Gavin v. Dunn
Filing
65
REVISED MEMORANDUM OPINION; The Court hereby WITHDRAWS its 63 Memorandum Opinion entered on March 17, 2020 and enters this Revised Memorandum Opinion in its place nunc pro tunc. Signed by Judge Karon O Bowdre on 3/27/2020. (JLC)
FILED
2020 Mar-27 PM 02:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KEITH EDMUND GAVIN,
Petitioner,
v.
JEFFERSON S. DUNN,
Commissioner of the Alabama
Department of Corrections,
Respondent.
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CIVIL ACTION NO.
4:16-00273-KOB
REVISED MEMORANDUM OPINION
The court WITHDRAWS its Memorandum Opinion entered on March 17, 2020
(doc. 63) and enters this Revised Memorandum Opinion in its place nunc pro tunc.
The court inadvertently used the wrong name for the petitioner on two separate pages
of the prior Memorandum Opinion. This Revised Memorandum Opinion corrects that
error and makes no other changes. The Final Judgment Order (doc. 64) remains in full
force and effect.
Petitioner Keith Edmund Gavin has petitioned for a writ of habeas corpus under
28 U.S.C. § 2254, challenging his 1999 convictions in Cherokee County, Alabama, for
two counts of capital murder and one count of attempted murder, and his subsequent
sentences of death for the capital murder convictions and life imprisonment for the
attempted murder conviction. Mr. Gavin alleges that a variety of constitutional
violations require reversal of his convictions and/or sentence. The parties have fully
briefed Mr. Gavin’s claims.
After careful consideration of the record, the pleadings, and the applicable
provisions of 28 U.S.C. § 2254, and for the reasons stated below, the court finds that
Mr. Gavin’s petition is due to be granted on his claim that counsel were constitutionally
ineffective at the penalty phase of his trial, and that all other claims are due to be
denied with prejudice.
Table of Contents
I.
PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II.
THE OFFENSE OF CONVICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III.
THE SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IV.
LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A.
Exhaustion of State Court Remedies: The First Condition Precedent to
Federal Habeas Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B.
The Procedural Default Doctrine: The Second Condition Precedent to
Federal Habeas Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C.
Overcoming Procedural Default: The Cause and Prejudice Analysis 24
D.
The Statutory Overlay: The Effect of “the Antiterrorism and Effective
Death Penalty Act of 1996" on Habeas Review . . . . . . . . . . . . . . . . 25
1.
Title 28 U.S.C. § 2254(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2
2.
E.
28 U.S.C. § 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Ineffective Assistance of Counsel Claims. . . . . . . . . . . . . . . . . . . . . . 29
1.
2.
The prejudice prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.
V.
The performance prong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Deference accorded state court findings of historical fact, and
decisions on the merits, when evaluating ineffective assistance of
counsel claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Mr. Gavin’s Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A.
Juror Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1.
2.
B.
Premature Penalty Deliberations. . . . . . . . . . . . . . . . . . . . . . . . 34
Improper Contact with an Officer of the Court . . . . . . . . . . . . 39
Ineffective Assistance of Counsel in the Guilt Phase . . . . . . . . . . . . . 44
1.
Failure to Investigate and Impeach the State’s Key Witness,
Dwayne Meeks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
a.
b.
2.
Failure to Conduct a Minimal Investigation. . . . . . . . . . 46
Failure to Impeach Mr. Meeks on Inaccuracies and
Inconsistencies in His Testimony. . . . . . . . . . . . . . . . . . 50
Failure to Expose Irregularities in the State’s Investigation . . . 53
a.
Contamination of the Victim’s Van . . . . . . . . . . . . . . . . 53
b.
Dewayne Meeks’ “Interview” . . . . . . . . . . . . . . . . . . . . 57
1.
Advance Notice of Interview. . . . . . . . . . . . . . . . 57
3
2.
Dewayne Meeks’s Interviewers were Personal
Friends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
c.
d.
Failure to Investigate Dewayne Meeks’ Vehicle, Clothing,
and Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
e.
Failure to Investigate Key Witnesses . . . . . . . . . . . . . . . 67
f.
3.
Dewayne Meeks’ Polygraph Examination . . . . . . . . . . . 62
Irregularities in the Recovery of the Murder Weapon . . 70
Failure to Suppress Identification Evidence and to Effectively
Cross-Examine Unreliable Identification Testimony . . . . . . . . 73
a.
Failure to Suppress Identification Evidence . . . . . . . . . 75
b.
Failure to Effectively Cross-Examine Unreliable
Identification Testimony . . . . . . . . . . . . . . . . . . . . . . . . 79
4.
5.
Failure to Call Mr. Gavin to Testify in His Own Defense . . . . 91
6.
C.
Failure to Prevent the Jury from Hearing Prejudicial Evidence of
Mr. Gavin’s Prior Conviction During the Guilt Phase . . . . . . . 86
The Cumulative Effect of Trial Counsel’s Errors . . . . . . . . . . 94
Ineffective Assistance of Counsel in the Penalty Phase . . . . . . . . . . . 96
1.
Available Mitigation Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 98
a.
Lucia Penland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
b.
Betty Paramore, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . . . 105
c.
Craig Haney, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
4
2.
Deficiency of Counsel for Failing to Investigate . . . . . . . . . . 111
3.
Prejudice from Failure to Investigate . . . . . . . . . . . . . . . . . . . 117
4.
Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
D.
Prosecutor’s Comments on Mr. Gavin’s Failure to Testify . . . . . . . 134
E.
Admission of Tainted Eyewitness Identifications . . . . . . . . . . . . . . 149
1.
Danny Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
2.
Larry Twilley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
F.
G.
VI.
Violation of Mr. Gavin’s Right of Self-Representation . . . . . . . . . . 161
Violation of Ring v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
I. PROCEDURAL HISTORY
In April, 1998, Mr. Gavin was indicted in the Cherokee County Circuit Court
on two counts of capital murder for the shooting death of William Clinton Clayton, Jr.
(Vol. 1, Tab 1 at 10-12).1 The murder was made capital because it was committed
during the course of a robbery, in violation of Ala. Code § 13A-5-40(a)(2), and
because Mr. Gavin had been convicted of another murder within the previous twenty
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.
5
years, in violation of Ala. Code § 13A-5-40(a)(13). (Id. at 10). In a separate
indictment, Mr. Gavin was indicted on one count of attempted murder, for attempting
to shoot a police officer, Danny Smith, with a gun. (Id. at 13-15).
Mr. Gavin was represented at trial by court appointed attorneys H. Bayne Smith
and John H. Ufford, II. (Vol. 1, Tab 1 at 9). He was convicted on November 6, 1999,
of attempted murder and both counts of capital murder. (Vol. 11, Tab 24 at 1211-18).
The penalty phase of the trial was held on November 8, 1999. (Vol. 11, Tab 25 at 1271
- Vol. 12, Tab 34 at 1301). The jury recommended by a vote of 10 to 2 that Mr. Gavin
be sentenced to death. (Vol. 12, Tab 34 at 1300; Vol. 1, Tab 1 at 152). On January 5,
2000, the trial judge accepted the jury’s recommendation and sentenced Mr. Gavin to
death. (Vol. 12, Tab 36 at 1315). Additionally, the trial judge sentenced Mr. Gavin to
a consecutive term of life imprisonment for the attempted murder conviction. (Vol. 12,
Tab 35 at 1301).
Stephen P. Bussman represented Mr. Gavin on direct appeal. (Vol. 2 at 201).
The Alabama Court of Criminal Appeals affirmed Mr. Gavin’s convictions and
sentences on September 26, 2003, and denied his application for rehearing on
November 14, 2003. Gavin v. State, 891 So. 2d 907 (Ala. Crim. App. 2003). The
Alabama Supreme Court denied Mr. Gavin’s certiorari petition on May 28, 2004. Ex
parte Gavin, 891 So. 2d 998 (Ala. 2004). The United States Supreme Court denied
6
Mr. Gavin’s petition for a writ of certiorari on January 24, 2005. Gavin v. Alabama,
543 U.S. 1123 (2005).
On May 26, 2005, Mr. Gavin, through new counsel, timely filed a Rule 32
petition in the Circuit Court of Cherokee County. (Vol. 19 at 21-36). On June 20,
2005, the trial court returned the petition to Mr. Gavin’s attorneys for failure to use or
follow the form required by Rule 32.6 of the Alabama Rules of Criminal Procedure,
and permitted him to re-file the petition within thirty days. (Id. at 45). Mr. Gavin refiled his petition in proper form on July 19, 2005. (Id. at Tab 58).
On June 20,
2006, the trial court dismissed many of Mr. Gavin’s claims, but granted him leave to
file an amended petition expanding upon his ineffective assistance of counsel claims.
(Vol. 20, Tab 61 at 272-94).
Mr. Gavin filed an amended petition on August 18, 2006. (Vol. 20, Tab 62 at
297-352). In January, 2007, the trial court dismissed all claims in the petition, except
the ineffective assistance of counsel claims. (Vol. 21, Tab 64 at 581-88). The trial
court held an evidentiary hearing on Mr. Gavin’s ineffective assistance of counsel
claims in February, 2010. (Vol. 37, Tab 78 at 63 - Vol. 40 at 670). At the end of the
hearing, the parties were afforded time to file post-hearing briefs. (Vol. 40 at 664).
Instead of filing a post-hearing brief, Mr. Gavin filed a second amended Rule 32
petition on April 2, 2010. (Vol. 32, Tab 70). On August 17, 2010, the trial court
7
concluded that Mr. Gavin’s second amended Rule 32 petition should be treated as a
post-hearing brief. (See Vol. 36, Tab 76 at 3491).
On April 18, 2011, the trial court denied all of Mr. Gavin’s ineffective assistance
of counsel claims. (Id. at 3484-523). The Alabama Court of Criminal Appeals affirmed
the trial court’s denial of collateral relief on August 22, 2014, (Vol. 46, Tab 85), and
overruled Mr. Gavin’s application for rehearing on March 20, 2015 (Vol. 46, Tab 86).
On October, 23, 2015, the Alabama Supreme Court denied Mr. Gavin’s certiorari
petition. (Vol. 47, Tab 88). The United States Supreme Court denied his certiorari
petition on March 20, 2017. Gavin v. Alabama, 137 S. Ct. 1325 (2017).
On February 16, 2016, Mr. Gavin filed a § 2254 petition in this court. (Doc. 1).
Respondents filed an answer and brief on November 7, 2016. (Docs. 32, 33). Mr.
Gavin filed a reply brief on February 20, 2017. (Doc. 33). Respondents filed an
amended answer and brief on June 16, 2017. (Docs. 43, 44). Mr. Gavin filed an
amended reply brief on October 12, 2017. (Doc. 60).
II. THE OFFENSE OF CONVICTION
In its opinion on direct appeal, the Alabama Court of Criminal Appeals
summarized the evidence in the case:
A little after 6:30 p.m. on March 6, 1998, Clayton, a contract courier for
Corporate Express Delivery Systems, Inc., was shot and killed while
sitting in a Corporate Express van outside the Regions Bank in downtown
8
Centre. Clayton had finished his deliveries for the day and had stopped
at Regions Bank to obtain money from the ATM in order to take his wife
to dinner.
There were four eyewitnesses to the crime, two of whom positively
identified Gavin as the shooter. Ronald Baker and Richard Henry, Jr.,
testified that they were stopped at a traffic light near the Regions Bank
and the courthouse in downtown Centre at the time of the shooting.
According to Baker and Henry, they saw a man get out of a vehicle, walk
to a van parked on the street, and shoot the driver of the van. Upon
hearing the gunshots, Baker and Henry immediately fled the scene;
neither could identify the shooter.
Larry Twilley testified that he, too, was stopped at a traffic light by
the Regions Bank in downtown Centre at the time of the shooting.
Twilley testified that while he was stopped at the light, he heard a loud
noise, turned, and saw a man with a gun open the driver’s side door of a
van parked on the street and shoot the driver of the van two times.
According to Twilley, the shooter then pushed the driver to the
passenger’s side, got in the driver’s seat, and drove away. Twilley
testified that when he first saw the shooter, he noticed something black
and red around his head, but that after the shooter got in the van and
drove away, the shooter no longer had anything on his head; at that point,
Twilley said, he noticed that the shooter had very little hair. At trial,
Twilley positively identified Gavin as the shooter.
Dewayne Meeks, Gavin’s cousin and an employee of the Illinois
Department of Corrections, testified that in early February 1998, he and
Gavin traveled from Chicago, Illinois, where they were living, to
Cherokee County, Alabama “[t]o pick up some girls . . . and just to really
get away.” (R. 651.) Meeks said that they stayed for a weekend and then
returned to Chicago. In early March 1998, Meeks said, Gavin wanted to
return to Alabama to find a woman he had met in February. Meeks
testified that Gavin told him that if he drove Gavin to Chattanooga,
Tennessee, to meet the woman, the woman would reimburse him for the
travel expenses. Meeks said that he agreed to drive Gavin to Tennessee
and that Meeks’s wife and three-year-old son also accompanied them.
9
Meeks testified that they left Chicago on the night of March 5,
1998, arrived in Chattanooga on the morning of March 6, 1998, and
checked into a Super 8 Motel. Meeks said that he rented two rooms at the
motel, one for him and his family, and one for Gavin. After they arrived,
Meeks said, Gavin made a telephone call, and he and Gavin then drove
to a nearby gasoline service station to wait for the woman Gavin had
come to see. According to Meeks, the woman did not show up and Gavin
then asked him to drive to Fort Payne, Alabama, so that Gavin could find
the woman. Meeks agreed and they drove to Fort Payne, but they were
again unsuccessful at locating the woman. After they failed to locate the
woman in Fort Payne, Meeks said, they drove to Centre to find the
woman.
Meeks testified that at approximately 6:30 p.m. on March 6, 1998,
he and Gavin arrived in downtown Centre. When they stopped at the
intersection near the courthouse and the Regions Bank, Meeks said,
Gavin got out of Meeks’s vehicle and approached a van that was parked
nearby. According to Meeks, he thought Gavin was going to ask the
driver of the van for directions. However, when Meeks looked up, he saw
that the driver’s side door of the van was open, and Gavin was holding
a gun. Meeks stated that he watched as Gavin fired two shots at the driver
of the van. According to Meeks, immediately after seeing Gavin shoot the
driver of the van, he fled the scene, and Gavin got in the van and
followed him. Meeks testified that Gavin honked the horn of the van and
flashed the lights in an attempt to get Meeks to stop. However, Meeks
refused to stop because, he said, he was scared. Meeks stated that he
drove back to Chattanooga and told his wife what had happened. He and
his wife and child then checked out of the motel and drove back to
Chicago.
Meeks testified that when he arrived in Chicago, he immediately
informed several of his friends who were in law enforcement about the
shooting. As a result of his conversations with friends, Meeks said, he
realized the gun used by Gavin was probably the gun that had been issued
to him by the Illinois Department of Corrections. Meeks said that he then
checked his home and determined that his gun was, in fact, missing.
According to Meeks, he kept the gun in a drawer at home and he had not
10
seen the gun for approximately two weeks before the shooting. Meeks
testified that he immediately reported the gun as missing to law
enforcement. Meeks admitted that he did not mention to law enforcement
when he reported the missing gun that he believed the gun had been used
in a shooting in Alabama, but he said that he did inform his boss at the
Illinois Department of Corrections that he believed the gun had been used
in the shooting. After reporting the gun missing and discussing the
shooting with several friends, Meeks said, he then contacted Alabama
law enforcement to inform them of his knowledge of the shooting. On
March 9, 1998, and again on April 6, 1998, Meeks was interviewed in
Chicago by investigators from Alabama. After the interviews, Meeks
said, he was indicted for capital murder in connection with the murder of
Clayton; that charge was subsequently dismissed.
Danny Smith, an investigator with the District Attorney’s Office
for the Ninth Judicial Circuit, testified that on the evening of March 6,
1998, he was returning to Centre from Fort Payne when he heard over the
radio that there had been a shooting and that both the shooter and the
victim were traveling in a white van with lettering on the outside. As he
proceeded toward Centre, Investigator Smith said, he saw a van matching
the description given out over the radio, and he followed it. According to
Investigator Smith, the van was traveling approximately 75 miles per hour
and the driver was driving erratically. Investigator Smith testified that he
was speaking on the radio with various law-enforcement personnel
regarding stopping the van when the van turned on its blinker and
stopped on the side of the road. When he pulled in behind the van,
Investigator Smith said, the van abruptly pulled back onto the road and
sped away. Investigator Smith said that he continued pursuing the van
and that, after he turned on his emergency lights, the van stopped in the
middle of the road, near the intersection of Highways 68 and 48.
Investigator Smith testified that when the van stopped, the driver got out
of the vehicle, turned, fired a shot at him, ran in front of the van, turned
and fired another shot at him, and then ran into nearby woods.
Investigator Smith testified that the driver of the van was black, and that
he was wearing a maroon or wine-colored shirt, blue jeans, and some
type of toboggan or other type of cap. At trial, Investigator Smith
11
positively identified Gavin as the person who had gotten out of the van
and shot at him.
After Gavin fled into the woods, Investigator Smith said, he went
to the van and checked the victim. According to Investigator Smith, the
victim was still alive, but barely, and he radioed for an ambulance.
Investigator Smith testified that when he first went to the van, he saw
blood between the two front bucket seats and on the passenger seat;
however, there was “very little blood” on the driver’s seat. (R. 567.)
Investigator Smith said that when emergency personnel removed the
victim from the van, blood was transferred to the driver’s seat by the
personnel who had to enter the van to secure the victim and remove him.
Investigator Smith also testified that, within minutes of Gavin’s
fleeing into the woods, several law-enforcement officers arrived at the
intersection of Highways 48 and 68, and the wooded area into which
Gavin had fled was encircled and sealed off so that “no one could come
out and cross the road without being seen.” (R. 563.) Members of several
different law-enforcement agencies then conducted a search for Gavin.
At approximately 9:45 p.m., Tony Holladay, a dog handler for the
Limestone Correctional Facility, arrived at the scene with his beagle.
Holladay testified that when he first arrived, he obtained information
indicating that Investigator Smith had chased the suspect for
approximately 20 yards, but had stopped short of the woods. At that
point, Holladay said, he had Investigator Smith show him the exact spot
he had stopped the pursuit so that the dog would not track Investigator
Smith’s trail from the roadway but would track the trail of the person
who had entered the woods. Holladay testified that he then carried his
dog to that spot and put him down. Holladay said that the dog
immediately picked up a scent and tracked it into the woods to a creek.
Holladay testified that he saw a man, whom he positively identified at
trial as Gavin, standing in the creek under a bush, and that when Gavin
saw him, Gavin attempted to flee. Holladay stated that he ordered Gavin
to stop, but that Gavin did not stop until Holladay fired a shot over
Gavin’s shoulder.
12
Gavin was then handcuffed and several law-enforcement officers
assisted in maneuvering Gavin out of the creek, up the embankment, and
through the woods to the roadway. Kevin Ware, a deputy with the
Cherokee County Sheriff’s Department, testified that he participated in
the search for Gavin and that he was present as Gavin was brought out of
the creek. Deputy Ware stated that he heard Gavin say “I hadn’t shot
anybody and I don’t have a gun.” (R. 780.) The evidence indicated that
from the time Gavin was discovered by Holladay to the time he made the
statement in Deputy Ware’s presence, no one had had any conversation
with Gavin regarding the shooting or why he was being arrested.
The record reflects that Clayton was pronounced dead upon arrival
at the hospital. A subsequent autopsy revealed three gunshot wounds to
his body caused by two bullets. Stephen Pustilnik, a medical examiner
with the Alabama Department of Forensic Sciences, testified that one
bullet passed through Clayton’s left arm, entered his chest on the left side
damaging both of Clayton’s lungs and his heart, and exited the right side
of the chest. The record reflects that that bullet was later found lodged in
the passenger-side door of the van. The second bullet, Dr. Pustilnik said,
entered Clayton’s left hip and lodged in his back. Dr. Pustilnik testified
that the wounds to Clayton’s arm and hip would not have bled much
because the bullets entered the muscles and the bleeding would have been
contained inside those muscles. He stated that the wound to the chest
would have bled quite a bit, and that, after blood filled the chest cavity,
it would then exit the body at the lowest point. In addition, Dr. Pustilnik
testified that there would not have been much “blow back” from the
wounds, i.e., because the location of the wounds, the blood from the shots
would not have blown backwards from the body toward the shooter. Dr.
Pustilnik testified that the cause of Clayton’s death was multiple gunshot
wounds.
The record reflects that no “usable” fingerprints were found in the
van and that no bloodstains were found on Gavin’s clothing. (R. 926.)
However, the State presented evidence indicating that a motel-room key
was found in Gavin’s pants pocket after his arrest; the key fit room 113
at the Super 8 Motel in Chattanooga where Meeks and Gavin had rented
rooms. In addition, two .40 caliber shell casings were found in the street
13
outside the Regions Bank in downtown Centre, one .40 caliber shell
casing was found in the roadway at the intersection of Highways 48 and
68, and a red and black toboggan cap was found near the woods by the
intersection of Highways 48 and 68. The bullet found lodged in the
passenger-side door of the van and the bullet in Clayton’s back were also
determined to be .40 caliber. Although law enforcement was unable to
find the murder weapon on the night of the crime, several days later, on
March 13, 1998, a .40 caliber Glock pistol was found near the woods
where Gavin had been discovered. The evidence indicated that the three
shell casings and the two bullets had been fired from the pistol, and that
the pistol belonged to Dewayne Meeks. The State also presented evidence
indicating that in 1982, Gavin had been convicted of murder in Cook
County, Illinois. Gavin had served approximately 17 years of a 34-year
sentence and had been released on parole only a short time before
Clayton’s murder.
The State also presented the testimony of Barbara Genovese, a
supervisor at the Cherokee County jail. Genovese testified that in April
1998, both Gavin and Meeks were incarcerated at the jail, in separate
cells. At one point, Genovese said, when she got Meeks and another
inmate out of their cells to take them outside for exercise, Gavin called
out to her from his cell and asked if he could go outside and exercise with
Meeks and the other inmate. Genovese said that she told Gavin that he
could not go outside with Meeks, and that Gavin asked her why.
According to Genovese, she told Gavin that he could not go outside with
Meeks because when Meeks had initially been brought to the jail, Gavin
had become loud and unruly, “screaming and yelling and banging on the
doors.” (R. 1001.) At that point, Genovese said, Gavin said “Dewayne
didn’t do anything . . . I did it” and “Dewayne should not be in here.” (R.
1002.) Genovese testified that she did not know what Gavin was referring
to when he said “I did it.” (R. 1002.)
Gavin v. State, 891 So. 2d 907, 927-30 (Ala. Crim. App. 2003).
14
III. THE SENTENCE
The trial court issued a written sentencing order on January 5, 2000. (Vol. 1,
Tab 3 at 184-97). The following excerpts are taken from the trial court’s sentencing
order:
FINDINGS CONCERNING THE EXISTENCE
OR NONEXISTENCE OF AGGRAVATING CIRCUMSTANCES
The law requires the trial Court to enter specific findings
concerning the existence or non-existence of each aggravating
circumstances [sic] enumerated by statute. This Court finds that the
following three aggravating circumstances were proven beyond a
reasonable doubt:
1. THE CAPITAL OFFENSE WAS COMMITTED WHILE THE
DEFENDANT WAS UNDER A SENTENCE OF IMPRISONMENT.
The term “under sentence of imprisonment” is defined under Title
13A-5-39(7) as “while serving a term of imprisonment, while under a
suspended sentence, while on probation or parole, or while on work
release, furlough, escape, or any other type of release or freedom while
or after serving a term of imprisonment, other than unconditional release
and freedom after expiration of the term of sentence.”
The Defendant was convicted of Murder in the Circuit Court of
Cook County, Illinois, on June 9, 1982, and he was sentenced to thirtyfour years in prison. The Defendant was paroled on December 28, 1997,
and was still on parole at the time of the murder on March 6, 1998.
At the time of the murder of William Clinton Clayton, Jr., on
March 6, 1998, the Defendant was under a sentence of imprisonment as
that term is defined by Alabama Law.
15
2. THE DEFENDANT WAS PREVIOUSLY CONVICTED OF
ANOTHER FELONY INVOLVING THE USE OF VIOLENCE TO
THE PERSON.
The Defendant was convicted of Murder in the Circuit Court of
Cook County Illinois on June 9, 1982.
3. THE CAPITAL OFFENSE WAS COMMITTED WHILE THE
DEFENDANT WAS ENGAGED IN OR WAS AN ACCOMPLICE IN THE
COMMISSION OF OR AN ATTEMPT TO COMMIT, OR FLIGHT AFTER
COMMITTING, OR ATTEMPTING TO COMMIT A ROBBERY.
Count One of the Indictment charged the Defendant with
intentional murder in the course of committing a theft of a 1996 Ford van
belonging to Corporate Express Delivery Systems, Incorporated by the
use of force against the driver, William Clinton Clayton, Jr.
The Defendant took Meeks’2 40 calibre Glock pistol either from
Meeks’ residence or from the Meeks’ vehicle without the consent or
permission of Meeks. According to Meeks, the Defendant secreted the
weapon until the Defendant used it to kill William Clinton Clayton, Jr.
And took the vehicle which Mr. Clayton was driving.
The capital crime of intentional killing of another during the
commission of robbery is a single offense consisting of two elements. The
intentional killing of Mr. Clayton and the theft of the vehicle were part of
a continuous chain of events. Therefore, the capital offense was
committed while the Defendant was engaged in the commission of or
attempt to commit robbery.
FINDINGS CONCERNING THE EXISTENCE
OR NONEXISTENCE OF MITIGATING CIRCUMSTANCES
2
Mr. Gavin traveled to Alabama with his cousin Dwayne Meeks, who worked for the
Illinois Department of Corrections. (Vol. 1, Tab 3 at 186). Mr. Gavin and Mr. Meeks both
lived in the Chicago area prior to the crime. (Id.).
16
I.
In compliance with the statutory requirement that the trial Court
enter specific findings concerning the existence or nonexistence of each
mitigating circumstance enumerated by statute, the Court finds THAT
NONE OF THE FOLLOWING MITIGATING CIRCUMSTANCES
EXIST in this case:
1. THAT THE DEFENDANT HAD NO SIGNIFICANT
HISTORY OF PRIOR CRIMINAL ACTIVITY.
The Defendant was convicted of Burglary in Cook County, Illinois,
on October 25, 1979. He was also convicted of Murder on June 9, 1982,
in Cook County, Illinois.
The presentence report indicates that the Defendant has been
charged or implicated in other criminal activity, but there is no record of
conviction for any offense other than the prior crime[s] of murder and
burglary as stated above. To the extent that the presentence report
suggests any other criminal activity, same is not considered as an
aggravating circumstance, and has not been weighed as such by this
Court.
This Court finds that there is no support for this mitigating
circumstance.
2. THAT THE CAPITAL OFFENSE WAS COMMITTED
WHILE THE DEFENDANT WAS UNDER THE INFLUENCE OF
EXTREME MENTAL OR EMOTIONAL DISTURBANCE.
During the few hours leading up to the murder of Mr. Clayton,
Meeks had apparently insisted on being reimbursed for his expenses in
bringing the Defendant to Alabama. These demands did not invoke
extreme mental or emotional disturbance, although this may explain the
Defendant’s motive for the robbery.
17
The Defendant is an intelligent person capable of making
independent choices.
There was no plea of mental disease or defect, and at no time did
the Defendant seek to have a mental evaluation for the purpose of
assenting such a defense.
The Court finds that there is no support for this mitigating
circumstance.
3. THAT THE VICTIM WAS A PARTICIPANT IN THE
DEFENDANT’S CONDUCT OR CONSENTED TO IT.
The Court finds that there is no support for this mitigating
circumstance.
4. THAT THE DEFENDANT WAS AN ACCOMPLICE IN THE
CAPITAL OFFENSE COMMITTED BY ANOTHER, AND HIS
PARTICIPATION WAS RELATIVELY MINOR.
The Defendant was identified by an eye witness as the person who
committed the offense in question. Likewise, Meeks reported that the
Defendant committed the murder and robbery of Mr. Clayton.
Nevertheless, Meeks was indicted along with the Defendant. The State
subsequently dismissed the charge against Meeks who thereafter testified
against the Defendant and on behalf of the State.
There is no direct evidence that the State’s dismissal was a quidpro-quo for Meeks’ testimony, but throughout the trial, the Defendant’s
attorneys attempted to impeach Meeks’ credibility by proving that he was
originally charged in the case, and that by virtue of the dismissal of those
charges, he was thereby motivated to testify falsely against the Defendant.
The Defendant’s attorneys also challenged the forensic evidence in
an effort to try to implicate Meeks as the guilty party. For example, the
Defendant argued that the driver would have been covered with the
victim’s blood, but no blood was found on the Defendant or on his
18
clothes even by DNA examination. In addition, there was no evidence of
the Defendant’s fingerprints in or on the courier van. The Defendant also
argued that even though he was arrested standing waist deep in a creek,
he was not submersed long enough to completely cleanse blood from his
clothes, and that if he had been submersed long enough to have that
effect, he would have died from hypothermia.
The Defendant was identified by Officer Danny Smith who viewed
the Defendant at a distance of only a few feet when the Defendant exited
the stolen van, fired at Officer Smith and escaped into the woods. A
toboggan matching the description reported by eyewitnesses was found
near the site where the Defendant entered the woods as he escaped from
Officer Smith.
The ballistics analysis established that the shell casings ejected by
the weapon fired at Officer Smith were identical to the shell casings
found in the street at the site where Mr. Clayton was short, and that the
casings from both sites were fired by the weapon found in the woods near
where the Defendant was apprehended.
In summary, the Defendant attempted to implicate Meeks as the
killer by a combination of the challenges to the forensic evidence coupled
with his challenge of Meeks’ credibility. The Defendant emphasized the
undisputed fact that Meeks drove the Defendant to the scene of the crime,
and that Meeks’ pistol was the murder weapon. The evidence of the
Defendant’s guilt is , however, overwhelming.
There is no basis on which to conclude that the defendant was
merely an accomplice with minor participation in the crime. This court
finds that there is no support for this mitigating circumstance.
5. THAT THE DEFENDANT ACTED UNDER EXTREME DURESS
OR UNDER THE SUBSTANTIAL DOMINATION OF ANOTHER
PERSON.
This Court finds that there is no support for this mitigating
circumstance.
19
6. THAT THE CAPACITY OF THE DEFENDANT TO APPRECIATE
THE CRIMINALITY OF HIS CONDUCT OR TO CONFORM HIS
CONDUCT TO THE REQUIREMENTS OF LAW WAS
SUBSTANTIALLY IMPAIRED.
This Court finds that there is no support for this mitigating
circumstance.
7. THE AGE OF THE DEFENDANT AT THE TIME OF THE CRIME.
At the time of the commission of the offense on March 6, 1998,
the Defendant was 37 years of age. The age of the Defendant is not a
mitigating circumstance.
II.
In addition to the mitigating circumstances specified by statute, and
the findings of this Court relating thereto as set out above, mitigating
circumstances include any aspect of the Defendant’s character or record
of any of the circumstances of the offense that the Defendant offers as a
basis for a sentence of life imprisonment without parole instead of death,
and any other relevant mitigating circumstance which the Defendant
offers as a basis for a sentence of life imprisonment without parole
instead of death.
As a supplement to the Probation Officer’s written report, the
Defendant has provided a memorandum from sentencing consultant John
David Sturman and Associates of Chicago, Illinois; the whole of which
said memorandum has been considered by this Court. In that
memorandum the Defendant’s mother is reported to have described the
Defendant’s life as influenced by, or subject to, a combination of drugs
and gang violence while living in a Chicago housing project. The
Defendant’s mother also testified at the Sentence Hearing conducted
before the jury. The Defendant’s attorney has advised the Court,
however, that the Defendant denies ever having a drug problem.
20
At the Sentence Hearing conducted before the jury the Court heard
testimony of Rev. A. J. Johnson who spoke eloquently on behalf of the
Defendant as a result of his frequent meetings with the Defendant over
the many months of the Defendant’s incarceration. Rev. Johnson opines
that the Defendant has concern and sympathy for the victim’s family, and
that the Defendant is capable of a closer relationship with God.
This Court has considered all matters presented by the Defendant,
but this Court does not find any support for any non-statutory mitigating
circumstance.
CONCLUSION
This Court has carefully considered the aggravating circumstances
which have been proven to the satisfaction of the Court beyond a
reasonable doubt. There are no mitigating circumstances. The aggravating
circumstances, therefore, outweigh the mitigating circumstances.
This Court has also carefully considered the jury recommendation
that the Defendant be sentenced to death.
It is hereby ORDERED, ADJUDGED AND DECREED that the
Defendant shall be punished by death. The sentence of death shall be
consecutive to the sentence imposed in case number CC-98-62 in the
circuit Court of Cherokee County, Alabama. The Sheriff shall remove the
Defendant to the custody of the Alabama Department of Corrections
where in strict accordance with the law the Defendant shall be put to
death. In accordance with the Alabama Rules of Court the Supreme Court
of Alabama shall set an execution date, and the Supreme Court Order
fixing the execution date shall constitute the execution warrant.
(Vol. 1, Tab 3 at 1188-96) (alteration added).
V. LEGAL STANDARD
21
“The habeas statute unambiguously provides that a federal court may issue the
writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.’” Wilson v. Corcoran, 526 U.S.
1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court’s review of claims
seeking habeas relief is limited to questions of federal constitutional and statutory law.
Claims that turn solely upon state law principles fall outside the ambit of this court’s
authority to provide relief under § 2254. See Alston v. Dep’t of Corr., 610 F. 3d 1318,
1326 (11th Cir. 2010).
A.
Exhaustion of State Court Remedies
A habeas petitioner must present his federal claims to the state court, and
exhaust all of the procedures available in the state court system, before seeking relief
in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666
(2005) (holding that a petitioner “can seek federal habeas relief only on claims that
have been exhausted in state court”). This requirement serves the purpose of ensuring
that state courts are afforded the first opportunity to address federal questions affecting
the validity of state court convictions and, if necessary, correct violations of a state
prisoner’s federal constitutional rights. Snowden v. Singletary, 135 F.3d 732, 735 (11th
Cir. 1998).
22
In determining whether a claim is properly exhausted, the Supreme Court has
stated that “[i]t is not enough that all the facts necessary to support the federal claim
were before the state courts or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 5-6 (1982) (citations omitted). Instead, “an issue is
exhausted if ‘the reasonable reader would understand [the] claim’s particular legal
basis and specific factual foundation’ to be the same as it was presented in state court.”
Pope v. Sec’y for Dep’t Of Corr., 680 F.3d 1271, 1286-87 (11th Cir. 2012) (quoting
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)).
B.
The Procedural Default Doctrine
Under the procedural default doctrine, federal review of a habeas petitioner’s
claim is barred if the last state court to examine the claim states clearly and explicitly
that the claim is barred because the petitioner failed to follow state procedural rules,
and that procedural bar provides an adequate and independent state ground for denying
relief. See Cone v. Bell, 556 U.S. 449, 465 (2009); Coleman v. Thompson, 501 U.S.
722, 731 (1991). The Supreme Court defines an “adequate and 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)).
23
To be considered “independent,” the state court’s decision “must rest solidly on
state law grounds, and may not be ‘intertwined with an interpretation of federal law.’”
Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (quoting Card v. Dugger, 911
F.2d 1494, 1516 (11th Cir. 1990)). To be considered “adequate” to support the state
court’s judgment, the state procedural rule must be both “firmly established and
regularly followed.” Lee v. Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466
U.S. 341, 348 (1984)). 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.
C.
Overcoming procedural default: The Cause and Prejudice Analysis
“A federal court may still address the merits of a procedurally defaulted claim
if the petitioner can show cause for the default and actual prejudice resulting from the
alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)
(citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added). The
Supreme Court has recognized that constitutionally ineffective assistance of counsel
on direct appeal can constitute “cause” to excuse procedural default. McCleskey v.
Zant, 499 U.S. 467, 493-94 (1991). However, any attorney error short of
24
constitutionally ineffective assistance of counsel does not constitute cause, and will not
excuse a procedural default. Id.
In addition to proving the existence of “cause” for a procedural default, a habeas
petitioner must show that he was actually “prejudiced” by the alleged constitutional
violation. To show prejudice, a petitioner must show “not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis added); see
also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam). In the
context of a defaulted ineffective assistance of trial counsel claim, a petitioner must
show not only “cause,” but also “that the underlying ineffective assistance of trial
counsel claim is a substantial one, which is to say that the prisoner must demonstrate
that the claim has some merit.” Martinez v. Ryan, 132 S. Ct. 1309, 1318-19 (2012).
D.
The Statutory Overlay: The Effect of “the Antiterrorism and Effective
Death Penalty Act of 1996" on Habeas Review
Gavin’s case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). To “prevent federal habeas
‘retrials’ and to ensure that state-court convictions are given effect to the extent
25
possible under the law,” the AEDPA establishes a deferential standard of review of
state habeas judgments. Bell v. Cone, 535 U.S. 685, 693 (2002).
1.
Title 28 U.S.C. § 2254(e)(1)
Section 2254(e)(1) requires district courts to presume that a state court’s factual
determinations are correct, unless the habeas petitioner rebuts the presumption of
correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also,
e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that §
2254(e)(1) provides “a highly deferential standard of review for factual determinations
made by a state court”). The deference that attends state court findings of fact pursuant
to § 2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus,
a presumption of correctness must be afforded to a state court’s factual findings, even
when the habeas claim is being examined de novo. See Mansfield v. Secretary,
Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012).
2.
28 U.S.C. § 2254(d)
The presumption of correctness also applies to habeas claims that were
adjudicated on the merits by the state court and, therefore, are claims subject to the
standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2). “By its terms §
2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject
26
only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S.
86, 98 (2011).
The provisions of 28 U.S.C. § 2254(d)(1) and (d)(2) provide that when a state
court has made a decision on a petitioner’s constitutional claim, habeas relief cannot
be granted, unless the federal court determines that the state court’s adjudication of the
claim either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d) (emphasis added).
The Supreme Court has explained the deferential review of a state court’s
findings:
Under the “contrary to” clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable facts. Under
the “unreasonable application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
27
The court should remember that “an unreasonable application of federal law is
different from an incorrect application.” Id. at 410. A federal habeas court “may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Id. at 411 (emphasis
added). 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.
at 786-87 (emphasis added).
The Eleventh Circuit has observed that § 2254(d)(1)’s “unreasonable
application” provision is the proper statutory lens for viewing the “run-of-the-mill
state-court decision applying the correct legal rule.” Alderman v. Terry, 468 F.3d 775,
791 (11th Cir. 2006).
In other words, if the state court identified the correct legal principle but
unreasonably applied it to the facts of a petitioner’s case, then the federal
court should look to § 2254(d)(1)’s “unreasonable application” clause for
guidance. “A federal habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.”
28
Id. (quoting Williams, 529 U.S. at 409).
E.
Ineffective Assistance of Counsel Claims
An introduction to ineffective assistance of counsel claims is included here
because of the relationship between such claims – which are governed by a highly
deferential standard of constitutional law – and 28 U.S.C. § 2254(d), which is itself
an extremely deferential standard of review. Additionally, because the majority of
Gavin’s petition is based on allegations of ineffective assistance of counsel, a general
discussion also provides a central reference point.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-pronged analysis for determining whether counsel’s performance was
ineffective. “First, the defendant must show that counsel’s performance was deficient.
. . . Second, the defendant must show that the deficient performance prejudiced the
defense.” Id. at 687. Both parts of the Strickland standard must be satisfied: that is,
a habeas petitioner bears the burden of proving, by “a preponderance of competent
evidence,” that the performance of his trial or appellate attorney was deficient; and,
that the deficient performance prejudiced his defense. Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (en banc). Because a petitioner must prove both
prongs, a federal court is not required to address both parts of the Strickland standard
when the habeas petitioner makes an insufficient showing on either one of the prongs.
29
See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both
parts of the test must be satisfied to show a violation of the Sixth Amendment, the
court need not address the performance prong if the defendant cannot meet the
prejudice prong, or vice versa.”) (citation to Strickland omitted).
1.
The performance prong
To satisfy the performance prong, the petitioner must “prove by a preponderance
of the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler
v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)). The Sixth Amendment does
not guarantee a defendant the very best counsel or the most skilled attorney, but only
an attorney who performed reasonably well within the broad range of professional
norms. Stewart, 476 F.3d at 1209. “The test has nothing to do with what the best
lawyers would have done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d 1218,
1220 (11th Cir. 1992). Judicial scrutiny of counsel’s performance must be highly
deferential, because “[r]epresentation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another.” Strickland, 466
U.S. at 693.
30
Indeed, reviewing courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
“Based on this strong presumption of competent assistance, the petitioner’s burden of
persuasion is a heavy one: ‘petitioner must establish that no competent counsel would
have taken the action that his counsel did take.’” Stewart, 476 F.3d at 1209 (quoting
Chandler, 218 F.3d at 1315) (emphasis 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 v. Zant, 13 F.3d 384, 386 (11th Cir.
1994) (emphasis added).
2.
The prejudice prong
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318,
1322 (11th Cir. 2002). “It is not enough for the [petitioner] to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. (quoting Strickland,
466 U.S. at 693) (alteration in original). Instead, to prove prejudice, the habeas
petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the results of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
31
outcome.” Strickland, 466 U.S. at 694. “[W]hen a petitioner challenges a death
sentence, ‘the question is whether there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.’” Stewart, 476 F.3d 1193, 1209 (11th
Cir. 2007) (quoting Strickland, 466 U.S. at 695). The standard is high, and to satisfy
it, a petitioner must present “proof of “‘unprofessional errors” so egregious “that the
trial was rendered unfair and the verdict rendered suspect.”’” Johnson v. Alabama,
256 F.3d 1156, 1177 (11th Cir. 2001) (quoting Eddmonds v. Peters, 93 F.3d 1307,
1313 (7th Cir. 1996)).
3.
Deference accorded state court findings of historical fact, and decisions on
the merits, when evaluating ineffective assistance of counsel claims
A reviewing court must give state court findings of historical fact made in the
course of evaluating a claim of ineffective assistance of counsel a presumption of
correctness under 28 U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley,
255 F.3d 1292, 1297 (11th Cir. 2001). To overcome a state court finding of fact, the
petitioner bears a burden of proving contrary facts by clear and convincing evidence.
Additionally, under the AEDPA, a federal habeas court may grant relief based
on a claim of ineffective assistance of counsel only if the state court determination
involved an “unreasonable application” of the Strickland standard to the facts of the
32
case. Strickland itself, of course, also requires an assessment of whether counsel’s
conduct was professionally unreasonable. But those two assessments cannot be
conflated into one. See Harrington v. Richter, 562 U.S. 86, 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.” “The standards created by Strickland and § 2254(d) are
‘highly deferential,’ . . . and when the two apply in tandem, review is ‘doubly’ so.” Id.
at 105.
V. MR. GAVIN’S CLAIMS
A.
Juror Misconduct
Mr. Gavin claims that his Sixth and Fourteenth Amendment rights to a fair trial
were violated and he was prejudiced by two separate instances of juror misconduct.
(Doc. 1 at 15). Specifically, he contends that the jury conducted premature penalty
phase deliberations and that improper contact occurred between several of the jurors
and the bailiff. (Id. at 15-25).
The Respondent argues that this entire claim is procedurally barred because the
Alabama Court of Criminal Appeals “noted” in its memorandum opinion that the claim
“was procedurally barred because it could have been but was not raised at trial or on
33
direct appeal under Rule 32.2(a)(3) and (5), Ala.R.Crim.P.” (Doc. 43 at 13, 16).
However, the Alabama Court of Criminal Appeals stated:
“The general rules of preservation apply to Rule 32 proceedings.”
Boyd v. State, 913 So. 3d 1113, 1123 (Ala. Crim. App. 2003). Rules
32.2(a)(3) and (5), Ala. R. Crim. P. would preclude claims of juror
misconduct if the claims could have been raised at trial or on appeal. See
Ex parte Pierce, 851 So. 2d 606, 614 (Ala. 2000).
(Vol. 46, Tab 85 at 44) (emphasis added). The appeals court stated that the claims
“would” be precluded if they could have been raised at trial or on appeal. The court
never expressed an opinion on whether the claims could have been raised at trial or on
appeal and never affirmatively stated that the claims were in fact procedurally
defaulted. Thus, this court cannot find that the claims were procedurally defaulted
based on the Alabama Court of Criminal Appeals statement.
1.
Premature Penalty Phase Deliberations
Mr. Gavin first claims that the jurors prematurely engaged in penalty phase
deliberations. (Doc. 1 at 16-21). Specifically, he alleges:
Investigation by post-conviction counsel revealed that the jurors
voted on guilt and sentencing at the same time, notwithstanding the trial
court’s repeated admonishments not to discuss the case before it was
submitted for decision. This improper vote occurred before the penalty
phase even began, and thus before any evidence was presented as to
mitigation or aggravation and indeed before the jury was instructed on the
law governing sentencing. Counsel spoke with jury foreman Terry
Manley, who recalled the moment juror Clifford Higgins addressed the
group, just before the guilt-phase vote. [Vol. 32, Tab 70 at] 2688. Mr.
34
Higgins said that if the other jurors thought that he would vote differently
because he and the defendant were both black, he wanted them to know
that he was going to vote guilty and in favor of the death penalty. Each
of the jurors then formally voted by writing his or her vote down on a
piece of paper, voting on both guilt and the sentence (death or life without
parole) at the same time. The vote was unanimous in favor of guilt and
10 to 2 in favor of the death penalty. Jurors Cheryl Beard and Belinda
Martinez have corroborated Mr. Manley’s account that the jurors voted
on both guilt and sentencing at the same time. Id.
The jury’s premature deliberation on sentencing, and its
commitment to a sentencing decision prior to the presentation of any
evidence on the subject, was misconduct. As the Third Circuit has
explained, premature deliberations (1) lead jurors to “continue to adhere
to” opinions expressed, often despite the evidence; (2) deprive the
defendant of a properly instructed jury; and (3) shift the burden of proof
to the defendant, who must “chang[e] by evidence the opinion thus
formed.” [United States v.] Resko, 3 F.3d [684] at 689 [3d Cir. 1993)]
(quoting Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945)).
(Doc. 1 at 17-18).
Mr. Gavin argues that the jury reached its 10-2 vote in favor of death without
hearing any evidence to support the sentence, without being instructed on the law, and
without weighing mitigating and aggravating factors. (Id. at 18-19). He adds that the
jurors’ misconduct is all the more significant because the jury’s “ultimate vote at the
conclusion of the sentencing trial was exactly the same as the illicit one during the
guilt-phase deliberations: 10-2 in favor of death.” (Id. at 19). He concludes that
because the jurors were “set in their conclusions before they heard the sentencing phase
evidence” and then “[t]en members of the jury voted automatically upon the guilty
35
verdict,” his Sixth and Fourteenth Amendment rights under Morgan v. Illinois [, 504
U.S. 719 (1992)] were violated. (Id.).
Mr. Gavin raised this claim in his second amended Rule 32 petition. (Vol. 32,
Tab 70 at 2687-89). Despite the trial court declining to address the claim,3 the Alabama
Court of Criminal Appeals denied the claim on the merits:
In his second amended petition Gavin asserted that he was denied
a fair trial because, he alleged, his jury prematurely engaged in sentencing
deliberations. Gavin specifically contended that the jurors in his trial
“voted on guilt and sentencing at the same time – that is, after the guilt
determination was submitted to the jury . . . but before the sentencing
phase even began” ([Vol. 32, Tab 70 at] 2688 (emphasis in original).) In
support of his claim, Gavin stated that T.M., the jury foreman, had related
how, after the jury had discussed the evidence in deliberations, one juror
stated that he was going to vote guilty and for the death penalty. The
foreman also related that all the jurors then wrote down their votes for
both the guilt and penalty phases.
3
In his initial Rule 32 petition, Mr. Gavin raised a juror misconduct claim pertaining
to the jurors’ reliance on religion during their deliberations. (Vol. 19, Tab 58 at 65-66). On
June 20, 2006, the trial court dismissed all of Mr. Gavin’s claims except for his ineffective
assistance of counsel claims, and granted Mr. Gavin leave to file an amended Rule 32
petition with respect to his ineffective assistance of counsel claims. (See Vol. 36, Tab 76 at
3491). The trial court held an evidentiary hearing on the ineffective assistance of counsel
claims in February, 2010. (Id.). At the end of the evidentiary hearing, the parties agreed to
file briefs in support of and in opposition to the amended petition. (Id.). Instead of filing the
agreed upon brief, Mr. Gavin filed a “Second Amended Petition for Relief from Judgment
Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.” (Vol. 32, Tab 70). The
trial court construed Mr. Gavin’s second amended petition as a brief, noting that “to the
extent that the Second Amended Rule 32 Petition asserts grounds for relief not asserted in
the First Amended Rule 32 Petition, and to the extent that the Second Rule 32 Petition relies
on evidence not otherwise part of the record, same would not be considered because of the
attorneys’ agreement stated to the Court at the conclusion of the hearing conducted on
February 8-9, 2010.” (Vol. 36, Tab 76 at 3491 n. 2).
36
We have explained:
Rule 606(b), Ala. R. Evid., specifically excludes the
admission of juror testimony to attack “internal influences.”
“[P]otentially premature deliberations that occurred during
the course of the trial” . . . have been held to “constitute[] a
potential internal influence on the jury.” United States v.
Logan, 250 F.3d 350, 380-81 (6th Cir. 2001). See also
Ledure v. BNSF Ry., 351 S.W.3d 13, 24 (Mo. Ct. App.
2011) (“Jurors’ testimony post-verdict is not admissible to
show alleged premature deliberations by a juror.”); United
States v. Sabhnani, 529 F. Supp. 2d 384, 395 (E.D.N.Y.
2008) (“[T]he Court finds that Rule 606(b)[, Fed. R. Evid.,]
protects the finality of the verdict and bars any inquiry into
the jurors’ deliberative processes”’).
“[W]hen there are premature deliberations
among jurors with no allegations of external
influence on the jury, the proper process for
jury decision making has been violated, but
there is no reason to doubt that the jury based
its ultimate decision only on evidence formally
presented at trial.” United States v. Resko, 3
F.3d 684, 690 (3d Cir. 1993) . Indeed,
“[p]reserving the finality of jury verdicts
militates strongly in favor of barring post-trial
juror assertions of pre-deliberation discussion.
The probability of some adverse effect on the
verdict is far less than for extraneous
influences.” United States v. Williams-Davis,
90 F.3d 490, 505 (D.C. Cir. 1996).
Taylor v. State, 270 P.3d 471, 481 (Utah 2012).
Perkins v. State, [Ms. CR-08-1927, November 2, 2012] __ So. 3d __, __
(Ala. Crim. App. 2012).
37
Because T.M.’s testimony would have been inadmissible at a
hearing held on Gavin’s petition, the circuit court did not err in
dismissing Gavin’s claim.
(Vol. 46, Tab 85 at 44-45) (footnote omitted).
The Supreme Court has held that a jury must base its verdict only on evidence
coming “from the witness stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of cross-examination, and of
counsel.” Turner v. Louisana, 379 U.S. 466, 472-73 (1965). Prejudice is presumed if
a defendant establishes that extrinsic contact with the jury in fact occurred. McNair v.
Campbell, 416 F.3d 1291, 1307 (11th Cir. 2005). Once a defendant makes a showing
of prejudice, the burden shifts back to the state to rebut the presumption by “showing
that the jurors’ consideration of the extrinsic evidence was harmless to the defendant.”
Id. (quoting Remmer v. United States, 347 U.S. 227, 229 (1954)).
Mr. Gavin argues that the Alabama Court of Criminal Appeals’s “did not decide
this claim on the merits, relying instead on a state-law evidence rule to bar the only
evidence of this constitutional violation.” (Doc. 60 at 35-44). However, the appellate
court’s discussion of Rule 606(b) of the Alabama Rules of Evidence prohibiting a juror
from testifying about the process of deliberations is grounded in the idea that the
jurors’ premature deliberations and vote on punishment were not “extraneous
evidence” injected into the deliberations. The actions of the jurors were part of the
38
deliberative process itself, not something “extraneous” to the jury’s deliberations. As
such, the appellate court correctly concluded that the evidence offered on this issue was
nothing more than prohibited juror testimony about the debate and deliberations of the
jury. See United States v. Siegelman, 467 F.Supp.2d 1253, 1279 (M.D. Ala. 2006).
Furthermore, Mr. Gavin has made no showing that the jurors’ premature deliberations
and vote on a potential sentence during the guilt phase of the trial affected the ultimate
outcome of his trial in any way.
The Alabama Court of Criminal Appeals’s determination that testimony
concerning any premature deliberations would have been inadmissible at an evidentiary
hearing on Mr. Gavin’s collateral petition was neither contrary to, nor an unreasonable
application of clearly established federal law.
2.
Improper Contact with an Officer of the Court
Mr. Gavin claims that investigation by post-conviction counsel also revealed that
while the jurors were sequestered over the weekend, between the guilt and penalty
phases of the trial, several of the jurors played golf with the court’s bailiff. (Doc. 1 at
22-25). He asserts that the “safeguards of sequestration were thwarted by having the
bailiff – who was privy to information withheld from the jurors – spend several hours
socializing with jurors beyond the watchful eye of the trial court and outside the
presence of the defendant and his counsel.” (Id. at 22). He argues that this ex parte
39
communication and contact with the bailiff was “intolerable, presumptively prejudicial,
and entitles Gavin to a new trial on sentencing.” (Id. at 23).
Gavin unsuccessfully raised this claim on appeal from the denial of his second
amended Rule 32 petition. (Vol. 32, Tab 70 at 2689). In denying the claim, the
Alabama Court of Criminal Appeals held:
Gavin argues that he was denied a fair trial because, he says, his
jury had improper contact with the circuit court’s bailiff. Gavin alleged
in his petition that juror T.M. reported that he and some other jurors had
played golf with the bailiff during Gavin’s trial; this, Gavin contends,
“would justify reversal.” (Gavin’s brief, p. 90.) Gavin did not allege in his
second amended petition that the bailiff had engaged in any improper
communications with the sequestered jury, only that “[g]iven the
seriousness of extra-juror influences, Mr. Gavin is entitled to a
presumption of prejudice and an evidentiary hearing to examine these
witnesses on what was discussed during the golf outing.” (C. 2689.)
The circuit court did not abuse its discretion in summarily
dismissing this claim because Gavin failed to plead sufficient facts in
support of the claim.
(Vol. 46, Tab 85 at 45-46). The dismissal of a claim for failure to plead sufficient facts
in support of the claim constitutes a ruling on the merits. See Frazier v. Bouchard, 661
F.3d 519, 526-27 (11th Cir. 2011).
Mr. Gavin argues that this ruling was based on an unreasonable determination
of the facts and involved an unreasonable application of Supreme Court precedent such
40
as Turner v. Louisiana, 379 U.S. 466, 472-73 (1965), Remmer v. United States, 347
U.S. 227, 229 (1954), and Mattox v. United States, 146 U.S. 140, 150 (1892)
As previously discussed, Turner held that a jury must base its verdict only on
evidence coming “from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of cross-examination, and
of counsel.” 379 U.S. at 472-73. Remmer and Mattox held that private
communications with jurors can be prejudicial. Remmer, 347 U.S. at 229 (“In a
criminal case, any private communication, contact, or tampering directly or indirectly,
with a juror during a trial about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of the court made during the trial, with
full knowledge of the parties. The presumption is not conclusive, but the burden rests
heavily upon the Government to establish, after notice to and hearing of the defendant,
that such contact with the juror was harmless to the defendant.”); Mattox, 146 U.S.
at 150 (“Private communications, possibly prejudicial, between jurors and third
persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate
the verdict, at least unless their harmlessness is made to appear.”).
Mr. Gavin cites several cases in support of his contention that improper contact
with court officers is especially troubling:
41
The Supreme Court has emphasized the risk of prejudice from improper
contacts with a bailiff in particular. See Parker v. Gladden, 385 U.S.
363, 365 (1966) (per curiam) (noting that the “official character of the
bailiff-as an officer of the court as well as the State-beyond question
carries great weight with a jury which he had been shepherding”). So
have other courts. E.g., Turpin v. Todd, 519 S.E.2d 678, 682 (Ga. 1999)
(“The very nature of the bailiff’s position serves to heighten the
prejudicial potential a bailiff’s communication may have on the jury.”);
State v. Johnson, 105 P.3d 85, 94 (Wash. Ct. App. 2005) (noting that a
bailiff may be seen as “the judge’s agent,” and that “the bailiff is viewed
by the jury as speaking on behalf of the judge”).
(Doc. 1 at 24). However, in each of these cases, the bailiff made improper comments
to one or more of the jurors.
In Parker, the
court bailiff assigned to shepherd the sequestered jury, which sat for eight
days, stated to one of the jurors in the presence of others, while the jury
was out walking on a public sidewalk: “Oh that wicked fellow
(petitioner), he is guilty”; and on another occasion said to another juror
under similar circumstances, “If there is anything wrong (in finding
petitioner guilty) the Supreme Court will correct it.”
385 U.S. at 363-64 (footnotes omitted).
In Turpin, the “jury had spent nearly half of their sentencing deliberations
discussing the possibility of parole should [the defendant] be sentenced to life
imprisonment and had decided to ask the trial court about parole because the written
jury instructions they had did not answer their question.” 519 S.E. 2d at 388. The jury
foreman wrote out the jurors’ question about parole and gave it to the bailiff to take to
42
the judge. The bailiff returned ten minutes later – without ever giving the question to
the judge – and answered the question himself. Id. at 388 & n.2.
In Johnson, “the bailiff spoke with the foreperson to inquire how deliberations
were proceeding and to offer suggestions for making the process run more smoothly.”
105 P.2d at 94.
During Mr. Gavin’s trial, the jurors were sequestered under the care of the court
bailiff. Over the weekend – between the guilt and penalty phases of the trial – the
bailiff played golf with the jurors. Mr. Gavin argues that the mere act of the bailiff
playing golf with the jurors prejudiced him and entitles him to a new penalty phase
determination. He claims that the golf game thwarted the safeguards of sequestration
because it took place outside of the presence of the trial court and the defense counsel.
The jurors were sequestered over the weekend between the conclusion of the
guilt phase of the trial and the beginning of the penalty phase of the trial. They were
not deliberating over the weekend and they were not in court. Rather, they were
sequestered in a hotel away from their families and friends – and also away from the
court and defense counsel. During this time, the court’s bailiff was charged with
staying with them and tending to their needs.
Instead of requiring the jurors to spend all day sitting in a hotel room, the bailiff
took them to play golf. Mr. Gavin has not alleged that any improper communications
43
ever took place between the bailiff and the jurors – while they were playing golf, or
while they were in the hotel. The fact that the bailiff and the jurors played golf together
is of no consequence absent any improper communications between the jurors and the
bailiff. It appears from the record that the bailiff was simply doing his job – taking care
of the jurors while they were sequestered over the weekend.
Thus, the Alabama Court of Criminal Appeals finding that Mr. Gavin failed to
plead sufficient facts to support this claim is not an unreasonable determination of the
facts and did not involved an unreasonable application of Turner, Remmer, or Mattox.
B.
Ineffective Assistance of Counsel in the Guilt Phase
Mr. Gavin asserts that trial counsel rendered constitutionally ineffective
assistance during the guilt phase of his trial by failing to investigate basic information
surrounding the case and failing to adduce evidence that would have raised a
reasonable doubt about his guilt. (Doc. 1 at 26).
1.
Failure to Investigate and Impeach the State’s Key Witness
Mr. Gavin claims that counsel were patently ineffective for failing to investigate
and impeach Dwayne Meeks, the state’s “key witness.” (Doc. 1 at 27). He states:
44
Meeks and Gavin traveled in Meeks’ vehicle from Chicago to Alabama
twice in early 1998. Unlike Gavin, Meeks had connections in Alabama,
having spent much of his youth in Fort Payne and having attended high
school there. Meeks’ close proximity to Mr. Clayton at the time of the
shooting, his ownership of the murder weapon, and his flight from the
scene all suggests that he, and not Gavin, may have shot Mr. Clayton. In
fact, Meeks was viewed by the lead investigators as a suspect in the
crime, P.C. 835, was indicted by a grand jury, P.C. 857-58, and was
initially charged, along with Gavin, with the murder of Mr. Clayton.
(Id.).
He argues that Mr. Meeks’s testimony was essential to the state’s case against
him, yet counsel “utterly failed to undermine Meeks’ credibility or to introduce
evidence suggesting that Meeks may have been the shooter.” (Id.). Specifically, Mr.
Gavin alleges that counsel were ineffective for a) failing to conduct a minimal
investigation that would have enabled them to effectively cross-examine Mr. Meeks
or impeach many of his statements and through other witnesses and documents, and
b) failing to impeach Mr. Meeks on many inaccuracies and inconsistencies in his
testimony beyond those relating to the murder weapon.
a.
Failure to Conduct a Minimal Investigation
Mr. Gavin claims that counsel “failed to conduct even a minimal investigation
that would have enabled him to effectively cross-examine Meeks or impeach many of
45
Mr. Meeks’ statements through other witnesses or documents. (Id. at 27). He faults
counsel for failing to “uncover or exploit during cross-examination the unusual
circumstances surrounding the murder weapon – Meeks’ .40-caliber Glock.” (Id.). He
states that Mr. Meeks’s account of his ownership and use of the weapon was
suspicious and contradictory, and the seven day delay between the shooting and the
recovery of the weapon provided ample delay for Mr. Meeks or someone else to plant
the gun in the woods. (Id. at 27-28).
Mr. Gavin contends that although Mr. Meeks testified at trial that the murder
weapon had been issued to him by his employer, the Illinois Department of
Corrections, it later came to light that Mr. Meeks’s personnel file contained no record
that he had been issued a work-related weapon. (Id. at 28). He asserts that “any
competent attorney would have investigated the weapon and its connection to the
prosecution’s central witness,” but no record shows such an investigation took place.
(Id.). Instead, counsel focused on Mr. Meeks’s poor parenting skills in leaving his gun
in an unlocked drawer despite having a three-year-old son in the home. (Id. at 29).
Mr. Gavin further alleges that counsel should have investigated and discovered
that, instead of coming to Alabama to look for girls, Mr. Meeks was running drugs
between Chicago and Alabama. (Doc. 1 at 29). He claims:
46
Had trial counsel bothered to investigate, he would have learned from
Meeks’ cousin, Titus Johnson, that Meeks once brought him to Alabama
to sell cocaine and heroin. P.C. 946. Johnson could have further
explained that Meeks “use[d] his size to intimidate people, including
other family members.” P.C. 947. Gavin’s brother-in-law, Keith Clark,
could have revealed that, at the time of the shooting, Meeks “owed a large
sum of money to Willie Lloyd, the former head of the Vice Lords gang,”
P.C. 954, a fact that Johnson could corroborate. P.C. 946.
(Id.). Mr. Gavin states Mr. Meeks offered to pay him to accompany him to Alabama
to assist with Mr. Meeks’s drug deals. (Id. at 30). He argues that this evidence would
have been highly probative to show at trial that Mr. Meeks was the “likely shooter”
instead of Mr. Gavin. (Id.).
The Rule 32 court denied the claim, finding the following:
The Defendant has presented nothing to indicate that the
Defendant’s trial attorneys knew or should have known prior to trial that
Meeks would offer testimony relating to where he got the murder
weapon, or that he would testify that the weapon was state issued. The
Defendant’s trial attorneys had absolutely no reason to investigate where
Meeks got the weapon.
Because the evidence overwhelmingly establishes that the
Defendant shot and killed Mr. Clayton, the Defendant’s trial attorneys
appropriately concentrated on trying to impeach Meeks with respect to
what Meeks said about how the Defendant got the weapon. In this regard
the Defendant’s trial attorneys sought to prove that Meeks and the
Defendant were on a joint venture when they came to Alabama, and that
Meeks was responsible, in whole or in part, for the weapon being
accessible or available for use in this crime.
While Meeks attempted to disassociate himself from the weapon
by claiming to be unaware that it was in the vehicle, the Defendant’s
47
attorneys attempted to discredit him by pointing out the improbability of
this testimony. Meeks’ own self contradiction about where the weapon
was kept added to the suggestion of culpability.
Because it was undisputed that Meeks and the Defendant came to
Alabama in an unwholesome alliance, the Defendant’s trial attorneys
made a reasonably convincing argument by direct and circumstantial
evidence that Meeks was complicit in the course of conduct which
resulted in Mr. Clayton’s tragic death.
The Defendant’s trial attorneys were not ineffective in attempting
to implicate Meeks. At most, however, Meeks was complicit. There is no
evidence that Meeks was the shooter. Indeed, the evidence is
overwhelming that the Defendant was the shooter, and mere proof that
Meeks lied about the gun being IDOC [Illinois Department of
Corrections] issued would not change that fact.”
(Vol. 32, Tab 76 at 3493-94).
The Alabama Court of Criminal Appeals affirmed the trial court’s denial of the
claim, finding that Mr. Gavin failed to establish how such an investigation would have
altered the outcome of Mr. Gavin’s trial. (Vol. 46, Tab 85 at 19-23).
To succeed on this claim, Mr. Gavin must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland, 466 U.S. 687. Because both parts of the Strickland standard must be
satisfied, this court is not required to address both parts of the Strickland standard
when the habeas petitioner makes an insufficient showing on either one of the prongs.
See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both
48
parts of the test must be satisfied to show a violation of the Sixth Amendment, the
court need not address the performance prong if the defendant cannot meet the
prejudice prong, or vice versa.”) (citation to Strickland omitted).
Thus, even assuming that counsel were deficient for failing to investigate and
discover the truth about Mr. Meeks - that the murder weapon was Mr. Meeks’s
personal weapon and that the purpose of their trip to Alabama related to dealing drugs
rather than picking up women – Mr. Gavin cannot succeed on this claim, because he
is unable to show he was prejudiced by counsel’s failure to elicit this information at
trial. Although Mr. Gavin maintains that this information would have suggested that
Mr. Meeks might have been the shooter rather than Mr. Gavin, it does not overcome
the overwhelming evidence that Mr. Gavin was in fact the shooter. Such testimony
would, at best, have shown that Mr. Meeks was a dishonest drug dealer. But, simply
no evidence implicates Mr. Meeks as the shooter.
The overwhelming evidence pointed to Mr. Gavin as the shooter. Larry Twilley
identified Mr. Gavin as the shooter. (Vol. 8, Tab 18 at 521-23). Investigator Danny
Smith testified that he followed Mr. Gavin in the victim’s stolen van, Mr. Gavin got
out of the van when he stopped, Mr. Gavin shot at him before fleeing into the woods,
and that he found the victim’s body in the van after Mr. Gavin fled. (Vol. 8, Tab 18 at
555-65, 592-94). Tony Holladay testified that he, with the assistance of his search dog
49
Spanky, found Mr. Gavin hiding in a creek in the woods. (Vol. 9 at 735). Investigator
Smith identified Mr. Gavin as the man who had shot at him before running into the
woods. (Vol. 8, Tab 18 at 593-94). Shell casings from the scene where Mr. Gavin shot
at Investigator Smith then ran into the woods matched the shell casings found at the
murder scene. (Vol. 10 at 962-63).
Given this evidence, if counsel had investigated and discovered that Mr.
Meeks’s weapon was his personal weapon and that he was involved in running drugs
between Chicago and Alabama, no reasonable probability arises that the results of the
proceeding would have been different. Thus, the Alabama Court of Criminal Appeals’s
holding that Mr. Gavin failed to establish Strickland prejudice was not unreasonable.
b.
Failure to Impeach Mr. Meeks on Inaccuracies and
Inconsistencies in His Testimony
Mr. Gavin asserts that counsel also failed to impeach Mr. Meeks’s testimony on
many other inaccuracies and inconsistencies. Specifically, he claims that
[a]t trial Meeks testified that Gavin took his gun without permission and
used it to shoot Mr. Clayton, but Meeks- unbeknownst to Gavin’s jury had earlier reported no knowledge of who might have taken his gun. R.
722-24; P.C. 876-78. Meeks also reported to investigators that Gavin had
been living with him - perhaps to explain how Gavin would have access
to Meeks’ gun - although Meeks later testified that Gavin lived with his
mother after his release from prison (which was true). R. 648-49. Meeks
also asserted at trial that “everybody in the family” knew about Gavin’s
murder conviction, R. 649, but Meeks failed to report his cousin’s
50
incarceration on his application for employment with IDOC. P.C. 913.
Trial counsel never brought these disparities to the jury’s attention.
(Doc. 1 at 30-31). Mr. Gavin contends that no conceivable strategic reason could
justify counsel’s failure to expose these inconsistencies and that counsel’s utter failure
to impeach Mr. Meeks with this readily available evidence was deficient. (Id. at 32).
In affirming the trial court’s denial of his Rule 32 petition, the Alabama Court
of Criminal Appeals stated:
Regarding the firearm that was used in the murder the circuit court
noted that Gavin’s “trial attorneys sought to prove that Meeks and the
Defendant were on a joint venture when they came to Alabama, and that
Meeks was responsible, in whole or in part, for the weapon being
accessible or available for use in this crime.” (C. 3493.) The circuit court
also stated that Gavin’s “trial attorneys focused on trying to implicate
Meeks in the murder by proving that Meeks’ testimony was not credible.”
(C. 3494.) The circuit court generally concluded that:
The Defendant contends that his trial attorneys did
not undertake a sufficient investigation to make informed
strategic decisions about whether to offer certain evidence
or examine/cross-examine witnesses on certain subjects.
The Defendant’s argument is based on the Defendant’s
assumptions about what investigation the trial attorneys
undertook, and what information they knew or failed to
know.
There is no basis on which to support the Defendant’s
assumptions which are at the heart of his Rule 32 Petition.
Neither this Court, nor the Defendant and his current
attorneys, should speculate about what the Defendant’s trial
attorneys knew or did not know, or what they did or did not
do.
51
(C. 3520.)
During his trial, Gavin’s attorneys cross-examined Meeks about the
facts surrounding Gavin and Meeks’s trip to Centre, the events
immediately following the shooting of Clayton, Meeks’s connection to
the handgun used in the murder including how he kept it unlocked in his
home where his small son lived, and prior statements Meeks made to law
enforcement. How that cross-examination was conducted was a strategic
decision. Moreover, Gavin has failed to establish how he was prejudiced
by the cross-examination his trial counsel conducted. Gavin is due no
relief on this claim.
(Vol. 46, Tab 85 at 24-25).
Counsel conducted a vigorous cross-examination of Mr. Meeks. During the
cross-examination, counsel elicited details that showed that Mr. Meeks cheated on and
lied to his wife about his trips to Alabama; that some of his friends and relatives were
unsavory characters; that Mr. Meeks could not give a basic description of the girl he
and Mr. Gavin claimed to have come to Alabama to meet; that he fled back to Chicago
after the shooting, instead of calling the police; that although he was aware Mr. Gavin
was on parole and not allowed to leave the state, he took Mr. Gavin to Alabama with
him; that Mr. Meeks consulted with several friends and tried to contact a lawyer before
reporting the crime after he returned to Chicago; that he kept his gun in an unlocked
drawer in his house with a three year old child; and that he told inconsistent stories to
the police about who he thought might have stolen his gun and where it was when it
was stolen. (Vol. 9 at 698-728). Thus, the Alabama Court of Criminal Appeals’s
52
finding that counsel were not deficient in failing to cross-examine Mr. Meeks on his
knowledge of who took his gun, where Mr. Gavin lived after he was released from
prison, and Mr. Meeks’s failure to report Mr. Gavin’s incarceration on his employment
application was not unreasonable.
Furthermore, given the overwhelming nature of the evidence against Mr. Gavin,
the appellate court’s finding that Mr. Gavin was not prejudiced by counsel’s failure to
more rigorously cross-examine Mr. Meeks on these facts was not unreasonable.
2.
Failure to Expose Irregularities in the State’s Investigation
a.
Contamination of the Victim’s Van
Mr. Gavin contends that the van in which the victim was shot was “almost
immediately compromised when a rescue squad drove the van to the Cherokee County
Sheriff’s Office for processing, P.C. 796, sitting where the victim and shooter both
sat.” (Doc. 1 at 33). He explains that the evidence at trial was “muddled as to how law
enforcement handled the van once it was recovered,” and testimony showed that the
van was driven – not towed – from where it was recovered. (Id. n.5) (citing Vol. 8, Tab
18 at 568).4 According to Mr. Gavin, this procedure “risked the van’s becoming
contaminated and thus losing or tainting evidence associated with the crime.” (Id. at
4
Investigator Smith testified that after the victim was removed from the van and
transferred to the hospital, he returned to the manhunt after asking that “one of our rescue
squad members there on the scene drive the vehicle in for them.” (Vol. 8, Tab 18 at 568-69).
53
33-34). He argues that counsel were ineffective for failing to investigate or expose the
extent to which evidence was compromised by the police’s failure to follow standard
procedure because “marshal[ing] these irregularities” might have “raise[d] the specter
of doubt in juror’s minds.” (Id. at 34).
In affirming the trial court’s denial of this claim in Mr. Gavin’s Rule 32
proceedings, the Alabama Court of Criminal Appeals found:
Gavin asserts that his trial counsel were ineffective in failing to
investigate and later inform the jury how law-enforcement officers
processed the Corporate Express van that, he contends, “was almost
immediately compromised when a rescue squad drove the van to the
Cherokee County Sheriff’s Office for processing.” (Gavin’s brief, p. 46.)
Danny Smith, an investigator with the District Attorney’s Office
for the Ninth Judicial Circuit, testified at Gavin’s trial that a rescue-squad
member had driven the Corporate Express van to the Cherokee County
Sheriff’s Office after Clayton’s body was removed. Gavin’s trial counsel
did not cross-examine Smith about the transportation of the van. During
a deposition taken in the Rule 32 proceedings, Smith said that “the van
would have been taken by wrecker back to the sheriff’s department.” (C.
1923.) Larry Wilson, the chief deputy for the Cherokee County Sheriff’s
Department, testified at Gavin’s trial that the Corporate Express van had
been “pulled and [taken] to the sheriff’s department where it was locked
up, and then [the sheriff’s department] asked for forensic sciences to have
somebody come and fingerprint[] the van.” (Record on direct appeal, R.
872.) The circuit court, in denying Gavin’s claim regarding the
preservation of the Corporate Express van, noted:
The jury heard the trial testimony of Smith and
Wilson. Based on Smith’s post-trial testimony it appears
that if trial counsel had solicited additional trial testimony
about this subject it may have resulted in the testimony
54
being “corrected” or clarified to remove the apparent
conflict between the testimony of Smith and Wilson.
The Defendant’s trial attorneys apparently chose not
to pursue this matter further. The trial attorneys thereby
allowed the jury to have the conflicting testimony [regarding
the handling of the Corporate Express van] in this regard.
The conflict was more helpful to the Defendant than would
have been the “corrected” testimony. By leaving the
testimony in a state of conflict between [the investigating
officers] the Defendant’s trial attorneys were able to leave
the jury with the argument that the improper handling of the
crime scene had destroyed evidence.
(C. 3498-99.)
In the instant case, the circuit court correctly concluded that, had
Gavin’s trial counsel cross-examined Smith regarding the transportation
of the van, Smith would have been allowed to “correct” his testimony to
Gavin’s detriment. Therefore, Gavin has failed to establish how he was
prejudiced by the cross-examinations his trial counsel conducted, and he
is due no relief on this claim.
(Vol. 46, Tab 85 at 25-27).
Mr. Gavin has offered nothing to show that an investigation by counsel into the
way law enforcement handled the van would have created doubt in the juror’s minds
as to his guilt. Rather, it appears that the basis for this claim – that the van was driven
from the crime scene instead of being towed – is not even accurate. Deputy Larry
Wilson of the Cherokee County Sheriff’s Department testified that the van was “pulled
and took to the Sheriff’s Department where it was locked up” and later fingerprinted.
55
(Vol. 10 at 872). Although Investigator Smith testified at trial that he had “one of our
rescue squad members there on the scene drive the vehicle in for them,” it is not clear
that Investigator Smith meant that the rescue squad member sat inside the van and
drove it back, because he later testified in a deposition during the Rule 32 proceedings
that the van would have been taken to the sheriff’s department by wrecker. (See Vol.
8, Tab 18 at 568-69 & Vol. 28 at 19235). If counsel had cross-examined Investigator
Smith about his statement that he asked one of the rescue squad members to “drive the
vehicle in for them,” more than likely, he would have clarified to state that the vehicle
was actually towed and not driven.
In any event, the jury was left with conflicting testimony as to whether the van
was towed to the sheriff’s department or driven. The jury could have concluded from
the testimony that the evidence might have been contaminated if it believed the van
was driven before being checked for evidence. This testimony was obviously not
persuasive to the jury. It is unlikely that counsel’s failure to somehow expose the
alleged contamination of the van to the jury would have changed the outcome of the
trial. Thus, the Alabama Court of Criminal Appeals’s finding that Mr. Gavin failed to
5
Investigator Smith stated in the deposition that “the van would have been taken by
wrecker back to the sheriff’s department and . . . there would have been an officer that
accompanied that vehicle to maintain security and custody on that vehicle.” (Vol. 28 at 192324).
56
establish that he was prejudiced by this alleged deficiency in counsel’s performance
is not unreasonable.
b.
Dewayne Meeks’ Interview
Mr. Gavin alleges that counsel failed to explore the irregularities in the
investigation of Mr. Meeks’s involvement in the shooting. (Doc. 1 at 34). He claims
that Mr. Meeks should have been investigated and interrogated as a suspect, rather than
interviewed as a mere witness to the crime. (Id. at 35).
1.
Advance Notice of Interview
Mr. Gavin maintains that law enforcement provided Mr. Meeks with “significant
advance notice that they intended to interview him,” which he contends was improper
because it eliminated the element of surprise and gave him an opportunity to get his
story straight. (Id. at 35-36). Mr. Gavin argues that counsel were ineffective for failing
to expose this fact to the jury.
The Alabama Court of Criminal Appeals affirmed the trial court’s denial of this
claim:
Gavin asserts that his trial counsel were ineffective in investigating
Meeks’s involvement in the murder. Gavin argues that his trial counsel
should have informed the jury about the advance notice Meeks had that
law-enforcement officers were coming to interview him. . . .
At the evidentiary hearing held on this claim, Gavin presented the
expert testimony of Kenneth M. Webb, Sr., a licensed private detective
57
and Chief Executive Officer of Fact Finders Group, Inc. Webb testified
that it was his “understanding” that Meeks had been “given advanced
notice that he was going to be interviewed.” (R. 244.) No evidence was
presented that established how far in advance of the interview Meeks was
allegedly informed that law-enforcement officers wanted to speak with
him. During the deposition taken in the instant case, Danny Smith
testified that he had not spoken with Meeks before interviewing him.
Smith said that an officer in Illinois “facilitated a place for the interview
[of Meeks] to take place and assured [Alabama law-enforcement officers]
that Meeks would be available when [the Alabama law-enforcement
officers] got there.” (C. 1936.)
....
In denying Gavin’s petition the circuit court generally found that
Gavin had “not met his burden of proving that his trial attorneys failed to
sufficiently investigate this case. Merely because the Defendant’s trial
attorneys did not present certain evidence or examine/cross-examine
witnesses on certain subjects does not mean that the attorneys failed to
make informed decisions regarding such evidence and/or testimony.”
(C. 3521.)
The record does not support Gavin’s argument and he is due no
relief on this claim. . . .
(Vol. 46, Tab 85 at 27-28).
Even assuming that Mr. Meeks’s was given advance notice that the authorities
intended to interview him, it is unlikely that if counsel had made the jury aware of this
fact, the outcome of his trial would have been different. Thus, Mr. Gavin is not able
to establish that counsel’s failure to investigate and inform the jury that Mr. Meeks had
advance warning that he was going to be interviewed prejudiced his defense. The
58
Alabama Court of Criminal Appeals’s determination that this claim has no merit was
not unreasonable.
2.
Mr. Meeks’s Interviewers were Personal Friends
Mr. Gavin maintains that counsel were ineffective for failing to bring to light the
fact that Mr. Meeks was interviewed by his personal friends and Officer Smith, who
was also one of Mr. Gavin’s victims, which created “troubling conflicts of interest.”
(Doc. 1 at 35-36). He asserts that allowing Mr. Meeks’s friends to be present during
the interview created an atmosphere that was friendly, and thus, improper. (Id. at 35).
In affirming the denial of this claim on collateral appeal, the Alabama Court of
Criminal Appeals reasoned:
Gavin next argues that his trial counsel failed to “bring to light at
trial the troubling conflicts of interest that should have barred [Will
County, Illinois, Deputy Sheriff] Tom Arambasich, [Fort Payne Police
Department Officer] Tony Burch, and Investigator Danny Smith from
participating in the investigation.” (Gavin’s brief, p. 49.) Gavin
specifically contends that Deputy Arambasich and Officer Burch “should
not have had any role in the investigation” because they were “personal
friends” with Meeks. (Gavin’s brief, p. 49.) Gavin asserts that
Investigator Smith should not have participated in investigating the case
because Gavin was charged with the attempted murder of Smith.
In denying the portion of this claim relating to Smith, the circuit
court noted that there was “no evidence that the case against [Gavin] was
tainted by Smith’s participation as an investigator.” (C. 3502.) The circuit
court, in denying the portion of this claim that related to Arambasich and
Burch, stated that if Gavin’s trial counsel had emphasized the fact that
Arambasich and Burch had attended the interview of Meeks “the jury
59
might have been given the explanation which is now asserted before this
Court; that is, they were allowed to attend in order to facilitate a free flow
of information.”
(C. 3503.)
During the hearing held on Gavin’s petition Webb, a licensed
private detective, testified that the presence of Arambasich and Burch at
the interview of Meeks was improper because “it created an atmosphere
that was friendly to [Meeks].” (R. 241.) Webb also stated that the
participation of Arambasich and Burch in the investigation created a bias
and that “they could render an opinion that would not be normally
accepted.” (R. 253.) Webb said that Smith should not have investigated
Gavin because “when you start getting victims involved in criminal
investigations, they have a tendency to create an aura of impropriety. And
from a police perspective, when you’re a victim, someone else usually
conducts the investigation.” (R. 266.)
In the deposition he gave in the instant case, Smith said that
Arambasich was present for the interview because “Meeks had already
told Arambasich what had happened so there was a value to have him in
there in case Meeks told a different story.” (C. 1949.) Smith testified that
Burch had gone to the interview of Meeks because Burch could make
Meeks “feel comfortable talking with [officers investigating the murder].”
(C. 1947.) Smith also said that Gavin’s having shot at him did not impact
his investigation of the case.
Gavin failed to establish that the performance of his attorneys were
deficient as to the allegations in this claim or that he suffered prejudice
as a result of their allegedly deficient performance. Therefore, he is due
no relief on this claim.
(Vol. 46, Tab 85 at 28-30) (footnote omitted).
Mr. Gavin has not explained how the purported conflicts of interest with the
authorities who questioned Mr. Meeks’s affected or might have affected the outcome
60
of their interview with Mr. Meeks. If counsel had made the jury aware that Mr.
Meeks’s questioners had these conflicts of interest, no reason exists to think the
outcome of his trial would have been different. Thus, Mr. Gavin is not able to establish
that this alleged deficiency prejudiced his defense. The Alabama Court of Criminal
Appeals’s determination that this claim lacks merit was not unreasonable.
c.
Dewayne Meeks’ Polygraph Examination
Kenneth Webb, a retired police officer from Chicago, testified at the evidentiary
hearing as an expert in police investigative procedures. (Vol. 37, Tab 78 at 220). He
testified that of the three polygraph examinations that were set up for Mr. Meeks, he
only took two of them, and was uncooperative during the first one. (Id. at 235-36).
Officer Webb stated that as an investigator, he would see a witness’s failure to
cooperate in a polygraph examination as a reason to continue an investigation into that
witness’s involvement in the crime. (Id. at 238). He concluded that “Dwayne Meeks
should have been interrogated rather than interviewed” because “red flags . . . came
up relative to his fleeing the scene, involvement of the weapon and the vehicle.” (Id.
at 239). Mr. Gavin contends that counsel were ineffective for failing to expose this
61
information to the jury, either through an expert or by cross-examination of witnesses.
(Doc. 1 at 37).
Respondent argues that this claim is procedurally defaulted because Mr. Gavin
did not raise the claim on appeal from the denial of his Rule 32 petition. (Doc. 33 at
23-24). Mr. Gavin counters that the claims are not defaulted because factual basis and
legal argument supporting this claim were “explicitly presented” in state court. (Doc.
38 at 72).
To provide the state courts with a full and fair opportunity to address a claim,
a petitioner must “fairly present” the claim to the state courts in a manner to alert the
courts to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor,
404 U.S. 270, 275-76 (1971)). “[F]or purposes of exhausting state remedies, a claim
for relief in habeas corpus must include reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray
v. Netherland, 518 U.S. 152, 162-63 (1996) (citing Picard, 404 U.S. 270). Mr. Gavin
did not “fairly present” this claim to the state courts.
In the statement of facts in his brief on appeal from the denial of his Rule 32
petition, Mr. Gavin summarized the evidence adduced at the evidentiary hearing. (Vol.
43, Tab 80 at 4-34). In the section summarizing the testimony of Kenneth Webb, Mr.
Gavin set out the following:
62
3. Meeks’s polygraph examination. According to Webb,
evidence of a witness’s lack of cooperation during a polygraph
examination raises the probability that the witness may have participated
in the crime. P.R. 238-39. Meeks was asked to take a polygraph
examination, but refused. P.R. 236-38. This should have been yet another
red flag to law enforcement to take a meaningful look at Meeks’s
involvement but, inexplicably, there is no evidence that law enforcement
ever acted on this information. Gavin’s jury was never told this, either
through an expert or by cross-examination of witnesses.
(Id. at 13).
Later, in the argument section of his brief, Mr. Gavin claimed that trial counsel
were ineffective for failing to expose irregularities in the state’s investigation of the
case. (Id. at 46-50). Within this claim, Mr. Gavin argued that counsel were ineffective
for failing to investigate law enforcement’s failure to preserve the van in which the
victim was shot; law enforcement’s failure to secure the woods in which Mr. Gavin
was apprehended; the notice law enforcement gave Mr. Meeks before interviewing
him; law enforcement’s failure to search Mr. Meeks’s vehicle, clothing, and home for
evidence; and troubling conflicts of interest with several investigators on the case. (Id.).
Mr. Gavin alleged that these failures violated Strickland. (Id. at 46).
Mr. Gavin argues that by listing the “factual bases” of this claim in the statement
of facts, then discussing Strickland in the argument section of his brief where he
alleged counsel were ineffective for failing to expose irregularities in the state’s
investigation of the case, he “explicitly presented” both the factual and legal basis for
63
this claim to the Alabama Court of Criminal Appeals. However, he never mentioned
Mr. Meeks’s polygraph examination in the argument section of his brief and never tied
the factual allegations concerning the polygraph examination to his ineffective
assistance of counsel claim.
The court finds that setting out the factual basis for the claim in the section of
his brief summarizing the Rule 32 testimony of one of his witnesses, then discussing
Strickland in an argument in his brief, in which he never even mentioned the factual
basis of this particular claim, was not sufficient to alert the state courts that he was
claiming trial counsel violated Strickland by failing to expose information concerning
the polygraph examination to the jury. Because this claim is not exhausted and it is
now too late for Mr. Gavin to exhaust the claim, it is procedurally barred from review
in this court. See Collier v. Jones, 901 F.2d 770, 772 (11th Cir. 1990).
Moreover, even assuming the claim were not defaulted, it would be due to be
denied. Mr. Gavin has offered nothing to support a finding that the outcome of his trial
would have been different if the jury had known that Mr. Meeks did not cooperate
during a polygraph examination. Based on the overwhelming evidence of Mr. Gavin’s
guilt, it is not likely that the jury would have viewed Mr. Meeks’s lack of cooperation
during a polygraph examination as evidence that Meeks committed the murder rather
64
than Mr. Gavin. Thus, Mr. Gavin could not make a showing that he was prejudiced by
counsel’s failure to present this evidence to the jury.
d.
Failure to Investigate Dewayne Meeks’ Vehicle, Clothing, and
Home
Mr. Gavin further claims that counsel were deficient for failing to make the jury
aware that law enforcement did not impound Mr. Meeks’s vehicle, confiscate his
clothing, or search his home. (Id. at 37-38).
The Alabama Court of Criminal Appeals affirmed the trial court’s denial of this
claim:
Gavin argues that his trial counsel should have informed the jury about
. . . the failure of officers to impound or inspect Meeks’s Chevrolet
Blazer sport-utility vehicle, clothing, and home.
....
At Gavin’s trial, during the cross-examination of Deputy Wilson,
Wilson admitted that law-enforcement officers had not impounded the
Chevrolet Blazer sport-utility vehicle or “examine[d] [its] interior in any
way.” (Record on direct appeal, R. 903.) Gavin’s trial counsel also had
Deputy Wilson confirm that law-enforcement officers had not questioned
Meeks about the clothing he had been wearing at the time of the murder
and that they had not collected that clothing.
In denying Gavin’s petition the circuit court generally found that
Gavin had “not met his burden of proving that his trial attorneys failed to
sufficiently investigate this case. Merely because the Defendant’s trial
attorneys did not present certain evidence or examine/cross-examine
witnesses on certain subjects does not mean that the attorneys failed to
make informed decisions regarding such evidence and/or testimony.”
65
(C. 3521.)
The record does not support Gavin’s argument and he is due no
relief on this claim. Moreover, Gavin is due no relief on his claim related
to the alleged failure of his trial counsel to inform the jury about the
failure of officers to impound or inspect Meeks’s Chevrolet Blazer
sport-utility vehicle and clothing because it is directly refuted by the
record. See, e.g., McNabb v. State, 991 So. 2d 313, (Ala. Crim. App.
2007).
(Vol. 46, Tab 85 at 27-28).
Counsel in fact did bring out evidence to establish that law enforcement did not
impound Mr. Meeks’s vehicle or confiscate his clothing. At trial, Deputy Larry Wilson
testified on cross-examination that, although he took two or three photos of the outside
of Mr. Meeks’s vehicle, he did not impound the vehicle or otherwise examine it. (Vol.
10 at 902-03). Deputy Wilson further testified on cross-examination that investigators
did not confiscate Mr. Meeks’s clothing. (Vol. 10 at 906). The jury was aware that
authorities did not impound Mr. Meeks’s vehicle or confiscate his clothing. Therefore,
counsel were not deficient in this regard.
Further, Mr. Gavin has not alleged what evidence he believes could have been
obtained by a search of Mr. Meeks’s house or how such evidence might have assisted
his defense. No reason exists to believe that if counsel had made the jury aware of this
fact, the outcome of his trial would have been different. Thus, Mr. Gavin is not able
to establish that counsel’s failure to investigate and inform the jury that Mr. Meeks’s
66
house was never searched prejudiced his defense in any way. The Alabama Court of
Criminal Appeals’s determination that this claim has no merit was not unreasonable.
e.
Failure to Investigate Key Witnesses
Mr. Gavin argues that counsel were ineffective for failing to “exploit”
inconsistencies between potentially critical witnesses at trial. (Doc. 1. at 39). Mr. Gavin
claims that because it is common for two eyewitnesses to perceive the same event
differently, it was important for law enforcement to interview all eyewitnesses. (Doc.
1 at 38). He adds that law enforcement did not interview “potentially critical
witnesses” like Mr. Meeks’s wife Sharon Meeks, Mr. Meeks’s friend Marty Tutor, and
Mr. Twilley’s wife Vickie Twilley. (Id.). Mr. Gavin alleges that Mrs. Twilley, who was
at the murder scene with her husband, told Officer Webb “a version of events different
from the testimony her husband provided at Gavin’s trial.” (Id.) Officer Webb testified
at the evidentiary hearing that Mrs. Twilley “gave [a] conflicting statement relative to
the conditions of the night when the incident occurred.” (Vol. 38 at 256).
Respondent argues that this claim is procedurally defaulted because Mr. Gavin
did not raise the claim on appeal from the denial of his Rule 32 petition. (Doc. 33 at
23-24). Mr. Gavin counters that the claims are not defaulted because factual basis and
legal argument supporting this claim were “explicitly presented” in state court. (Doc.
38 at 72).
67
In his brief on appeal from the denial of his Rule 32 petition, in the section of
the statement of facts summarizing the testimony of Officer Webb, Mr. Gavin set out
the following:
5. Failure to interview key witnesses. Law enforcement also
improperly failed to interview potentially critical witnesses. (Gavin’s trial
lawyer Bayne Smith both failed to retain a police procedures expert to
establish this impropriety and failed to interview these witnesses himself.)
P.R. 253-56. Sharon Meeks, Dwayne Meeks’s wife, accompanied Gavin
and Meeks on the trip from Illinois, and was with them for several hours
shortly before Clayton was shot. She was again with her husband for
many hours thereafter as Meeks fled the scene, picked her and their son
up in Chattanooga, and returned to Chicago. P.R. 253-54. Marty Tutor
was a friend of Meeks and was the first person Meeks contacted after
Clayton was shot. P.R. 254-55. Vickie Twilley was at the scene of the
crime and told Webb a version of events different from the testimony her
husband provided at Gavin’s trial. P.R. 255-56. It is, of course, common
for two eyewitnesses to perceive the same event differently, which is why
it is important that law enforcement interview all eyewitnesses. None of
these individuals was ever questioned by law enforcement, and [counsel]
failed to exploit these inconsistencies on Gavin’s behalf at trial.
(Id. at 14-15).
Later, in the argument section of his brief, Mr. Gavin argued that trial counsel
were constitutionally ineffective for failing to expose irregularities in the state’s
investigation of the case. (Id. at 46-50). Although he listed several alleged irregularities
in the state’s investigation, he did not mention the failure to interview these witnesses.
As discussed above, setting out the factual basis for this claim in the section of
his brief summarizing the Rule 32 testimony of one of his witnesses, then discussing
68
Strickland in an argument in his brief, in which he never even mentioned the factual
basis of this claim, was not sufficient to alert the state courts that he was claiming trial
counsel violated Strickland by failing to exploit these inconsistencies at trial. Because
this claim is not exhausted and it is now too late for Mr. Gavin to exhaust the claim,
it is procedurally barred from review in this court. See Collier v. Jones, 901 F.2d 770,
772 (11th Cir. 1990).
Additionally, even assuming the claim were not defaulted, it would be due to be
denied. Neither Mrs. Meeks nor Mr. Tutor was at the scene of the murder, and Mr.
Gavin has not identified what, if anything, they would have revealed to law
enforcement if they had been interviewed. Further, Mr. Gavin’s only claim regarding
Mrs. Twilley, who was with her husband at the crime scene, is that she “told Webb a
version of events different from the testimony her husband provided at Gavin’s trial.”
(Doc. 1 at 38). He has not indicated what Mrs. Twilley would have told officers if she
had been interviewed, or how her version of events differed from her husband’s trial
testimony. Mr. Gavin has offered nothing that would support a finding that counsel’s
failure to “exploit these inconsistencies” would have altered the outcome of his trial.
Thus, he could not make a showing that he was prejudiced by counsel’s failures in this
regard.
f.
Irregularities in the Recovery of the Murder Weapon
69
The murder weapon was found several days after the crime, in the woods, near
the place Mr. Gavin was apprehended. Mr. Gavin argues that law enforcement’s failure
to follow standard procedures for securing the area, searching for the gun, and logging
ingress and egress to the crime scene, created a risk that the murder weapon was
planted during the week after he was arrested and in custody. (Doc. 1 at 39). He claims
that “this risk of planted evidence” could well have created a reasonable doubt in the
jury’s mind, given law enforcement’s failure to follow standard procedures. (Id.).
Respondent argues that this claim is procedurally defaulted because Mr. Gavin
did not raise the claim on appeal from the denial of his Rule 32 petition. (Doc. 33 at
23-24). Mr. Gavin counters that the claims are not defaulted because factual basis and
legal argument supporting this claim were “explicitly presented” in state court. (Doc.
38 at 72).
In his brief on appeal from the denial of his Rule 32 petition, in the section of
the statement of facts summarizing the testimony of Officer Webb, Mr. Gavin set out
the following:
6. Irregularities in the recovery of the murder weapon. The murder
weapon was recovered in the same general area where Gavin was
apprehended hours after the shooting. P.C. 482. But the gun was not
recovered for one full week after the crime. R. 264. Law enforcement
failed to follow standard procedures for (1) securing the area, (2)
searching for the weapon, and (3) logging ingress and egress to the crime
scene. P.R. 259-62. These improprieties created a risk that the murder
70
weapon was planted during the week after Gavin was arrested and in
custody. P.R. 264-65.
(Id. at 15-16).
Later, in the argument section of his brief, Mr. Gavin argued that trial counsel
were constitutionally ineffective for failing to expose irregularities in the state’s
investigation of the case. (Id. at 46-50). Although he listed several alleged irregularities
in the state’s investigation, he did not mention the alleged irregularities in the recovery
of the murder weapon.
As previously discussed, setting out the factual basis for this claim in the section
of his brief summarizing the Rule 32 testimony of one of his witnesses, then discussing
Strickland in an argument in his brief, in which he never even mentioned the factual
basis of this claim, was not sufficient to alert the state courts that he was claiming trial
counsel violated Strickland by failing to point out the alleged irregularities in the
recovery of the murder weapon. Because this claim is not exhausted and it is now too
late for Mr. Gavin to exhaust the claim, it is procedurally barred from review in this
court. See Collier v. Jones, 901 F.2d 770, 772 (11th Cir. 1990).
Moreover, even assuming the claim were not defaulted, it would be due to be
denied. Mr. Gavin has offered nothing to support a finding that, if the jury had heard
testimony to the effect that law enforcement failed to follow standard procedures in
71
securing the murder weapon, it would have believed the weapon was planted there by
someone else. Absolutely no evidence supports a finding that the gun was planted by
anyone in an effort to make Mr. Gavin look guilty. Rather, the overwhelming evidence
establishes that Mr. Gavin had the gun with him immediately before he fled into the
woods after shooting at Investigator Smith, and the gun was found several days later
in the same area. Given this evidence, it is not likely that the outcome of the trial would
have been different if the jury had heard testimony that law enforcement did not
properly search for the weapon or secure the area. Thus, Mr. Gavin could not make a
showing that he was prejudiced by counsel’s failure to present this evidence to the jury.
3.
Failure to Suppress Identification Evidence and to Effectively CrossExamine Unreliable Identification Testimony
Mr. Gavin next faults counsel for failing to make “every effort to exclude or at
least impeach the testimony of Larry Twilley, who provided an unreliable cross-racial
identification of Gavin.” (Doc. 1 at 41). Mr. Twilley was an eye-witness to the murder.
(Vol. 8, Tab 18 at 519-29). Mr. Twilley testified that he was in his car, stopped at a red
light, when he heard “a loud noise” that caught his attention. (Id. at 519-20). When he
turned around to identify the noise, he saw a “black guy” with very little hair and a
goatee jerking open the door to a van being driven by an “older white man.” (Id. at
519-21). Mr. Twilley saw the black man with a gun – then heard the black man fire
72
two shots at the older white man. (Id. at 522). Mr. Twilley watched the black man
“give the [white] guy a push,” get into the van, then drive off in the van. (Id.). Mr.
Twilley described the shooter as not “real heavy, but [not] slim.” (Id. at 521). When
asked if the shooter was wearing a cap or anything on his head, Mr. Twilley testified
that he “kept seeing something seems like something red, but [he did not] know if it
was on his head or not.” (Id.). Mr. Twilley stated that he was able to see the side of the
shooter’s face when he “turned and came around,” but added that his “hairline is what
stood out the most.” (Id. at 523). Mr. Twilley explained that although the shooter had
something red and black around his head at first, “[w]hen he come around the corner,
he didn’t have anything on his head.” (Id. at 529). When asked if he could identify the
shooter, Mr. Twilley pointed to Mr. Gavin who was sitting in the courtroom at a table
with his lawyers. (Id.). Defense counsel did not object to Mr. Twilley’s identification
of Mr. Gavin as the shooter.
Mr. Gavin alleges that Mr. Twilley “never gave a detailed description of Gavin
that would distinguish him from Dwayne Meeks, the other black man at the scene of
the crime, nor did Twilley identify Gavin in a line-up or photo array.” (Doc. 1 at 41).
Mr. Gavin points out the following as deficiencies in Mr. Twilley’s testimony:
Twilley only saw the side of the shooter’s face, and only for a few
moments as the shooter turned. R. 523. His prior description matched
neither Gavin nor the testimony he gave at trial. To police, Twilley
73
described the shooter as a “black male,” “slim, about 6 feet tall.” P.C.
979. But Gavin is only 5'8" tall, and at trial, Twilley testified ( contrary
to his prior description) that the shooter “wasn’t slim.” R. 521. Gavin is
slim, weighing only 145 pounds at the time of the shooting. P.C. 980.
Twilley’s identification also lacked conviction; he weakly stated that he
thought Gavin was the shooter because of his “hairline.” R. 523. And
there was a significant length of time-over eighteen months-between the
incident and identification.
(Id. at 42).
He claims that counsel “fell far short of professional obligations” by failing to
either have Mr. Twilley’s identification testimony excluded or failing to effectively
impeach his testimony. (Id. at 41). He adds that Mr. Twilley’s in-court identification
of Mr. Gavin was suggestive because he was not asked to choose among several
similar-looking candidates, thereby creating a “very substantial likelihood of
irreparable misidentification.” (Id.).
a.
Failure to Suppress Identification Evidence
Mr. Gavin contends that “[e]ven on its own,” counsel’s failure to “seek to
exclude Twilley’s identification testimony at a pre-trial hearing, notwithstanding its
obvious unreliability,” constitutes ineffective assistance of counsel under Strickland.
(Id. at 42). He argues that he was prejudiced because a “motion to exclude Twilley’s
testimony should have been granted by the trial court, leaving the State with the drug
74
dealing Meeks as the sole eyewitness to the crime – and without much of a case.” (Id.
at 42-43) (footnote omitted6).
The Alabama Court of Criminal Appeals found this claim to be without merit:
Gavin asserts that his trial counsel provided ineffective assistance
in failing to more to suppress eyewitness-identification evidence.
Specifically, Gavin argues that his “trial counsel should have made every
effort to exclude . . . the testimony of Larry Twilley, who provided an
unreliable cross-racial identification of Gavin.” (Gavin’s brief, p. 51.)
In dismissing this claim, the circuit court found that even if Gavin
had requested that the trial court “conduct a hearing out of the presence
of the jury, Mr. Twilley’s testimony would have been allowed for the jury
to give it such weight as the jury found it entitled to receive.” (C. 3508.)
On direct appeal, under a plain-error standard of review, this Court
“conclude[d] that the trial court did not err in allowing Twilley to identify
Gavin at trial.” Gavin v. State, 891 So. 2d 907, 962 n.23 (Ala. Crim.
App. 2003). Gavin has not demonstrated that the circuit court erred in
denying his Rule 32 ineffective-assistance-of-counsel claim based on the
admission of Twilley’s identification of Gavin, and Gavin therefore is due
no relief on this claim.
(Vol. 46, Tab 85 at 30).
Mr. Gavin argues that this finding was unreasonable because the state court
relied upon its earlier decision on direct appeal without conducting “any analysis of
Gavin’s underlying due process claim under the applicable standard established in Neil
6
In the footnote, Mr. Gavin explains that although the fact that Mr. Meeks was
dealing drugs “never surfaced” at the trial, the state acknowledged “Meeks’ drug dealing”
at the hearing on the Rule 32 petition. (Doc. 1 at 43 n.7).
75
v. Biggers, 409 U.S. 188, 198 (1972).” (Doc. 38 at 39-40). He claims that this was not
appropriate because
[t]he entirety of the State Court’s direct appeal analysis and decision
regarding Gavin’s due process claim on Twilley’s identification is limited
to a footnote in its opinion, which stated:
We have reviewed the record and conclude that the trial
court did not err in allowing Twilley to identify Gavin at
trial.
(Vol. 16, Dir. App. State Court Op. at 82.) There is no discussion of the
applicable constitutional standard. Even assuming the State Court
considered Gavin’s claim under the Biggers standard in its one-sentence
footnote, such a brusque dismissal of Gavin’s claim cannot serve as the
backbone for dismissing Gavin’s post-conviction claim for ineffective
assistance of counsel. There is no discussion of whether Twilley’s
identification was unduly suggestive or whether it created a substantial
likelihood of misidentification. Biggers, 409 U.S. at 198. None of the
factors laid out in Biggers’ “totality of the circumstances” test is
discussed. And because the post-conviction State Courts simply relied
upon this one-sentence determination, no court has properly analyzed
Gavin’s claim under the constitutional standard yet.
(Doc. 38 at 40-41).
Mr. Gavin fails to mention, however, that when he raised this claim on direct
appeal, he claimed only that “Twilley’s identification . . . fails to meet the parameters
set out in the consensus of modern research for producing a reliable identification, and
it was plain error under Ala.R.A.P. 45A to admit it, the lack of a specific objection
76
notwithstanding.” (Vol. 14, Tab 42 at 90). Mr. Gavin did not allege the claim as a
federal constitutional violation. Thus, the state courts did not treat it as such.7
But, the Alabama Court of Appeals does not appear to have based its decision
denying Mr. Gavin’s ineffective assistance of counsel claim on its denial of the
substantive claim on direct appeal. Rather, the Alabama Court of Criminal Appeals
based its decision on the trial court’s statement that even if the trial court had been
requested to “conduct a hearing out of the presence of the jury, Mr. Twilley’s
testimony would have been allowed for the jury to give it such weight as the jury found
it entitled to receive.” (C. 3508.) (Vol. 46, Tab 85 at 30) (quoting Vol. 36, Tab 76 at
3508).
The trial court made clear that even if counsel had requested and obtained a
hearing on a motion to suppress Mr. Twilley’s testimony, it would have denied such
7
The Alabama Court of Criminal Appeals denied the claim in a footnote:
We note that Gavin also contends that the trial court erred in allowing
Twilley to identify him at trial. Gavin did not object to Twilley’s identification,
and his entire argument on appeal regarding Twilley’s identification is:
“Twilley’s identification likewise fails to meet the parameters set out in the
consensus of modern research for producing a reliable identification, and it
was plain error under [Ala.R.App.P.] 45A to admit it, the lack of a specific
objection notwithstanding.” (Gavin’s brief at p. 90.) We have reviewed the
record and conclude that the trial court did not err in allowing Twilley to
identify Gavin at trial.
Gavin, 891 So. 2d at 962 n. 23.
77
a motion, allowing the jury to determine the weight the testimony deserved. Thus, even
assuming counsel were deficient for failing to object to Mr. Twilley’s identification
testimony or his in-court identification of Mr. Gavin as the perpetrator, Mr. Gavin was
not prejudiced by this failure. So, the outcome of the trial would not have been
affected. The Alabama Court of Criminal Appeals’s finding that Mr. Gavin is not due
relief on this claim is not unreasonable.
b.
Failure to Effectively Cross-Examine Unreliable Identification
Testimony
Mr. Gavin further claims that having failed to seek to exclude Mr. Twilley’s
testimony, counsel compounded the error by failing to impeach his testimony on crossexamination. Specifically, Mr. Gavin contends:
Twilley offered inconsistent accounts of the assailant’s height and
weight-from 6 feet initially to the identification of the 5' 8" defendant and
from “slim” to “not slim”8 but trial counsel neglected to confront Twilley
with these discrepancies, even though the description of a 6-foot tall
shooter of moderate build with a distinctive hairline better matches Meeks
than Gavin. See P.C. 981 (stating that Meeks was 5'10" and weighed 240
pounds); P.C. 982 (photograph of Dwayne Meeks). Failure to use height
and weight discrepancies to impeach identification testimony is a
standard ground for relief under Strickland.
8
In his written statement given the day of the shooting, Mr. Twilley described the
shooter as a “black male,” “slim about 6 ft. tall,” wearing “dark cloth[e]s” and a “black
striped bogin [sic].” (Vol. 21 at 486). At trial, Mr. Twilley described the shooter as a black
guy with very little hair and a goatee, who “wasn’t real heavy, but he wasn’t slim.” (Vol. 8,
Tab 18 at 521).
78
(Doc. 1 at 42). He adds that counsel also failed to emphasize that Mr. Twilley did not
identify Mr. Gavin until the trial – more than eighteen months after the shooting. (Id.
at 42-43).
When Mr. Gavin presented this claim in his Rule 32 proceedings, the trial court
denied the claim as follows:
The Defendant’s trial attorneys were not constitutionally deficient
in their cross-examination of Mr. Twilley. For example, the trial attorneys
elicited testimony that indicated that the position of Mr. Twilley’s car in
relation to the murder made it difficult for him to have seen the murderer.
Testimony was elicited that Mr. Twilley’s attention was not drawn to the
scene of the shooting until after the shots were fired. The trial attorneys
established that Mr. Twilley could only see the side of the shooter’s face
for a short time.
During closing argument these aspects of Mr. Twilley’s testimony
were emphasized to the jury, and the Defendant’s trial attorneys faulted
law enforcement for failing to have Mr. Twilley view a lineup in the
twenty months preceding the trial.
The Defendant apparently contends that there was a fatal
inconsistency between Mr. Twilley’s description of the assailant as given
on the night of Mr. Clayton’s murder, and the description given at trial.
The Defendant points out that in his statement Mr. Twilley described the
assailant as “about six feet tall” and as “slim,” but at trial he stated that
the assailant “wasn’t real heavy, but he wasn’t slim.”
The Defendant argues that the description given by Mr. Twilley on
the night of the crime, and the description given, at trial, more closely
describes Mr. Meeks than the Defendant, and that the trial attorneys were
deficient in failing to make these comparisons.
79
The Defendant was five feet eight inches tall and weighed 146
pounds at the time of his arrest. Meeks was five feet ten inches tall and
weighed 240 pounds at the time. Meeks weighed almost one hundred
pounds more than the Defendant.
This Court finds it unrealistic to believe that Mr. Meeks, who
weighed almost 100 pounds more than the Defendant, and who was only
two inches taller than the Defendant, more closely fits the description
given by Mr. Twilley on the night of the murder, and again at trial.
Mr. Twilley testified that the assailant’s most distinctive feature
was his hairline. Indeed, the Defendant has a distinctive hairline.
Although Mr. Meeks has a receding hairline, the Defendant’s physical
appearance as observed by Mr.Twilley on the night of the murder and at
trial was the factor which adds certainty to Mr. Twilley’s in-court
identification.
This Court finds that the Defendant’s trial attorneys were not
ineffective merely because they failed to convince the jury that Meeks’
physical characteristics fit Mr. Twilley’s description given on the night
of the murder and at trial. On the contrary, the Defendant’s physical
characteristics more closely fit Mr. Twilley’s description of the assailant
given on the night of the murder.
(Vol. 36, Tab 76 at 3508-10).
In affirming the trial court’s denial of this claim, the Alabama Court of Criminal
Appeals stated:
Gavin argues that his trial counsel were ineffective in crossexamining the witnesses who identified him at trial. Gavin specifically
contends that his “trial counsel should have made every effort . . . to
imeach the testimony of Larry Twilley, who provided an unreliable crossracial identification of Gavin.” (Gavin’s brief, p. 51.) In denying this
claim, the circuit court found:
80
The Defendant’s trial attorneys were not
constitutionally deficient in their cross-examination of Mr.
Twilley. For example, the trial attorneys elicited testimony
that indicated that the position of Mr. Twilley’s car in
relation to the murder made it difficult for him to have seen
the murderer. Testimony was elicited that Mr. Twilley’s
attention was not drawn to the scene of the shooting until
after the shots were fired. The trial attorneys established that
Mr. Twilley could only see the side of the shooter’s face for
a short time.
(C. 3508.)
The circuit court also noted that it found “it unrealistic to believe
that Mr. Meeks, who weighed almost 100 pounds more than the
Defendant, more closely fits the description given by Mr. Twilley on the
night of the murder, and again at trial.” (C. 3509.)
In the instant case, Gavin’s trial counsel did not directly challenge
Twilley’s in-court identification of Gavin. Instead, they chose to
challenge Twilley’s vantage point from which he saw the murderer and
the length of time Twilley saw him. Gavin has failed to demonstrate that
the circuit court erred in denying his Rule 32 ineffective-assistance-ofcounsel claim of Twilley and is, thererfore, due no relief on this claim.
(Vol. 46, Tab 85 at 30-31). Mr. Gavin argues that this holding is an unreasonable
application of Strickland because the court failed to seriously consider his claims.
(Doc. 38 at 46).
On cross-examination, defense counsel questioned Mr. Twilley as follows:
Q.
Now, you said you heard a loud noise?
A.
Right.
81
Q.
Was that loud noise the first shot you heard or was there something
else that attracted your attention?
A.
I don’t know if the first noise was a shot, but then there was two
shots.
Q.
All right. And the individual that you described, according to what
you just said then, he would have opened the door in that direction,
correct?
A.
Right.
Q.
Wouldn’t that have put the door between him and you?
A.
Well, I didn’t really see him that well until he started turning out,
and that’s when I –
Q.
All right. So you didn’t see him at the time that he opened the door
and jumped in the van?
A.
No, I could see the driver and his arms.
Q.
All right. And you said that you saw one side of his face?
A.
Right.
Q.
And that was as he drove past you turning right, headed west
toward Leesburg; is that right?
A.
Right.
Q.
And you said this process took how long, now?
A.
No more than three or four minutes.
Q.
No more than three or four minutes. (Pause) That’s 15 seconds. I
would suggest, although I’m not going to put the Court to the test
82
of, you know, standing here for three or four minutes and see how
long that is. From what you’ve described you thought seriously that
it took three or four minutes for all this to transpire; is that what
you’re telling us?
A.
It happened in one cycle of the red light.
Q.
Very quickly?
A.
Right.
Q.
Less than two minutes?
A.
About right along in there. I mean, it seemed like it took forever.
Q.
Less than a minute. I mean, forever is a long time. 15 seconds is a
long time if we’re standing here counting that off; isn’t that true?
So it took considerable less than three or four minutes is that what
you’re telling us[?]
A.
Yeah.
Q.
All right. And you testified that the gentleman seated over here at
the defense table, Mr. Gavin, is the individual that you saw, but
you also said you only saw him that brief moment, is that correct?
However long it was?
A.
(Nodded in the affirmative)
Q.
And you told us you recognized him this morning because of his
hairline; is that correct?
A.
That the part that stands out the most.
Q.
That’s the part that stands out. Well, now, didn’t you tell the police
back on the 6th of March when you gave a statement that he was
wearing a red and black striped boggin?
83
A.
I said he had something red and black.
Q.
On his head?
A.
Around his head.
Q.
Okay. And yet, though he had this red and black thing on his head,
the only way you can identify him, the thing that stands out in your
memory is his hairline; is that correct?
A.
When he come around the corner, he didn’t have anything on his
head.
Q.
He didn’t have anything on his head when he came around the
corner?
A.
No.
(Vol. 8, Tab 18 at 526-29).
Although counsel conducted a vigorous cross-examination of Mr. Twilley, Mr.
Gavin faults counsel for failing to impeach Mr. Twilley with the descrepancies in his
descriptions of Mr. Gavin’s height and build. He believes that Mr. Twilley’s
descriptions of Mr. Gavin – who was five feet, eight inches tall and weighed 145
pounds – as “about six feet tall,” “slim,” and not “real heavy,” but not “slim,” more
closely described Mr. Meeks – who was five feet, ten inches tall and weighed 240
pounds. However, as the trial court pointed out, it would be unrealistic to believe that
Mr. Meeks, who was only two inches taller and weighed almost 100 pounds more than
84
Mr. Gavin, more closely fit the descriptions given by Mr. Twilley in his statement the
night of the murder and again at trial.
Rather than making an argument that seems quite unlikely to have swayed the
jury, counsel instead elicited testimony from Mr. Twilley on cross-examination, to
show that Mr. Twilley did not have a good view of the shooter, that his attention was
not drawn to the scene of the shooting until after the shots were fired, and that he only
saw the side of the shooter’s face for a very short time. (Vol. 8, Tab 18 at 526-29).
Additionally, counsel attacked Mr. Twilley’s identification testimony in Mr. Gavin’s
closing argument. (Vol. 11, Tab 21 at 1126-29).
The state courts’ findings that counsel’s strategy in cross-examining Mr. Twilley
was not deficient was not unreasonable under Strickland.
4.
Failure to Prevent the Jury from Hearing Prejudicial Evidence of
Mr. Gavin’s Prior Conviction During the Guilt Phase
Mr. Gavin was charged with murder made capital because he had been
convicted of another murder within the previous twenty years, in violation of Ala.
Code § 13A-5-40(a)(13). That provision required the state to prove as an element of
the capital murder charge that Mr. Gavin had been convicted of another murder within
the twenty years preceeding the current murder.
85
Mr. Gavin argues that counsel were deficient for failing to stipulate to the fact
of the prior conviction, which would have eliminated the risk that the prosecution
would present prejudicial and inflammatory evidence of the prior murder. (Doc. 1 at
44-45). He states that standard practice is for defense counsel to offer to stipulate to
the fact of prior convictions. (Id. at 45). He maintains that the details of his prior
murder conviction were irrelevant and unduly prejudicial. (Id. at 44). He contends that
because of counsel’s failure to stipulate to the fact of his prior murder conviction, the
court did not exclude the prosecutor’s repeated references to him as the “convicted
murderer from Chicago.” (Doc. 1 at 45).9 Mr. Gavin asserts that counsel’s failure to
preclude unnecessarily inflammatory references to his prior crime from being presented
to the jury “was at least reasonably likely to prejudice the jury.” (Doc. 1 at 51).
The Alabama Court of Criminal Appeals affirmed the Rule 32 court’s denial of
this claim:
Gavin asserts that “[w]hen the jury is asked to determine the fact
of a prior conviction, it is standard practice for defense counsel to offer
to stipulate to that fact, thereby eliminating the rist that the prosecution
will present prejudicial and inflammatory evidence of the prior crime.”
(Gavin’s brief, p. 58.) Although Gavin argues “the prosecution presented
9
In his reply brief, Mr. Gavin alleges additional facts that were not presented to the
Alabama Court of Criminal Appeals and were not included in his petition. (See Doc. 38 at
46-47). These facts are not before this court for review because “review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on the
merits.” See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
86
highly prejudicial evidence of Gavin’s prior conviction to the jury,” his
only citation to the trial record references the prosecutor’s referral “to
Gavin as the ‘convicted murderer from Chicago.’” (Gavin’s brief, p. 57
(citing trial transcript).)
In denying this claim the circuit court found that Gavin had “failed
to explain how a stipulation of his prior conviction would have mitigated
the evidence of a prior conviction which was required to be proved as an
element of the charged offense.” (C. 3512.)
Gavin was charged with murder made capital because he had
committed a prior murder within 20 years preceding the murder of
William Clinton Clayton, Jr., a violation of § 13A-5-40(a)(13), Ala. Code
1975. On direct appeal, Gavin contended that the evidence of his prior
conviction had been improperly admitted because it serves as “imroper
evidence of his bad character.” Gavin, 891 So. 2d at 950. This Court held
that “Gavin’s 1982 murder conviction was an element of the capital
offense that the State was required to prove beyond a reasonable doubt;
therefore, evidence of that conviction was properly admitted.” Id.
Because Gavin failed to demonstrate that his trial counsel provided
deficient performance or that he suffered prejudice as a result of their
alleged deficiency he is due no relief on this claim.
(Vol. 46, Tab 85 at 31-32).
Mr. Gavin argues that the state court’s holding that he was not prejudiced by
counsel’s failure to stipulate to the fact of his prior murder conviction is an
unreasonable application of Strickland. (Doc. 38 at 48). He cites Almendarez-Torres
v. United States, 523 U.S. 224 (1998), in support of his argument that “there is
‘significant prejudice’ associated with ‘the introduction of evidence of a defendant’s
87
prior crimes.’” (Doc. 38 at 48) (quoting Almendarez-Torres, 523 U.S. at 235).
However, Almendarez-Torres is not particularly helpful to Mr. Gavin.
In Almendarez-Torres, the court was asked to interpret 18 U.S.C. § 1326, which
forbids an alien who was once deported from returning to the United States without
special permission. Subsection (a) provides that a violation of the statute is punishible
by imprisonment for up to two years. Subsection (b)(2) provides for an additional
penalty for aliens who were removed after conviction for commission of an aggravated
felony. The defendant pled guilty to violating 18 U.S.C. § 1326 (a), and admitted that
the earlier deportation had taken place pursuant to three earlier convictions for
aggravated felonies. 523 U.S. at 227. At sentencing, Almendarez-Torres argued that
because the indictment had not mentioned the earlier aggravated felony convictions,
he could not be sentenced to more than two years imprisonment. Id. The trial court
rejected the argument and sentenced him to eighty-five months’ imprisonment. Id. The
Fifth Circuit Court of Appeals also rejected his argument, holding that “subsection
(b)(2) is a penalty provision that simply permits a sentencing judge to impose a higher
sentence when the unalwfully returning alien also has a record of prior convictions.”
Id.
88
The Supreme Court affirmed, holding that “Congress intended to set forth a
sentencing factor in subsection (b)(2) and not a separate criminal offense.” Id. at 235.
In explaining its decision, the Court pointed out:
[T]he contrary interpretation – a substantive criminal offense – risks
unfairness. If subsection (b)(2) sets forth a separate crime, the
Government would be required to prove to the jury that the defendant was
previously deported “subsequent to a conviction for commission of an
aggravated felony.” As this Court has long recognized, the introduction
of evidence of a defendant’s prior crimes risks significant prejudice. See,
e.g., Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 651–652, 17
L.Ed.2d 606 (1967) (evidence of prior crimes “is generally recognized to
have potentiality for prejudice”). Even if a defendant’s stipulation were
to keep the name and details of the previous offense from the jury, see
Old Chief v. United States, 519 U.S. 172, 178-179, 117 S.Ct. 644, 649,
136 L.Ed.2d 574 (1997), jurors would still learn, from the indictment, the
judge, or the prosecutor, that the defendant had committed an aggravated
felony. And, as we said last Term, “there can be no question that
evidence of the . . . nature of the prior offense,” here, that it was
“aggravated” or serious, “carries a risk of unfair prejudice to the
defendant.” Id., at 185, 117 S.Ct., at 652 (emphasis added). Like several
lower courts, we do not believe, other things being equal, that Congress
would have wanted to create this kind of unfairness in respect to facts
that are almost never contested. See, e.g., United States v. Forbes, 16
F.3d, at 1298-1300; United States v. Rumney, 867 F.2d 714, 718-719
(C.A.1 1989); United States v. Brewer, 853 F.2d 1319, 1324-1325
(C.A.6 1988) (en banc); United States v. Jackson, 824 F.2d, at 25-26;
Government of Virgin Islands v. Castillo, 550 F.2d 850, 854 (C.A.3
1977).
Id. at 234-35.
Unlike the charge against the defendant in Almendarez-Torres, the fact that Mr.
Gavin had been convicted of another murder within the previous twenty years was an
89
element of the capital murder charge against him that the state was required to prove.
Even if counsel had stipulated to the fact that he had been convicted of murder within
the previous twenty years, the jury would necessarily have known about the prior
conviction. While Almendarez-Torres states “the introduction of evidence of a
defendant’s prior crimes risks significant prejudice,” id. at 235, the fact remains that
Mr. Gavin has not shown a reasonable probability that, but for counsel’s failure to
stipulate to the fact of his prior murder conviction, the results of the proceeding would
have been different.
Mr. Gavin seems to believe that if counsel had stipulated to the prior conviction,
the prosecution would not have referred to him as the “convicted murderer from
Chicago.” But, the prosecutor just as likely would have still referred to him as the
murderer from Chicago, regardless of whether counsel stipulated to the fact of his prior
murder conviction. Further, there thing in the record suggests that but for the
prosecutor’s references to Mr. Gavin as the murderer from Chicago, the jury would
have reached a different result.
Because the prior murder conviction was an element of the capital murder
charge against him, the jury would necessarily have been well aware that Mr. Gavin
had previously been convicted of murder, regardless of whether the prosecution
90
referred to him as the murderer from Chicago. Thus, the state court’s finding that Mr.
Gavin failed to prove a violation of Strickland was not unreasonable.
5.
Failure to Call Mr. Gavin to Testify in His Own Defense
Mr. Gavin alleges that trial counsel’s decision not to allow him to testify was
constitutionally deficient. (Doc. 1 at 46-49). He claims:
In this case, the only conceivable strategy for raising a reasonable
doubt as to Gavin’s guilt was to implicate Meeks. Because Gavin and
Meeks were alone during the time period leading up to and during the
shooting of Mr. Clayton, in order to rebut Meeks’ account, it was
imperative that Gavin testify to provide his version of the facts. And he
had wanted to testify on his own behalf at his criminal trial, but his
attorney Bayne Smith advised against it. P.R. 108-09. Gavin further
explained that his lawyers “wouldn’t allow me to testify” at his criminal
trial. P.R. 169.
(Id. at 46) (footnote omitted).
In denying this claim on appeal from the denial of Mr. Gavin’s Rule 32 petition,
the Alabama Court of Criminal Appeals reasoned:
At the hearing held on this petition, Gavin testified that he told his
trial counsel that he wanted to testify at his trial, but Gavin did not say
what he had told his trial counsel he wanted to say under oath. In an
affidavit he submitted, Gavin’s lead trial counsel [H. Bayne Smith] stated
“that for the entire 22 months from the time [he] was appointed to
represent Mr. Gavin . . . Mr. Gavin . . . vehemently insisted that he was
not present at the scene of the shooting.”10 (C. 984.) On the day Gavin’s
10
Mr. Smith signed the sworn affidavit on July 24, 2000, during the proceedings on
Gavin’s motion for a new trial. (See Vol. 23 at 983-85). Mr. Smith died on October 25,
2006, prior to the February, 2010 evidentiary hearing on Gavin’s Rule 32 petition.
91
trial began, however, “Mr. Gavin acknowledged for the first time that he
had in fact been present at the scene of the shooting.” (C. 984.) Although
attorney Smith did not state in his affidavit why he did not call Gavin to
testify in his own defense, Gavin’s last-minute change of story would
have given Smith a reason to not call Gavin as a witness. Moreover,
Gavin concedes that his trial “testimony, by itself, would not likely have
changed the outcome at trial.” (Gavin’s reply brief, p. 17.)
The circuit court did not err in denying this claim and Gavin is due
no relief.
(Vol. 46, Tab 85 at 33).
Mr. Gavin argues that this holding was an unreasonable application of Strickland
because “trial counsel’s decision not to allow Gavin to testify ‘fell below an objective
standard of reasonableness.’” (Doc. 38 at 28). Mr. Gavin points to his Rule 32
testimony in which he denied shooting the victim; testified that Mr. Meeks was the
shooter, but he did not know in advance that he was going to shoot the victim; testified
that Mr. Meeks, who was running drugs between Chicago and Alabama, offered to pay
Mr. Gavin to help him drive from Chicago to Alabama to conduct drug deals and help
with his drug business. (Doc. 1 at 47-48). He claims that if counsel had elicited this
testimony from him at trial, Mr. Meeks’s “concocted testimony” – that the reason for
the trips to Alabama was to go “whoring” – would have been completely undermined.
(Id. at 48).
92
Nothing in the record indicates why trial counsel did not call Mr. Gavin to testify
in his own defense at trial. But, even assuming that counsel were deficient in failing
to have him testify, Mr. Gavin cannot show that this failure prejudiced his defense. To
show prejudice, Mr. Gavin must show a reasonable probability that but for counsel’s
failure to call him to testify, the result of his trial would have been different. See
Strickland, 466 U.S. at 694. Mr. Gavin conceded in his reply brief to the Alabama
Court of Criminal Appeals that his testimony, “by itself, would not likely have changed
the outcome of the trial.” (Vol. 46, Tab 83 at 17). The court agrees. Given the
overwhelming evidence implicating him in the murder, no reasonable probability
existst that his testimony would have changed the outcome of his trial. Thus, the
Alabama Court of Criminal Appeals’s finding that Mr. Gavin failed to prove a
Strickland violation was not unreasonable.
6.
The Cumulative Effect of Trial Counsel’s Errors
Finally, Mr. Gavin argues that because, taken as a whole, trial counsel’s
performance violated Strickland, the Alabama Court of Criminal Appeals improperly
denied relief on his guilt phase ineffective assistance of counsel claims by considering
each claim in isolation rather than performing a cumulative analysis of the effect of
counsel’s failures on the trial as a whole. (Doc. 1 at 49-57; Doc. 38 at 49-54).
Respondent counters that the cumulative claim is procedurally defaulted because it was
93
not fairly presented to the Alabama Court of Criminal Appeals, so the court did not
address it. (Doc. 33 at 25-28). Mr. Gavin contends that his cumulative error claim is
not a separate claim or allegation that must be exhausted, but that it is “part and parcel”
of his claim that counsel’s performance was deficient. (Doc. 38 at 77). He adds that
in any event, he fairly presented the claim to the appellate court. (Id.).
Regardless of whether this claim was properly presented to the state court, it is
due to be denied on the merits. “The cumulative-error doctrine provides that ‘a
sufficient agglomeration of otherwise harmless or nonreversible errors can warrant
reversal if their aggregate effect is to deprive the defendant of a fair trial.’” Finch v.
Secretary, Dept. of Corrections, 643 Fed. App’x 848, (11th Cir. 2016) (quoting
Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1284 (11th Cir. 2014)). “We
address claims of cumulative error by first considering the validity of each claim
individually, and then examining any errors that we find in the aggregate and in light
of the trial as a whole to determine whether the appellant was afforded a fundamentally
fair trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012)
(citing United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
The Eleventh Circuit Court of Appeals has made clear that without any error,
a cumulative error argument lacks merit. Insignares v. Sec’y, Fla. Dep’t of Corr., 755
F.3d 1273, 1284 (11th Cir. 2014). Although the Supreme Court has not addressed the
94
applicability of cumulative error in the context of ineffective assistance of counsel
claims, it has held, in the context of an ineffective assistance of counsel claim, that
“there is generally no basis for finding a Sixth Amendment violation unless the accused
can show how specific errors of counsel undermined the reliability of the finding of
guilt.” United States v. Cronic, 466 U.S. 648, 659 n.26 (1984) (citations omitted).
Mr. Gavin has not alleged a meritorious ineffective assistance of counsel claim.
He cannot accumulate his non-meritorious claims into a meritorious claim of
cumulative error. Therefore, this claim is without merit.
C.
Ineffective Assistance of Counsel in the Penalty Phase
In the penalty phase of Mr. Gavin’s trial, counsel called just two witnesses on
Mr. Gavin’s behalf: S. J. Johnson, a minister from the local Kingdom Hall of
Jehovah’s Witnesses in Centre, Alabama, and Mr. Gavin’s mother, Annette Gavin.
Mr. Johnson testified that he met Mr. Gavin in jail shortly after he was arrested
for the Clayton murder, after getting word that Mr. Gavin had asked for someone from
the church to visit him. (Vol. 11, Tab 29 at 1244). He stated that he met with Mr.
Gavin weekly over the twenty months prior to Mr. Gavin’s trial, spending about an
hour with him on each occasion. (Id. at 1244-45). Mr. Johnson testified that Mr. Gavin
“seemed to have an attitude that he was blaming everybody except” himself. (Id. at
1246). Mr. Gavin blamed God for some of the things that happened to him, and asked
95
Mr. Johnson why God allowed him to get into “various situations, bad company, and
end up in his life just being a mess.” (Id. at 1246-47). Mr. Johnson stated that he
answered Mr. Gavin’s question by telling him:
God gives us free will with free moral agents and we have a choice in the
decisions that we make. Now, being a minister I pointed out that the
Bible has certain requirements, God has outlined certain requirements for
us in the Bible, and it is up to us as to whether we adhere to those
requirements or we chose some other course. At the same time we’re
going to have to suffer whatever consequences for what actions we take.
(Id.).
Eventually, Mr. Gavin “began to get the point,” stopped blaming others so much,
and took some responsibility. (Id. at 1247). Mr. Johnson described how Mr. Gavin
went from causing trouble in jail to humbling himself to the authorities in accordance
with scripture. (Id. at 1247-48). He testified:
based on my experience with Keith and things that I’ve observed and
what seem to be some attitude changes, I feel that if Keith is given an
opportunity to continue to live, he has the potential to cultivate a deeper
relationship with God and I feel that there is hope for Keith if he’s given
time and opportunity.
(Id. at 1249). After discussing the Biblical principle of “an eye for an eye, tooth for a
tooth, soul for a soul,” and reciting the story of King David and Bathsheba, Mr.
Johnson stated that “there are occasions even today where mercy might override just
cold justice.” (Id. at 1250-52).
96
At the end of counsel’s direct examination of Mr. Johnson, Mr. Johnson asked
if he could make a statement. (Id. at 1252). He stated:
In Mr. Gavin’s case, he didn’t testify here, but in our conversations
he did on one occasion mention his concern for the Clayton family. He
mentioned the fact that he was sure they were feeling grief and they
would like to see justice and truth come out in this case and I feel the
same way.
(Id. at 1252-53). Mr. Johnson went on to extend his “sincere sympathy” to the victim’s
family. (Id. at 1253).
Counsel immediately asked for a sidebar in which he stated, “Judge, obviously,
the comment about Mr. Gavin’s failing to testify was unsolicited, it was not responsive
to my question, and in fact, there was no question on the table at that point.” (Id. at
1254). Counsel verified with the prosecutor that he did not intend to question Mr.
Gavin about his failure to testify on cross-examination. (Id.).
Annette Gavin testified that she felt Mr. Gavin “has the ability to live as he
should live because he had to, he had to see it, he sees it now” and that he “could really
be a great source of help to others and to our Creator.” (Id. at 1259). She added that
Mr. Gavin had always been exposed to the Jehovah’s Witness faith and that it was part
of his foundation. (Id. at 1258-59). When asked to tell the jury about Mr. Gavin’s
family values, Annette stated:
97
He’s always family and for families, you know, he is for families.
He got his view as he’s always felt a concern for other people. That’s
been his view all his life, since he was very young, by what was fair. He
loves justice, he really does.
(Id. at 1259). Annette ended her testimony by asking the jury to spare Mr. Gavin’s life.
(Id.).
1.
Available Mitigation Evidence
Mr. Gavin alleges that counsel were deficient because they “failed to conduct
any meaningful investigation into mitigating evidence at all, although there was ample
mitigating evidence available that should have been presented to the jury.” (Doc. 1 at
58). He argues that at his Rule 32 hearing, post-conviction counsel tendered numerous
witnesses, including Lucia Penland, Betty Paramore, and Craig Haney, who “presented
a compelling mitigation case and exposed trial counsel’s failure to develop, or even
attempt to prepare, such a case.” (Id. at 59). The testimony of the pertinent Rule 32
witnesses is summarized below.
a.
Lucia Penland
Lucia Penland testified at the evidentiary hearing that she was a mitigation
specialist with the Alabama Prison Project at the time of Mr. Gavin’s trial. (Vol. 38 at
302). Part of her job as a mitigation specialist included assisting trial counsel in
identifying appropriate experts to testify during the penalty phase. (Id.). Mr. Gavin’s
98
attorney Bayne Smith contacted Ms. Penland in October, 1998 and asked for her
assistance in preparing mitigation evidence in Mr. Gavin’s case. (Id. at 309-10). Ms.
Penland agreed to help if she had time, then counsel formally retained her in early
1999. (Id. at 310-11). Ms. Penland interviewed Mr. Gavin in April, 1999, but did not
have access to Mr. Gavin’s records at that time. (Id. at 320-22). She testified that she
had a difficult time convincing Mr. Gavin to give her any information. (Id. at 346).
Also in April, 1999, Ms. Penland contacted Dr. Craig Haney, who indicated he
was available to testify at trial as an expert on institutionalization, assuming counsel
could get a continuance, which they did. (Id. at 344-45). However, Mr. Haney was
never contacted by counsel. (Vol. 41 at 149).11
In May, 1999, shortly after her meeting with Mr. Gavin, Ms. Penland wrote trial
counsel informing them of the work she needed to do obtaining and reviewing records,
and interviewing family, friends, and teachers before she could determine which expert
witnesses were necessary. (Vol. 24 at 1019). However, counsel did not provide her
with the records she needed and did not contact her again until September 20, 1999,
just weeks before the trial was set to begin on November 1, 1999. (Vol. 38 at 324-28).
11
As it turned out, Mr. Haney was not available to testify at the later trial date. (Vol.
21 at 490).
99
Ms. Penland again urged counsel to seek a continuance, but counsel told her he did not
believe he could get one. (Id. at 326-28).
On October 5, 1999, Ms. Penland engaged John Sturman, a sentencing
consultant, to conduct interviews in Chicago and to search for Mr. Gavin’s prison and
educational records. (Vol. 24 at 1010). On October 13, 1999, after Mr. Sturman had
completed his work, Ms. Penland sent his work product to counsel, along with a
message to counsel explaining that there were
issues that need to be pursued in this case, including the atmosphere in
which Mr. Gavin grew up, the effects of his incarceration, effect of
poverty, racism, etc. Mr. Struman said that during the time Mr. Gavin
was growing up and in the area of town where his family lived, there was
a great deal of violence, including the development of large gangs and
serious gang activity. All of these issues along with whatever is found in
the family dynamics need to be thoroughly explored.
(Vol. 21 at 490-95). Ms. Penland again urged counsel to try to get a continuance to
allow for more time to develop a mitigation case,”based on the information [she was]
developing, along with the lack of cooperation [she had] encountered, and the time
factor on [her] part – having just this Monday finished with a trial on a prior case –
which has not allowed us to be further along that we are at this time.” (Id.). Ms.
Penland testified at the evidentiary hearing that neither Mr. Gavin nor his family would
cooperate with her. (Vol. 38 at 346-49). In May, 1999, when Ms. Penland was in
Chicago, Annette Gavin refused to speak to her. (Id. at 348).
100
Mr. Sturman’s work product included details from an interview he had with Mr.
Gavin’s mother Annette. In his first memorandum to Ms. Penland, dated October 13,
1999, Mr. Sturman explained that he had requested Mr. Gavin’s educational records
and asked Ms. Penland to pursue health and medical records if it was in her budget.
(Vol. 21 at 491). Then Mr. Sturman summarized some of the facts he had gleaned
from Annette:
Mr. Gavin grew up just blocks from where I am in the Chicago
Housing Authority’s ABLA Public Housing Project – not a great place
and controlled by the Gangster Disciples. More interesting, however,
were the riots on 12th Street following the death of Martin Luther King,
Jr. The whole area was in riot and on fire. Mr. Gavin would have been 8
years old so you might question him relative to PTSD and related
diagnoses.
Do you have a “rap sheet” on Mr. Gavin[?] His mother says that
he was charged with burglary when he was 13, charged with murder and
transferred to adult court when he was 17, and she doesn’t know what
else. She thinks he was acquitted in a bench trial. I’ll go to the Circuit
Court Clerk’s office when I’m at 26th Street tomorrow and see what’s on
computer or microfiche.
I’ll send you a more detailed memo of my interviews in a few days.
However, Mr. Gavin’s mother began by explaining to me that Dewayne
Meeks knew the victim, was “up into something” with him, asked Mr.
Gavin to ride down south to help him drive, and then set Mr. Gavin up for
the charge by leaving him on a country road, promising to come back for
him, and driving back to Joliet. “My boy isn’t like that.”
(Id. at 492).
101
Mr. Sturman’s “more detailed memo” was also dated October 13, 1999. In that
memo, he summarized his October 12, 1999 interview with Annette, which took place
at her home. Mr. Sturman described her home as “sparsely furnished and the interior
unpainted and undecorated for years reflecting substantial poverty.” (Id. at 493).
Annette explained that for the first twenty years of Gavin’s life, they lived in the
ABLA Public Housing Project where he was raised by his immediate family without
any intervention by the Department of Children and Family Services. (Id.). She
explained that Gavin faced great peer pressure to join a gang and was constantly
exposed to drugs, street violence, and shootings. (Id. at 495). She recounted a recent
week when her family had been “awakened five nights out of seven by automatic
weapons fire,” and her neighbor “t[aking] six bullets in her home one evening.” (Id.).
Annette provided Mr. Sturman with the names and addresses of Gavin’s
siblings, including telephone numbers for most of them. (Id. at 494). She stated that
all of her children had drug problems and that “Elaine, Victor, Sterling, and Steven
have all been arrested at some point and may have spent time in IDOC but she is
unsure of their charges.” (Id.).
Annette stated that she sent Gavin to the “M[e]nnonite Church when he was a
child and later to various churches including the Jehovah’s Witnesses which, she
stated, [he] attended until he was approximately 17 years old.” (Id.). She named the
102
schools Gavin had attended, stating that Gavin had been in special education classes
at some point. (Id.). She also stated that prior to the Clayton murder, Gavin had been
pursuing a GED. (Id.). She added that Gavin generally got along well with his peers,
enjoyed working as a child, got along in school, and was scared by the level of violence
in the neighborhood. (Id.). Finally, she recalled that she had suspected a neighbor
might have sexually abused Gavin, but stated that she could not be certain. (Id.).
Ms. Penland wrote to counsel on October 19, 1999, again describing the work
that remained to be done in preparing an effective, comprehensive and adequate
mitigation case and repeating that she needed additional time to complete her work.
(Vol. 24 at 1031-32). She stated that she would withdraw from the case if counsel did
not obtain a continuance, but that she would “be pleased to re-enter the case” if counsel
obtained a continuance. (Id. at 1032).
On October 20, 1999, trial counsel replied:
I certainly appreciate your position as set forth in your letter. . . .
In fact, [Gavin] continues to be completely unwilling to discuss his
background as it related to development of mitigation evidence in this
case, although his family is coming around and begining to cooperate to
some extent.
Please understand my position regarding a continuance. First,
Judge Rains was very clear that the continuance he granted back in June
was expressly for the purpose of allowing the Alabama Prison Project to
develop mitigation evidence in this case. The fact that Keith and his
family were unwilling to cooperate would, in my opinoin, not only not be
103
persuasive toward a continuance, but also would in fact be
counterproductive in that regard as well as towards [Gavin] as a whole.
Be that as it may, I did yesterday move for a continuance of the case, on
the basis of what was to my mind a far more legitimate and urgent
ground. Last week, I broke a bone in my foot. Since last Thursday, I have
been in a great deal of pain, have been heavily sedated, and have been in
a walking cast. Nonetheless, the judge denied my continuance, noting the
considerable logistical events which had been set in motion in view of the
contemplated start date: 300 jurors summoned, witnesses flying in from
all over the country, etc. He is clearly determined to start this case on
November 1. This was not a battle I could win, nor one that was going to
create an appealable issue.
I would appreciate your forwarding to me any information you
have obtained in Mr. Gavin’s case. It may be that I can introduce
documentary evidence through some of his family members or that the
DA will stipulate to the admission of uncontested material. Also . . . if
you have not expended all of the money . . . that Judge Rains allocated,
I would like to know that, as we may need it for other mitigation work.
I am very grateful for the work done by the Alabama Prison
Project, not only on this case but in general. . . . I am sorry we could not
have had a more successful collaboration on Gavin. . . .
(Vol. 21 at 496-97).
In an October 31, 1999 letter to the trial judge, counsel stated:
In accordance with your instructions, enclosed are copies of all
materials received from the Alabama Prison Project in connection with
this case. As you can see, it consists only of correspondence from Ms.
Penland and not, at this point, any useable mitigation material.
. . . in separate pleadings, I am today requesting allocation of
additional funds for the procurement of experts to testify in the
guilt/innocence phase of the case.
104
(Vol. 21 at 498). Mr. Gavin alleges that in this letter, counsel “misled the trial court and
concealed the work Sturman and Penland had done,” by “transmitting correspondence
from Penland – but not the Sturman materials.” (Doc. 1 at 63).
b.
Betty Paramore, Ph.D.
Dr. Betty Paramore also testified at the evidentiary hearing as a mitigation
specialist. (Vol. 38 at 384). As part of her mitigation investigation, she conducted faceto-face interviews with Mr. Gavin, his mother, three of his sisters, a cousin, an uncle,
and a friend, and she conducted telephone interviews with his brother, sister-in-law,
three other sisters, another cousin, and another friend. (Vol. 24 at 1091). She also
reviewed arrest reports, prison records, and available school records. (Vol. 38 at 390,
Vol. 24 at 1124).
Dr. Paramore testified that in putting the information she had on Mr. Gavin in
context, she considered risk factors, protective factors, and resiliency. (Vol. 38 at 39495). She identified numerous risk factors12 present in Mr. Gavin’s life, including multigenerational family dysfunction, domestic violence and impaired parenting, and the
poor, violent community in which Mr. Gavin grew up.
12
Recognized risk factors include individual factors, family factors, school-related
factors, peer grouping, and environmental or social factors. (Vol. 38 at 395-96).
105
As to multi-generational family dysfunction, Dr. Paramore found that Mr.
Gavin’s parents – Annette and Willie – both came from dysfunctional families with
histories of drug use, alcoholism, and incarceration. (Vol. 24 at 100-02). Annette’s
brother and sister had histories of drug abuse and incarceration, and another brother
was an alcoholic. (Id. at 1100). Of Willie’s twelve siblings, eight were alcholics, three
had histories of incarceration, and one was the “madam” of a prostitution house where
three of Willie’s sisters worked as prostitutes. (Id. at 1101). Willie was physically
abused as a child, he had problems with gambling and alcohol abuse, was incarcerated
when Mr. Gavin was two years old, and was shot in the chest when Mr. Gavin was
fourteen years old. (Vol. 38 at 405-07, Vol. 24 at 1101-02). Mr. Gavin argues that all
of these factors impacted his parents’ ability to raise their twelve children. (Doc. 1 at
66).
The dysfunction in Willie and Annette’s generation continued with their twelve
children. Mr. Gavin’s siblings Willie, Jr., Elaine, Victor, Steven, and Sterling had
histories of incarceration and drug use; Elaine, Victor, and Steven were gang members;
Victor was the victim of a gang shooting when he was sixteen; and Steven shot two
gang members who had attacked Mr. Gavin. (Vol. 24 at 1103-04, 1111, Vol. 38 at
415-16, 419). As a child, Mr. Gavin was often sent to highly dangerous parts of
housing projects to retrieve Elaine and Willie, Jr., and when he was seventeen, Mr.
106
Gavin was hospitalized after being attacked by a group of gang members. (Doc. 38 at
412-13, 419, Doc. 24 at 1111). When he was twenty-one, Mr. Gavin shot and killed
the leader of the gang that had attacked him. (Doc. 24 at 1112). He was convicted of
murder and incarcerated from 1981 through 1997. (Id.).
With respect to the risk factor of domestic violence and impaired parenting, Dr.
Paramore testified that Willie, Sr. physically abused Mr. Gavin, Annette, and Mr.
Gavin’s siblings with his hands, extension cords, and anything else that was available,
stopping only when he drew blood. (Vol. 38 at 427-29). She testified that Mr. Gavin
was beaten more often than his siblings because he often took responsibility for things
his siblings did to shield them from abuse. (Id. at 429-30). Mr. Gavin had a very close
relationship with his mother, but took on the adult responsibility of caring for his
siblings because she was not able to do so. (Id. at 434-36). Mr. Gavin engaged in
criminal activities to get money to support the family. (Id.).
With respect to the community risk factor, Dr. Paramore testified that Mr. Gavin
grew up in the “ABLA” Chicago public housing projects, in overcrowded houses that
were in poor condition. (Vol. 38 at 445-46). The residents of the housing projects were
poor, and the projects were riddled with gangs, drug activity, crime, violence, and riots.
(Id. at 441-44).
107
Upon being released from prison in 1997, at the age of thirty-seven, Mr. Gavin
returned to live with Annette, who had moved out of the housing projects. (Id. at 44748). At the time, two of his sisters, one of his brothers, and four of his nieces and
nephews also lived with his mother. (Id. at 448-49). The home was in deplorable
condition. It was filled with clutter and garbage, the kitchen sink did not work, there
were exposed wires and pipes, and the front door was broken. (Id. at 450-54, Vol. 39
at 455-56). Mr. Gavin was upset by the conditions of Annette’s home and tried to get
his siblings and cousins to raise money to assist with repairs; he was upset that several
of his siblings were on drugs; and although he wanted to help, he was unable to find
work because of his criminal record and having spent his entire adult life in prison.
(Vol. 39 at 456, Vol. 23 at 1000, Vol. 24 at 1001, Vol. 37 at 117). Mr. Gavin states
that these conditions made him “particularly susceptible to the negative influences of
Dwayne Meeks, his first cousin and a corrections officer, who lured Mr. Gavin with
the promise of easy money by driving Meeks around as Meeks did his drug deals.”
(Doc. 1 at 70).
Ms. Paramore testified that she “fe[lt] that the information that is included in the
mitigation report was available during trial and should have been considered.” (Vol.
38. at 389).
c.
Craig Haney, Ph.D.
108
Dr. Craig Haney was retained by Rule 32 counsel to provide his opinion on the
effects of imprisonment on Mr. Gavin and his potential for positive adjustment in
prison.13 (Vol. 41, Tab 79 at 24). Although Ms. Penland urged trial counsel to retain
Dr. Haney to review Mr. Gavin’s prison history for mitigation and to possibly testify
at the penalty phase, Dr. Haney never heard from counsel. (Id. at 150-51, 178-80).
Dr. Haney explained that institutionalization is “what happens to people when
they are placed in institutional settings, the way they are changed and affected by those
settings and often times changed and affected by those settings in ways that impede
their readjustment to non-institutional settings once they’re released.” (Id. at 35). He
testified that Mr. Gavin’s incarceration for seventeen years had a profound effect on
him. (Vol. 24 at 1054-58). Early in his imprisonment, Mr. Gavin was stabbed by gang
members. (Id. at 1060). Dr. Haney identified as factors that influenced Mr. Gavin’s
degree of institutionalization, the relatively early age – twenty-two – at which he was
incarcerated, the length of his incarceration, and his traumatic pre-incarceration
childhood. (Vol. 41 at 47-49, 57-58).
Dr. Haney opined that over time, Mr. Gavin adjusted to prison, but
institutionalization made it difficult for him to adjust to life outside of prison seventeen
13
Dr. Haney did not testify at the evidentiary hearing; rather, he was deposed and
submitted a sworn declaration. (Vol. 41, Tab 79 at 1 - Vol. 42 at 271, Vol. 24 at 1047-89).
109
years later when he was paroled. (Id. at 1083, Vol. 41 at 46). However, over time, Mr.
Gavin had become a model prisoner, receiving only one serious write-up in his
seventeen years in custody. (Doc. 41 at 77-79).14 Dr. Haney testified that evidence of
good conduct in prison has an important mitigating effect because jurors are often
“concerned about the future, what’s going to happen with this guy if and when we send
him to prison,” and evidence indicating that a defendant will have a positive
adjustment in prison reassures the jury that the defendant will not be a threat to other
people in prison. (Id. at 129-30).
Mr. Gavin claims that trial counsel could have offered evidence that he would
be able to adjust to a prison environment and adapt his conduct to the requirements of
that environment but did not. (Doc. 1 at 73-74).
2.
Deficiency of Counsel for Failing to Investigate Mr. Gavin’s
Background
Mr. Gavin argues that “counsel failed to conduct a competent investigation that
would have revealed powerful mitigation evidence that any reasonable lawyer would
have presented instead of the weak, on-the-fly mitigation case counsel presented at
trial.” (Doc. 60 at 14). He claims that counsel’s barebones penalty phase case reflected
14
The serious write-up was for possessing a shank – but the shank was never used.
(Doc. 41 at 77-79). He received other write-ups for infractions Dr. Haney described as
insignificant, such as having his television on too loud and listening to his television with
earphones. (Id. at 78).
110
a lack of preparation. (Id.). Mr. Gavin points out that during the penalty phase, counsel
basically admitted that he was unprepared and had not spent sufficient time with his
witnesses to prepare them for their testimony. (Id.).
When counsel called Mr. Johnson to testify, he called “Mr. S. C. Johnson.” (Vol.
11, Tab 29 at 1243). Counsel asked Mr. Johnson if he got “those initials right,” and
Mr. Johnson indicated that his name was “S. J.” Johnson. (Id.). Counsel then
apologized, “S.J., thank you, sir. I don’t have my notes with me from where we talked
the other day and I wasn’t sure about that, so thank you, and I apologize for the
correction.” (Id.). Counsel’s missing notes were from his only meeting with Mr.
Johnson prior to his testimony. (Vol. 33 at 2956). Mr. Johnson stated in an affidavit
that counsel first approached him concerning testifying about three days before the
penalty phase of the trial. (Id.). He stated that the only meeting he had with counsel
was on November 5, 1999, during a short break from the trial. (Id.). The meeting lasted
approximately five minutes and counsel asked him what his impression of Mr. Gavin
was – but did not ask him any other questions in preparation for Mr. Johnson’s
testimony. (Id.).
Mr. Gavin explains that counsel’s lack of preparation showed in Mr. Johnson’s
testimony:
111
For example, Johnson volunteered that Gavin “was blaming everybody
except [himself]” for the situation he was in, even “blaming God for
some of the things that happened,” when Johnson and Gavin first met.
(Vol. 11, Trial Tr. at 1246.) Johnson also highlighted Gavin’s failure to
testify (id. at 1252) – a prejudicial move that, if made by the prosecutor,
would have violated Gavin’s Fifth Amendment privilege against
self-incrimination under Griffin v. California, 380 U.S. 609, 615 (1965).
(Doc. 60 at 4-5).
Similarly, prior to Annette Gavin’s testimony, counsel admitted that he had not
prepared her to testify:
Mrs. Gavin, I know that when you and I spoke yesterday, I didn’t
really have an opportunity to prep you for your testimony today, but I
know that you would like to address the Court and the jury about your
feelings about Keith and the options that the jury has with regard to
punishment. Would you tell us what your thoughts are in that regard,
please, ma’am.
(Vol. 11, Tab 29 at 1258). Mr. Gavin argues that after this “open-ended prompt,
counsel asked about ‘Keith’s family values,’ invited his mother to ‘ask[ ] this court to
spare his life,’ and sat down,” resting his penalty phase case. (Doc. 60 at 15).
Mr. Gavin contends:
Having presented no substantial mitigation case, Gavin’s trial counsel
was left with little to argue in closing. He admitted to having spent the
night before “in [his] office searching through all of [his] collected
material” for “something, anything, one last shred of persuasive evidence
or argument that [he] might place before [the jury],” but found “nothing
that seemed really appropriate.” (Vol. 12, Trial Tr. at 1271.) But that did
not stop him from commenting on Gavin’s race – “When . . . I learned
that [Gavin] was a black man from Chicago, Illinois, and that he had a
112
prior murder conviction, my reaction, quite simply, was, oh, my God,
how can a man like that ever get a fair trial in Cherokee County,
Alabama?” (Vol. 11, Trial Tr. at 1265) – or turning to the Sunday comics
for a “[l]ittle gallows humor” from The Wizard of Id. (Vol. 12, Trial Tr.at
1270.) He was not in the position to argue that Gavin’s troubled past
made him less morally culpable, and as a result, the judge and jury were
left with “an incomplete and misleading understanding of [Gavin’s] life
history.” Williams v. Allen, 542 F.3d 1326, 1340 (11th Cir. 2008)
(granting habeas relief under AEDPA).
(Id. at 16-17).
Mr. Gavin argues that if counsel had conducted a reasonable investigation, they
would have uncovered the extensive mitigation evidence that was available to them as
set out above. (Doc. 1 at 75) (see also Doc. 60 at 17-22). He contends that no
competent counsel would have failed to collect and review such information or would
have conducted only a circumscribed interview with Mr. Gavin’s mother. (Doc. 60 at
18).
Mr. Gavin blames counsel’s failure to investigate and present a genuine
mitigation case on counsel’s inattention and incompetence. He argues that competent
counsel would have discovered and presented evidence of Mr. Gavin’s abusive
childhood, gang-infested neighborhood, his exposure to drugs and violence, and his
institutionalization. (Id. at 22). Mr. Gavin asserts that counsel’s actions in his case
cannot be chalked up to trial strategy:
113
As the record makes clear, the supposed “choice” here not to follow up
on or present evidence related to Gavin’s background was not a matter of
considered professional judgment at all, but rather the result of
unforgiveable inattentiveness. Under Strickland, “strategic choices made
after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Williams, 542 F.3d at 1337 (quoting Strickland, 466 U.S.
at 690-91.) The deference owed to counsel’s strategic judgments about
mitigation is directly proportional to the adequacy of the investigations
supporting such judgments. See Wiggins, 539 U.S. at 521.
Trial counsel’s investigation into Gavin’s background in this case,
done almost entirely through the Alabama Prison Project (“APP”) and
sentencing consultant John Sturman, was limited to one interview with
Gavin and one interview with his mother. Still, Sturman’s interview with
Annette Gavin revealed some information regarding Gavin’s background
that would have prompted reasonable counsel to inquire further, including
that many of Gavin’s siblings had drug problems and criminal histories,
that he grew up in a gang-infested neighborhood and was exposed to
significant violence and racial riots, and that he entered prison at a young
age. Nonetheless – and despite the fact that the APP specifically informed
trial counsel that the limited evidence they had uncovered indicated that
additional investigation was warranted, [Vol. 38 at] 330 – trial counsel
never followed up by interviewing additional witnesses, obtaining
records, or finding or preparing anyone to testify as to these matters
during the penalty phase of Gavin’s trial. [Vol. 38 at] 331-33. Under
these circumstances, trial counsel’s failure to broaden the scope of the
investigation was unreasonable under prevailing professional norms.
(Doc. 1 at 75-77).
He explains that in assessing the reasonableness of an attorney’s performance,
the Supreme Court has looked to American Bar Association (ABA) standards as a
114
guide. (Doc. 60 at 22) (quoting Williams v. Allen, 542 F.3d 1326, 1339 (11th Cir.
2008) (in turn citing Wiggins v. Smith, 539 U.S. 510, 524 (2003)). He points out that
the ABA standards have long provided that “a sentencing phase
investigation should comprise efforts to discover all reasonably available
mitigating evidence,” and that counsel has “a duty to collect information
pertaining to family and social history (including physical, sexual or
emotional abuse), and to obtain names of collateral persons or sources to
verify, corroborate, explain and expand upon the information obtained.”
Id. (quoting 1989 ABA Guidelines) (alterations and internal quotation
marks omitted).
(Id. at 22-23).
Mr. Gavin alleges that the post-conviction record reveals that counsel did not
meet these standards because although he engaged Ms. Penland to conduct a mitigation
investigation, he did not follow through by managing her investigation:
Counsel arranged only one meeting between Penland and Gavin (Vol. 38,
R. 32 Tr. at 346), and there was no contact between counsel and Penland
at all between May 1999 – when Penland sent counsel a list of potential
leads to pursue and suggested that more time was needed to pursue them
(Vol. 24, May 6, 1999 Letter at 1019) – and mid-September 1999 – when
counsel asked for a status update six weeks before trial, having never
before mentioned the impending trial date. (Vol. 38, R. 32 Tr. at 326-27.)
(Id. at 23).
Mr. Gavin points out that counsel cannot blame his failure to investigate on Ms.
Penland because the ultimate responsibility for the investigation falls on the lawyer.
(Doc. 1 at 77-78; Doc. 60 at 23 (citing Johnson v. Bagley, 544 F.3d 592, 602 (6th Cir.
115
2008) (holding that state court unreasonably applied Strickland and its progeny by
denying relief where there was “a lack of structure and supervision” over a mitigation
investigation that counsel had delegated to a mitigation specialist))). He claims that
because the Sixth Amendment guarantees a competent lawyer who will “‘conduct a
thorough investigation of the defendant’s background’ in every capital case, Williams
v. Taylor, 529 U.S. 362, 396 (2000); see also Porter v. McCollum, 130 S. Ct. 447, 452
(2009) (holding that counsel’s obligation to conduct a thorough investigation was
‘unquestioned . . . under the prevailing professional norms’),” Ms. Penland’s lack of
time to devote to his case does not excuse counsel’s failure to conduct a competent
investigation. (Doc. 60 at 24).
Mr. Gavin contends that Ms. Penland’s preliminary investigation raised red flags
that would have compelled any reasonable attorney to further investigation his
background:
Specifically, on October 13, 1999, Penland sent trial counsel a fax
imploring counsel to pursue “the atmosphere in which Mr. Gavin grew
up, the effects of his incarceration, effect of poverty, racism, etc.” (Vol.
24, Oct. 13, 1999 Fax at 1023.) And she enclosed a report from an
investigator who had learned from Gavin’s mother that Gavin grew up in
the gang-infested Chicago housing projects; that his siblings had spent
time in prison (including for attempted murder) and had drug problems;
and that Gavin was constantly exposed to “street violence and shooting.”
(Vol. 24, Oct. 13, 1999 Memorandum at 1025-27.)
116
(Id. at 24-25). He submits that a reasonable attorney would have pursued these issues
further, particularly by speaking to Mr. Gavin’s family members prior to trial, rather
than waiting until the eve of the sentencing hearing to speak with Mr. Johnson and
Annette Gavin. (Id. at 25). Mr. Gavin maintains that counsel were deficient for failing
to investigate this type of potentially mitigating evidence. (Id. at 80).
3.
Prejudice from Failure to Investigate Mr. Gavin’s Background
Mr. Gavin argues that he was prejudiced by counsel’s failure to perform an
adequate mitigation investigation, because the judge and jury “heard almost nothing
that would humanize Gavin or allow them to accurately gauge his moral culpability.”
(Id. at 81). Rather, “[t]hey learned about Gavin’s crimes, that he had been visited by
an evangelist minister in jail, and almost nothing else. Annette Gavin’s testimony was,
charitably, pitiful. The jury returned its 10-2 recommendation to execute Gavin after
only 1 hour and 15 minutes of deliberation. R. 1298.” (Id. at 81).
Mr. Gavin points out that the jury heard none of the voluminous and compelling
mitigation evidence that was readily available at the time of the trial. (Doc. 1 at 81).
He argues:
The judge and jury in Gavin’s case “labored under a profoundly
misleading picture” of Gavin’s “moral culpability because the most
important mitigating circumstances were completely withheld from
[them].” Ferrell, 640 F.3d at 1236. Indeed, they did not hear any
individualized evidence that would explain why Gavin was particularly
117
susceptible to criminal activity. See Cooper, 646 F.3d at 1355 (“the jury
heard very little that would humanize Cooper”). Such evidence has been
found to be sufficient to justify relief under Strickland in a string of
Supreme Court cases. See, e.g., Williams , 529 U.S. at 398 (“the graphic
description of Williams’ childhood, filled with abuse and privation . . .
might well have influenced the jury’s appraisal of his moral culpability”);
Wiggins, 539 U.S. at 537 (“Had the jury been able to place petitioner’s
excruciating life history on the mitigating side of the scale, there is a
reasonable probability that at least one juror would have struck a different
balance.”); Porter, 130 S. Ct. at 454 (“Had Porter’s counsel been
effective, the judge and jury would have learned of the kind of troubled
history we have declared relevant to assessing a defendant’s moral
culpability.” (internal quotation marks omitted)).
(Doc. 60 at 31).
Mr. Gavin asserts that the fact that two jurors voted against the death penalty
after hearing only the scant mitigation case presented by counsel underscores the
prejudice in his case. (Id. at 32). Indeed, the Eleventh Circuit has held that “[g]iven
that some jurors nonetheless ‘were inclined to mercy even with[ ] having been
presented with [so little] mitigating evidence and that a great deal of mitigating
evidence was available to [Petitioner’s] attorneys had they more thoroughly
investigated,’ it is possible that, if additional mitigating evidence had been presented,
more jurors would have voted for life.” Cooper v. Sec’y, Dep’t of Corr., 646 F.3d
1328, 1356 (11th Cir. 2011) (quoting Blanco v. Singletary, 943 F.2d 1477 1505 (11th
Cir. 1991). Mr. Gavin contends that if the jury had heard about his youth in the ganginfested Chicago projects and the abuse he suffered, along with the rest of the available
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mitigation evidence presented in the Rule 32 proceedings, the two votes against the
death penalty could have easily turned into seven or more votes against it. (Doc. 60 at
32).
Mr. Gavin argues that “no conceivable tactical advantage” supported not
presenting this evidence because the most damaging evidence concerning Mr. Gavin’s
prior murder conviction was already before the jury, and “a competent mitigation
would not have opened the door to anything else.” (Doc. 1 at 82). He asserts that if
counsel had been competent, “the judge and jury would have learned of the ‘kind of
troubled history’ the United States Supreme Court has ‘declared relevant to assessing
a defendant’s moral culpability.’” (Id. at 81) (quoting Wiggins v. Smith, 539 U.S. 510,
535 (2003) and citing Mason v. Mitchell, 543 F.3d 766, 773 (6th Cir. 2008) (“The
Supreme Court has specifically observed that ‘the graphic description of [a
defendant’s] childhood, filled with abuse and privation . . . might well have influenced
the jury’s appraisal of his moral culpability.” (quoting Williams v. Taylor, 529 U.S.
362, 398 (2000))). Therefore, he concludes that counsel’s performance was prejudicial
under Strickland. (Id. at 83).
4.
Analysis
In affirming the Rule 32 court’s denial of this claim, the Alabama Court of
Criminal Appeals found the following:
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During the penalty phase of Gavin’s trial, defense counsel
presented the testimony of S.J. Johnson, a Jehovah’s Witness minister,
and Gavin’s mother, Annette Gavin. In the affidavit he submitted in the
instant case, Gavin’s lead trial counsel said that Johnson was “a local
minister with whom the Defendant had established a relationship during
his incarceration in Cherokee County.” ([Vol. 23 at] 984.) In denying
this claim the circuit court noted that it could not “conclude that the trial
attorneys erred in choosing to emphasize the Defendant’s relationship
with Rev. Johnson and the minister’s opinion about the Defendant’s
redemptive qualities.” ([Vol. 32, Tab 76 at] 3517.) The circuit court also
stated that “[i]f the purpose of such testimony [regarding Gavin’s past]
would have been to ‘humanize’ the Defendant, the portrayal of the
Defendant as the product of a violent family from a violent, gang ridden,
and drug-infested Chicago ghetto where the Defendant had previously
committed a murder would not be likely to achieve that result in the eyes
of a Cherokee County, Alabama, jury.” ([Vol. 32, Tab 76 at] 3517.)
....
In the affidavit he submitted, Gavin’s lead trial attorney stated that
he had “initiated contact almost immediately with Lucia Penland of the
Alabama Prison Project (APP) to obtain the services of the APP to
investigate matters involving mitigation.” ([Vol. 23 at] 984.) In his one
meeting with Penland, Gavin “adamantly refused to discuss mitigation
matters.” ([Vol. 23 at] 984.) Attorney Smith also indicated that, while
Penland was in Chicago, members of Gavin’s family “refused to speak
with her, apparently because the Defendant had not authorized them to
speak with [Gavin’s] defense team.” ([Vol. 23 at] 984.)
At the evidentiary hearing held on Gavin’s petition Penland
testified that during her interview with Gavin, which occurred on April
28, 1999, Gavin was hesitant to provide any mitigation evidence and
insisted that he had not committed the murder. Gavin did, however,
provide Penland with “[b]asic background information” such as his
educational, medical, and family histories. ([Vol. 38 at] 321.) Penland
testified that she “had a difficult time . . . convincing [Gavin] to give
[her] any information.” ([Vol. 38 at] 346.) Penland also said that, at the
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insistence of Gavin, Gavin’s mother would not speak with her while
Penland was in Chicago. Penland stated that she did not know how much
investigative work regarding mitigation attorney Smith had conducted on
his own.
Penland stated that she had not completed her investigation of
mitigation evidence before the commencement of Gavin’s trial.
Correspondence between Penland and attorney Smith demonstrates that,
on October 13, 1999, Penland sent a facsimile to Smith in which Penland
urged Smith to request a continuance “based on the information [APP
was] developing, along with the lack of cooperation [APP had]
encountered, and the time factor on [Penland’s] part – having just this
Monday finished with a trial on a prior case – which has not allowed
[APP] to be further along than [APP was] at [that] time.” ([Vol. 21 at]
490.) Smith replied to Penland in a letter stating that asking for a
continuance based in part on the lack of cooperation by Gavin and
Gavin’s family “would . . . not only not be persuasive toward a
continuance, but would in fact be counterproductive in that regard as well
as towards [Gavin] as a whole.” (C. 496.) Smith requested that Penland
forward to him “any information [she had] obtained in Mr. Gavin’s case.”
([Vol. 21 at] 496.)
Based on the foregoing, we are unable to say that the investigative
steps taken by Gavin’s trial counsel were unreasonable, and the circuit
court did not err in denying this claim.
Moreover, we have conducted our own de novo review and have
reweighed the alleged omitted mitigation evidence against the evidence
that was presented at Gavin’s trial and sentencing hearing. See Wiggins
v. Smith, 539 U.S. 510 (2003). The trial court found the existence of
three aggravating circumstances: (1) that the capital offense was
committed while Gavin was under a sentence of imprisonment, see §
13A-5-49(1), Ala. Code 1975; (2) that Gavin had previously been
convicted of another capital offense or a felony involving the use or threat
of violence to the person, see § 13A-5-49(2), Ala. Code 1975; and (3)
that the murder was committed during the course of a robbery in the first
degree, see § 13A-5-49(4), Ala. Code 1975. Additionally, the trial court
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found that no statutory mitigating circumstances existed and that there
were no nonstatutory mitigating circumstances. The evidence presented
at Gavin’s Rule 32 evidentiary hearing was to a great extent centered
around Gavin’s childhood in Chicago and imprisonment and, as the
circuit court noted, likely would have been given very little weight by the
jury. See, e.g., Washington, 95 So. 3d at 45-46. Thus, we agree with the
circuit court that the admission of this evidence would not have changed
the verdict in the penalty phase.
Accordingly, Gavin has failed to establish that he was prejudiced
by the alleged omission of the above mitigating evidence. We agree with
the circuit court that this testimony would have been unlikely to have
humanized Gavin with his jury, and the circuit court correctly denied this
claim.
(Vol 46, Tab 85 at 33-43) (footnote omitted). Mr. Gavin argues that this decision
“involved an unreasonable application of the clear precedent from Strickland and its
progeny and was based on an unreasonable determination of the facts in light of the
evidence before it.” (Doc. 1 at 57).
To succeed on this claim, Strickland requires that Mr. Gavin show counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. When examining counsel’s performance at the penalty
phase of trial, the court must decide “whether counsel reasonably investigated possible
mitigating factors and made a reasonable effort to present mitigating evidence to the
sentencing court.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir.
2007) (quoting Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006). To
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meet the requirements of Strickland, counsel does not need to investigate “every
conceivable line of mitigating evidence” regardless of its likelihood of benefitting the
defendant at sentencing. Pittman v. Sec’y, Florida Dep’t of Corr., 871 F.3d 1231,
1250 (11th Cir. 2017) (quoting Wiggins v. Smith, 539 U.S. 510, 533 (2003)).
In fact, the Strickland standard does not even “require defense counsel to present
mitigating evidence at sentencing in every case.” Id. Rather, the Strickland standard
for counsel’s performance is “reasonableness under prevailing professional norms.”
Strickland, 466 U.S. at 688. And, of course, reasonableness depends upon the context
of the particular case. See Wiggins, 539 U.S. at 522-23. This objective standard of
reasonableness means that “whether the challenged actions of counsel were the product
of a deliberate strategy or mere oversight” does not matter; counsel’s actual motivation
is not relevant but instead “what reasonably could have motivated counsel.” Pittman
v. Sec’y, Florida Dep’t of Corr., 871 F.3d at 1250 (quoting Gordon v. United States,
518 F.3d 1291, 1301 (11th Cir. 2008)).
Mr. Gavin claims that counsel were deficient for failing to investigate and
present non-statutory mitigating evidence about his background. “Counsel’s failure to
‘conduct an adequate background investigation,’ Cooper v. Sec’y, Dep’t of Corr., 646
F.3d 1328, 1351 (11th Cir. 2011), or to pursue ‘all reasonably available mitigating
evidence’ can satisfy [Strickland’s deficient performance prong]. Wiggins v. Smith,
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539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).” The Supreme Court has
held that based on standards applicable in 1999 when Mr. Gavin was tried, attorneys
representing capital defendants were obligated “to conduct a thorough investigation of
the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 396 (2000).
In Mr. Gavin’s case, counsel failed to conduct an adequate background
investigation or pursue all reasonable available mitigating evidence. Although counsel
hired Ms. Penland to conduct the mitigation investigation for them, counsel failed to
adequately supervise and assist her to insure she had the information she needed to
perform a mitigation investigation and that she knew when the information was needed
for trial. This included failing to communicate with Ms. Penland at all, for months at
a time.
The limited investigation Ms. Penland was able to perform raised red flags that
should have compelled counsel to look further into Mr. Gavin’s background. Despite
the information from Mr. Sturman giving him a glimpse into Mr. Gavin’s early life,
and counsel’s own admission that Mr. Gavin’s family was finally “coming around and
beginning to cooperate to some extent,” counsel did not arrange for any family
members other than Mr. Gavin’s mother Annette to testify on Mr. Gavin’s behalf.
Counsel called just two witnesses in the penalty phase, a minister who met Mr. Gavin
while he was in jail after the murder, and Mr. Gavin’s mother Annette – and neither
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offered much more than a plea that Mr. Gavin’s life be spared. Although details of Mr.
Sturman’s interview with Annette had been provided to counsel, counsel did not ask
her a single question about Mr. Gavin’s background or upbringing – and actually
admitted at the begining of her testimony that he had not prepared her to testify.
Counsel were totally unprepared for the penalty phase of Mr. Gavin’s trial.
Counsel’s lack of preparation cannot be excused by the initial failure of Mr. Gavin and
his family to cooperate with counsel or Ms. Penland, because Mr. Sturman was able
to get mitigating evidence from Annette prior to trial. That counsel did not, at the very
least, elicit the same evidence from Annette when she testified at the penalty phase is
inexplicable.
Further, counsel made no attempt to “introduce documentary evidence through
some of [Mr. Gavin’s] family members” or to have the district attorney “stipulate to
the admission of uncontested material,” although he mentioned this possibility to Ms.
Penland. Even worse, counsel failed to pursue further mitigating evidence after
learning some of the details about Mr. Gavin’s background from Mr. Sturman’s
interview with Annette. If counsel had pursued further investigation into Mr. Gavin’s
background, they could have uncovered the wealth of mitigating evidence provided in
the Rule 32 proceedings. This information included evidence of multi-generational
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dysfunction in Mr. Gavin’s family,15 domestic violence and impaired parenting,16
community risk factors,17 and the effect of imprisonment on Mr. Gavin.18
Counsel’s minimal investigation – performed by Ms. Penland and Mr. Sturman
– should have raised red flags in counsel’s minds and counsel’s failure to follow up on
these was deficient under Strickland. See Daniel v. Comm’r, 822 F.3d 1248, 1267
(11th Cir. 2016); Wiggins, 539 U.S. at 527 (“In 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.”). Instead, “counsel abandoned their
investigation of petitioner’s background after having acquired only rudimentiary
knowledge of his history from a narrow set of sources.” Wiggins, 539 U.S. at 524.
15
Mr. Gavin’s parents’ families had histories of drug abuse, alcoholism, prostitution,
and incarceration. Mr. Gavin’s siblings were gang members with histories of drug use,
violence, and incarceration.
16
Mr. Gavin’s father Willie, Sr., was physically abusive to Mr. Gavin’s mother and
to Mr. Gavin and his siblings. Mr. Gavin’s mother was unable to take care of her adult
responsibilities so Mr. Gavin tried to compensate for her shortcomings by committing crimes
to get money to support the family.
17
Mr. Gavin grew up in a gang-infested housing project in Chicago, living in
overcrowded houses that were in poor condition, where he was surrounded by drug activity,
crime, violence, and riots.
18
After spending his entire adult life in prison, Mr. Gavin was unable to find
legitimate work, leaving him susceptible to the negative influences around him.
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Rather than pursuing the leads provided to him by Ms. Penland, counsel chose
to go into the penalty phase of the trial with only two witnesses, Mr. Gavin’s mother
Annette and a minister who had just met Mr. Gavin while he was incarcerated in the
Cherokee County Jail. Because counsel did not testify at the Rule 32 hearing,19 we
have no insight into counsel’s decision to present only the two witnesses who did little
more than plead for Mr. Gavin’s life. But, as the Supreme Court has held, “strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
Wiggins, 539 U.S. at 528 (quoting Strickland, 466 U.S. at 690-91). The limited
investigation was unreasonable under the circumstances of what the limited
investivation had revealed. Counsel even
admitted to conducting only cursory
interviews with Mr. Johnson and Annette, shortly before the penalty phase began.
Likewise, we have no insight into counsel’s decision not to elicit testimony
concerning Mr. Gavin’s background from Annette. Had counsel questioned Annette
about Mr. Gavin’s background, she could have provided details into his troubled
background. The Eleventh Circuit has held that counsel were deficient when the “very
witnesses who were called by the defense to testify at [the defendant’s] trial . . . could
19
Mr. Gavin’s main attorney Mr. Smith died before the Rule 32 hearing.
127
have provided detailed information about his . . . childhood if they had ever been
asked.” Ferrell v. Hall, 640 F.3d 1199, 1230 (11th Cir. 2011).
Trial counsel did not conduct an adequate background investigation, did not
pursue all reasonably available mitigating evidence, and did not make a reasonable
effort to present the mitigating evidence they had. Mr. Gavin has clearly established
that counsel were deficient under Strickland. Thus, it follows that the Alabama Court
of Criminal Appeals’s finding to the contrary is objectively unreasonable.
Because Mr. Gavin has proven the first prong of Strickland – that counsel were
deficient – this court must now determine whether counsel’s deficient perfomance
prejudiced him. Mr. Gavin must also meet a high burden to establish that counsel’s
deficient performance caused prejudice to his case. See Van Poyck v. Fla. Dep’t of
Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). He cannot meet that high burden merely
by showing “that the errors had some conceivable effect on the outcome of the
proceeding.” Id. (quoting Strickland, 466 U.S. at 693). Instead, he must show “‘a
reasonable probability that, absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did not warrant death.’”
Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695).
In evaluating whether Mr. Gavin has shown a reasonable probability that, if
counsel had not been deficient, he would not have been sentenced to death, the court
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must “consider ‘the totality of the available mitigation evidence – both that adduced
at trial, and the evidence adduced in the habeas proceeding’ – and ‘reweig[h] it against
the evidence in aggravation.’” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Williams v. Taylor, 529 U.S. at 397-398) see also Sears v. Upton, 561 U.S. 945, 956
(2010) (holding that a proper prejudice analysis under Strickland must take into
account the newly uncovered mitigation evidence, along with the mitigation evidence
introduced during the penalty phase of the trial, to assess whether a reasonable
probability arises that the petitioner would have received a different sentence after a
constitutionally sufficient mitigation investigation.).
Mr. Gavin argues that he was prejudiced by counsel’s failure to perform an
adequate mitigation investigation, because the judge and jury “heard almost nothing
that would humanize Mr. Gavin or allow them to accurately gauge his moral
culpability.” (Doc. 1 at 81). Counsel preseted none of the evidence Ms. Penland had
uncovered. This evidence – though limited – would have “paint[ed] a vastly different
picture of his background than that created by [Annette’s] abbreviated testimony.”
Williams v. Allen, 542 F.3d at 1342. Nor did counsel pursue further information about
Mr. Gavin’s background that is the “kind of troubled history” the Supreme Court has
“declared relevant to assessing a defendant’s moral culpability.” Wiggins, 539 U.S. at
535 (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about the
129
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 than defendants who have no such
excuse”) and Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (noting that
consideration of the offender’s life history is a “part of the process of inflicting the
penalty of death”)).
If counsel had presented the evidence Mr. Gavin produced at the Rule 32
hearing, the jury would have heard evidence that Mr. Gavin’s parents’ families had
histories of drug abuse, alcoholism, prostitution, and incarceration; Mr. Gavin’s
siblings were gang members with histories of drug use, violence, and incarceration;
Mr. Gavin’s father Willie, Sr., was physically abusive to Mr. Gavin’s mother and to
Mr. Gavin and his siblings; Mr. Gavin’s mother was unable to take care of her adult
responsibilities so Mr. Gavin tried to compensate for her shortcomings by committing
crimes to get money to support the family; and that Mr. Gavin grew up in a ganginfested housing project in Chicago, living in overcrowded houses that were in poor
condition, where he was surrounded by drug activity, crime, violence, and riots.
The Alabama Court of Criminal Appeals discounted the evidence of Mr. Gavin’s
background, finding that this evidence would “likely have been given very little weight
by the jury.” (Vol. 46, Tab 85 at 43). However, the Eleventh Circuit Corut of Appeals
130
and the United States Supreme Court disagree. “In the penalty phase of a trial, ‘[t]he
major requirement . . . is that the sentence be individualized by focusing on the
particularized characteristics of the individual.” Cooper, 646 F.3d at 1354 (quoting
Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987). “It is unreasonable to
discount to irrelevance the evidence of [a defendant’s] abusive childhood.” Porter, 558
U.S. at 43. Rather, this information presents exactly the type of evidence that could
have humanized Mr. Gavin in the eyes of the jury. See Rompilla v. Beard, 545 U.S.
374, 390-92 (2005) (defendant grew up in “the slum environment of Allentown, Pa.”;
early in his life, he came to the attention of the juvenile authorities and started a series
of incarcerations for assaults commonly related to alcohol abuse; he dropped out of
school after nine years, having scored no higher than third grade level; his parents were
severe alcoholics; his mother drank while she was pregnant with him; his father
frequently beat his mother and bragged about cheating on her; his mother stabbed his
father on one occasion; his father was physically abusive to him; and his home had no
indoor plumbing and no heat); see also Porter, 588 U.S. 30, 33-36 (2009) (defendant
repeatedly witnessed his father beat his mother – once so severely that she was
hospitalized; his father was violent every weekend, defendant was his father’s favorite
target; his father once shot at him for coming home late, then beat him because the
bullet missed him; defendant eventually joined the Army, serving in the Korean War
131
where he suffered a gunshot wound; defendant was imprisoned for going AWOL from
the Army; after leaving the Army, the defendant developed a serious drinking
problem); Wiggins, 539 U.S. at 516-17 (defendant’s mother was an alcoholic who
frequently left him and his siblings home alone for days, forcing them to beg for food
and to eat paint chips and garbage; his mother was abusive, beating the children for
breaking into the kitchen; his mother had sex with men while her children slept in the
same bed; and his mother once forced his hand onto a hot stove burner and he had to
be hospitalized for the burn; and at the age of six, he was placed into foster care where
he was physically abused, molested, and raped); Williams, 529 U.S. at 370, 396
(defendant was mistreated, abused, and neglected during his early childhood; he was
“borderline mentally retarded” and completed only the sixth grade in school; he had
suffered repeated head injuries; he “might have [had] mental impariments organic in
origin”; and experts testified that if he were kept in a structured environment, he would
not pose a future danger to society); Daniel, 822 F.3d at 1265-66 (defendant’s stepfather terrorized all members of the household, often walking around the house
carrying a gun and wearing a sash of bullets; his step-father often beat his mother and
threatened her with various forms of torture; and the defendant was physically abused
by his step-father at least twice a week, on one occasion suffering a ruptured kidney
as a result of a beating; the defendant and his siblings were reoutinely forced to
132
perform sexual acts on each other while their step-father watched, then their step-father
would engage in sexual acts with the defendant and his siblings); and Johnson v. Sec’y,
DOC, 643 F.3d 907, 936-37 (11th Cir. 2011) (defendant’s parents were abusive
alcoholics; defendant was emotionally abused and he was physically abused more often
than his siblings; defendant witnessed his mother’s suicide attempts and evenutally
found her body when she succeeded in killing herself).
The potentially mitigating evidence absent in the penalty phase of Mr. Gavin’s
trial “bears no relation to the few naked pleas for mercy actually put before the jury.”
Rompilla, 545 U.S. at 393. After reweighing the considerable evidence offered in
aggravation – that the murder was committed while Mr. Gavin was under a sentence
of imprisonment, that Mr. Gavin had previously been convicted of another capital
offense or a felony involving the use or threat of violence to the person, and that the
murder was committed during the course of a first degree robbery – against the
considerable evidence that could have been, but was not offered in mitigation – the
court concludes that if counsel had not performed deficiently, but had offered the
evidence offered at the Rule 32 evidentiary hearing, a reasonable probability exists that
he would have been sentenced to life imprisonment rather than death. Because of the
numerous Supreme Court cases discussed above placing value on such mitigation
133
evidence, the Alabama Court of Criminal Appeals’s contrary finding is an
unreasonable application of Strickland.
Mr. Gavin has established that counsel were constitutionally deficient during the
penalty phase of his trial and that he was prejudiced as a result. Thus, habeas relief is
due to be granted on this claim.
D.
Prosecutor’s Comments on Mr. Gavin’s Failure to Testify
Mr. Gavin claims that his Fifth Amendment rights were violated by the state’s
repeated references to the fact that he did not testify at trial. (Doc. 1 at 90).
Specifically, Mr. Gavin asserts that the theme of the state’s closing argument was that
the evidence against him was “uncontroverted”:
For example, [the state] argued that Meeks “saw Mr. Gavin shoot the
driver. Now, is that a controverted fact? Absolutely not.” [Vol. 11, Tab
20 at] 1094. The State continued summarizing Meeks’ narrative for the
jury-Meeks heard shots, he starting driving away, his car door hit Gavin
causing it to close, and he turned back towards Leesburg-and then
asserted once again that “[t]hose facts are uncontroverted.” [Vol. 11, Tab
20 at] 1095. Additionally, the State argued that Danny Smith’s testimony
that Gavin fired a shot at him constituted “uncontroverted” evidence.
[Vol. 11, Tab 20 at] 1098. And in arguing to the jury that there is only
one reason Gavin would have been found in the woods, the State
contended, “Why? You know why. The facts that we presented in this
case are uncontroverted.” [Vol. 11, Tab 20 at] 1102. In all, the State
referred to “uncontroverted” evidence over a dozen times during the
closing.
134
(Id. at 90-91). Mr. Gavin maintains that by characterizing all of the facts the state
presented as uncontroverted, the state implicitly challenged Mr. Gavin to take the stand
to contradict the state’s version of events and suggested to the jury that it could treat
Mr. Gavin’s silence as evidence of his guilt. (Id. at 91).
In denying this claim on direct appeal, the Alabama Court of Criminal Appeals
found the following:
Gavin contends that during closing arguments the prosecutor
improperly commented on his decision not to testify. (Issue XIV in
Gavin’s brief.) Specifically, he maintains that the prosecutor made “thinly
veiled” references to his decision not to testify by repeatedly referring to
the facts, evidence, and testimony as “uncontroverted.” (Gavin’s brief at
p. 121.) Gavin specifically objected to three of the prosecutor’s
references, but he did not do so until after the conclusion of the
prosecutor’s closing argument; therefore, his objection was not timely. In
addition, he did not object to any of the other references about which he
now complains on appeal. Thus, we review this claim only for plain error.
See Rule 45A, Ala.R.App.P.
The record reflects that during opening statements, Gavin’s counsel
[made] the following [statement]:
What you’re going to hear over the next several days is
some facts and the State’s interpretation of those facts. But
the Judge is going to tell you that your primary role in this
case is to determine the facts and interpret those facts for
yourself. And I ask you first and foremost, don’t determine
the facts in your mind until you’ve heard all the facts. In
truth, while [the prosecutor] appears to have woven a very
persuasive tale of two men or three men, there are few
incontrovertible facts that he is going to present to you.
There are a lot of unanswered questions. Indeed, there are
135
a lot of unasked questions, questions that should have been
asked, questions which I submit to you as a jury you’re
going to be asking yourself over the next few days, and
you’re not going to get the answers because the State is not
going to tell you the answers to those questions because they
haven’t asked the questions. It is incontrovertible and we
will not argue that on the evening of March 6, 1998,
someone shot William Clinton Clayton to death around
6:30, 6:40 p.m. right out here at the Regions Bank. And it
is uncontroverted that some three hours, three hours and 15
minutes later Keith Gavin was arrested about 12 or 15 miles
northwest of here in a wooded area up off of Highway 68
and the intersection of [Highway] 48 as [the prosecutor]
told you, and that seven days later, the gun that the State
alleges, and it appears fairly convincing, the gun that the
State alleges was used to kill William Clinton Clayton was
found in that same wooded area. The evidence is not going
to show that there was any type of security between March
the 6th, midnight, and March the 13th, seven days later
when that gun was found, even though they were looking
for it in that area for seven days and for seven days they
couldn’t find it, but after seven days of looking for it, they
found the gun, but in that seven days there had been no
security and they’re not going to tell you that anything on
that gun is going to connect itself, is going to connect that
gun to Keith Gavin. But the evidence is going to show that
that was Dewayne Meeks’s gun. . . . And the evidence is
going to show that when Mr. Meeks returned to Chicago,
and not before, he reported to authorities that that gun had
been stolen. . . . But those are pretty much incontrovertible
facts about this case.
(R. 505-07.)(Emphasis added.)
During closing arguments, the prosecutor stated, in pertinent part:
136
I went back last night to when we concluded here and I
began to look over some of the things that we both said
during our opening statements, and one of the things that
really struck me about what [Gavin’s counsel] said was
there were few uncontroverted facts and many questions
that should have been answered. Well, I believe you’ve seen
and heard at the conclusion of this case that there are a great
many uncontroverted facts. In fact, I would venture to
submit to you, ladies and gentlemen, that based on the
evidence you heard, there are no gaps or facts that have not
withstood the test of time and the test of truth.
(R. 1091-92.) The prosecutor then began sifting through the evidence that
had been presented during the trial, repeatedly referring to facts,
evidence, and testimony as “uncontroverted.” In all, the prosecutor used
the term “uncontroverted” 15 times during his closing argument.
Gavin v. State, 891 So. 2d 907, 979-80 (Ala. Crim. App. 2003). The court found that
the prosecutor’s references did not violate Mr. Gavin’s constitutional rights. Id. at 98385.
The Fifth Amendment “forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evidence of guilt.”
Griffin v. California, 380 U.S. 609, 615 (1965). An indirect comment on silence
violates the Fifth Amendment only if “the statement was manifestly intended to be a
comment on the defendant’s failure to testify” or “the statement was of such a
character that a jury would naturally and necessarily take it to be a comment on the
failure of the accused to testify.” Jones v. GDCP Warden, 753 F.3d 1171, 1194 (11th
137
Cir. 2014) (emphasis in original) (citing United States v. Knowles, 66 F.3d 1146,
1162-63 (11th Cir. 1995) (internal quotation marks omitted)).
The Eleventh Circuit has strictly enforced the requirement that a defendant show
that the allegedly offensive comment was either manifestly intended to be a comment
on his silence or that the comment naturally and necessarily related to his silence.
Isaacs v. Head, 300 F.3d 1232, 1270 (11th Cir. 2002). “The question is not whether
the jury possibly or even probably would view the remark in this manner, but whether
the jury necessarily would have done so.” Knowles, 66 F.3d at 1163. The defendant
bears the burden of establishing the existence of one of the two factors and the
comment must be examined in context, to evaluate the prosecutor’s motive and to
discern the impact of the statement on the jury. Id.
Mr. Gavin first challenges the portion of the state’s closing argument in which
the prosecutor characterized Mr. Meeks’s testimony about the shooting as
uncontroverted. (Doc. 1 at 90). The prosecutor argued:
And you heard Mr. Meeks tell you that when he turned to look he saw a
gun and he saw the driver, and he saw Mr. Gavin shoot the driver. Now,
is that a controverted fact: Absolutely not. . . . What did Mr. Meeks tell
you? He said after he heard the shots he pulled up, his door hit Mr.
Gavin, it shut his door, he went to the right, turned right towards
Leesburg. There is no disparity there, ladies and gentlemen. Those facts
are uncontroverted.
138
(Vol. 11, Tab 20 at 1094-95).20
The Alabama Court of Criminal Appeals determined:
After thoroughly reviewing the prosecutor’s closing argument, we
conclude that the majority of the prosecutor’s references to
“uncontroverted” facts, testimony, and evidence were not directed toward
Gavin’s decision not to testify; they “merely refer[red] to the fact that the
evidence was uncontradicted.” Arthur, 711 So.2d at 1049. The comments
did not “virtually identify” Gavin as the only person who could contradict
the evidence, but were general comments, in direct response to Gavin’s
opening statement, on the fact that the majority of the State’s evidence
was uncontradicted.21
Gavin, 891 So. 2d at 983. Regarding the prosecutor’s comment that Mr. Meeks’s
testimony about the shooting was uncontroverted, the appellate court found that the
20
In his reply brief Gavin also challenges – for the first time – the portions of the
state’s closing argument concerning “the whole of Meeks’s testimony” and “addressing the
possibility that Meeks himself had been the killer.” (Doc. 38 at 57-58). The Eleventh Circuit
Court of Appeals has repeatedly held that arguments raised for the first time in a reply brief
are not properly before a reviewing court. See, e.g., Herring v. Secretary, Dept. of
Corrections, 397 F.3d 1338 (11th Cir. 2005); United States v. Coy, 19 F.3d 629, 632 n. 7
(11th Cir.1994) (citation omitted); United States v. Whitesell, 314 F.3d 1251, 1256 (11th
Cir.2002) (Court need not address issue raised for first time in reply brief), cert. denied, 539
U.S. 951 (2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (issue raised
for first time in reply brief was waived); United States v. Martinez, 83 F.3d 371, 377 n. 6
(11th Cir. 1996) (declining to consider arguments raised for the first time in a reply brief);
See also Rules Governing Habeas Corpus Cases Under Section 2254, Rule 2(c) (2008) (“The
petition must . . . specify all the grounds for relief available to the petitioner[.]”). Thus, the
court will not consider this claim because it is not properly before the court.
21
In his opening statement, Gavin argued that only a “few incontrovertible facts that
[the prosecutor] is going to present,” but there were “a lot” of unanswered and unasked
questions that should have been asked. (Vol. 8, Tab 17 at 504-05).
139
comments did not “virtually identify” Mr. Gavin as the only person would could
contradict this evidence, because three other people witnessed the murder.22 Id.
Mr. Gavin argues that the record does not bear out this view. (Doc. 1 at 91). He
asserts:
Two of the eyewitnesses – Ronald Baker and Richard Henry – testified
that they could not identify the shooter because they could not even see
his face. R. 537; R. 545. At most, Henry stated that the shooter was a
black male. R. 545. Similarly, as has been shown above, Twilley’s
identification of Gavin was highly unreliable to the point of being
unconstitutional. Thus, as the jury was well aware, none of these men
was in a position to contradict Meeks’ testimony that Gavin, and not he,
was the shooter-Gavin alone had that power.
(Id. at 91-92).
Mr. Gavin is correct that neither Mr. Baker nor Mr. Henry was able to contradict
Mr. Meeks’s testimony that Mr. Gavin was the shooter. Mr. Baker, who saw the
shooter approach the victim’s van, then heard gunfire, testified that he was unable even
to identify the race of the shooter. (Vol. 8, Tab 18 at 535-36). Mr. Henry described the
shooter as a black man, but testified that he did not see his face. (Id. at 546).
However, Mr. Twilley testified that he was able to see the shooter’s face, and
proceeded to identify Mr. Gavin at trial as the shooter. (Id. at 523, 529). Mr. Gavin
22
Mr. Gavin argued in his brief on direct appeal that “[o]nly the Defendant could
contradict Meeks’ assertion (R. 671) that it was he who alighted from Meeks’ van and shot
Clayton.” (Vol. 14, Tab 42 at 123).
140
argues that Mr. Twilley’s identification of Mr. Gavin was “highly unreliable to the
point of being unconstitutional.” He implies that the jury was “well aware” that Mr.
Twilley’s identification of Mr. Gavin was unreliable, so the jury necessarily knew that
Mr. Twilley could not have contradicted Mr. Meeks’s testimony. But, the defense did
not object to Mr. Twilley’s identification of Mr. Gavin in court. Although defense
counsel elicited testimony from Mr. Twilley on cross-examination that he did not have
a good view of the shooter and only saw the side of his face for a short time, Mr.
Twilley was able to identify Mr. Gavin as the shooter, whether or not the identification
procedure was constitutionally sound. Mr. Twilley was in a position to contradict Mr.
Meeks’s testimony if he disagreed with it. Thus, the jury could have thought the
prosecutor was referring to Mr. Twilley and not necessarily to Mr. Gavin.
Mr. Gavin has failed to show that the state court’s decision involved an
unreasonable application of Griffin. Quite clearly, the prosecutor’s references to
uncontradicted facts were in response to Mr. Gavin’s opening statement, in which he
argued that the state could prove only a few incontrovertible facts. No evidence
intimates that the prosecutor’s comments were “manifestly intended” to comment on
Mr. Gavin’s failure to testify. Mr. Gavin has not shown that the jury would “naturally
and necessarily” have viewed the prosecution’s references to Mr. Meeks’s testimony
as being uncontradicted as a comment on Mr. Gavin’s failure to testify, especially in
141
light of the fact that Mr. Gavin was not the only one who could have contradicted Mr.
Meeks’s testimony. This claim is due to be denied.
Mr. Gavin further challenges the portion of the state’s closing argument in which
the prosecutor argued:
You had the testimony of Danny Smith, and I won’t go over his
testimony at length because you heard it. He took you from the start when
he got the BOLO, the be on the lookout, to the moment Mr. Gavin fired
those two shots at him, to the very instant that he ran him into the woods.
Uncontroverted.
(Vol. 11, Tab 20 at 1098-99).
The Alabama Court of Criminal Appeals held that the prosecutor’s reference to
Investigator Smith’s testimony as uncontroverted violated Griffin:
The record also reflects, however, that the prosecutor referred to
Investigator Smith’s testimony regarding his following the van and his
identification of Gavin as the person who was driving the van and who
shot at him as uncontradicted. It is clear from the evidence presented at
the trial that the only person who could have contradicted Investigator
Smith’s testimony that it was, in fact, Gavin, who had been driving the
van and who shot at him and then fled into the woods, was Gavin
himself.
Gavin, 891 So. 2d at 983. However, it found the Griffin error to be harmless under
Chapman v. California, 386 U.S. 18 (1967):
After thoroughly reviewing the entire record, we conclude that any
error in the prosecutor’s comment that Investigator Smith’s testimony was
uncontradicted was harmless. This particular remark was not one of the
comments Gavin objected to at trial, thus indicating that, at the time it
142
was made, Gavin did not believe the remark to be prejudicial. In addition,
in response to Gavin’s objection at trial, the prosecutor stated that he had
not intended any of his references to “uncontradicted” evidence to be
comments on Gavin’s decision not to testify. Moreover, all of the
prosecutor’s references to “uncontradicted” facts, testimony, and
evidence were in direct response to Gavin’s opening statement. Finally,
the evidence against Gavin in this case was overwhelming. See, e.g.,
Thomas v. State, 824 So.2d 1, 31-32 (Ala.Crim.App.)(noting that some
factors to be considered in evaluating whether a prosecutor’s comment
was harmless are the lack of a contemporaneous objection, the
prosecutor’s intent in making the comment, and the overwhelming
evidence of the appellant’s guilt). In light of the evidence presented in this
case and the circumstances surrounding the prosecutor’s comment, we
conclude that any error was harmless beyond a reasonable doubt.
Gavin, 891 So. 2d at 984-85.
Mr. Gavin asserts that the state court unreasonably applied the Chapman
harmless error standard. (Doc. 38 at 59-61). Griffin errors are subject to harmless error
review. See Chapman v. California, 386 U.S. 18, 24-26 (1967). However, the
Chapman standard, which holds that a constitutional violation is considered “harmless
if the government can show beyond a reasonable doubt that the error did not contribute
to the verdict,” applies only on direct review, Al-Amin v. Warden, 932 F.3d 1291, 1298
(11th Cir. 2019).
While a federal constitutional error may be considered harmless on direct
review if the reviewing court can determine that it was harmless beyond
a reasonable doubt, see Mansfield v. Sec'y, Dep't of Corr., 679 F.3d
1301, 1307 (11th Cir. 2012), cert. denied, — U.S. — , 133 S.Ct. 861,
184 L.Ed.2d 675 (2013), a federal constitutional error is considered
harmless on collateral review unless there is ‘actual prejudice.’ Brecht v.
143
Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L.Ed.2d
353 (1993) (internal quotation marks omitted). “Actual prejudice”
requires that the error have had a ‘substantial and injurious effect or
influence’ upon the verdict. Id. (internal quotation marks omitted). Under
this standard, an error is not harmless where one is left in grave doubt as
to whether the error substantially and injuriously affected or influenced
the verdict. See O'Neal v. McAninch, 513 U.S. 432, 437-38, 115 S. Ct.
992, 995, 130 L.Ed.2d 947 (1995).
Gay v. Sec'y, Fla. Dep't of Corr., 523 Fed. Appx. 560, 563 (11th Cir. 2013).
Brecht’s harmless error review is “necessarily fact-specific and must be
performed on a case-by-case basis.” Mansfield, 679 F.3d at 1313. To determine
whether a trial error was harmless, this court must “consider the magnitude of the error,
the effect of any curative instruction, and whether the prosecution otherwise presented
overwhelming evidence of guilt to the jury.” Al-Amin, 932 F.3d at 1300.
“Ultimately, ‘for a federal court to grant habeas relief, it must be true both that
the state court’s application of the Chapman harmless beyond a reasonable doubt
standard was objectively unreasonable and that the error had a substantial and injurious
effect or influence on the verdict.’” Al-Amin, 932 F.3d at 1299 (quoting Mansfield, 679
F.3d at 1307-08)). However, because a petitioner must satisfy both tests to obtain
habeas relief, it necessarily follows that a federal court may deny habeas relief based
144
solely on a determination that the error is harmless under the Brecht standard.
Mansfield, 679 F.3d at 1308.
Mr. Gavin is unable to meet the Brecht harmless error standard. Although the
prosecution used the term “uncontroverted” fifteen times during the its closing
argument, the court finds that the repeated references to evidence being uncontroverted
were in direct response to Mr. Gavin’s opening statement in which he argued that the
state would be able to present “few incontrovertible facts.” (See Vol. 8, Tab 17 at 505).
After arguing that the state would be able to present “few incontrovertible facts,” Mr.
Gavin proceeded to identify the “few” incontrovertible facts, mentioning
incontrovertible or uncontroverted facts three different times, and specifically referring
to Mr. Meeks’s eyewitness testimony as being “controvert[i]ble.” (Id. at 506, 507 &
512).
In the state’s closing argument, the prosecutor explained that he:
went back last night to when we concluded here and I began to look over
some of the things that we both said during our opening statements, and
one of the things that really struck me about what [Gavin’s counsel] said
was there were few uncontroverted facts and many questions that should
have been answered. Well, I believe you’ve seen and heard at the
conclusion of this case that there are a great many uncontroverted facts.
In fact, I would venture to submit to you, ladies and gentlemen, that based
on the evidence you heard, there are no gaps or facts that have not
withstood the test of time and the test of truth.
145
(Vol. 11, Tab 20 at 1091-92). The prosecutor then went through the evidence that had
been presented at trial, pointing out the portions the state believed to be uncontroverted.
Clearly, the jury had good reason to believe that the prosecution’s references to
uncontroverted evidence were simply in response to Mr. Gavin’s assertion that not
much of the evidence was incontrovertible – and not commentary on Mr. Gavin’s
failure to testify.
Additionally, the trial court instructed the jury that what lawyers say in court is
not evidence, and further that the jury should not draw any inferences from Mr.
Gavin’s decision not to testify. In its opening instructions to the jury, the trial court
stated:
Now, what the lawyers say to you is not the evidence, but I think you will
find it of some help to you, some assistance in helping you understand the
case and understand what they expect to be able to prove to you during
the course of this trial.
(Vol. 8, Tab 15 at 474). In its instructions to the jury prior to deliberations, the court
stated:
Mr. Gavin has no burden of proof. Mr. Gavin is not required to
prove his innocence because the law presumes that he is innocent. The
defendant has the right under the law to elect not to testify. And if he
does so elect, this creates no presumption against him. You should draw
no inference nor any conclusion from the fact that Mr. Gavin did not
testify, and the defendant’s election not to testify should have no weight
in reaching your verdict. In other words, the fact that Mr. Gavin has not
testified in this case is not a matter that you should consider in your
146
deliberations. Mr. Gavin has a right not to testify and the exercise of this
right must not be used against him. Just as the presumption that Mr.
Gavin is innocent remains with him throughout every stage of the trial,
likewise, the burden of proof remains on the State of Alabama throughout
every stage of the tria1.
....
In determining what the true facts are, you are limited to the evidence
that’s been presented in the form of the testimony from witnesses, and in
the form of exhibits of proof as opposed to the matters that have been
stated to you by the lawyers during the course of the trial. What the
lawyers have said, both for the State and for the defendant, is not
evidence. What they have argued to you at various points in the trial is not
the evidence. The lawyers have a right and a duty at the appropriate times
in the case to comment on the evidence and to draw reasonable inferences
from the evidence as they argue their respective positions to you. But the
comments and the arguments of the lawyers is not evidence.
(Vol. 11, Tab 23 at 1182-83 & 1200). Jurors are presumed to follow instructions and
Petitioner presented no basis to believe they did not do so in Mr. Gavin’s case. See
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
Finally, the evidence of Mr. Gavin’s guilt was overwhelming. As previously set
out in detail, two of the four eyewitnesses to the crime, Mr. Twilley and Mr. Meeks,
identified Mr. Gavin as the man who shot the victim. Investigator Smith, who heard
the BOLO over his radio, spotted a van matching the description given over the radio
and followed it. After a high speed chase, the driver suddenly stopped, exited the van,
and fired two gunshots at Investigator Smith before fleeing into the woods. Investigator
147
Smith found the shooting victim in the van after Mr. Gavin abandoned it. Law
enforcement officers surrounded the wooded area and eventually located Mr. Gavin
hiding in the woods, in a creek, under a bush. Investigator Smith had correctly
identified the clothing Mr. Gavin had been wearing when he fled the van and ran into
the woods, and identified him as the man who shot at him, then ran into the woods.
After being apprehended in the woods, but prior to anyone telling him why he was
being arrested or mentioning a shooting, Mr. Gavin spontaneously stated that he
“hadn’t shot anybody” and that he didn’t have a gun. The murder weapon was found
several days later, near the woods where Mr. Gavin had been taken into custody. While
Mr. Gavin was incarcerated awaiting trial, he told one of the jailers that he “did it,” and
that Mr. Meeks should not be in jail.
Nothing in the record suggests that the prosecution’s reference to Investigator
Smith’s testimony as uncontroverted had a “substantial and injurious effect or
influence” on the verdict. Given the context in which the prosecution argued the
evidence was incontrovertible, the court’s clear instructions to the jury that the lawyer’s
arguments were not evidence, the court’s clear instructions to the jury that no inference
could be drawn from Mr. Gavin’s failure to testify, and the overwhelming evidence of
Mr. Gavin’s guilt, Mr. Gavin did not suffer actual prejudice from any Griffin error.
Because Mr. Gavin cannot satisfy the Brecht standard, the court need not consider
148
whether the Alabama Court of Criminal Appeals unreasonably applied the Chapman
harmless error standard in denying relief. See Mansfield, 679 F.3d at 1308.
E.
Admission of Tainted Eyewitness Identifications
Mr. Gavin alleges that the trial court erroneously admitted eyewitness
identification of him that consisted of, or was tainted by, impermissibly suggestive
show-up procedures. (Doc. 1 at 93). He claims that the identifications of him at trial
by Danny Smith and Larry Twilley were both unreliable and violated his due process
rights. (Id. at 93-97).
1.
Danny Smith
Danny Smith, an investigator for the District Attorney of Cherokee and Dekalb
Counties, testified that after hearing about the shooting on his police radio, he found
the van matching the description of the van being driven by the shooter and chased the
van. (Vol. 8, Tab 18 at 552-56). Suddenly, the van stopped in the middle of the road
and the driver exited the van. (Id. at 556). The driver fired two shots at Investigator
Smith before running into the woods. (Id. at 556-60). Investigator Smith testified that
the gunman was wearing blue jeans, a maroon or wine colored shirt, and a cap or a
toboggan. (Id. at 560). Within seconds, several police officers arrived and surrounded
the wooded area where the gunman had fled, sealing it off so that “no one could come
out and cross the road without being seen.” (Id. at 562-63). Investigator Smith returned
149
to the suspect’s van to check on the victim of the shooting. (Id. at 563). He stayed with
the victim until an ambulance arrived, then returned to the manhunt. (Id. at 563-69).
Investigator Smith briefly left the search scene around 9:30 p.m. to return to his
office. (Id. at 569). When Investigator Smith was driving back to the search scene, he
received word that the search team had apprehended the suspect. (Id. at 569-70).
Investigator Smith testified that he met the vehicle that was transporting the suspect to
the jail at around 10:30 p.m., so he could talk to the officers who had apprehended the
suspect and “look at the suspect that they had in custody to make sure that they, in fact,
had the right person.” (Id. at 570).
Following a hearing in which Mr. Gavin unsuccessfully objected to Investigator
Smith’s identification testimony, Investigator Smith testified at trial that the suspect he
saw in the patrol car was the same person who had shot at him earlier that night. (Id.
at 593). Investigator Smith then positively identified Mr. Gavin at trial as the person
who had been driving the van, who had shot at him, and who he had seen in the back
of the patrol car. (Id. at 594).
Mr. Gavin contends that Mr. Smith’s identification of him violated his due
process rights because it resulted from an unnecessarily and impermissibly suggestive
show-up lineup. (Doc. 1 at 95-97). Specifically, he argues that:
150
A “showup” lineup – such as Officer Smith’s identification of Gavin in
the police vehicle – “has been widely condemned” because it is especially
suggestive. Stovall [v. Denno], 388 U.S. [293] at 302. And here, . . . the
circumstances are far more suggestive than a photo array because Officer
Smith was not merely shown a photo of the suspect, he was instructed to
view Gavin while Gavin was handcuffed in the back of a police vehicle.
See Biggers v. Tennessee, 390 U.S. 404, 407 (1968) (Douglas, J.,
dissenting) (“Whatever may be said of lineups, showing a suspect singly
to a victim is pregnant with prejudice. The message is clear: the police
suspect this man.”).
(Id. at 96-97).
In denying this claim on direct appeal, the Alabama Court of Criminal Appeals
found that the show-up was not unnecessarily and impermissibly suggestive:
Investigator Smith, a trained law-enforcement officer, requested that the
officers transporting Gavin to the jail meet him in Leesburg so that he
could “look at the suspect that they had in custody to make sure that they,
in fact, had the right person.” (R. 570.) It is clear from Investigator
Smith’s testimony that his identification of Gavin in the patrol car was
not based on any preconceived notion that the person the police had in
custody was, in fact, the person who had shot at him, but rather, was a
precautionary measure to ensure that the right man was in custody so that
the manhunt that had been going on for a little over three hours could be
called off. See, e.g., Davis v. State, 216 Ga.App. 580, 581, 455 S.E.2d
115, 116 (1995)(“It is recognized that any psychological effect a
one-on-one showup may have on a potential witness is greatly diminished
when that witness is a law enforcement officer who, through experience,
training or both, has learned certain witness identification techniques and
procedures.”), and People v. Cinatus, 200 A.D.2d 754, 754, 607
N.Y.S.2d 363, 364 (1994)(holding “that the witness was a police officer
is relevant in determining whether or not the identification procedure
employed was unduly suggestive”). Under these circumstances, we find
that the one-man showup was not unnecessarily or impermissibly
suggestive.
151
Gavin, 891 So. 2d at 960-961. The court went on to find that even if the showup was
unnecessarily and impermissibly suggestive, the likelihood that Mr. Gavin was
misidentified was low:
However, even assuming that the showup was unnecessarily and
impermissibly suggestive (which we hold it was not), it was not so
“‘“‘conducive to irreparable mistaken identification’ . . . or had such a
tendency ‘to give rise to a very substantial likelihood of irreparable
misidentification’ . . . that allowing the witness to make an in-court
identification would be a denial of due process.”’” Ex parte Appleton,
828 So.2d at 900, quoting Brazell v. State, 369 So.2d 25, 29
(Ala.Crim.App. 1978). Applying the five factors set forth in Neil v.
Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), we
conclude that the likelihood of misidentification in this case was low.
First, Investigator Smith had ample opportunity to view Gavin at
the time of the crime. Investigator Smith testified that although it was
dark and it had begun raining, when Gavin shot at him the first time,
while standing in the middle of the road, Gavin was illuminated by the
headlights from Investigator Smith’s vehicle and from the headlights of
oncoming traffic. In addition, according to Investigator Smith, when
Gavin first got out of the van, he took the time to aim before firing at
Investigator Smith.
Second, Investigator Smith’s degree of attention at the time of the
crime was clearly high as he was a trained law-enforcement officer. As
noted by the United States Supreme Court in addressing a similar issue
in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140
(1977):
[A]s a specially trained, assigned, and experienced officer,
he could be expected to pay scrupulous attention to detail,
for he knew that subsequently he would have to find and
arrest [the suspect]. In addition, he knew that his claimed
152
observations would be subject later to close scrutiny and
examination at any trial.
432 U.S. at 115, 97 S.Ct. 2243. See also People v. Rupert, 192 A.D.2d
1072, 1073, 595 N.Y.S.2d 998, 999 (1993)(“[T]he danger of
misidentification was greatly reduced because this confirmatory
identification was made by police officers who are trained to be both
accurate and objective.”).
Third, the record reflects that after Gavin fled into the woods,
Investigator Smith provided a description of him to other
law-enforcement personnel. Investigator Smith testified that he described
Gavin as a black male, wearing a maroon or wine-colored shirt, blue
jeans, and some type of toboggan cap or other cap on his head. When
Gavin was found, he was wearing blue jeans and a wine-colored shirt;
although he was not wearing a toboggan cap, a toboggan cap was found
at a point near where Gavin had entered the woods. We recognize that as
part of his initial description, Investigator Smith also stated that based on
the “thickness” of the gun as he saw it, he believed, but “wasn’t sure” (R.
604), that Gavin had a revolver when, in fact, the weapon found was a
.40 caliber semiautomatic Glock pistol; however, we do not believe this
discrepancy undermines Investigator Smith’s otherwise accurate
description of Gavin.
Fourth, Investigator Smith testified that when he saw Gavin in the
patrol car later that evening, he was positive that the right man was in
custody. He also positively identified Gavin at trial. And finally, only a
little over three hours had elapsed between the crime and the
identification.
Under the circumstances, we conclude that the trial court did not
err in allowing Investigator Smith’s identification testimony.
Id. at 961-62 (footnote omitted).
153
Mr. Gavin argues that this holding was “based on an unreasonable determination
of the facts and an unreasonable application of [Neil v.] Biggers[, 409 U.S. 188
(1972),] because it ignored critical facts contrary to its determination and gave undue
deference to Smith’s status as a law enforcement officer rather than the victim of a
crime.” (Doc. 38 at 64).
A criminal conviction may not constitutionally rest upon an identification
derived from a procedure that was “unnecessarily suggestive or conducive to
irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 301-02 (1967).
See also Manson v. Braithwaite, 432 U.S. 98, 104 (1977); Neil, 409 U.S. at 198. But,
a suggestive identification procedure, alone, does not violate due process. See Neil, 409
U.S. at 198-99. Rather, to violate due process, the “identification procedure used by
the police must be unnecessarily suggestive and create a substantial risk of
misidentification.” Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987) (citing
Neil, 409 U.S. 188 (1972)). The “central question” is “whether under the ‘totality of
the circumstances’ the identification was reliable even though the confrontation
procedure was suggestive.” Neil, 409 U.S. at 199. See also Manson, 432 U.S. at 114
(“Reliability is the linchpin in determining the admissibility of identification
testimony.”).
154
The Supreme Court has identified several factors to be used in evaluating the
“likelihood of misidentification,” including (1) the opportunity of the witness to view
the perpetrator at the time of the crime, (2) the witness’s degree of attention, (3) the
accuracy of the witness’s prior description of the accused, (4) the level of certainty
demonstrated by the witness at the time of the confrontation, and (5) the length of time
between the crime and the confrontation. Neil, 409 U.S. at 199-200.
“Although show-ups are widely condemned, immediate confrontations allow
identification before the suspect has altered his appearance and while the witness’
memory is fresh, and permit the quick release of innocent persons.” Johnson, 817 F.2d
at 729 (citations omitted). Thus, “[t]he due process check for reliability . . . comes into
play only after the defendant establishes improper police conduct.” Perry v. New
Hampshire, 565 U.S. 228, 241 (2012) (citing Manson, 432 U.S. at 112-13).
Mr. Gavin challenges Investigator Smith’s identification of him after a show-up
in the police vehicle immediately after he was apprehended in the woods. Because
nothing suggests that the police aggravated the suggestiveness of the show-up, the
confrontation was not unnecessarily suggestive. Rather, the immediate identification
of the suspect was necessary for law enforcement to insure they had apprehended the
correct person.
155
Moreover, even if the out-of-court identification of Mr. Gavin had been
unnecessarily suggestive, the identification met the Neil v. Biggers test and was
nonetheless reliable. As the Alabama Court of Criminal Appeals noted, Investigator
Smith had ample opportunity to view Mr. Gavin; his degree of attention at the time was
high because he was a trained law enforcement officer; his description of Mr. Gavin’s
clothing proved to be accurate; he indicated that he was positive Mr. Gavin was the
perpetrator; and just over three hours had elapsed between the crime and the
identification.
Mr. Gavin argues that the Alabama Court of Criminal Appeals gave undue
deference to Investigator Smith being a law enforcement officer rather than a victim
of the crime. (Doc. 38 at 65). However, as the Alabama Court of Criminal Appeals
pointed out, the Supreme Court has held:
as a specially trained, assigned, and experienced officer, he could be
expected to pay scrupulous attention to detail, for he knew that
subsequently he would have to find and arrest [the suspect]. In addition,
he knew that his claimed observations would be subject later to close
scrutiny and examination at any trial.
Manson, 432 U.S. at 115. Mr. Gavin has offered nothing to support his theory that
after he shot at Investigator Smith, Investigator Smith became a victim of the crime,
unable to perform his normal duties as a law enforcement officer. In fact, Investigator
156
Smith continued on with his law enforcement duties after Mr. Gavin shot at him and
fled into the woods.
Mr. Gavin further alleges that the Alabama Court of Criminal Appeals ignored
Investigator Smith’s testimony that when he first saw the perpetrator, it was “dusky
dark,” it was “beginning to mist a little,” and that the perpetrator was silhouetted from
the back with headlights from another vehicle that had almost hit the perpetrator. (Doc.
38 at 65). He maintains that these details of Investigator Smith’s testimony establish
that he did not have ample opportunity to view the perpetrator or the degree of attention
necessary to positively identify the perpetrator. (Id. at 66).
However, the Alabama Court of Criminal Appeals acknowledged and
considered this testimony:
Investigator Smith testified that although it was dark and it had begun
raining, when Gavin shot at him the first time, while standing in the
middle of the road, Gavin was illuminated by the headlights from
Investigator Smith’s vehicle and from the headlights of oncoming traffic.
Gavin, 891 So. 2d at 961. Moreover, Investigator Smith never indicated that these facts
prevented him from sufficiently viewing the perpetrator to identify him. Investigator
Smith testified that he was able to “get a good look at the man who came out of that
van,” correctly identified Mr. Gavin as a black male, and correctly described the
clothing Mr. Gavin was wearing at the time. (Vol. 8, Tab 18 at 556, 560).
157
Based upon these facts, the Alabama Court of Criminal Appeals’s finding that
the trial court did not err in allowing Investigator Smith’s identification testimony was
not unreasonable.
2.
Larry Twilley
Mr. Gavin further alleges that Larry Twilley’s in-court identification of Mr.
Gavin as the man who shot the victim was unreliable in violation of his due process
rights. (Doc. 1 at 93-94). Mr. Twilley was an eye-witness to the murder. (Vol. 8, Tab
18 at 519-29). Mr. Twilley testified that he was in his car, stopped at a red light, when
he heard “a loud noise” that caught his attention. (Id. at 519-20). When he turned
around to identify the noise, he saw a “black guy” with very little hair and a goatee
jerking open the door to a van being driven by an “older white man.” (Id. at 519-21).
Mr. Twilley saw the black man with a gun – then heard the black man fire two shots
at the older white man. (Id. at 522). Mr. Twilley watched the black man “give the
[white] guy a push,” get into the van, then drive off in the van. (Id.). Mr. Twilley
described the shooter as not “real heavy, but [not] slim.” (Id. at 521). When asked if
the shooter was wearing a cap or anything on his head, Mr. Twilley testified that he
“kept seeing something seems like something red, but [he did not] know if it was on
his head or not.” (Id.). Mr. Twilley stated that he was able to see the side of the
shooter’s face when he “turned and came around,” but added that his “hairline is what
158
stood out the most.” (Id. at 523). Mr. Twilley explained that although the shooter had
something red and black around his head at first, “[w]hen he come around the corner,
he didn’t have anything on his head.” (Id. at 529). When asked if he could identify the
shooter, Mr. Twilley pointed to Mr. Gavin who was sitting in the courtroom at a table
with his lawyers. (Id.). Defense counsel did not object to Mr. Twilley’s identification
of Mr. Gavin as the shooter.
Mr. Gavin alleges that “Twilley’s in-court identification of Mr. Gavin
approximately 18 months after the crime was the first and only time the State sought
such an identification” and “no evidence [showed] that Twilley ever selected Gavin out
of a photo or in-person lineup.” (Doc. 1 at 94). He asserts that Mr. Twilley’s
identification of Mr. Gavin in court was unduly suggestive because Mr. Gavin was the
sole black man seated at the defense table. (Id.). Mr. Gavin concludes that Mr.
Twilley’s identification of Mr. Gavin was “so unnecessarily suggestive and conducive
to irreparable mistaken identification” that he was denied due process of the law. (Id.
at 95).
When Mr. Gavin raised his tainted eyewitness identification claim on direct
appeal, he focused almost entirely on Danny Smith’s identification of Mr. Gavin as the
shooter. In his appellate brief, Mr. Gavin noted that “both Smith and Twilley saw the
perpetrator at significant distances, and for only a few seconds each” and that “the
159
events surrounding both initial observations were violent and stressful, including
gunfire.” (Vol. 14, Tab 42 at 90). Mr. Gavin’s only argument concerning Mr. Twilley’s
identification of him as the shooter was that it failed “to meet the parameters set out in
the consensus of modern research for producing a reliable identification, and it was
plain error under Ala.R.A.P. 45A to admit it, the lack of a specific objection
notwithstanding.” (Id.).
The Alabama Court of Criminal Appeals denied the claim in a footnote:
We note that Gavin also contends that the trial court erred in
allowing Twilley to identify him at trial. Gavin did not object to Twilley’s
identification, and his entire argument on appeal regarding Twilley’s
identification is: “Twilley’s identification likewise fails to meet the
parameters set out in the consensus of modern research for producing a
reliable identification, and it was plain error under [Ala.R.App.P.] 45A
to admit it, the lack of a specific objection notwithstanding.” (Gavin’s
brief at p. 90.) We have reviewed the record and conclude that the trial
court did not err in allowing Twilley to identify Gavin at trial.
Gavin, 891 So. 2d at 962 n. 23.
The respondent argues that Mr. Gavin is procedurally barred from raising his
claim that Mr. Twilley’s in-court identification of him was unduly suggestive because
it is not the same claim he presented on direct appeal. (Doc. 43 at 39). Mr. Gavin
counters that the claim cannot be barred as procedurally defaulted because the state
court addressed the merits of the claim. (Doc. 38 at 80).
160
As previously mentioned, Mr. Gavin did allege in his direct appeal brief that
“both Smith and Twilley saw the perpetrator at significant distances, and for only a few
seconds each” and that “the events surrounding both initial observations were violent
and stressful, including gunfire.” (Vol. 14, Tab 42 at 90). However, Mr. Gavin did not
state his claim as it pertained to Mr. Twilley as a violation of federal law. Rather, he
set apart his claim concerning Mr. Twilley in a separate paragraph at the end of his
argument, clearly alleging only that Mr. Twilley’s identification of him failed to “meet
the parameters set out in the consensus of modern research for producing a reliable
identification, and it was plain error under Ala.R.A.P. 45A to admit it.” (Vol. 14, Tab
42 at 90).
Mr. Gavin’s claim in this court alleges new facts – that “Twilley’s in-court
identification of Gavin approximately 18 months after the crime was the first and only
time the State sought such an identification” and there is “no evidence that Twilley
ever selected Gavin out of a photo or in-person lineup”– and clearly states the claim as
a violation of his federal due process rights. (Doc. 1 at 93-95).
The claim is procedurally barred from review in this court because Mr. Gavin
never presented the current claim in state court. See Teague v. Lane, 489 U.S. 288
(1989). It is of no consequence that the Alabama Court of Criminal Appeals denied his
161
claim concerning Mr. Twilley on the merits, because Mr. Gavin raised a different claim
in that court.
F.
Violation of Mr. Gavin’s Right of Self-Representation
On March 9, 1998, H. Bayne Smith and John H. Ufford, II, were appointed to
represent Mr. Gavin. (Vol. 1, Tab 1 at 9). On September 22, 1998, Mr. Gavin filed a
pro-se motion requesting that counsel be dismissed for “conflict of interest,”
“ineffective assistance of counsel,” “misrepresentation,” and “plain lack of interest,”
and further requesting that “new counsel’s [sic] be appointed to represent” him. (Id.
at 17).
Mr. Gavin withdrew the motion on October 13, 1998, informing the court that
“after talking to them that day, Mr. Ufford, we got everything understood now.” (Vol.
5, Tab 6 at 9). Mr. Gavin indicated his desire that his case be postponed, with Mr.
Smith and Mr. Ufford remaining as his counsel, giving counsel more time to prepare
for his trial. (Id. at 9-10). The court postponed the trial at Mr. Gavin’s request. (Id. at
11-12).
On July 14, 1999, Mr. Gavin moved to renew his motion to dismiss his attorneys
for “those reasons stated,” and again asked the court to “appoint another counsel.”
(Vol. 1, Tab 1 at 69). The trial court held a hearing on the motion on August 10, 1999.
(Vol. 13, Tab 40 at 1549-63). Mr. Gavin testified that his attorneys were “not putting
162
no emphasis on [his] innocence” and that they were “biased and inaccurate, ineffective
to handle [his] case under due process of law to represent [him] in this serious matter
charges.” (Id. at 1552). He added that Mr. Smith was “not ready” and “not at all
concerned about [his] life or [his] innocence.” (Id. at 1554). Mr. Gavin stated that he
hated for the court to “have to appoint another attorney and then we have to start over
again,” but that he was “willing to wait another year” before going to trial even if it
meant he had to “sit here another year until [he got] some attorneys who are willing to
seek the truth.” (Id. at 1554-55). Mr. Smith stated that he was fully prepared to try Mr.
Gavin’s case, but felt confident that if the court decided to remove him from the case,
his experts could “work just as smoothly with someone else.” (Id. at 1556). The court
denied Mr. Gavin’s renewed motion to dismiss his counsel on August 12, 1999. (Vol.
1, Tab 1 at 79).
On November 2, 1999, at the beginning of the second day of jury selection, Mr.
Gavin orally moved for a mistrial and to have Mr. Smith “removed as [his] defense
attorney in this matter on the grounds of conflict of interest, misrepresentation, and
poorly advisement.” (Vol. 7 at 293). Mr. Gavin indicated that he and Mr. Smith had
been “bickering back and forth about the truth, the facts, the evidence, and the law
concerning this case,” and that Mr. Smith had tried to pressure him into taking a plea
163
deal for life imprisonment. (Id. at 294). Mr. Gavin explained that he wanted to have
Mr. Smith removed from his case and for the court to declare a mistrial because
I’ve been telling Mr. Bayne Smith from the very day that I am innocent
of shooting Mr. William Clayton. He doesn’t hear me, Judge. He tried to
persuade me. Not only that, he tried to pressure me into taking this plea
of life imprisonment without the possibility of parole. He went as far as
calling my investigator to have him call my mother and pressure her into
telling me or convincing me to plead to this case, this charge, when I’m
not guilty of it. That’s why I’m asking you to declare this as a mistrial at
this moment because this is, my life is at stake. It doesn’t matter, really,
what people think when it comes to an innocent person. Mr. Bayne Smith
does not hold me as presumably innocent until proven guilty. He don’t
have that presumption of innocence from his standpoint. True, he might
have did a lot of work, that’s procedure, that’s his job to do a lot of work
or whatever work he might have done, but the fact of the matter is, Judge,
he cannot go in this trial in front of this jury with a clear conscious [sic]
and try to defend me with his complete heart. It is not there with him. It
would be, it would be a gross miscarriage of justice if I am forced to go
to trial with Mr. Bayne Smith as my lead attorney in this matter. This is
my third request to have Mr. Bayne Smith removed. The first one, I
withdrew that one under advisement of Mr. Ufford, to my right. The
second one, you’ve written an Order on that and denied my motion to
have Mr. Bayne Smith removed from this case. Judge, I’m sorry I have
to come to you like this here, but, I’ve been trying to work with Mr.
Bayne Smith. Mr. Bayne Smith doesn’t want to work with me. Our
differences is irreconcilable and it’s not going to get any better.
(Id. at 294-95). Mr. Gavin stated that Mr. Ufford was “assumably neutral,” but “shares
the same views of Mr. Smith,” and had declined Mr. Gavin’s request to take the lead
in his defense. (Id. at 296). The court denied Mr. Gavin’s motion for a mistrial and his
motion to remove his “attorneys.” (Id. at 302).
164
Mr. Gavin contends that the trial court’s denial of his motion to dismiss counsel
violated his Sixth Amendment right to represent himself at trial. (Doc. 1 at 99). The
Alabama Court of Criminal Appeals denied this claim on the merits on direct appeal:
On appeal, Gavin contends that the trial court’s denial of his
motion to remove Smith as his lead counsel denied him his right to
represent himself because, he says, he made a “particularized request to
proceed pro se.” (Gavin’s brief at p. 74.) The record refutes this claim.
Contrary to Gavin’s contention, at no point during the colloquy did he
request to proceed pro se. In addition, a review of the colloquy clearly
shows that Gavin did not want to proceed pro se. As the State correctly
points out in its brief to this Court, Gavin’s request to remove his counsel
was directed solely at Smith. Gavin specifically stated that he and Smith
had been having problems communicating, but that his relationship with
Ufford was “neutral,” and he never requested that Ufford be removed as
his counsel, thus indicating that he did not, in fact, want to proceed pro
se. However, even assuming that Gavin’s request was directed at both
Smith and Ufford, Gavin did not merely move to have counsel removed,
he requested a mistrial, thus further showing that he did not want to
proceed pro se, but that he wanted the trial delayed so that new counsel
could be appointed. Contrary to Gavin’s contention, his right to represent
himself is not implicated in this case. See, e.g., Ex parte Clemons, 720
So.2d 985 (Ala. 1998).
Gavin, 891 So. 2d at 942-43 (footnote omitted).
Mr. Gavin maintains that the Alabama Court of Criminal Appeals’s decision
was based on an unreasonable determination of the facts and involved an unreasonable
application of Faretta v. California, 422 U.S. 806 (1975). (Doc. 1 at 100). Faretta
held that the Sixth Amendment right to counsel implicitly includes the right to selfrepresentation. Faretta, 422 U.S. at 819, 833-334. To trigger the dictates of Faretta,
165
a defendant must assert the right to self-representation “clearly and unequivocally,
understandable to the trial court by the reasonable person standard.” Stano v. Dugger,
921 F.2d 1125, 1144 (11th Cir. 1991).
Mr. Gavin argues that he made multiple attempts to invoke his right to selfrepresentation, but the trial court ignored him. (Doc. 38 at 67). He contends that the
record “plainly” shows that he wanted to proceed pro se:
Gavin requested to represent himself on three separate occasions. On
September 22, 1998, Gavin filed a pro se motion to dismiss his counsel.
(Vol. 1 at 17-18.) After withdrawing the motion at a hearing, Gavin
renewed his pro se motion to have counsel dismissed. (Vol. 1 at 69.) At
the August 10, 1999 hearing on the motion, Gavin explained that he had
withdrawn his earlier motion because counsel had “lured me into thinking
that things could work out.” (Vol. 13, Trial Tr. at 1552–53.) But he had
come to realize that trial counsel was “putting no emphasis on my
innocence,” and that “there has been a conflict [with counsel] from the
first day.” Id. The trial court denied his motion. (Vo1. 1 at 71.) On
November 2, 1999, Gavin again addressed the Court “to make a couple
of motions . . . on behalf of myself as pro se,” including a motion to
remove his attorneys. (Vol. 7, Trial Tr. at 293.) While Gavin’s more
serious issues were with attorney Mr. Smith, and he felt more neutral
towards attorney Mr. Ufford, Mr. Ufford still “shares the same views of
Mr. Smith.” (Id. at 296.) The trial court then held “[t]he motion to
remove your attorneys is denied.” (Id. at 302 (emphasis added).) During
this colloquy, Gavin made no mention of having new counsel appointed.
(See id. at 293-302.)
In short, Gavin speaking on “on behalf of [him]self as pro se”
asked for his attorneys – plural – to be removed. This is sufficient to
invoke the right to self-representation. See Ferguson, 527 F.3d at 1147
(“To invoke his Sixth Amendment right under Faretta a defendant does
166
not need to recite some talismanic formula hoping to open the eyes and
ears of the court to his request.” (internal quotation omitted)).
Id. at 67-68 (footnote omitted).
However, no indication in the record indicates that Mr. Gavin made an
unequivocal request to represent himself. Rather, the record shows that Mr. Gavin’s
wish all along was for Mr. Smith to be dismissed from his case to allow for Mr. Ufford
and/or some other court-appointed attorney(s) to represent him. In his September 22,
1998 motion, Mr. Gavin requested that the court “dismiss appointed counsels” and that
“new counsel’s be appointed to represent” him. (Vol. 1, Tab 1 at 17-18).
In his July 14, 1999 motion, Mr. Gavin requested that the court “remove counsel
. . . and appoint another counsel.” (Id. at 69). At the hearing on that motion, Mr. Gavin
complained about both attorneys not being prepared to defend him, but clearly
indicated that his desire was not to represent himself, but to have new, different
counsel appointed to represent him:
I have tried to maintain my peace with Mr. Smith. It’s not working,
Judge. I hate for you to have to appoint another attorney and then we have
to start over again, but I’m willing to wait another year before I go to trial.
. . . But, if I have to sit here another year until I get some attorneys who
are willing to seek the truth because the truth is in the pudding, Judge, it’s
right before his face and I’m getting nothing. I’m getting nothing out of
him.
(Vol. 13, Tab 40 at 1354-55).
167
Then on November 2, 1999, just prior to trial, Mr. Gavin requested a mistrial
and to have Mr. Smith removed as his attorney. (Vol. 7 at 293-302). Despite stating
that he wanted to “make a couple of motions . . . on behalf of [him]self pro se,” Mr.
Gavin never even hinted that he wanted to represent himself in his capital murder trial.
(See Id.). Rather, he asked for a mistrial and to have his “attorney” removed as his
“defense attorney” because he and Mr. Smith had been “bickering back and forth” and
Mr. Smith was trying to pressure him into entering a guilty plea. (Id. at 293-97). Mr.
Gavin’s only complaint about Mr. Ufford was that he “shares the same views as Mr.
Smith” and that he had declined to “take the lead in the defense.” (Id. at 296).
After the court heard Mr. Gavin’s arguments, the following transpired:
THE COURT:
Did you indicate to me when we started that there were two
motions that you wanted to make, one was for the mistrial
and the other was for the removal of the attorney, Mr.
Smith. Is there anything else that you have or other motion
that you are making at this time?
MR. GAVIN:
Yes, sir, I also would like to ask that you dismiss that
second count, Section 13A-5-40, 13A-540 – 13A-540[(a)(13)] of the Code of Alabama. I believe that violates
my Sixth and Eighth Amendment right to have that in the
indictment. I’m asking the Court that you drop that count
from the indictment.
THE COURT:
Is that Count Two of the indictment?
MR. GAVIN:
Yes, sir.
168
THE COURT:
What other motions do you have to make this morning?
MR. GAVIN:
That’s it, Your Honor. That is it.
(Id. at 296-97). The trial court denied the motion for mistrial and denied the “motion
to remove [Mr. Gavin’s] attorneys.” (Id. at 302).
Despite the court’s reference to the motion as a motion to remove his
“attorneys,” it appears from the record that Mr. Gavin was seeking only to remove Mr.
Smith as his attorney. At no time during the November 2, 1999 argument on his
motion, or in the two prior motions, did Mr. Gavin indicate that he was seeking to
represent himself. Indeed, in his first two motions, Mr. Gavin specifically stated – in
writing – that he wanted new counsel appointed to represent him. And, in the hearing
on his second motion to dismiss Mr. Smith as counsel, Mr. Gavin specifically
contemplated having to wait a year longer for his trial if new counsel were appointed.
The record simply does not support Mr. Gavin’s claim that he made any attempt
to invoke his right to self-representation. Thus, the Alabama Court of Criminal
Appeals’s finding that Faretta is not implicated in this case is not unreasonable.
G.
Violation of Apprendi v. New Jersey and Ring v. Arizona
Finally, Mr. Gavin claims that he was sentenced in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002), because the
“key factual finding underlying the sentence in this case – that the aggravating
169
circumstances outweigh the mitigating circumstances – was made by the judge rather
than by a unanimous jury.” (Doc. 1 at 101). Mr. Gavin argues that because Ring
requires a jury to make any finding of fact that increases a defendant’s authorized
punishment, the jury – and not the trial judge – is required to make the “factual
determination regarding the relative weight of aggravating and mitigating
circumstances.” (Id. at 102-03).
When Mr. Gavin raised this claim on direct appeal, the Alabama Court of
Criminal Appeals denied the claim, holding that “Gavin’s death sentence is not invalid
under Ring.” Gavin, 891 So. 2d 907, 987-88. Mr. Gavin asserts that this decision was
an unreasonable application of Apprendi and Ring. (Doc. 60 at 61).
In Ring, the Supreme Court applied its ruling in Apprendi to capital cases. Ring,
536 U.S. at 584. 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. In applying Apprendi in the death penalty context, Ring held that
aggravating circumstances used to justify an increase in the maximum punishment
from life imprisonment to death become “the functional equivalent of an element of a
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greater offense,” and must be found by a jury rather than a judge. Ring, 536 U.S. at
609.23
In Hurst v. Florida, 136 S. Ct. 616 (2016), the Supreme Court applied Ring to
find Florida’s previous capital sentencing scheme unconstitutional.24 The Court in
Hurst held that in light of Ring, Florida’s former death penalty scheme violated the
defendant’s Sixth Amendment right to an impartial jury because it “required the judge
alone to find the existence of an aggravating circumstance” to impose the death
penalty. Id. at 624. Under Florida law, life imprisonment was the maximum sentence
a defendant convicted of first degree murder could receive on the basis of his
conviction alone. Id. at 620. A death sentence could be imposed only if an additional
sentencing proceeding resulted in “findings by the court that such person shall be
punished by death.” Id.
The additional sentencing proceeding in Florida was a hybrid proceeding “in
which [a] jury render[ed] an advisory verdict but the judge ma[de] the ultimate
23
The holding in Ring does not apply retroactively to cases that were already final on
direct appeal when the Court announced Ring. Schriro v. Summerlin, 542 U.S. 348, 358
(2004). Ring applies to Mr. Gavin’s case because his direct appeal was pending when Ring
was decided. Id.
24
Because Hurst had not been decided at the time Mr. Gavin’s conviction became
final on direct appeal, the court discusses 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).
171
sentencing determinations.” Id. (quoting Ring, 536 U.S. at 608, n.6). First, the
sentencing judge was required to hold an evidentiary hearing before the jury, then the
jury rendered an “advisory sentence” without specifying the factual basis for its
recommendation. Id. Finally, the sentencing judge, notwithstanding the jury’s
recommendation, independently weighed the aggravating and mitigating circumstances
and entered a sentence of life imprisonment or death. Id. Although the judge was
required to give the jury’s recommendation “great weight,” the sentence was required
to reflect the judge’s “independent judgment about the existence of aggravating and
mitigating factors.” Id.
In Hurst’s case, the advisory sentencing jury recommended the death penalty by
a vote of seven to five, but did not indicate which one of the two aggravating factors
charged by the sentencing judge it had found beyond a reasonable doubt. Id. at 619-20.
The trial judge then sentenced Hurst to death, basing the death sentence in part on her
independent determination that two aggravating factors existed, and assigning “great
weight” to her findings as well as the jury’s recommendation of death. Id. at 620. The
Supreme Court found that Florida’s capital sentencing scheme violated Ring because
it “required the judge alone,” and not the jury, “to find the existence of an aggravating
circumstance.” Id. at 624 (emphasis added).
172
Alabama also bifurcates the guilt and penalty phases of capital trials. See Ala.
Code § 13A-5-45. After a defendant is convicted of a capital offense, the trial court
conducts a separate sentencing hearing to determine the defendant’s sentence. See Ala.
Code § 13A-5-45(a). A defendant convicted of a capital offense may not be sentenced
to death unless “at least one aggravating circumstance as defined in 13A-5-49 exists.”
Ala. Code § 13A-5-45(f). Certain capital offenses, like murder during a robbery, and
murder by a defendant convicted of another murder in the twenty years preceding the
crime, for which Mr. Gavin was convicted, have built-in aggravating circumstances
that correspond to the aggravating circumstances listed in § 13A-5-49. Compare Ala.
Code § 13A-5-40(a)(2) (listing as a capital offense “[m]urder by the defendant during
a robbery in the first degree”) with Ala. Code § 13A-5-49(4) (listing as an aggravating
circumstance that the “capital offense was committed while the defendant was engaged
. . . in the commission of . . . robbery”) and compare Ala. Code § 13A-5-40(a)(13)
(listing as a capital offense “[m]urder by a defendant who has been convicted of any
other murder in the 20 years preceding the crime”) with Ala. Code § 13A-5-49(2)
(listing as an aggravating circumstance that the “defendant was previously convicted
of another . . . felony involving the use or threat of violence to the person”). Alabama
law provides that when a defendant is convicted of such a capital offense, “any
aggravating circumstance which the verdict convicting the defendant establishes was
173
proven beyond a reasonable doubt at trial shall be considered as proven beyond a
reasonable doubt for purposes of the sentencing hearing.” Ala. Code § 13A-5-45(e).
The sentencing hearing usually takes place before the same jury that convicted
the defendant. Alabama law at the time of Mr. Gavin’s conviction and sentencing
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 circumstances).” Waldrop v. Comm’r, Alabama Dep’t of Corr., 711 F.
App’x 900, 922 (11th Cir. 2017) (citing the pre-2017 version of Ala. Code §
13A-5-46(e)). After hearing the jury’s advisory verdict, the court would then
“independently determine the appropriate sentence.” Id. (citing the pre-2017 version
of Ala. Code § 13A-5-47(a)). “If the court found that at least one aggravating
circumstance existed, and that they outweighed any mitigating circumstances, it could
impose a death sentence, notwithstanding a contrary jury recommendation.” Id.; see
also Ala. Code § 13A-5-47(e) (pre-2017 version).25
25
In 2017, Alabama amended its capital sentencing laws. See S.B. 16, 2017 Leg., Reg.
Sess. (Ala. 2017). Under the new sentencing scheme, the jury’s sentence recommendation
binds the court. See Ala. Code § 13-A-5-47(a) (2017) (“Where a sentence of death is not
174
The Alabama Court of Criminal Appeals’s decision was not an unreasonable
application of Apprendi and Ring. Mr. Gavin became death-eligible under Alabama
law when the jury convicted him of murder during a robbery, and murder by a
defendant convicted of another murder in the twenty years preceding the crime, both
of which are aggravating circumstances under Ala. Code § 13A-5-49(2) & (4). As
explained above, Alabama law requires the existence of only one aggravating
circumstance for a defendant to be death-eligible. In Mr. Gavin’s case, the jury found
the existence of two aggravating circumstances – that the capital offense was
committed during a robbery and that it was committed after the defendant was
previously convicted of a felony involving the use of violence to the person – when it
returned guilty verdicts in the guilt phase of the trial. See 13A-5-45(e). Thus, every fact
that made Mr. Gavin death-eligible was found by the jury, beyond a reasonable doubt,
at the guilt phase of his trial. That finding by the jury comports with what Ring
requires.
Mr. Gavin argues that Ring requires more than a jury finding of the existence
of an aggravating factor beyond a reasonable doubt. He contends that Ring also
returned by the jury, the court shall sentence the defendant to life imprisonment without
parole.”).
175
requires the jury – not the judge – to weigh the aggravating and mitigating factors.
(Doc. 60 at 57). The Alabama Court of Criminal Appeals rejected this argument:
Gavin also contends that the United States Supreme Court's
decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002), requires that his sentence of death be vacated. (Issue I in
Gavin's supplemental brief.) Gavin makes several arguments regarding
the impact of Ring, all of which have been addressed and decided
adversely to him either by this Court or by the Alabama Supreme Court.
See Ex parte Smith, [Ms. 1010267, March 14, 2003] ––– So.2d ––––
(Ala. 2003); Ex parte Hodges, 856 So.2d 936 (Ala. 2003); Ex parte
Waldrop, 859 So.2d 1181 (Ala. 2002); Clark v. State, [Ms.
CR–99–1062, June 27, 2003] ––– So.2d ––––, –––– (Ala.Crim.App.
2000)(opinion on return to remand and on application for rehearing);
Ziegler v. State, 886 So.2d 127, 150 (Ala.Crim.App. 2003)(opinion on
return to remand); Lee v. State, [Ms. CR–00–0084, June 27, 2003] –––
So.2d ––––, –––– (Ala.Crim.App. 2001)(opinion on return to remand);
Lewis v. State, 889 So.2d 623 (Ala.Crim.App. 2003); Peraita v. State,
[Ms. CR–01–0289, May 30, 2003] ––– So.2d –––– (Ala.Crim.App.
2003); Martin v. State, [Ms. CR–99–2249, May 30, 2003] ––– So.2d
–––– (Ala.Crim.App. 2003); McNabb v. State, 887 So.2d 929, 989
(Ala.Crim.App. 2001)(opinion on application for rehearing); Moody v.
State, 888 So.2d 532 (Ala.Crim.App. 2003); Duke v. State, 889 So.2d 1,
40 (Ala.Crim.App. 2002)(opinion on return to remand); Stallworth v.
State, 868 So.2d 1128, 1177 (Ala.Crim.App. 2001)(opinion on return to
second remand); Harrison v. State, 869 So.2d 509, 526 (Ala.Crim.App.
2002)(opinion on application for rehearing); Turner v. State, [Ms.
CR–99–1568, November 22, 2002] ––– So.2d –––– (Ala.Crim.App.
2002); and Tomlin v. State, [Ms. CR–98–2126, November 22, 2002] –––
So.2d ––––, –––– (Ala.Crim.App.2002)(opinion on application for
rehearing). Gavin's death sentence is not invalid under Ring.
Gavin, 891 So. 2d at 987-88.
176
This conclusion is not “so unreasonable that no ‘fairminded jurist’ could agree
with the conclusion.” Waldrop, 711 F. App’x at 923 (citing Harrington v. Richter, 562
U.S. 86, 101 (2011). The Alabama Court of Criminal Appeals’s conclusion that
“Gavin’s death sentence is not invalid under Ring” is consistent with Justice Scalia’s
explanation of the holding in Ring:
What today’s decision says is that the jury must find the existence
of the fact that an aggravating factor existed. Those [s]tates that leave the
ultimate life-or-death 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 (Scalia, J., concurring). Further, as the Eleventh Circuit has
explained, the Alabama Court of Criminal Appeals’s application of Ring is also
consistent with Hurst, which held that “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.’” Waldrop, 711 Fed. App’x at 924
(quoting Hurst, 136 S. Ct. at 624) (emphasis in Eleventh Circuit’s opinion).
Additionally, Mr. Gavin’s argument that Ring requires the jury – and not the
judge – to weigh the aggravating and mitigating factors is foreclosed by Lee v.
Comm’r, Alabama Dept. of Corr., 726 F.3d 1172 (11th Cir. 2013).26 In Lee, an
26
Mr. Gavin acknowledges that Lee precludes this claim, but states that he seeks to
preserve this issue for appeal and “respectfully submits” that Lee was “wrongly decided.”
177
Alabama jury found the existence of an aggravating circumstance when it convicted
the defendant of murder during the course of a robbery. See id. at 1197-98. The
Eleventh Circuit concluded that “[n]othing in Ring – or any other Supreme Court
decision – forbids the use of an aggravating circumstance implicit in a jury’s verdict.”
Id. at 1198. The court further held that “Ring does not foreclose the ability of the trial
judge to find the aggravating circumstances outweigh the mitigating circumstances.”
Id.
The Alabama Court of Criminal Appeals’s rejection of Mr. Gavin’s Ring claim
was not an unreasonable application of Apprendi or Ring. Thus, Mr. Gavin is not
entitled to relief on this claim.
VI. CONCLUSION
For all these reasons, and after careful review, the court concludes that Mr.
Gavin’s petition (Doc. 1) is due to be GRANTED on his claim that he was denied the
effective assistance of counsel during the penalty phase of his trial (Claim C), and
DENIED with prejudice on the remainder of his claims. A separate order will be
entered.
(Doc. 60 at 58).
178
DONE and ORDERED this 27th day of March, 2020.
____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
179
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