-A-5-47(a) (2017) (“Where a sentence of death is not returned by the jury, the court shall
sentence the defendant to life imprisonment without parole.”).
54
These aggravating circumstances include the two capital offenses of which Marshall was
convicted:
(1) The capital offense was committed by a person under sentence of imprisonment.
(2) The defendant was previously convicted of another capital offense or a felony
involving the use or threat of violence to the person . . .
(4) The capital offense was committed while the defendant was engaged or was an
accomplice in the commission of, or an attempt to commit, or flight after
committing, or attempting to commit, rape, robbery, burglary, or kidnapping.
Ala. Code § 13A-5-49.
106
sentencing hearing.” Ala. Code § 13A-5-45(e); see Ex Parte McNabb, 887 So. 2d
998, 1006 (Ala. 2004) (holding that even a nonunanimous recommendation of death
proved the jury had unanimously found an aggravating factor, and this finding “is
sufficient to satisfy Ring.”). And, “[t]he decision of the jury to recommend a
sentence of death must be based on a vote of at least 10 jurors.” Ala. Code § 13A-546(f).
Marshall contends that Ring and Apprendi required a unanimous
recommendation of death by a jury. Doc. 7 at 51. The ACCA disagreed and denied
Marshall’s broader contention that Alabama’s capital sentencing scheme violated
the United States Constitution. Doc. 13, Vol. 45, Tab 65 at 40 (citing Ex parte
Waldrop, 859 So. 2d 1181, 1190 (Ala. 2002) (“Ring and Apprendi do not require
that
a
jury weigh
the
aggravating circumstances
and
the
mitigating
circumstances.”)).55 This conclusion is not “so unreasonable that no ‘fairminded
jurist’ could agree with the conclusion.” Waldrop, 711 F. App’x at 923 (citing
55
Alabama courts have upheld the Alabama scheme after Hurst. See Ex Parte Bohannon,
222 So. 3d 525, 533 (Ala. 2016) (“Our reading of Apprendi, Ring, and Hurst leads us to the
conclusion that Alabama's capital-sentencing scheme is consistent with the Sixth Amendment.”);
see also Creque v. State, 272 So. 3d 659, 730 (Ala. Crim. App. 2018) (rejecting a defendant’s
constitutional challenge to Alabama’s allowance of juries to recommend death based on a nonunanimous verdict); Gobble v. State, 104 So. 3d 920, 977 (Ala. Crim. App. 2010) (“Ring does not
require a unanimous recommendation for the death penalty before a defendant may be sentenced
to death”). And, in Waldrop, the Eleventh Circuit indicated the Alabama Supreme Court’s holding
was consistent with Hurst because the jury, not the judge, found the aggravating circumstance.
Waldrop, 711 F. App’x at 924 (“the Sixth Amendment does not allow the trial court to find an
aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of
the death penalty”) (citations and quotation marks omitted).
107
Harrington v. Richter, 562 U.S. 86, 101 (2011)). In fact, the same concurrence from
Justice Scalia that Marshall cites supports the ACCA’s holding: “the jury must find
. . . that an aggravating factor existed. Those [s]tates that leave the ultimate life-ordeath decision to the judge may continue to do so – by requiring a prior jury finding
of aggravating factor in the sentencing phase or, more simply, by placing the
aggravating-factor determination (where it logically belongs anyway) in the guilt
phase.” Ring, 536 U.S. at 612-13. And “[n]othing in Ring – or any other Supreme
Court decision – forbids the use of an aggravating circumstance implicit in a jury’s
verdict.” Lee v. Comm’r, Alabama Dept. of Corr., 726 F.3d 1172, 1198 (11th Cir.
2013).
Marshall’s jury unanimously found him guilty of two capital offenses, murder
while committing burglary in the first degree and murder while committing sexual
abuse in the second degree, during the guilt-phase of the trial. Doc. 13, Vol. 6, Tab
15 at 734-36. Both of these offenses contain an aggravating circumstance as defined
by Alabama Code § 13A-5-49.56 Therefore, Marshall’s jury unanimously found the
facts that made him death-eligible beyond a reasonable doubt. At the conclusion of
the sentencing hearing, eleven members of the jury recommended death and one
recommended life imprisonment without the possibility of parole. Doc. 13, Vol. 7,
Tab 23 at 799. The ACCA’s rejection of Marshall’s Ring and Apprendi claims was
56
See n. 54 supra.
108
not an unreasonable application of either case. Thus, Marshall is not entitled to relief
on Claim D.
E.
Marshall asserts in Claim E that Alabama’s lethal injection protocol is
unconstitutional because “the death penalty itself is cruel and unusual punishment,”
based on its purported “serious unreliability, . . . arbitrariness . . ., and . . .
unconscionably long delays[.]” Doc. 7 at 52-53 (citations omitted). But, the Supreme
Court has held that “capital punishment is constitutional.” Baze v. Rees, 553 U.S.
35, 47 (2008) (citing Gregg v. Georgia, 428 U.S. 153, 187 (1976) (“We hold that
the death penalty is not a form of punishment that may never be imposed, regardless
of the circumstances of the offense, regardless of the character of the offender, and
regardless of the procedure followed in reaching the decision to impose it.”)).
Therefore, Claim E is due to be denied.
F.
Finally, Marshall asserts in Claim F that the prosecution violated his Due
Process rights under the Fourteenth Amendment by withholding favorable material
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Allegedly, the State
withheld DNA testing from the victim and failed to disclose that fur-lined handcuffs
were found in Marshall’s nightstand before trial. Doc. 7 at 53-54. Marshall reasons
that “none of [the victim’s DNA] evidence could be linked to Marshall or the State
109
would have talked about it at trial.” Id. He further states that had his counsel known
about the fur-lined handcuffs before trial, they could have developed an alternative
narrative to explain why Marshall had the cuffs in his possession. 57
1.
Before turning to the merits of these claims, the court considers whether
Marshall properly exhausted and presented these claims on direct appeal. The ACCA
found that the Rule 32 court properly deemed the Brady claims abandoned under
Rule 28(a)(10) of the Alabama Rules of Appellate Procedure. Vol. 46, Tab 45 at 5758. Indeed, Marshall did not raise Brady claims in his direct appeal. See Vol. 8, Tab
29, 31, 32; Vol. 9, Tab 34. And, in his First Amended Rule 32 Petition and his
“Amendment” 58 to that petition, while Marshall outlines the legal framework
applicable to a Brady claim and alleges some related facts in his case, he failed to
apply the law to the facts to support his contention of a Brady violation. See Vol. 10,
Tab 42 at 197-99; Vol. 12, Tab 47 at 577-79. Moreover, a review of Marshall’s
appeal of the denial of his Rule 32 petition indicates that, like in his petition to this
57
Marshall claims his trial counsel would have argued Marshall had confiscated the cuffs
from the victim by linking the cuffs to a letter found in Marshall’s wallet from the victim to her
boyfriend in which she “refers to handcuffing her boyfriend.” Doc. 7 at 54
58
Marshall filed his original Rule 32 petition on April 23, 2009 and his First Amended
Rule 32 Petition on July 10, 2009. Vol. 14, Tab 56 at 982-83. The circuit court summarily
dismissed several claims in Marshall’s First Amended Petition and granted him leave to amend.
Id. Marshall filed an “Amendment” to his First Amended Petition on October 2, 2009. Id. The
circuit court and ACCA considered this “Amendment” in conjunction with Marshall’s First
Amended Petition. See generally id.; Vol. 45, Tab 65.
110
court, he only cited to Brady in the argument heading but offered no explanation of
how the State purportedly withheld DNA testing of samples taken from the victim’s
body, results from the rape kit, and fur lined handcuffs found in Marshall’s
nightstand. Vol. 44, Tab 61, 153-54. “In order to satisfy Rule 28(a)(10) as to that
particular issue, [Marshall] was obliged to include in his appellate brief an adequate
recitation of facts relied on, citations to relevant legal authorities, and an analysis of
why those authorities support an argument of reversible error.” Taylor v. Dunn, 2018
WL 575670, at *17 (S.D. Ala. Jan. 25, 2018). Merely citing to Brady is not the same
thing as providing analysis as to why Brady supports his argument. Therefore, in
light of Marshall’s failure to explain in his Rule 32 brief how those items were both
exculpatory and material, the issue is not properly before this court for review.
2.
Alternatively, Marshall has failed to establish a Brady violation. Brady held
that “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87. To satisfy the materiality prong, Marshall must demonstrate “a
reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Boyd v. Comm’r, Ala. Dep’t of Corr.,
697 F.3d 1320, 1334 (11th Cir. 2012) (citations and quotation marks omitted).
111
Assuming arguendo that the State indeed suppressed evidence about the DNA
samples and handcuffs, Marshall has failed to demonstrate “a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
Marshall must show that “in light of all of the evidence, including items untainted
by the Brady violation, it is reasonably possible that the jury would entertain a
reasonable doubt regarding [Marshall’s] guilt.” Maharaj v. Sec'y for Dep't of Corr.,
432 F.3d 1292, 1310 (11th Cir. 2005) (citations and quotation marks omitted). “The
question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Id. at 1316.
Considering the DNA samples and the fur handcuffs individually, and then
collectively, 59 the court does not find that the absence of the items prohibited
Marshall from receiving a fair trial or a verdict worthy of confidence. Marshall
presents only conjecture—that the State suppressed the evidence, that his counsel
did not know it existed,60 that counsel could have used the evidence favorably had
See Maharaj, 432 F.3d at 1310 (stating that the district court “should consider each Brady
item individually, and only then making a determination about the cumulative impact.”).
59
60
Conjecture obviously does not establish that trial counsel did not know about this
evidence. Marshall has also failed to demonstrate that trial counsel was negligent in seeking this
evidence or was unaware of their existence. See generally doc. 7. And, “[w]here defendants, prior
to trial, had within their knowledge the information by which they could have ascertained the
112
they known about it, and that these favorable arguments would have significantly
altered the case. See doc. 7 at 53-54; doc. 17 at 58. But the only indication Marshall
provides that the handcuffs were favorable to him is a claim that his counsel could
have prepared an alternative theory explaining their presence. Doc. 7 at 53. And
Marshall’s only argument regarding the purported favorability of the DNA evidence
is an inference that if the State could have linked it to Marshall, they would have. Id.
These contentions are insufficient.
Finally, Marshall offers nothing to prove prejudice. Docs. 7 at 53-54; 17 at
58. In fact, based on the other evidence, whatever arguments Marshall’s counsel
made regarding the handcuffs and the DNA would not rise to a “reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682
(1985). The State offered significant evidence of Marshall’s guilt—he confessed to
the murder; he led investigators to the body; the victim’s stolen belongings were
found outside of his home and near his workplace; and witnesses testified about his
absence at work and his presence near his ex-wife’s home on the day of the murder.
Vol. 45, Tab 65 at 23-24. At most, the allegedly suppressed evidence would have
provided counsel a couple more arguments to distance Marshall from the murder,
alleged Brady material, there is no suppression by the government.” United States v. Griggs, 713
F.2d 672, 674 (11th Cir.1983).
113
but it could not rise to the level of changing the guilty verdict. Therefore, because
Marshall provides nothing more than a mere citation and a conjecture to support his
Brady claims, Claim E is due to be denied as well.
IV.
For all these reasons, and after careful review, the court grants Marshall’s
petition for a writ of habeas corpus, doc. 7, as to his claim alleging ineffective
assistance of counsel at the penalty phase of his trial. A writ of habeas corpus shall
issue directing the State of Alabama to vacate and set aside the death sentence in
Marshall v. State, 992 So. 2d 762 (Ala. Crim. App. 2007), unless within 90 days of
this judgment’s entry, the State of Alabama initiates proceedings to retry Marshall’s
sentence. In the alternative, the State of Alabama shall re-sentence Marshall to life
without the possibility of parole. A separate order will be entered.
DONE the 23rd day of October, 2020.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
114
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