Sneed v. Dunn
Filing
34
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/31/2022. (AKD)
FILED
2022 Aug-31 PM 04:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ULYSSES CHARLES SNEED,
Petitioner,
v.
TERRY RAYBON, Warden of
Holman Correctional Facility, 1
Respondent.
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Case No.: 5:16-cv-1442-AKK
MEMORANDUM OPINION
Ulysses Charles Sneed has petitioned for a writ of habeas corpus under Title
28 U.S.C. § 2254. See generally doc. 1.2 Sneed challenges the constitutionality of
1
As a housekeeping matter and as the case caption reflects, a party substitution is appropriate
in this habeas action. Specifically, the Supreme Court clarified in Rumsfeld v. Padilla, 542 U.S.
426, 435 (2004), that “the proper respondent [in a habeas action] is the warden of the facility where
the prisoner is being held.” Sneed is a death row inmate at Holman Correctional Facility where the
current warden is Terry Raybon. See http://www.doc.state.al.us/facility?loc=33 (last visited July
15, 2022). Consequently, the court DIRECTS the clerk to substitute Terry Raybon, Warden of
Holman Correctional Facility, for Jefferson S. Dunn—the former—and John Hamm—the current—
Commissioner of the Alabama Department of Corrections, as Respondent.
2
“ Doc. ___” refers to the number assigned to each document filed in the court’s electronic
case filing system. The underlying state court documents are part of the habeas electronic record.
Docs. 26; 27. Respondent manually filed “a copy of the surveillance exhibit on a CD . . . . because
the electronic file size exceeds the limit for uploading documents via ECF.” Doc. 33 at 1. The court
has reviewed the manually filed footage of the robbery-murder. Docs. 32; 33.
his 2006 capital conviction and death sentence in the Circuit Court of Morgan
County, Alabama, for the murder of a convenience store clerk, Clarence Nugene
Terry, during a robbery. The jury found that Sneed was an intentional accomplice in
the robbery-murder even though Sneed did not shoot Mr. Terry. The jury
recommended in a 7 to 5 vote that Sneed receive a life sentence. The sentencing judge
overrode that recommendation and sentenced Sneed to death. After careful
consideration, the court finds that Sneed’s petition is due to be denied.
I.
Before turning to the § 2254 analysis, the court provides some background
information and reviews some fundamental habeas principles.
A.
Sneed has had two capital murder trials which ended in convictions and death
sentences. Procedurally, as summarized by the ACCA as part of Sneed’s second
direct appeal:3
Sneed[] was indicted for the capital offense of robbery-murder for the
1993 killing of Clarence Nugene Terry. See § 13A–5–40(a)(2), Ala.
Code 1975. In 1995, he was tried with codefendant John Hardy,
convicted of capital murder, and sentenced to death. [The ACCA]
affirmed his conviction and death sentence, see Sneed v. State, 783 So.
2d 841 (Ala. Crim. App.1999), but the Alabama Supreme Court reversed
3
“ACCA,” which the court uses throughout this opinion, refers to the Alabama Court of
Criminal Appeals.
2
his conviction based on the erroneous admission of a redacted statement
he had made to law enforcement authorities that implied that he was the
sole individual involved in the shooting. See Ex parte Sneed, 783 So. 2d
863 (Ala. 2000).
In 2006, [Sneed] was tried a second time and convicted of the capital
offense of robbery-murder. After a sentencing hearing, by a vote of 7 to
5, the jury recommended that he be sentenced to imprisonment for life
without the possibility of parole. The trial court overrode the jury’s
recommendation and sentenced [Sneed] to death. This appeal followed.
Sneed v. State (Sneed Direct II), 1 So. 3d 104, 112 (Ala. Crim. App. 2007) (footnote
omitted).
B.
According to the ACCA,
The evidence showed that, in the early morning hours of September 7,
1993, [Sneed] and Hardy entered Bud’s Convenience Store in Decatur;
shot and killed the clerk, Clarence Nugene Terry; and stole one of the
store’s cash registers. An autopsy revealed that the victim suffered seven
gunshot wounds—two shots to his left cheek, one shot to his forehead,
one shot to his left ear, one shot to his left eye socket, one shot to his
chest, and one shot to his right hand.
Several days before the robbery-murder [Sneed] and Christopher Hines
drove from Louisville, Kentucky, in Hines’ vehicle to visit some of
Hines’ relatives in Tanner. Sometime after they arrived, they met John
Hardy.
On the evening of September 6, 1993, [Sneed] and Hardy were driving
around in Hines’ vehicle and were drinking and smoking marijuana.
Hardy suggested that they “get some money,” and they drove by
different convenience stores trying to locate a potential target. [Sneed]
suggested that Bud’s Convenience Store might be a good target because
3
only one clerk was working in the store. They drove around the store a
few times and parked on the side. Before going into the store, Hardy tore
off the sleeves of his shirt and they tied a sleeve around the bottom half
of their faces. The sleeves did not disguise their identities.
The entire robbery-murder was recorded on videotape and played for the
jury. The tape shows that [Sneed] and Hardy entered the store with
Hardy pointing a rifle and apparently shooting at the victim. The victim
ran behind the counter and tried to hide, but Hardy leaned over the
counter and shot him. At the same time, [Sneed] crawled under the
counter and tried to open the two cash registers that were on the counter.
As the victim crouched in a ball on the floor behind the counter, Hardy
then walked around the counter, pointed the rifle at his head, and shot
him in the head repeatedly. While this was happening, [Sneed] tried
unsuccessfully to open both of the cash registers. At one point, [Sneed]
stepped over the victim’s body and moved his legs out of the way to
have better access to one of the cash registers. Finally, Hardy unplugged
one of the registers, and [Sneed] carried it out of the store.
After they left the store, [Sneed] and Hardy went to Tanner to hide the
cash register. The next morning, [Sneed], Hardy, and Hines retrieved
$48 from the cash register. The manager at Bud’s testified that the
register that was taken had very little money in it because it was a
[backup] register that had not been used on the day of the robberymurder. After using the money to buy alcohol and gasoline, [Sneed],
Hardy, and Hines returned to Louisville, Kentucky.
The investigation led law enforcement authorities to Kentucky, where
they discovered Hines’ vehicle, which [Sneed] and Hardy had used in
the robbery-murder. [Sneed] was arrested in Kentucky and was
questioned by Lieutenant Dwight Hale and Sergeant John Boyd of the
Decatur Police Department. After being confronted with the videotape
of the robbery-murder, [Sneed] admitted his involvement in the robbery.
[Sneed] testified in his own defense and admitted that he assisted in the
robbery. However, he stated that he did not know that Hardy was going
to shoot and kill the victim. Specifically, he testified:
4
We went in to rob. I did not intend for nobody to get killed
or get hurt. That wasn’t part of the plan. That wasn’t part
of the plan. We discussed robbing. That is all we did.
Sneed Direct II, 1 So. 3d at 112-13 (footnote and internal quotation marks omitted).
C.
Because many of Sneed’s habeas claims challenge the effectiveness of his trial
counsel’s penalty-phase representation, it is imperative for the court to provide a
breakdown of the sentencing order, including the reasons for the override decision,
as additional background. See doc. 1 at 126-40.
1.
In overriding the jury’s 7 to 5 recommended life sentence, doc. 26-3 at 16, the
circuit court determined that the State had proven two aggravating factors beyond a
reasonable doubt, doc. 1 at 131-33. One admitted aggravating circumstance—tied to
the jury’s guilt-phase conviction—was that Sneed “committed the capital offense
while he and his accomplice were . . . robb[ing] . . . Bud’s Convenience Store.” Doc.
1 at 131-32. The second aggravating finding was that “the capital offense was
especially heinous, atrocious or cruel compared to other capital offenses”—the socalled HAC factor. Doc. 1 at 132; Ala. Code § 13A-5-49(8).
5
Under the sentencing court’s HAC analysis, the capital offense “was a
conscienceless and pitiless crime and . . . unnecessarily tortuous to the victim.” Doc.
1 at 133. Referencing the video evidence, the circuit court noted that Hardy began
shooting as he and Sneed “first entered the store.” Id. The sentencing court pointed
out that the videotape captured Mr. Terry’s awareness of the lethal danger and his
efforts to protect himself, including running “behind the counter[,] trying to hide[,]
and roll[ing] [his body] into a ball.” Id. The circuit court observed that Sneed “never
attempted to stop Hardy even as Hardy leaned over the counter and shot Mr. Terry in
the chest.” Id.
The sentencing court described Mr. Terry as an “unarmed and helpless [victim,
who was lying] behind the counter on the floor immediately to the left of [Sneed]’s
feet[,] while [Sneed] tried to open the cash registers.” Id. The court noted that Sneed
“never stopped trying to open the cash registers while Hardy was shooting Mr. Terry
in the head” and remarked that Sneed “looked unfazed” by the murder in the security
footage. Id. The court pointed out also that Sneed “kicked Mr. Terry’s foot out of the
way . . . to gain easier access to the second cash register.” Id.
After summarizing the security footage, the court rejected as “false” Sneed’s
“claims that he did not intend anyone to die and did not know that Hardy was going
to shoot anybody.” Id. The sentencing court added that “even though [Sneed] [had]
6
not personally commit[ted] . . . murder,” the jury had determined that he “had the
specific, particularized intent that [Mr.] Terry be killed during the course of the
robbery.” Id.
2.
Moving to mitigation and applying a preponderance of the evidence standard,
the court found three statutory circumstances: Sneed’s lack of a significant criminal
history, his nontriggerman participation, and his age of twenty-three at the time of
the offense. Doc. 1 at 134-37 ¶¶ 1, 4, 7. The court gave “very little weight” to the last
two of these mitigating findings. Id. at 136-37 ¶¶ 4, 7.
Also, the court rejected two statutory mitigators that are relevant to Sneed’s
habeas petition. The first is related to Dr. Marianne Rosenzweig, a forensic and
clinical psychologist, who had “administered psychological tests to [Sneed]” pretrial
and prepared a report about those results. Doc. 1 at 134 ¶ 2. Dr. Rosenzweig testified
in the penalty phase that Sneed’s test “scores indicated . . . [a] ‘likel[ihood] . . . of
[several] psychological difficulties,’” including anxiety; insecurity with “‘fears about
past traumas . . . [causing] him [to] behav[e] . . . maladaptive[ly];’” and impulsivity.
Id. Dr. Rosenzweig concluded that post-traumatic stress and borderline personality
disorders were “likely psychological diagnoses for . . . Sneed” but did not confirm
the existence of either mental condition fully. Id. at 135 ¶ 2. Dr. Rosenzweig testified
7
also that Sneed “was not mentally retarded and that he was at least [in] the average
range of intelligence or above.” Id. The sentencing court mentioned that “[p]erhaps
the trauma experienced by [Sneed] included his participation in the murder of Mr.
Terry” and concluded that the “extreme mental or emotional” factor did not exist. Id.
And the court found that Dr. Rosenzweig’s testimony did not establish that Sneed
“was under the influence of extreme mental or emotional disturbance” at the time of
the offense under Ala. Code § 13A-5-51(2). Doc. 1 at 134 ¶ 2.
Second, the circuit court rejected Sneed’s claim under Ala. Code § 13A-551(6) that he had a diminished mental capacity from “using alcohol and smoking
marijuana laced with cocaine prior to the murder.” Doc. 1 at 136 ¶ 6. As evidence
rebutting this statutory mitigator, the court noted that Sneed’s statement to the police
contained no mention of pre-offense drug use. Id. And referencing the videotape, the
court found that Sneed “was cognizant and appeared to be in full control of his
physical and mental faculties.” Id.
3.
Turning to non-statutory mitigation, the sentencing court found six nonstatutory circumstances. The court concluded that testimony from Joanne Terrell, a
clinical social worker, supported five mitigating categories. Id. at 137-38 ¶ 2. Ms.
Terrell had completed a psychosocial assessment of Sneed pretrial based upon
8
“police reports, educational and medical records, [as well as] interviews with
[Sneed]” and his family members. Id. at 137 ¶ 2.
As summarized by the court, Ms. Terrell testified in mitigation that Sneed had
experienced and witnessed “significant abuse” before reaching adulthood. Id.
Sneed’s father abused him and his mother, a man in the neighborhood raped Sneed
at the age of nine, and two of his mother’s boyfriends abused him from age eleven
into his teenage years. Id. at 137-38 ¶ 2. Ms. Terrell testified that after experiencing
behavioral problems at home and in school, Sneed had two weeks of emotional
treatment at age twelve. Id. at 137 ¶ 2. Sneed visited a psychologist one month later
and received a diagnosis of dysthymic disorder—a chronic form of depression. Id.
Sneed spent time at a residential treatment center “for troubled youth” because of his
behavioral and mood problems. Id. at 137-38 ¶ 2. Sneed “transferred to reform school
from th[at] clinic.” Id. at 138 ¶ 2. As a form of self-medication, Sneed began drinking
alcohol and smoking marijuana when he was twelve years old. Id. Based on these
incidents, Ms. Terrell opined that Sneed’s “abus[ive] and trauma[tic] experience[s] .
. . caused [him to have] personality deficits” and an inability to “cope with stress.”
Id.
After considering Ms. Terrell’s testimony and her psychosocial assessment of
Sneed, the sentencing court determined that the following non-statutory mitigators
9
existed: One, Sneed had experienced a violent, traumatic, and physically-abusive
childhood. Id. Two, Sneed had “witnessed severe and pervasive domestic violence of
his mother.” Id. Three, Sneed had been “raped at a young age by a virtual stranger.”
Id. Four, beginning at an early age and continuing into his twenties, Sneed had
“attempted to self-medicate the damage these traumas caused . . . by . . . abus[ing] . .
. drugs and alcohol.” Id. The circuit court added that Sneed’s “emotional damage”
“appear[ed]” to be “resistant to mental health treatment.” Id. And five, Sneed had
exacerbated “[h]is emotional problems” with drugs and alcohol, which “led him to a
life of petty crime and general instability.” Id. The court gave these non-statutory
factors “little weight in considering the appropriate sentence to impose.” Id.
The last non-statutory factor which the court credited in favor of Sneed was
the jury’s recommended life sentence. Id. at 138-39 ¶ 3. The court gave that
circumstance “moderate weight” because the jury’s “vot[ing] was almost equally
split.” Id. at 139 ¶ 3.
4.
In balancing the sentencing factors, the court recognized that the nine
mitigating circumstances outnumbered the two in aggravation. Id. at 139. But the
court concluded that “the seriousness of the first aggravating circumstance and the
10
heinousness and cruelness of the second outweigh[ed] the mitigating circumstances.”
Id.
The court followed that conclusion with its reasoning for the override decision.
Id. at 139. The court noted that Sneed had “purposefully chosen” Bud’s Convenience
Store because “only one person was working” there. Id. The court revisited portions
of its earlier HAC analysis, including that Mr. Terry “was unarmed[,] . . .
defenseless,” and “gunned down without any reason” “by masked intruders.” Id. The
court added that it could “only imagine the terror” which Mr. Terry must have “felt
as he dove behind the counter trying to escape.” Id. The court discussed Sneed’s
involvement in the capital crime as reflected in the videotape and the jury’s guiltphase finding that he “had a particularized intent to kill even though he was not the
triggerman.” Id. at 139-40. The court expressed disbelief in Sneed’s testimony and
determined, to the contrary, that “all the evidence” showed that Sneed “did nothing
to stop Hardy because [Sneed] did not want to stop the killing.” Id. at 140. The court
noted that Sneed “wanted the money in the cash register[] and that was all he focused
on while in the store.” Id. The court added that Sneed’s “unfortunate upbringing and
experiences” did not “excuse[] . . . his total lack of regard for the life of Mr. Terry.”
Id. The court concluded that Sneed’s death sentence “[wa]s not disproportionate or
excessive when compared to penalties imposed in similar cases.” Id.
11
D.
Sneed challenged his second conviction and death sentence unsuccessfully on
direct appeal to the ACCA. See Sneed Direct II, 1 So. 3d at 145. The Alabama
Supreme Court and the United States Supreme Court denied Sneed’s petitions for a
writ of certiorari. Sneed Direct II, 1 So. 3d at 104; Doc. 26-13 at 138.
Sneed did not prevail on postconviction review under Alabama Criminal
Procedure Rule 32 either. After Sneed amended his Rule 32 petition twice, the circuit
court summarily dismissed his collateral allegations without an evidentiary hearing.
Doc. 26-16 at 142-65. Sneed appealed, and the ACCA affirmed. Doc. 26-19 at 70106. Again, the Alabama Supreme Court and the United States Supreme Court denied
Sneed’s petitions for a writ of certiorari. Doc. 26-20 at 166; Doc. 26-21 at 148. Sneed
now seeks federal habeas relief, doc. 1, and his petition is fully briefed, docs. 24; 31.
II.
“[T]he writ of habeas corpus has historically been regarded as an extraordinary
remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true
for habeas review of a state court conviction pursuant to 28 U.S.C. § 2254 because
“[t]he role of federal habeas proceedings, while important in assuring that
constitutional rights are observed, is secondary and limited. Federal courts are not
forums in which to relitigate state trials.” Brecht, 507 U.S. at 633 (internal quotation
12
marks omitted) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983), superseded
by statute on other grounds as recognized in Slack v. McDaniel, 529 U.S. 473
(2000)). “Those few who are ultimately successful [in obtaining federal habeas relief]
are persons whom society has grievously wronged and for whom belated liberation
is little enough compensation.” Fay v. Noia, 372 U.S. 391, 440-41 (1963), overruled
on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977), and abrogated on
other grounds by Coleman v. Thompson, 501 U.S. 722 (1991), holding modified on
other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). “Accordingly, . . . an error
that may justify reversal on direct appeal will not necessarily support a collateral
attack on a final judgment.” Brecht, 507 U.S. at 634 (internal quotation marks
omitted).
A.
Consistent with these finality and comity principles, Congress amended the
preexisting habeas law under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). AEDPA governs this court’s review of Sneed’s habeas claims. See
Guzman v. Sec’y, Fla. Dep’t of Corr., 663 F.3d 1336, 1345 (11th Cir. 2011)
(explaining that AEDPA applies to habeas petitions filed after April 24, 1996). When
a petitioner has obtained a state-court adjudication of a constitutional claim on the
merits and AEDPA applies, additional significant restrictions apply to the federal
13
court. In particular, “AEDPA imposes a highly deferential standard for evaluating
state-court rulings and demands that state-court decisions be given the benefit of the
doubt.” Guzman, 663 F.3d at 1345 (internal quotation marks omitted) (quoting
Renico v. Lett, 559 U.S. 766, 773 (2010)). To grant habeas relief on an adjudicated
claim under AEDPA, this court must find not only that the petitioner relies on a
meritorious constitutional violation but also that the state court’s resolution falls
within an exception to § 2254(d). See 28 U.S.C. § 2254(d) (providing that habeas
relief “shall not be granted with respect to any claim that was adjudicated on the
merits in [s]tate court proceedings unless” an exception applies).
Under (d)(1), a petitioner opens the door to habeas relief if he demonstrates
that a state court rejected the merits of a constitutional claim in a manner “that was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). Under (d)(2), the petitioner must show that a denial of constitutional
relief “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in . . . [s]tate court.” 28 U.S.C. § 2254(d)(2);
see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010) (quoting 28 U.S.C. §
2254(d)). Periodically in this opinion, the court uses “clearly-established
14
constitutional error,” “clearly-established AEDPA error,” or “AEDPA (d)(1) error”
to describe § 2254(d)(1)’s clauses collectively.
The petitioner bears the burden of showing that an adjudicated issue falls
within § 2254(d)(1) or (d)(2). Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per
curiam). “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state-court decision applied [a
constitutional holding] incorrectly.” Id. at 24-25. Additionally, “[w]here there has
been one reasoned state judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, 584 U.S. __,
138 S. Ct. 1188, 1192 (2018) (holding that habeas courts reviewing adjudicated
claims under AEDPA “should ‘look through’ [an] unexplained decision to the last
[developed] state-court decision . . . . [and] then presume that the unexplained
decision adopted the same [merits-based] reasoning”).
Delving deeper into the limited exceptions to § 2254(d)’s overriding habeas
bar, “clearly established Federal law” under (d)(1) encompasses Supreme Court
decisions that predate “the last adjudication of [a federal claim’s] merits in state
court.” Greene v. Fisher, 565 U.S. 34, 36, 40 (2011) (internal quotation marks
omitted). Stated differently, Ҥ 2254(d)(1) requires federal courts to focu[s] on what
15
a state court knew and did, and to measure state-court decisions against th[e] Court’s
precedents as of the time the state court renders its decision.” Id. at 38 (first alteration
and emphasis in Greene) (last alteration added) (internal quotation marks omitted).
Additionally, the statutory term “refers to the holdings, as opposed to the dicta, of
[Supreme Court] decisions as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000) (O’Connor, J., majority opinion with
respect to part II).
1.
“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [of § 2254(d)(1)]
are interpreted as independent statutory modes of analysis.” Alderman v. Terry, 468
F.3d 775, 791 (11th Cir. 2006). “A state court’s decision is contrary to . . . clearly
established precedents [of the Supreme Court] if it applies a rule that contradicts the
governing law set forth in [the Court’s] cases, or if it confronts a set of facts that is
materially indistinguishable from a decision of th[e] Court but reaches a different
result.” Brown v. Payton, 544 U.S. 133, 141 (2005). But as the Eleventh Circuit has
noted, the Supreme Court has not limited the construction of AEDPA’s “contrary to”
clause to those two examples. Instead, the statutory language “simply implies that the
state court’s decision must be substantially different from the relevant precedent of
16
[the Supreme] Court.” Alderman, 468 F.3d at 791 (internal quotation marks omitted)
(quoting Williams, 529 U.S. at 405).
2.
As for (d)(1)’s second clause, “[t]he pivotal question is whether the state
court’s application of the [relevant constitutional] standard was unreasonable.”
Harrington v. Richter, 562 U.S. 86, 101 (2011). AEDPA requires this court to give a
state court “a deference and latitude that are not in operation when the case involves
review under the [relevant constitutional] standard itself.” Id. Consistent with §
2254(d)(1) deference, “an unreasonable application of federal law is different from
an incorrect application of federal law.” Richter, 562 U.S. at 101 (emphasis in
original) (internal quotation marks omitted) (quoting Williams, 529 U.S. at 410).
If a state court denies a federal claim as meritless and “‘fairminded jurists could
disagree’ on the correctness of th[at] . . . decision,” then habeas relief under AEDPA’s
unreasonable application clause is unavailable. Richter, 562 U.S. at 101 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has clarified
that a “rule’s specificity” must factor into the unreasonableness evaluation. Richter,
562 U.S. at 101 (internal quotation marks omitted). “The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case determinations.” Id.
(internal quotation marks omitted).
17
3.
Section 2254(d)(2) governs federal court review of state court findings of fact,
and “whether a state court errs in determining the facts [under AEDPA] is a different
question from whether it errs in applying the law.” Rice v. Collins, 546 U.S. 333, 342
(2006). Section 2254(d)(2) limits the availability of federal habeas relief due to
factual error unless a petitioner is able to show “an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2).
This means that a petitioner may overcome AEDPA’s overriding bar against
habeas relief by challenging the state court factual findings underlying an adjudicated
constitutional claim as unreasonably in conflict with the evidentiary record. Wood v.
Allen, 558 U.S. 290, 293 (2010). But “a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood, 558 U.S. at 301. Therefore, “even if
‘[r]easonable minds reviewing the record might disagree’ about the finding in
question, ‘on habeas review that does not suffice to supersede the trial court’s . . .
determination.’” Id. (alteration in Wood) (quoting Rice, 546 U.S. at 341-42).
Conversely, “when a state court’s adjudication of a habeas claim result[s] in a
decision that [i]s based on an unreasonable determination of the facts in light of the
18
evidence presented in the state court proceeding, [a federal] [c]ourt is not bound to
defer to unreasonably-found facts or to the legal conclusions that flow from them.”
Adkins v. Warden, Holman Corr. Facility, 710 F.3d 1241, 1249 (11th Cir. 2013)
(some alterations added) (internal quotation marks omitted) (quoting Jones v. Walker,
540 F.3d 1277, 1288 n. 5 (11th Cir. 2008) (en banc)).
4.
Additionally, “a determination of a factual issue made by a [s]tate court shall
be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Only with “clear and convincing
evidence” may a petitioner overcome a state court’s presumptively correct factual
findings. Id. “Clear and convincing evidence entails proof that a claim is highly
probable, a standard requiring more than a preponderance of the evidence but less
than proof beyond a reasonable doubt.” Ward v. Hall, 592 F.3d 1144, 1177 (11th Cir.
2010) (internal quotation marks omitted). The Supreme Court has not addressed the
exact relationship between § 2254(e)(1) and § 2254(d)(2). Wood, 558 U.S. at 293;
see id. at 304-05 (“[W]e leave for another day the questions of how and when §
2254(e)(1) applies in challenges to a state court’s factual determinations under §
19
2254(d)(2).”). And any overlap of AEDPA’s factual provisions when considering an
adjudicated constitutional claim remains unclear.4
As the Supreme Court has commented regarding a petitioner’s ability to obtain
merits-based habeas review, “If this standard is difficult to meet, that is because it
was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal-court relitigation of claims already rejected in state
proceedings.” Richter, 562 U.S. at 102; see also Schriro v. Landrigan, 550 U.S. 465,
473 (2007) (“The question under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.”).
5.
Pertinent to Sneed’s petition, “AEDPA limits [the] review to whether the state
court’s determination that [the petitioner] failed to plead sufficient facts in his Rule
32 petition to support a [constitutional] claim . . . was contrary to or an unreasonable
application of Supreme Court precedent.” Powell v. Allen, 602 F.3d 1263, 1273 (11th
4
Compare Cave v. Sec’y, Fla. Dep’t of Corr., 638 F.3d 739, 747 (11th Cir. 2011) (“We have
not yet had an occasion to completely define the respective purviews of (d)(2) and (e)(1), and this
case presents no such opportunity.”), with Newland v. Hall, 527 F.3d 1162, 1183-84 (11th Cir.
2008) (explaining that the “review of a state court’s findings of fact-to ascertain whether the court’s
decision was based on an unreasonable determination of facts-is circumscribed by both section
2254(d)(2) and 28 U.S.C. § 2254(e)(1)”).
20
Cir. 2010) (per curiam). Consequently, a summary dismissal of an inadequatelystated Alabama collateral claim is due deferential treatment under AEDPA. Id.; see
also id. (“review[ing] the Rule 32 court’s rejection of [the petitioner’s constitutional]
claim [under Ala. R. Crim. P. 32.6] as a holding on the merits”).
6.
In his petition, Sneed pleads, in part, claims of alleged ineffective assistance
by his trial counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court established a two-pronged Sixth Amendment standard for evaluating the
effectiveness of counsel. To prove that a conviction or sentence is unconstitutional
due to ineffective assistance, “[f]irst, the defendant must show that counsel’s
performance was deficient.” 466 U.S. at 687. “This requires showing that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
[to] the defendant by the Sixth Amendment.” Id. “Second, the defendant must show
that the deficient performance prejudiced the defense.” Id. “This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. “[B]oth showings” are necessary for a petitioner to
establish ineffective assistance—“a breakdown in the adversary process that renders
the [conviction or sentence] unreliable.” Id. Therefore, “the court need not address
21
the performance prong if the defendant cannot meet the prejudice prong, or vice
versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation omitted).
a.
A petitioner bears the burden of proving Strickland’s first prong “by a
preponderance of competent evidence.” Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir. 2000) (en banc). To establish deficient performance, a petitioner
“must show that counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. “[P]revailing professional norms” are
the benchmarks for judging reasonableness. Id. Moreover, courts must be “highly
deferential” in their “scrutiny of counsel’s performance” and “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
Under the Strickland framework, a petitioner “must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. (internal quotation marks omitted). The Court observed that “countless
ways [of] . . . effective assistance [exist] in any given case” and that “[e]ven the best
criminal defense attorneys would not defend a particular client in the same way.” Id.
The Court cautioned that “[i]t is all too tempting for a [petitioner] to second-guess
counsel’s assistance after conviction or [an] adverse sentence, and it is all too easy
22
for a court, examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.” Id. at 689.
Consequently, an evaluating court must make “every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Id.; see, e.g., Newland, 527 F.3d at 1184 (“We review counsel’s performance
‘from counsel’s perspective at the time,’ to avoid ‘the distorting effects of
hindsight.’”) (quoting Strickland, 466 U.S. at 689). Simply put, “a petitioner must
establish that no competent counsel would have taken the action that his counsel did
take” to overcome the presumption that counsel’s conduct fell “within the wide range
of competent assistance.” Chandler, 218 F.3d at 1315, 1317.
Further, when assessing an adjudicated ineffective assistance claim on habeas
review, “it is important to keep in mind that [i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of deference”
on an adjudicated claim. Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010)
(alteration in Williams) (internal quotation marks omitted) (quoting Rutherford v.
Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004)). “Thus, [a petitioner] not only has to
satisfy the elements of the Strickland standard, but he must also show that the [s]tate
court applied Strickland to the facts of his case in an objectively unreasonable
23
manner.” Williams, 598 F.3d at 789 (first alteration added) (internal quotation marks
omitted) (first quoting Blankenship v. Hall, 542 F.3d 1253, 1271 (11th Cir. 2008)
(emphasis added in Blankenship); and then quoting Rutherford, 385 F.3d at 1309).
Because Strickland and § 2254(d) incorporate “‘highly deferential’ [standards], . . .
when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105
(citations omitted). The focus of this doubly deferential inquiry “is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard” as
opposed to “whether counsel’s actions were reasonable.” Id.; see also id. at 101
(contrasting “whether the state court’s application of the Strickland standard was
unreasonable” under § 2254(d)(1) with “whether defense counsel’s performance fell
below Strickland’s standard” under the Sixth Amendment). Accordingly, this
“[d]ouble deference is doubly difficult for a petitioner to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.” Evans v.
Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012) (alteration added)
(internal quotation marks omitted).
b.
The burden of proof for the prejudice prong is less demanding than the
performance prong’s preponderance of the evidence standard. 466 U.S. at 694. To
24
satisfy the prejudice component, a habeas petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. “A reasonable probability is [one]
sufficient to undermine confidence in the outcome.” Id. Stated differently, “[a]
finding of prejudice requires proof of unprofessional errors so egregious that the trial
was rendered unfair and the verdict rendered suspect.” Johnson v. Alabama, 256 F.3d
1156, 1177 (11th Cir. 2001) (internal quotation marks omitted). But the fact that
counsel’s “errors had some conceivable effect on the outcome of the proceeding” is
insufficient to show prejudice. Strickland, 466 U.S. at 693. “[W]hen a [capital]
petitioner challenges a death sentence, ‘the [constitutional] question is whether there
is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Stewart v. Sec’y, Fla. Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir.
2007) (alterations added) (quoting Strickland, 466 U.S. at 695). If the state court has
adjudicated the prejudice prong, then a petitioner must demonstrate that the meritsbased conclusion contains AEDPA error; otherwise, habeas relief is unavailable. See
Cullen, 563 U.S. at 197-98 (“Even if his trial counsel had performed deficiently, [the
petitioner] also has failed to show that the [state court] must have unreasonably
concluded that [he] was not prejudiced.”).
25
Additional principles come into play when a sentencing court overrides a jury’s
recommended life sentence. For example, the Eleventh Circuit has observed that
“[p]rejudice is more easily shown in jury override cases because of the deference
shown to the jury recommendation.” Kokal v. Sec’y, Fla. Dep’t of Corr., 623 F.3d
1331, 1350 (11th Cir. 2010) (alternation added) (internal quotation marks omitted)
(quoting Harich v. Wainwright, 813 F.2d 1082, 1093 n. 8 (11th Cir. 1987)), adopted
on rehearing sub nom. Harich v. Dugger, 844 F.2d 1464, 1468-69 (11th Cir. 1988)
(en banc), overruling on other grounds recognized in Davis v. Singletary, 119 F.3d
1471, 1482 (11th Cir. 1997). In Kokal, the Eleventh Circuit referenced the jury’s
unanimous recommended death sentence in concluding that the Florida Supreme
Court’s rejection of the petitioner’s Strickland mitigation claim—based on new
evidence of organic brain damage—deserved AEDPA deference. 623 F.3d at 1334,
1350.
Also, “a trial judge’s post-hoc statements concerning how additional evidence
might have affected [the] [override] ruling are not determinative for purposes of
assessing prejudice.” Williams v. Allen, 542 F.3d 1326, 1345 (11th Cir. 2008). Rather,
“an objective standard that presumes a reasonable decisionmaker” applies when
assessing whether collateral evidence creates a reasonable probability of a different
sentencing outcome. Id. (citing Strickland, 466 U.S. at 695).
26
III.
With these AEDPA principles in mind, the court turns to Sneed’s claims,
which number 8 in total, Claims A-H, excluding any subclaims. The court divides
Sneed’s claims into two sections. In section A, the court addresses Sneed’s six claims
unrelated to trial counsel’s effectiveness—Claims E-G, D, A, and H—and the guiltphase and penalty-phase ineffective assistance claims in section B—Claims C and B.
Sneed exhausted some but not all of the claims analyzed in section A on direct review
and in section B on collateral review. The court will address the habeas concepts of
exhaustion, procedural default, and heightened pleading when those issues arise in a
claim. Additionally, within section A, the court combines the analysis of Claims A
and H into one section because of the significant overlap in Sneed’s allegations.
A.
1.
Sneed alleges in Claim E that his less culpable conduct—as “a
nontriggerman”—means that his death sentence is excessive under the Eighth
Amendment. Doc. 1 at 106 ¶ 184. Sneed asserts statutorily that AEDPA deference
does not preclude habeas relief because of clearly established constitutional and
unreasonable factual error in the ACCA’s denial of this claim. See id. at 112 ¶ 193
(citing 28 U.S.C. § 2254(d)(1)-(d)(2)). The court disagrees.
27
a.
Citing several Supreme Court and Alabama authorities, doc. 26-10 at 89-91,
Sneed argued on direct appeal that “a death sentence for a nontriggerman accomplice
[wa]s excessive” under the Eighth Amendment. Sneed Direct II, 1 So. 3d at 130-31.
In framing the constitutional issue, the ACCA explained that under Enmund v.
Florida, 458 U.S. 782 (1982), a case where the defendant like Sneed was not the
trigger person, a death sentence “was disproportionate” for a robbery-murder
accomplice who “drove [and remained in] the getaway car.” Sneed Direct II, 1 So.
3d at 130. The ACCA contrasted this defendant getaway driver’s lack of lethal intent
or expectations and minor participation in Enmund to the nontriggermen’s “active[]
involve[ment]” in the kidnapping-robbery in Tison v. Arizona, 481 U.S. 137 (1987),
where the Supreme Court recognized that a “reckless disregard for human life . . .
represents a highly culpable mental state . . . that may be . . . [factored] in[to] . . . a
capital sentencing judgment when th[e] [nontriggerman’s] conduct causes [a] natural,
[al]though . . . not inevitable, lethal result.” Sneed Direct II, 1 So. 3d at 131 (internal
quotation marks omitted). The ACCA noted that in Tison, “each petitioner was
actively involved in every element of the kidnapping-robbery and was physically
present during the entire sequence of criminal activity culminating in the murder[s].”
Id. (internal quotation marks omitted).
28
The ACCA followed its discussion of Enmund and Tison with a collection of
affirmed Alabama “death sentences for nontriggerman accomplices.” Sneed Direct
II, 1 So. 3d at 131. Referencing Sneed’s “active[] involve[ment] in the robberymurder and . . . presen[ce]” throughout the offense, the ACCA denied Sneed’s Eighth
Amendment excessiveness claim. Sneed Direct II, 1 So. 3d at 131; see id. (concluding
that “even though [Sneed] was not the triggerman,” the death sentence “for his
participation in the robbery-murder of the victim [wa]s not excessive”).
b.
Similarly, here, Sneed alleges on habeas review that he received a
disproportionate sentence under the Eighth Amendment. Doc. 1 at 106, 112 ¶¶ 184,
192. Again, Sneed bases this excessiveness claim on the nontriggerman role he
played in the capital offense. Id. Sneed argues that the ACCA’s analysis is objectively
unsound under AEDPA’s (d)(1)’s legal standards and (d)(2)’s factual provision.
i.
To prove that the ACCA committed clearly established error under (d)(1),
Sneed relies upon Enmund, Tison, Roper v. Simmons, 543 U.S. 551 (2003), and
several non-binding authorities. Doc. 1 at 106-07, 109 ¶¶ 184-85, 188. The excerpts
favorable to Sneed from the California and Florida Supreme Court cases which he
29
cites, id. at 109 ¶ 188, are beyond AEDPA’s definition of clearly established law.
Consequently, the court focuses on the Supreme Court decisions.
Minimally, (d)(1)’s clearly established component requires Sneed to identify
Supreme Court authority with a contextual connection to his nontriggerman
allegations. This threshold consideration rules out Roper, which prohibits capital
punishment for juveniles as precedent helpful to Sneed under (d)(1). Roper, 543 U.S.
at 568. Thus, the court will focus on Enmund and Tison which involved
nontriggermen who challenged their death sentences as excessive.
In Enmund, “the record supported no more than the inference that [the
petitioner] was the person in the car by the side of the road at the time of the killings,
waiting to help the robbers escape.” 458 U.S. at 788. Under Florida law, nonetheless,
the accomplice driver was “a constructive aider and abettor and hence a principal in
first-degree murder upon whom the death penalty could be imposed.” Id. Under this
felony-murder construct, the petitioner’s nontriggerman role and absence from the
murder scene were “irrelevant to . . . challeng[ing] . . . [a] death sentence,” and
“whether [the petitioner] intended that the [victims] be killed or anticipated that lethal
force would or might be used if necessary to effectuate the robbery or a safe escape”
did not matter under Florida law. Id. The Enmund Court “concluded that imposition
30
of the death penalty in these circumstances [wa]s inconsistent with the Eighth and
Fourteenth Amendments.” Id.
Sneed contends that Enmund “categorically exempts [him] from the death
penalty because his participation and culpability [we]re too minimal.” Doc. 1 at 106
(emphasis omitted). The court disagrees. Sneed’s factual and legal circumstances
were significantly different than the getaway driver’s in Enmund. Factually—as the
store’s video surveillance reflected—Sneed was present throughout the robberymurder and participated actively in the robbery. See doc. 33 (notice of manual filing
of “a copy of the surveillance exhibit on a CD per Judge’s order”). Thus, Sneed was
unlike the getaway driver in Enmund who remained isolated from the crime scene.
Legally—as the Enmund Court noted after reviewing “the punishment at issue”
in other jurisdictions—Alabama approached accomplice liability in a capital case
differently than Florida. 458 U.S. at 789. Unlike Florida, an Alabama accomplice
could not receive “the death penalty solely for participation in a robbery in which
another robber takes [a] life.” Id. Instead, “to be found guilty of capital murder, [an
Alabama] accomplice must have had [the] intent to promote or assist [in] the
commission of the offense[,] and [the] murder must [have] be[en] intentional.” Id. at
790 n. 7 (internal quotation marks omitted) (citing Ala. Code §§ 13A-2-23, 13A-540(a)(2), 13A-6-2(a)(1) (1977 and Supp. 1982)); cf. also doc. 26-10 at 70 (Sneed’s
31
arguing in Sneed Direct II that the State presented insufficient evidence “that he had
the specific and particularized intent to kill Mr. Terry” as required under Alabama
law).
Consistent with Alabama’s format, the trial court instructed the jury on
intentional murder as an accomplice and unintentional felony murder, including a
charge on intoxication as negating intent, in the guilt phase of Sneed’s case. See doc.
26-7 at 171-75 (instructing on intentional murder requirements when the capital
defendant is a nontriggerman accomplice); see also id. at 177 (instruction on
intoxication); Doc. 26-3 at 7 (same). After hearing all the evidence, including that
Sneed was unarmed, a unanimous jury found, beyond a reasonable doubt, that Sneed
had promoted or assisted in the capital offense with “a particularized intent to kill”
and convicted him of robbery-murder as an accomplice. Doc. 26-7 at 172; see also
doc. 26-3 at 15 (reflecting three guilt-phase options on the verdict form and capital
murder marked). Following Sneed’s capital conviction as an intentional accomplice,
his case moved to the penalty phase.
Thus, Sneed’s “culpable mental state,” 458 U.S. at 789, was relevant to his
death sentence in contrast to the unconstitutional format in Enmund. And nothing in
Enmund invalidated, much less clearly so, an accomplice’s death sentence under a
structure like Alabama’s. Consequently, Sneed has not shown with Enmund that the
32
ACCA reached a contrary to or unreasonable decision on his excessive punishment
claim.
The Supreme Court revisited Enmund in Tison. The Court considered whether
the death penalty was excessive for accomplices who “neither . . . specifically
intended to kill the victims . . . [nor] inflicted the fatal gunshot wounds.” Tison, 481
U.S. at 138. The Tison petitioners were brothers who armed their incarcerated father
and his cellmate and helped them escape from prison. Id. at 139. Several days after
the breakout, the group had vehicle problems and “decided to . . . steal a car.” Id. at
139-40. After getting a vehicle to pullover, the armed group held the four family
members from that car captive. Id. at 140. Eventually, the petitioners’ father and his
cellmate “brutally murder[ed] [the victims] with repeated blasts from their shotguns.”
Id. at 141. The petitioners “made [no] effort to help the victims” and “drove away,
continuing their flight,” until law enforcement eventually apprehended them. Id.
The State tried the petitioners for capital murder under Arizona’s “accomplice
liability and felony-murder statutes” and obtained convictions. Id. at 141-42. After
weighing the aggravating and mitigating factors, the trial court “sentenced both
petitioners to death.” Id. at 143. The appellate court affirmed. Thereafter, the
petitioners “collaterally attacked their death sentences in state postconviction
proceedings [and] alleg[ed] that Enmund . . . required reversal.” Id. The Arizona
33
Supreme Court understood that Enmund prohibited capital punishment unless an
accomplice had an “intent to kill.” Tison, 481 U.S. at 143 (internal quotation marks
omitted). Still, the Arizona Supreme Court concluded that the brothers’ “participation
in the events leading up to and following the murder of four [victims]” met that level
of intent. Tison, 481 U.S. at 138. The Tison Court vacated the judgments holding
“that the Arizona Supreme Court [had] applied an erroneous standard in making the
findings required by Enmund.” 481 U.S. at 138.
The Supreme Court did “not attempt to precisely delineate the particular types
of conduct and states of mind warranting imposition of the death penalty.” Id. at 158.
But the Court clarified that “major participation in the felony committed, combined
with reckless indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.” 481 U.S. at 158. On the record before it, the Court
expressed that “[t]he Arizona courts ha[d] clearly found that the former [requirement]
existed . . . and remand[ed] for determination of the latter [requirement].” 5 Id.
Thus, Tison establishes that an active but non-shooting accomplice may
receive a constitutionally valid death sentence with a mentally culpable state of
5
Despite “stat[ing] the[] two requirements separately,” the Court noted that “they often
overlap.” Tison, 481 U.S. at 158 n. 12; see id. (explaining that “even in cases where the fact that
the defendant was a major participant in a felony did not suffice to establish reckless indifference,
that fact would still often provide significant support for such a finding”).
34
reckless indifference rather than an intent to kill. See id. (acknowledging that a
“minority of . . . jurisdictions . . . have rejected the possibility of a capital sentence
[for felony murder] absent an intent to kill,” but determining that such a “position
[was not] constitutionally required”). This means that Sneed’s pretrial statement and
testimony that he had no intent to kill Mr. Terry is not dispositive of his Enmundexcessiveness claim. See Tison, 481 U.S. at 150 (“accept[ing] . . . as true” the
“argu[ment] . . . that the[] [petitioners] did not intend to kill as that concept has been
generally understood in the common law”) (internal quotation marks omitted); cf.
also doc. 1 at 113 ¶ 194 (requesting that this court revisit Tison’s recklessindifference holding and preclude Sneed’s execution under the Eighth Amendment’s
evolving standards of decency because he had no intent to kill).
Absent from Sneed’s petition is authority which clearly establishes that his
continuous presence and substantial participation in the robbery-murder, knowing
that Hardy had a firearm, failed to rise to a reckless indifference to Mr. Terry’s life.
Likewise, Sneed does not argue that Alabama’s accomplice liability framework,
which incorporates an intentional component, is unconstitutional under Tison’s
refinement of Enmund. Thus, Sneed has not demonstrated that the ACCA’s resolution
of his excessive penalty claim was contrary to or unreasonable under Tison.
35
ii.
Turning to (d)(2), Sneed argues that the ACCA “gloss[ed] over the intent
requirement” in denying his excessive penalty claim. Doc. 1 at 110 ¶ 190. To support
his position, Sneed focuses on parts of the record which, he contends, substantiate his
lack of intent to kill Mr. Terry, noting for example that “I didn’t kill anybody. I just
took the cash register,” and that “[t]he plan . . . [was] to rob[;] . . . . no[t] . . . to kill.”
See, e.g., id. (internal quotation marks omitted). As explained in the (d)(1) analysis,
whether Sneed lacked a murderous intent does not resolve the blameworthy inquiry
under Tison. Instead, Sneed’s ability to prove a disproportionate punishment claim
turns upon evidence, if any, that he participated minimally and acted without reckless
indifference as an accomplice. And relevant here, the ACCA determined that Sneed’s
active participation in the robbery-murder and presence throughout the offense were
sufficient to warrant the death penalty under Enmund and Tison. Sneed’s arguments
to the contrary and the evidence which he cites are inapposite because they do not
undermine the findings incorporated into the ACCA’s decision. Consequently, Sneed
has neither demonstrated that the ACCA based the denial of this Eighth Amendment
claim on objectively wrong facts under (d)(2) nor overcome those presumptively
correct facts with clear and convincing evidence under (e)(1), if applicable.
36
iii.
Sneed argues also that the Alabama Supreme Court’s discussion of the video
surveillance evidence in Ex parte Sneed (Sneed ASC Direct I), 783 So. 2d 863 (Ala.
2000) (per curiam), establishes that the ACCA committed unreasonable factual error
in Sneed Direct II. Doc. 1 at 111 ¶ 190. At issue here is the Alabama Supreme Court’s
comment that the security footage did not “capture Sneed’s intent at the time [he] and
Hardy entered the store.” Doc. 1 at 111 ¶ 190 (internal quotation marks omitted). The
comment stemmed from Sneed’s appeal of his first trial where the State tried Sneed
and Hardy together. Sneed ASC Direct I, 783 So. 2d at 865. Over Sneed’s objection,
the State “used [an] edited and redacted [version of a] statement,” which Sneed had
made about the robbery-murder. Id. Because Sneed’s confession implicated Hardy,
the State modified the document “to avoid violating Hardy’s confrontation right
guaranteed by the Confrontation Clause of the Sixth Amendment to the United States
Constitution.” Id.
Sneed argued on appeal that the redacted statement prejudiced his guilt-phase
defense that he had no murderous intent and “violated the rule of completeness.” Id.
at 868. The Alabama Supreme Court agreed. In comparing the factual inferences from
the unmodified and modified versions of Sneed’s confession, id. at 865-68, the Court
concluded “that the redaction [had] . . . made a liar out of Sneed,” id. at 869. The
37
Court identified several “irreconcilabl[e] inconsisten[cies],” which left the jury with
an impression that Sneed “[w]as the central figure in the crime.” Id. These
“distort[ions]” included “that Sneed drove the car, obtained the murder weapon,
drove past six stations looking for the easiest target, devised the means of making the
masks, and induced Hardy to carry the weapon into the store.” Id.
The Court considered next the completeness rule. Specifically, the Court
evaluated whether the videotape made “the meaning of [Sneed’s] redacted statement
. . . clear despite the [incompleteness].” Id. at 869. The intent language, which Sneed
seizes upon on habeas review, comes from the application of that evidentiary
doctrine. In particular, the Court observed that the security footage “provided a
remarkable amount of evidence” about how the offense unfolded—“Sneed . . .
[neither] act[ed] alone . . . [nor] was . . . the gunman.” Id. at 869. But the Court
explained that the surveillance tape provided no information about the “events
leading up to the murder” and could not “capture Sneed’s intent” as he entered the
store with Hardy. Id.
Given those evidentiary limitations, the Alabama Supreme Court determined
that “the videotape . . . d[id] not overcome the distorted statement’s contradiction of
Sneed’s defense that he lacked the specific intent to commit murder.” Id. Concluding
that the admitted redaction had “sacrificed [Sneed’s rights] . . . to accommodate the
38
State’s interest in conducting a joint trial” and caused undue prejudice, the Court
granted him a new trial. Id. at 870-71.
As contextualized above, the videotape’s inability “to capture Sneed’s intent”
pre-offense was an evidentiary determination distinct from the ACCA’s assessment
of his participation and culpable mental state under the Eighth Amendment. And
Sneed has not shown how the Alabama Supreme Court’s remark that prejudicial
contradictions remained regarding his intent, despite the security footage, means that
the ACCA relied upon objectively wrong facts to deny his disproportionatepunishment claim.6
c.
Turning now to Sneed’s remaining allegations in Claim E, beyond seeking
habeas relief under the Eighth Amendment, Sneed contends that the excessive
punishment he received violates his “rights to due process [and] a reliable sentence”
under the Fifth, Sixth, and Fourteenth Amendments. Doc. 1 at 112 ¶ 193. Sneed’s
references to due process and the Fourteenth Amendment are consistent with
asserting an Eighth Amendment claim against the State through the incorporation
6
Sneed’s allegations about the videotape’s evidentiary limitations also do not overcome
(e)(1)’s presumptively-correct factual standard on his Eighth Amendment claim.
39
doctrine. 7 But like his briefing on direct appeal, doc. 26-10 at 67-77, Sneed asserts
but leaves undeveloped how an alleged excessive death sentence violated his Fifth,
Sixth, or independent Fourteenth Amendment rights, implicating the habeas concepts
of exhaustion, procedural default, and heightened pleading.
i.
“Section 2254(b) requires that prisoners must ordinarily exhaust state remedies
before filing for federal habeas relief.” Cullen v. Pinholster, 563 U.S. 170, 182
(2011). And “[a]n applicant shall not be deemed to have exhausted the remedies
available [in state court] . . . if he has the right under the law of the State to raise, by
any available procedure, the question presented.” 28 U.S.C. § 2254(c). Exhaustion
requires that a petitioner “‘give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process,’ including review by the state’s court of last resort, even if
review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th
Cir. 2003) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “Alabama’s
discretionary direct review procedures bring Alabama [habeas petitioners] within the
7
“With only ‘a handful’ of exceptions, th[e] [Supreme] Court has held that the Fourteenth
Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights,
rendering them applicable to the States.” Timbs v. Indiana, 586 U.S. __, 139 S. Ct. 682, 687 (2019)
(quoting McDonald v. Chicago, 561 U.S. 742, 765 (2010) (plurality opinion)).
40
scope of the Boerckel rule.” Pruitt, 348 F.3d at 1359 (internal quotation marks
omitted) (quoting Smith v. Jones, 256 F.3d 1135, 1140 (11th Cir. 2001)). Boerckel
applies to Alabama’s postconviction appellate review structure too. See Pruitt, 348
F.3d at 1359 (“Nothing in Boerckel’s reasoning suggests that a different rule should
apply in state post-conviction appeals as opposed to direct appeals.”); id. (concluding
that petitioner had “failed to exhaust his state remedies by not petitioning the
Alabama Supreme Court for discretionary review of the denial of his state habeas
petition”).
The exhaustion requirement is intended to afford the state-court system the
first opportunity to correct federal questions concerning the validity of criminal
convictions. This means that for habeas review “[t]o be appropriate,” the petitioner
“must have raised these claims in state court to allow the state courts the opportunity
to rule on the federal issues.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998). Additionally, this means that “[f]ederal courts are not forums in which to
relitigate state trials.” Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989)
(internal quotation marks omitted) (quoting Barefoot, 463 U.S. at 887).
Moreover, “to exhaust state remedies fully the petitioner must make the state
court aware that the claims asserted present federal constitutional issues. ‘It is not
enough that all the facts necessary to support the federal claim were before the state
41
courts or that a somewhat similar state-law claim was made.’” Snowden, 135 F.3d at
735 (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam)). Rather, “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, Fla. Dep’t of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012)
(alteration in Pope) (quoting Kelley v. Sec’y, Fla. Dep’t of Corr., 377 F.3d 1317,
1344-45 (11th Cir. 2004)). And “[a] failure to exhaust occurs . . . when a petitioner
has not ‘fairly present[ed]’ every issue raised in his federal petition to the state’s
highest court, either on direct appeal or on collateral review.” Id. at 1284 (last
alteration modified in Pope) (quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.
2010) (per curiam)).
ii.
Linked to the doctrine of exhaustion is procedural default. For example, if a
petitioner seeks habeas relief based on a mixture of exhausted and unexhausted
federal claims, a district court may dismiss the petition without prejudice, Rose v.
Lundy, 455 U.S. 509, 519 (1982), or stay the habeas action to allow the petitioner to
first avail himself of his state remedies, see Rhines v. Weber, 544 U.S. 269, 277-78
(2005) (discussing “[s]tay and abeyance” option for mixed habeas petitions). But “if
it is clear from state law that any future attempts at [state court] exhaustion would be
42
futile” because of the state’s procedural framework, then a “federal court[] may treat
[that] unexhausted claim[] as procedurally defaulted, even absent a state court
determination to that effect.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999)
(per curiam) (citing Snowden, 135 F.3d at 737). This habeas doctrine, known as
unexhausted procedural default, 8 avoids a game of “needless ‘judicial ping-pong’”
when a state procedural rule “obvious[ly]” bars a state court from considering the
merits of an unexhausted federal claim. Snowden, 135 F.3d at 736 (citing Coleman,
501 U.S. at 735 n. 1). Unexhausted procedural default includes claims that a
petitioner never raised or exhausted only partially in state court.
A second type of procedural default occurs when a petitioner presents his
federal claim without following “‘independent and adequate’ state procedures.”
Mason, 605 F.3d at 1119 (quoting Wainwright, 433 U.S. at 87). If the state court
relies upon that procedural mistake to dismiss the alleged constitutional violation,
then the petitioner “will have ‘procedurally defaulted his claim[]’ in federal court.”
Mason, 605 F.3d at 1119 (alteration added) (quoting Boerckel, 526 U.S. at 848).
Under this strain of procedural default, “[a] state court’s rejection of a petitioner’s
constitutional claim on state procedural grounds will generally preclude any
8
See Bailey, 172 F.3d at 1305 (“[F]ederal courts may treat unexhausted claims as
procedurally defaulted, even absent a state court determination to that effect, if it is clear from state
law that any future attempts at exhaustion would be futile.”).
43
subsequent federal habeas review of that claim.” Ward, 592 F.3d at 1156 (alteration
in Ward) (internal quotation marks omitted) (quoting Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001)). The court refers to this habeas scenario as state-barred
procedural default.
****
With these habeas concepts in mind, Sneed’s vague mention of rights under
the Fifth, Sixth, or free-standing Fourteenth Amendment did not exhaust those
theoretical constitutional claims tied to an alleged disproportionate-death sentence in
state court. Sneed’s similar bare approach to presenting these same allegations on
habeas review does not meet the heightened pleading requirement.9 Thus, the court
denies those parts of Sneed’s petition under these other amendments because of
unexhausted procedural default and inadequate habeas pleading, development, and
proof.
9
Separate from exhausting claims in state court and avoiding procedural default, a
heightened pleading rule applies to a petitioner’s federal habeas allegations. See Rule 2(c), Rules
Governing Section 2254 Cases in the United States District Courts (requiring petitioner to “specify
all the grounds for relief[,]” “state the facts supporting each ground[,]” and “state the relief
requested”); McFarland v. Scott, 512 U.S. 849, 856 (1994) (explaining that habeas Rule 2(c)
requires heightened pleading); Mayle v. Felix, 545 U.S. 644, 649 (2005) (contrasting that Rule 2(c)
“requires a more detailed statement” with Federal Civil Procedure Rule 8(a)(2)’s “short and plain
statement of the claim” standard) (internal quotation marks omitted).
44
In sum, Sneed neither overcomes AEDPA deference nor otherwise
substantiates these allegations of an excessive punishment. Thus, the court denies
Claim E.
2.
In Claim F, which overlaps with Claim E, Sneed asks this court to reevaluate
Tison’s holding because of evolving standards under the Eighth Amendment. Doc. 1
at 113 ¶ 194. Specifically, Sneed contends that, consistent with changes in the
national perspective since Tison, the Eighth Amendment should preclude capital
punishment for accomplices who did not, or had no intent to, kill. Doc. 1 at 113 ¶
194. Conceding in reply that he never raised this claim in state court, Sneed argues
that the cause and prejudice exception applies. Doc. 31 at 49-51.
a.
A petitioner, who failed to raise a claim in state court, may overcome the
prohibition against habeas review if he “can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law.” Coleman, 501
U.S. at 750. To do so, because the standard is conjunctive, a petitioner must establish
both components to obtain habeas review. Coleman, 501 U.S. at 750. To show cause,
a petitioner must prove that “some objective factor external to the defense impeded
counsel’s efforts” to pursue the claim properly under state court procedures. Murray
45
v. Carrier, 477 U.S. 478, 488 (1986). Appropriate grounds include demonstrating
that “interference by officials . . . ma[de] compliance with the State’s procedural rule
impracticable, . . . showing that the factual or legal basis for a claim was not
reasonably available to counsel[,] . . . [or attributing that procedural noncompliance
to] . . . constitutionally [i]neffective assistance of counsel.” McCleskey v. Zant, 499
U.S. 467, 494 (1991) (some alterations added) (internal quotation marks omitted)
(quoting Carrier, 477 U.S. at 488), superseded on other grounds by statute as stated
in Banister v. Davis, 590 U.S. __, 140 S. Ct. 1698, 1707 (2020).
As for the second component, a habeas petitioner must “show . . . actual
prejudice resulting from the alleged constitutional violation.” Ward, 592 F.3d at
1157. This standard means “not merely that the errors . . . created a possibility of
prejudice, but that they worked to [a petitioner’s] actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
b.
Sneed’s cause contentions revolve around death-penalty developments postTison. For example, Sneed references a nationwide increase in “proportional
sentencing” for accomplices “who lacked an intent to kill” since Tison. Doc. 31 at
49. Sneed mentions also the “abolished . . . practice of judicial override” in Alabama,
46
Delaware, and Florida after the Supreme Court decided Hurst v. Florida, 577 U.S.
92 (2016). Doc. 31 at 50. These contentions are unavailing. To begin, Sneed cites no
case authority which confirms that these developments provide him with valid cause
to excuse his unexhausted procedural default. Moreover, although a petitioner may
establish cause when “a constitutional claim is so novel that its legal basis is not
reasonably available to counsel,” Reed v. Ross, 468 U.S. 1, 16 (1984), here, however,
Sneed seeks to create constitutional cause in a manner that conflicts with the EnmundTison framework and this court’s role on habeas review. Specifically, Sneed asks this
court to: disregard binding Eighth Amendment precedent; prohibit capital
punishment for non-shooting accomplices who lacked an intent to kill; and accept
that untenable ruling as cause. Lower courts are bound by precedent and a district
court cannot ignore binding precedent to generate constitutional cause to excuse
procedural default. Therefore, the court declines Sneed’s invitation, and finds, based
on this record and the case law, that Sneed has not shown cause to overcome his
default.
Sneed has also failed to demonstrate prejudice. Meeting the second component
requires Sneed to identify a constitutional claim capable of “creat[ing] ‘a reasonable
probability that the result of [his] [penalty phase] would have been different.’”
Mincey v. Head, 206 F.3d 1106, 1138 (11th Cir. 2000) (last alteration added) (quoting
47
Strickler v. Greene, 527 U.S. 263 (1999)). 10 Sneed again cites “evolving capital
sentencing standards, particularly in light of Alabama’s prospective repeal of the
override statute.” Doc. 31 at 50. As Sneed implicitly recognizes by noting the
“prospective repeal,” Alabama’s abolishment of the override provision does not
benefit him retroactively. And the federal constitution does not demand that the State
broaden the prospective scope of the decision to end that former practice.
Regardless, Sneed’s observations about nationwide trends in capital
punishment do not establish that he experienced a cognizable constitutional violation,
much less, actual prejudice in his sentence. Concrete, rather than, at most, national
signs supporting arguably inchoate, constitutional harm forms the bedrock of
prejudice. And with only an evolving constitutional theory, Sneed is unable to
demonstrate even a possibility, much less a reasonable probability, of a different
sentencing outcome. Consequently, Sneed has not shown that he suffered actual
prejudice on account of evolving Eighth Amendment standards or Alabama’s repeal
of judicial override post-Tison.
10
The Eleventh Circuit noted in Mincey that the Strickler Court “end[ed] the debate” over
whether the standard for actual prejudice was different than the reasonable probability test for
Strickland prejudice. Mincey, 206 F.3d at 1147 n. 86 (11th Cir. 2000); see id. at 1147 (“[T]he
prejudice Strickler requires to overcome a procedural default is the same as the prejudice Strickland
requires to demonstrate prejudice (in the ineffective assistance context).”).
48
To close, Sneed’s efforts to excuse his procedural default through cause and
prejudice fail. Accordingly, the court denies Claim F because of Sneed’s unexhausted
procedural default.
3.
In Claim G, Sneed asserts that the sentencing court violated his constitutional
rights in applying Alabama’s “especially heinous, atrocious or cruel” or HAC factor
as an aggravating circumstance. Doc. 1 at 116 ¶ 200 (internal quotation marks
omitted); id. at 118-19 ¶ 205. Statutorily, Sneed argues that the state courts’
objectively-flawed adjudication of this claim opens the (d)(1) and (d)(2) doors to
habeas relief. Doc. 1 at 118-19 ¶ 205.
The court considers the state court history of this claim before undergoing the
analysis.
a.
Sneed argued on direct review in state court that “the trial court erroneously
concluded that the murder was especially heinous, atrocious, or cruel compared to
other capital murders.” Sneed Direct II, 1 So. 3d at 116-17; Doc. 26-10 at 36. Citing
several Supreme Court decisions, Sneed maintained that “the application and finding
of the HAC aggravating circumstance” to support his death sentence was
unconstitutional. Doc. 26-10 at 37.
49
Sneed divided this appellate claim into two subclaims. Doc. 26-10 at 37, 42.
Relevant to his habeas Claim G, Sneed argued that he should not bear responsibility
“for the [p]recise [m]anner in which” Hardy murdered Mr. Terry. Doc. 26-10 at 37
(emphasis omitted); Sneed Direct II, 1 So. 3d at 117. Sneed identified two aspects of
the penalty phase which he maintained substantiated the merits of this subclaim:
erroneous jury instructions and the sentencing court’s unlawful reliance on his mental
state. Id. at 117-18; Doc. 26-10 at 37, 41.
Concerning the instructions, Sneed argued that the trial court’s definition of
“cruel”—i.e., that the HAC factor’s disjunctive “cruel” component applied to
offenses “designed to inflict a high degree of pain with utter indifference to, or even
enjoyment of, the suffering of others,” doc. 26-10 at 37 (internal quotation marks
omitted)—violated the principle that “one’s mental state is irrelevant to the [HAC]
determination,” doc. 26-10 at 38. Sneed contended that “the phrases ‘designed to’
and ‘even enjoyment of’ necessarily” improperly required the jury to make “some
assessment of” his or Hardy’s mental state at the time of the murder. Id. at 37-38.
Relatedly, Sneed made several alternative arguments about the jury
instructions. Sneed noted that without clarifying whose mental state mattered, “the
trial court failed to channel the jury’s discretion.” Id. According to Sneed, the
“vague[ly]”-worded instruction meant that “some jurors may have considered [his]
50
mental state relevant while others . . . Hardy’s.” Id. at 39 n. 4. Because the record did
not disclose “whether the jury unanimously relied upon the same set of facts in
assessing this aggravator,” Sneed contended that the factor was “invalid,” id. at 39,
and “should not have been considered in determining [his] sentence,” id. n. 4.
Sneed added that assuming Hardy’s mental state mattered, then the application
of the HAC factor “[c]reat[ed] strict liability” for him and “violate[d] the Eighth
Amendment’s narrowing function.” Id. at 39-40. Sneed argued too that, alternatively,
if his mental state mattered, “no evidence . . . support[ed]” his “personal[] desire[] to
inflict a high degree of pain” on Mr. Terry or have Hardy carry out the murder in a
certain manner. Id. at 40 (internal quotation marks omitted).
In the last section of this subclaim, Sneed focused on the sentencing court’s
application of the HAC factor. Doc. 26-10 at 41. Sneed maintained that the sentencing
court relied erroneously on his mental state to support that aggravating circumstance.
Id. Sneed argued that the trial court’s references to his “particularized intent to kill,”
failure to intervene on Mr. Terry’s behalf, and “unfazed” look during the murder were
irrelevant to the HAC assessment. Id. at 42.
i.
The ACCA began its analysis with Sneed’s objection to applying the HAC
factor to him vicariously because of Hardy’s conduct. The ACCA observed that the
51
“Alabama appellate courts ha[d] not specifically addressed” vicarious responsibility
for an aggravating circumstance. Id. at 117. Still, citing several Alabama cases
involving the HAC factor, the ACCA explained that the “focus[]” of that aggravating
circumstance is “the manner of the killing and not the defendant’s actual participation
in the murder.” Id.; see, e.g., Ex parte Bankhead, 585 So. 2d 112, 125 (Ala. 1991)
(similar).
The ACCA turned then to the analysis of a similar sentencing issue in Owens
v. State, 13 S.W.3d 742 (Tenn. Crim. App. 1999). Sneed Direct II, 1 So. 3d at 117.
In Owens, the Tennessee Criminal Court of Appeals considered “whether an
aggravating factor [could] be applied vicariously to a defendant if he was not the
actor responsible for the particular aggravating circumstance.” Sneed Direct II, 1 So.
3d at 117 (internal quotation marks omitted) (quoting Owens, 13 S.W.3d at 761). The
Owens court observed that no Tennessee court had addressed a vicarious application
of the HAC factor to “a convicted murderer, who took no part in the killing . . . and
was unaware . . . how it was to be accomplished.” Sneed Direct II, 1 So. 3d at 117
(internal quotation marks omitted) (quoting Owens, 13 S.W.3d at 761). The Owens
court considered many authorities, including ones from “[o]ther federal and state
courts [which] ha[d] . . . addressed” death sentences based upon a vicarious
application of the HAC factor. Sneed Direct II, 1 So. 3d at 117 n. 11 (internal
52
quotation marks omitted) (quoting Owens, 13 S.W.3d at 761 & n. 11). The Owens
court “conclude[d] that a non-triggerman defendant c[ould] be held vicariously liable
for an aggravating circumstance following an Enmund–Tison determination” in the
guilt phase. Sneed Direct II, 1 So. 3d at 117 (internal quotation marks omitted)
(quoting Owens, 13 S.W.3d at 762).
Agreeing with the outcome in Owens, the ACCA “likewise . . . h[e]ld that an
accomplice may be held vicariously liable for the manner in which his codefendant
commits a murder.” Sneed Direct II, 1 So. 3d at 118. The ACCA clarified that its
vicarious application holding meant that “a court [could] properly apply the . . . [HAC
factor] to a nontriggerman” as the sentencer did in Sneed’s capital case. Id.
ii.
The ACCA reviewed Sneed’s jury-charge contentions for plain error because
he raised them “for the first time on appeal.” Id. The ACCA found no error because
the Alabama Supreme Court had “approved . . . a similar instruction” on the HAC
factor in Bankhead. Sneed Direct II, 1 So. 3d at 118. 11
11
In Bankhead, the appellant argued that “the trial court did not sufficiently restrict the
applicability of [the HAC factor] to [his] conduct in the [stabbing death of the victim].” Bankhead,
585 So. 2d at 125. According to the appellant, the sentencing court’s failure to limit the scope of
the HAC “aggravating circumstance to [his] personal conduct . . . subverted the mandate for
individualized capital sentencing.” Id. at 124. Rejecting this contention, the Alabama Supreme
Court explained that the HAC factor “emphasizes . . . the manner of the killing, not . . . the
defendant’s actual participation.” Id.
53
b.
In his petition to this court, Sneed asserts an entitlement to habeas relief
consistent with his collateral HAC subclaim minus the argument about the
irrelevancy of an offender’s mental state. Compare doc. 1 at 116-19 ¶¶ 200-05, with
doc. 26-10 at 36-42. Constitutionally, Sneed alleges that the trial court’s HAC
“instruction, application, and finding . . . violated his rights to due process, a fair
trial[,] and a reliable sentence.” Doc. 1 at 118-19 ¶ 205. Sneed ties these allegedlyinfringed rights loosely to the Fifth, Sixth, Eighth, and Fourteenth Amendments as
he did on direct review. Compare doc. 1 at 119 ¶ 205, with doc. 26-10 at 47. But
Sneed’s references to channeling the jury’s discretion and reserving capital
punishment for the worst offenders are Eighth Amendment principles. Doc. 1 at 11617 ¶¶ 202-03. Consequently, Sneed’s HAC allegations trigger the Eighth and
Fourteenth Amendments—merged under the incorporation doctrine. 12
To support an AEDPA (d)(1) opening of extreme constitutional error, Sneed
cites five Supreme Court decisions: Maynard v. Cartwright, 486 U.S. 356 (1988);13
12
In Claim E, the court explained why Sneed’s remaining allegations tied to other
amendments were inadequate to support habeas relief. Consistent with that discussion, the court
denies Claim G to the extent Sneed relies upon purported or unsubstantiated rights arising under
the Fifth, Sixth, or freestanding Fourteenth Amendment.
13
In Maynard, the Supreme Court affirmed an Eighth Amendment judgment that “the words
‘heinous,’ ‘atrocious,’ and ‘cruel’ did not on their face offer sufficient guidance to the jury” to apply
54
Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion);14 Espinosa v. Florida,
505 U.S. 1079 (1992) (per curiam); 15 Stringer v. Black, 503 U.S. 222 (1992), holding
modified on other grounds by Brown v. Sanders, 546 U.S. 212 (2006); 16 and Roper.17
Doc. 1 at 116-17 ¶¶ 202-03. Accepting that some excerpts from these Eighth
Amendment opinions seemingly strengthen Sneed’s HAC habeas claim, the
that aggravating circumstance. 486 U.S. at 359-60.
14
Godfrey involved Georgia’s “‘outrageously or wantonly vile, horrible and inhuman’”
aggravating circumstance. The Court found “[t]here is nothing in these few words, standing alone,
that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.”
Godfrey, 446 U.S. at 428.
15
The Espinosa Court considered whether a sentencing court’s “indirect weighing of an
invalid aggravating factor create[d] the same potential for arbitrariness as the direct weighing of an
invalid aggravating factor.” 505 U.S. at 1082. The Court concluded that the Florida death sentence
reached under these circumstances was unconstitutional. Specifically, the Court “h[e]ld that, if a
weighing State decides to place capital sentencing authority in two actors[—the judge and an
advisory jury—]rather than one,” then the Eighth Amendment precludes “[]either actor . . . [from]
weigh[ing] invalid aggravating circumstances.” Id. Espinosa is not helpful here, however, because
Sneed has not established that the Alabama courts based his death sentence partially upon an invalid
HAC factor.
16
Akin to Maynard, the Stringer Court faced a HAC-vagueness challenge tied to a
Mississippi death sentence. Stringer, 503 U.S. at 226. The petitioner’s case became final in state
court before the Supreme Court decided Maynard and another invalid-factor decision, Clemons v.
Mississippi, 494 U.S. 738 (1990). Thus, Stringer addressed primarily whether the habeas petitioner
could rely retroactively on the invalidation principles from Maynard and Clemons “because either
or both announced a new rule.” Stringer, 503 U.S. at 225. The Supreme Court held in the
petitioner’s favor. Id. at 237. Unfortunately, nothing in Stringer sheds light, much less clearly
establishes, the validity of Sneed’s Eighth Amendment HAC challenge as a nontriggerman.
17
Roper held that the Eighth Amendment prohibits “the imposition of the death penalty on
juvenile offenders under 18,” 543 U.S. at 568, a decision that is even more removed from Sneed’s
HAC allegations than the other cases he cites.
55
holdings—as outlined briefly in footnotes 13-17, which are all that matter under
(d)(1)—do not. Specifically, none of these authorities confirms to what extent, if any,
the application of the HAC factor in support of a nontriggerman’s death sentence
violates the Eighth Amendment. As such, the reliance upon them is misplaced.
Similarly, the cases which Sneed mentions in reply do not substantiate that his
HAC claim meets the (d)(1) hurdle. For example, relying upon an excerpt from
Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), Sneed asserts that the trial court’s
finding of the HAC factor was “questionable.” Doc. 31 at 103. The citation does not
move the bar in Sneed’s favor because the Eleventh Circuit did not analyze the HAC
circumstance in that case. See Jackson, 42 F.3d at 1355 (discussing the petitioner’s
habeas claims).
Next, citing a collection of Eleventh Circuit cases beginning with DeBruce v.
Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263 (11th Cir. 2014), Sneed argues that the
circumstances in them “were far more heinous or aggravating than those” in his
capital case. Doc. 31 at 80-81. But again, the referenced decisions—as reflected in
Sneed’s parenthetical descriptions—do not include a constitutional analysis of the
HAC circumstance. And only one decision—Harris v. Dugger, 874 F.2d 756, 759 n.
2 (11th Cir. 1989)—mentioned the HAC factor, but only as an uncontested
aggravating finding supporting the death penalty. Thus, none of the cited authorities
56
show that the ACCA deviated directly or unreasonably from clearly established
Supreme Court precedent in rejecting Sneed’s HAC challenge.
Moreover, the ACCA’s analysis is consistent with the Eleventh Circuit’s HAC
holding in White v. Wainwright, 809 F.2d 1478 (11th Cir. 1987).18 Before discussing
the HAC issue, the Eleventh Circuit found that the petitioner’s participation in the
offenses, as a nontriggerman, satisfied the Enmund—now the Enmund-Tison—
standard. White, 809 F.2d at 1481-84. The petitioner in White “urge[d] that th[e]
[HAC] aggravating circumstance c[ould] [not] be . . . constitutionally applied to a
non-triggerman and that such an application [would be] overbroad.” 809 F.2d at
1485. “[D]isagree[ing]” with the petitioner, the Eleventh Circuit explained that “[t]he
Enmund case represent[ed] the constitutional limitation on the imposition of the death
penalty on non-shooters.” White, 809 F.2d at 1485. Given those facts which
substantiated the petitioner’s “intent to use lethal force” under Enmund, White, 809
F.2d at 1484, the Circuit held that the Constitution did not preclude reliance upon the
HAC factor in sentencing, id. at 1485. The Eleventh Circuit elaborated that “[t]he
findings” from the Enmund assessment “indicate[d] that [the petitioner] was
sufficiently involved in the[] ‘especially heinous, atrocious and cruel’ killings that [a]
18
White predates Tison and AEDPA.
57
. . . death [sentence] . . . [wa]s not unconstitutionally overbroad.” Id. Consequently,
the HAC holding in White—which is binding on this court—forecloses Sneed from
obtaining habeas relief under either clause of (d)(1).
c.
Sneed’s mental state, as part of the HAC inquiry, is the focus of his (d)(2)
evidentiary argument. The gist of Sneed’s contention is that the ACCA based the
rejection of his HAC subclaim on unreasonably-determined facts about his mental
state. Doc. 1 at 118 ¶ 204. According to Sneed, “simply no evidence [existed] to
support any assertion that [he] personally desired to inflict a high degree of pain or
that he wanted . . . Mr. Hardy” to murder Mr. Terry in a certain manner. Doc. 1 at
118 ¶ 204. Sneed maintains that inferences about his intentions were “impossible” to
draw “from Mr. Hardy’s spontaneous actions,” and that the State did not introduce
evidence of Sneed’s “wishes” or any pre-offense “understanding” about how Hardy
would murder Mr. Terry. Id. And, in further support of his contention, Sneed notes
that, in reversing his first death sentence on guilt-phase grounds, the Alabama
Supreme Court discussed the videotape’s inability “to capture Sneed’s intent at the
time [he] and Hardy entered the store.” Doc. 1 at 11 ¶ 10; Doc. 31 at 13 n. 3; see also
Sneed ASC Direct I, 783 So. 2d at 869 (discussing the security footage as inadequate
to “overcome the distort[ions]” which his redacted statement created, including
58
portraying him “as the central figure in the crime” and undermining his “defense that
he lacked the specific intent to commit murder”).
Sneed’s factual contentions arise outside the ACCA’s rationale for rejecting
his HAC subclaim. More specifically, the ACCA’s analysis of the HAC factor did
not turn upon the sentencing court’s findings about Sneed’s mental state. Instead, the
ACCA held that the trial court properly used the HAC factor in sentencing Sneed in
light of the jury’s guilt-phase finding that satisfied the Enmund-Tison test. Similarly,
Sneed’s factual contentions about his mental state are not pertinent to the ACCA’s
plain-error review of the HAC jury charge. Finally, in the absence of any challenge
to the facts relevant to the last reasoned decision denying his HAC challenge in state
court, Sneed cannot prevail under (d)(2) on habeas review.
In sum, Sneed falls short of his AEDPA burden with his HAC allegations.
Consequently, the court denies Claims G.
4.
In Claim D, Sneed argues that the jury’s “[k]knowledge of [his] prior
conviction and sentence destroyed his presumption of innocence and diminished the
jurors’ sense of responsibility.” Doc. 1 at 99 ¶ 167. Sneed divides this claim into two
subparts. One, Sneed faults trial counsel for failing to object to the prosecutor’s
“repeated[] reference[s] [to the] ‘prior proceeding’” and a forensic witness’s
59
testimony about exhibits “introduced in the first trial.” Id. at 100, 102 ¶¶ 168, 174;
Sneed Direct II, 1 So. 3d at 114 (emphasis and internal quotation marks omitted).
Two, Sneed maintains that several jurors discussed extraneous matters during
deliberations, including his prior conviction and death sentence as well as the
outcome of Hardy’s capital case. Doc. 1 at 104 ¶ 179. Allegedly, the jury’s
consideration of this “extraneous evidence violate[d] [Sneed’s] Sixth and Fourteenth
Amendment[] [rights].” Doc. 1 at 103 ¶ 177.
a.
In response to Respondent’s contention that these claims are procedurally
defaulted, Sneed maintains that he asserted the same issues in his first subclaim on
direct appeal to the ACCA “and again in his application for rehearing.” Doc. 31 at
46. Consequently, Sneed argues that Respondent’s procedural challenge of his habeas
allegations “is a misstatement of law.” Id. A review of Sneed’s assertions on direct
review and the contents of his habeas allegations shows, however, that the claims are
different in scope. More specifically, Sneed’s allegations about trial counsel’s
unreasonable failure to object appear only in his habeas petition. Consequently, with
respect to his newly asserted ineffective assistance claim, Sneed is the party with an
unsustainable position.
60
i.
Sneed argued on appeal that the prosecutor’s repeated remarks about the prior
proceeding and the testimony, which mentioned his “first trial” directly, revealed to
“the jury . . . that [he] had previously been convicted of capital murder and sentenced
to death.” Sneed Direct II, 1 So. 3d at 114. Because trial counsel “did not object to
the references at trial, [the ACCA] review[ed] them for plain error.” Id. The ACCA
explained that all but one mention of the case’s history referred “to a prior
proceeding, in compliance with the trial court’s [pretrial] instructions.” Id.
Regardless, the ACCA concluded that none “specifically informed the jury” about
Sneed’s capital conviction and sentence. Id. Thus, the ACCA ruled that the State’s
references to his first trial did not amount to plain error. Id. at 114-15.
Sneed never asserted in his appeal that trial counsel performed ineffectively by
not objecting to these references contemporaneously. Doc. 26-10 at 27-32. “A claim
is procedurally barred when it has not been fairly presented to the state courts for
their initial consideration.” Cone v. Bell, 556 U.S. 449, 467 (2009). And in light of
Sneed’s failure to fairly tie these allegations to Strickland, on either direct or
collateral review, Sneed never exhausted the ineffectiveness aspect of this habeas
subclaim in state court properly. Thus, Respondent is correct that unexhausted
61
procedural default bars Sneed’s ineffectiveness allegations incorporated into this
subclaim.
ii.
Alternatively, the court accepts that Sneed may seek habeas relief on issues
unrelated to the alleged ineffective assistance. Even so, Sneed has not demonstrated
that the ACCA’s rejection of those constitutional assertions was contrary to or an
unreasonable application of Supreme Court precedent. In particular, Sneed alleged
on direct appeal and reasserts on habeas review that the remarks of the prosecutor
and forensic witness about the prior trial violated “his rights to a fair and impartial
jury, due process, presumption of innocence, and a reliable conviction and sentence.”
Compare doc. 26-10 at 32, with doc. 1 at 102 ¶ 175. And while the Supreme Court
decisions which Sneed cites in support contain references to core principles of
fairness applicable in criminal proceedings, the facts that shaped the holdings in these
opinions do not overlap contextually with Sneed’s allegations. 19
19
See, e.g., Deutch v. United States, 367 U.S. 456, 471 (1961) (identifying the presumption
of innocence as one of several “safeguards of a fair procedure” afforded to an accused) (internal
quotation marks omitted). But see Deutch, 367 U.S. at 457 (“review[ing] a criminal conviction for
refusal to answer questions before a subcommittee of the Committee on Un-American Activities of
the House of Representatives”); Caldwell v. Mississippi, 472 U.S. 320, 340-41 (1985) (plurality
opinion) (reversing capital sentence as unreliable under the Eighth Amendment because “the State
sought to minimize the jury’s sense of responsibility for determining the appropriateness of death”
with “focused, unambiguous, and strong” prosecutorial comments); Caldwell, 472 U.S. at 342
(O’Connor, J. concurring in part and in the judgment) (“[T]he prosecutor’s remarks were
impermissible [under the Eighth Amendment] because they were inaccurate and misleading in a
62
Additionally, the constitutional guideposts clearly established in Caldwell and
Romano place the ACCA’s plain-error rejection of the exhausted allegations in this
subclaim well within AEDPA’s sizeable deferential range. For example, the remarks
Sneed challenges do not approach the harmful degree of those in Caldwell, which
misleadingly minimized the jury’s role in rendering a death sentence. Caldwell, 472
U.S. at 342. And Sneed’s challenged references are more benign than the admitted,
and later reversed, capital judgment in Romano, which “did not deprive petitioner of
a fair sentencing proceeding.” Romano, 512 U.S. at 13. Thus, AEPDA precludes this
court from awarding habeas relief on the state-court adjudicated remainder of this
habeas subclaim. 28 U.S.C. § 2254(d).
b.
The second part of Claim D maintains that several jurors discussed extraneous
matters, including Sneed’s prior conviction and death sentence. Doc. 1 at 104 ¶ 179.
Sneed acknowledges that he presented this subclaim “for the first time” in this
petition. Doc. 31 at 47. But according to Sneed, the procedural default exception
manner that diminished the jury’s sense of responsibility.”); Romano v. Oklahoma, 512 U.S. 1, 10,
13 (1994) (holding that admitted evidence of a prior, but later vacated, capital conviction and
sentence in the penalty phase of an unrelated case was neither a Caldwell, Eighth Amendment
evidentiary, nor freestanding Fourteenth Amendment Due Process violation).
63
discussed in Claim F—cause and prejudice—excuses his failure to exhaust that
subclaim in state court.
i.
Sneed argues that “cause exists because trial counsel . . . were unaware the
jurors had knowledge of his prior conviction at the time of his trial in 2006.” Doc. 31
at 47. Sneed adds that post-conviction counsel did not discover this evidence until
ten years later when they interviewed the jurors. Id. at 48. But Sneed does not address
the opportunity his counsel had to interview the jurors earlier, asserting this claim in
a post-trial motion, and satisfying the exhaustion requirement on direct review. And
although, if pursued separately in state court, ineffective assistance of trial or
appellate counsel may serve as cause, Sneed neither makes that argument nor offers
an exhausted Strickland claim validating that method. For these reasons, Sneed has
not established cause for the unexhausted procedural default of his jury-deliberations
subclaim.
ii.
Sneed has also not demonstrated prejudice. Sneed alleges generally that the
jury had knowledge of and discussed his and Hardy’s capital case histories, doc. 1 at
104 ¶ 179, including that “two jurors [commented before deliberations] that . . . Sneed
was guilty and deserved whatever . . . Hardy . . . had gotten,” id. ¶ 178. Sneed
64
contends that the extraneous information, which the jury discussed and upon which
two members based a premature guilt-phase opinion, violated his right to an impartial
jury under the Sixth and Fourteenth Amendments. Doc. 31 at 48.
Most of the cases which Sneed cites in support are off point. Doc. 1 at 103-06
¶ 176-77, 182-83; Doc. 31 at 48.20 One case, Fullwood v. Lee, 290 F.3d 663 (4th Cir.
2002), suggests that Sneed’s allegations may have constitutional merit. The petitioner
in Fullwood argued that he did not receive “a fair trial at his resentencing.” Id. at 675.
According to the petitioner, the jury “was subject to improper contact with third
parties and considered extraneous information that the parties did not introduce at
trial and the court did not provide to them.” Id. As evidentiary support, the petitioner
“relie[d] . . . upon [a] post-trial affidavit of . . . [a] [person]” who served on the
20
See, e.g., In re Murchison, 349 U.S. 133, 139 (1955) (holding that the due process clause
prohibits the same trial judge from both holding a secretive contempt proceeding and presiding over
the later hearing on the contempt charges); Irvin v. Dowd, 366 U.S. 717, 728 (1961) (vacating
habeas petitioner’s capital judgment under the Fourteenth Amendment because of unfairness from
a “huge . . . wave of public passion [and publicity pretrial] and . . . a jury . . . in which two-thirds of
the members admit[ted], before hearing any testimony, to . . . belie[ving] in his guilt”); Remmer v.
United States, 347 U.S. 227, 228-30 (1954) (holding that an ex parte F.B.I. investigation into a
reported improper communication “with a . . . juror, who afterwards became the . . . foreman”
warranted a new federal trial without reference to a constitutional violation); Frady, 456 U.S. at
174 (concluding that “no substantial likelihood [existed that] erroneous malice instructions
prejudiced [the petitioner]’s chances with the jury”); see also Turner v. Louisiana, 379 U.S. 466,
474 (1965) (reversing capital judgment on Fourteenth Amendment due process grounds because
“two key prosecution witnesses . . . were . . . deputy sheriffs,” who guarded the sequestered jurors
“during the entire period of the trial”); Schlup v. Delo, 513 U.S. 298, 327 (1995) (announcing the
actual innocence “gateway standard” to overcoming a procedurally defaulted guilt-phase claim);
Sawyer v. Whitley, 505 U.S. 333, 336 (1992) (discussing the actual innocence standard applicable
when a petitioner argues that “he is actually ‘innocent of the death penalty’”).
65
resentencing jury. This juror reported several concerns she had about the second
penalty-phase process. Akin to Sneed’s allegations, the juror stated that “outside
sources” caused the members to “bec[o]me aware” that the petitioner’s first death
sentence “had been reversed because of some technicality involving a mistake the
trial judge had made.” Id. (internal quotation marks omitted).
Relying on Irvin and Turner, the Fullwood court cautioned that the
resentencing jury’s extraneous knowledge of the “prejudicial information about [the
history of the petitioner’s] case” implicated the Sixth Amendment. Id. at 682. The
Fourth Circuit explained that the petitioner “ha[d] made a sufficient threshold
showing that these facts were extraneous, prejudicial and improperly brought to the
jury’s attention.” Id. Therefore, the court sent the case back to the district court to
hold an evidentiary hearing to determine whether the information “had a substantial
and injurious effect or influence in determining the jury’s [resentencing].” Id.
(internal quotation marks omitted).
Sneed has not pointed to any guilt-phase authority—binding or persuasive—
which resembles Fullwood. Still, the court accepts that the Eleventh Circuit might
recognize a cognizable impartial jury claim under Sneed’s alleged circumstances. See
Parker v. Gladden, 385 U.S. 363, 366 (1966) (per curiam) (“[P]etitioner was entitled
to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”). But accepting
66
that his allegations are sufficient to state an impartial jury claim in the guilt phase
does not end the prejudice inquiry. Instead, Sneed must show that excluding the
constitutionally-compromising case information from deliberations would create a
reasonable probability of a non-capital conviction in a retrial.
Here, Fullwood does not satisfy Sneed’s reasonable probability burden for
several reasons. First, procedural default was not an issue in Fullwood. Second, the
Fourth Circuit faced problems in the deliberative sentencing process beyond the
jury’s improper access to extraneous information. Specifically, Fullwood also
concerned whether a third-party husband’s “presumptively prejudicial” discussions
with his wife (who was a juror) were designed to influence the resentencing outcome
in favor of death. Id. at 678 (internal quotation marks omitted). Consequently,
Fullwood’s persuasive value is minimal. And Sneed fails to identify other authorities
which point to the existence of actual prejudice in the guilt-phase context of his
specific impartial jury allegations.21
21
Sneed cites many cases in reply for principles fundamental to procedural default but
provides no corresponding context. Doc. 31 at 47-48. Reviewing these additional authorities
confirms that none involves circumstances comparable to his. See, e.g., Edwards v. Carpenter, 529
U.S. 446, 455 (2000) (Breyer, J. concurring in judgment) (identifying, in addressing an
unconstitutional guilty plea claim, the “situations in which an otherwise valid state ground will not
bar federal claims”); Carrier, 477 U.S. at 497 (concluding that “procedurally defaulted discovery
claim” could not support habeas relief unless “the victim’s statements contain[ed] material that
would establish . . . actual innocence”); Amadeo v. Zant, 486 U.S. 214, 228-29 (1988) (reversing
judgment that procedural default barred the petitioner from pursuing his unconstitutional jury
composition claim); Reed, 468 U.S. at 3, 20 (concluding that the petitioner’s invalid jury instruction
67
iii.
Likewise, Sneed does not address the solid incriminating evidence which
underlies his conviction. Specifically, the State’s guilt-phase evidence included
Sneed’s pre-offense selection of Bud’s Convenience Store for the robbery because
Mr. Terry was there alone and the security footage of the capital offense. That video
was highly probative of Sneed’s particularized intent to kill. The clip captured
Sneed’s continuing presence at the murder scene, active participation in the robbery,
and unconcerned reaction to Hardy’s unprovoked shooting of Mr. Terry. Thus, the
strength of the State’s case for conviction means that Sneed’s impartial jury
allegations—if cognizable—fall short of demonstrating the reasonable probability of
a lesser conviction without the extraneous capital case histories. Cf. McCoy, 953 F.2d
at 1262 (“[T]he other substantial evidence of [the petitioner]’s guilt negates any
possibility of prejudice resulting from his attorney’s failure to subpoena the alibi
witnesses.”).
claim “was sufficiently novel . . . to excuse his attorney’s failure to raise [it]” and constituted cause);
Ward, 592 F.3d at 1152 (“conclud[ing] that an improper bailiff-jury communication during the
penalty phase violated [the petitioner]’s constitutional right to a fair trial and a reliable sentence”);
McCoy v. Newsome, 953 F.2d 1252, 1262 (11th Cir. 1992) (per curiam) (declining to review the
merits of [several] . . . federal claims” because the petitioner had not met the cause and prejudice
exception).
68
iv.
Respondent argues alternatively that Sneed’s tainted deliberation allegations
are too vague to meet § 2254’s heightened pleading requirement. Doc. 24 at 77; cf.
Brown v. Dixon, No. 19-60704-CIV, 2022 WL 1197657, at *8 (S.D. Fla. Mar. 15,
2022) (“[A]llegations [supporting cause and prejudice] must be factual and specific,
not conclusory.”) (internal quotation marks omitted) (quoting Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)), appeal filed Apr. 25, 2022.
Respondent challenges concretely the missing “names of the jurors [interviewed] to
support this claim.” Doc. 24 at 77. Sneed does not resist this independent reason for
dismissal in reply. See generally doc. 31 at 46-49. Consistent with his silence, Sneed
has conceded Respondent’s point of inadequate pleading and abandoned the claim as
a basis for habeas relief. 22
Accordingly, the court denies Claim D for these multiple reasons.
22
See, e.g., Tharpe v. Humphrey, No. 5:10-CV-433 CAR, 2014 WL 897412, at *3 n. 4 (M.D.
Ga. Mar. 6, 2014) (recognizing that merely alleging a habeas claim without developing argument
constitutes abandonment), aff’d sub nom. Tharpe v. Warden, 834 F.3d 1323 (11th Cir. 2016);
United States v. Krasnow, 484 F. App’x 427, 429 (11th Cir. 2012) (per curiam) (“A party abandons
all issues on appeal that he or she does not ‘plainly and prominently’ raise in his or her initial brief.”
(quoting United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003)); U.S. Steel Corp. v.
Astrue, 495 F.3d 1272, 1287 n. 13 (11th Cir. 2007) (explaining that a court need not address a
“perfunctory and underdeveloped argument” that lacks legal authority or elaboration).
69
5.
Sneed contends primarily in Claim A that the sentencing court’s override of
the advisory life verdict violated his jury-trial guarantee under the Sixth Amendment.
Doc. 1 at 18, 28-29 ¶ 44. Aligned with the Eighth Amendment’s cruel and unusual
punishment clause, Sneed alleges also that the override decision “was arbitrary[,] . .
. fundamentally unfair, and denied [him] a fair and reliable sentencing governed by
due process.” Id. at 18 ¶ 27.
Overlapping with Claim A, Sneed alleges in Claim H that “Alabama’s
standardless override results in an arbitrary application of the death penalty in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.” Doc. 1 at 119
(emphasis omitted). Sneed adds that the override is unconstitutional “[f]acially, and
as applied” because of “the risk that the death penalty will be imposed in spite of
factors which may call for a less severe penalty.” 23 Id. at 119-20 ¶ 206 (internal
quotation marks omitted).
23
“A facial challenge to a legislative Act is . . . the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under which the
Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). See also United States v.
Stevens, 559 U.S. 460, 472 (2010) (reaffirming use of Salerno facial standard). Under the “more
limited” as-applied approach, Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717
F.3d 851, 863 (11th Cir. 2013), a challenger contests the application of a law “to the particular facts
of [his] case,” Salerno, 481 U.S. at 745 n. 3. “Although the boundary between these two forms of
relief is not always clearly or easily demarcated, . . . . [courts] look to the scope of the relief
requested to determine whether a challenge is facial or as-applied in nature.” Scott, 717 F.3d at 862.
“[R]elief that is quasi-facial in nature— . . . relief that reaches beyond the [challenger] in a case[—
70
In both claims, Sneed argues that the ACCA’s rejection of his challenge
warrants habeas relief under AEDPA’s contrary to and unreasonable application
clauses. Id. at 29, 121 ¶¶ 44, 210. Sneed contends additionally in Claim H that he
meets (d)(2) of AEDPA because the ACCA supported its decision with unreasonable
factual determinations. Doc. 1 at 121 ¶ 210.
As explained below, Sneed’s efforts to satisfy his demanding burden under
AEDPA’s highly deferential design are unconvincing. Three Supreme Court
decisions are the heart of Sneed’s override challenge: Apprendi v. New Jersey, 530
U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); and Hurst. Doc. 1 at 18, 2025 ¶¶ 27, 30-38. The court begins with a summary of these key Sixth Amendment
sentencing cases.
a.
Apprendi addressed the interplay between the right to a jury trial and
sentencing in a non-capital case. Determining, by a preponderance of the evidence,
that the petitioner’s firearm conviction was a hate crime under state law, the trial
court in Apprendi increased the maximum prison sentence from 10 to 20 years.
Apprendi, 530 U.S. at 468-69. The Supreme Court concluded that the State’s
]” triggers the Salerno standard. Id.
71
enhancement procedure for hate crimes was “an unacceptable departure from the jury
tradition” and reversed the judgment. Id. at 497. Thus, Apprendi requires a jury to
find, beyond a reasonable doubt, the existence of “any fact [(but for an offender’s
prior convictions)] that increases the penalty for a crime beyond the prescribed
statutory maximum.” Apprendi, 530 U.S. at 490.
After Apprendi, the Court revisited in Ring Arizona’s former capital sentencing
framework, which had survived Sixth Amendment scrutiny in Walton v. Arizona, 497
U.S. 639 (1990), overruled by Ring, 536 U.S. at 609. Under Arizona’s prior structure,
a convicted defendant “could not be sentenced to death, the statutory maximum
penalty for first-degree murder” without a separate judicial finding of “at least one
aggravating circumstance and . . . no mitigating circumstances sufficiently substantial
to call for leniency.” Ring, 536 U.S. 592-93 (internal quotation marks omitted); see
Walton, 497 U.S. at 649 (concluding that the Sixth Amendment does not require a
state “to denominate aggravating circumstances ‘elements’ of the offense or permit
only a jury to determine the existence of such circumstances”). Thus, the jury played
no role in the pre-Ring Arizona capital-sentencing process. See Walton, 497 U.S. at
643 (explaining that “[a]fter a person ha[d] been found guilty of first-degree murder
. . . . the court alone” decided whether to impose the death penalty) (internal quotation
marks omitted). Concluding that the Sixth Amendment outcome in Walton was
72
incompatible with its holding in Apprendi, the Court overruled Walton. Ring, 536
U.S. at 609.
Ring led the Court to invalidate Florida’s former capital-sentencing structure
under the Sixth Amendment in Hurst. Hurst, 577 U.S. at 102. Pursuant to Florida’s
prior framework, “the maximum sentence a capital felon [could] receive on the basis
of the conviction alone [wa]s life imprisonment.” Id. at 95. Postconviction, a jury
provided an advisory sentence based on an evidentiary hearing, and a judge held “a
separate hearing . . . [to] determine whether sufficient aggravating circumstances
existed to justify imposing the death penalty.” 577 U.S. at 94. In the defendant’s case
specifically, a Florida jury found him guilty of “premediated murder[—a capital
felony—] . . . for an unlawful killing during a robbery” over a lesser and non-capital
charge of felony murder. 577 U.S. at 95. “A penalty-phase jury recommended [7 to
5] that . . . [the] judge impose a death sentence,” 577 U.S. at 94, and “[t]he judge
independently agreed,” id. at 96.
The Hurst Court concluded that Florida’s statutory structure overlapped with
Arizona’s Ring-deficient approach. Hurst, 577 U.S. at 98-99. Specifically, the
petitioner’s death sentence violated his “right to an impartial jury,” id. at 102, because
“the maximum punishment [the petitioner] could have received without any judgemade findings was life in prison without parole,” id. at 99. The Court clarified that
73
“[a] jury’s mere recommendation” in favor of the death penalty “is not enough” to
satisfy the constitutional requirement that “a jury, not a judge, . . . find each fact
necessary to impose a sentence of death.” 577 U.S. at 94; see also id. at 102
(overruling prior precedent “to the extent they allow a sentencing judge to find an
aggravating circumstance, independent of a jury’s factfinding, that is necessary for
imposition of the death penalty”).
b.
Sneed argued on direct review that his death sentence was unsustainable under
Ring. 24 Sneed Direct II, 1 So. 3d at 143. Sneed claimed that his punishment violated
Ring because the jury’s advisory verdict lacked specific aggravating findings and did
not reflect a “unanimous[] determin[ation] that statutory aggravating circumstances
were present[,] . . . [or] that the aggravating circumstances outweighed the mitigating
circumstances.” Sneed Direct II, 1 So. 3d at 143. Sneed asserted also that the trial
court’s decision to override the jury’s advisory verdict was arbitrary—an allegation
associated with the Eighth Amendment’s prohibition against cruel and unusual
punishments. Sneed Direct II, 1 So. 3d at 143.
24
Sneed’s direct appeal proceedings began post-Ring and ended pre-Hurst. Sneed Direct II,
1 So. 3d at 143. Consequently, Hurst was not part of Sneed’s Sixth Amendment override challenge.
74
Concerning the aggravating circumstances subclaim, the ACCA pointed to the
jury’s unanimous guilt-phase finding that Sneed had “committed a robbery during
the . . . commi[ssion] of a murder” beyond a reasonable doubt. Sneed Direct II, 1 So.
3d at 143. Under Alabama’s framework, the robbery-murder conviction triggered
penalty-phase proceedings, transferred as an aggravating factor, and exposed Sneed
to a potential death sentence. Following Alabama Supreme Court precedent, the
ACCA observed that a “jury’s unanimous finding of one aggravating circumstance is
sufficient to satisfy Ring.” Sneed Direct II, 1 So. 3d at 143 (internal quotation marks
omitted) (quoting Ex parte McNabb, 887 So. 2d 998, 1006 (Ala. 2004)).
Consequently, the ACCA disagreed with Sneed that the record on aggravating
circumstances fell short of Ring’s Sixth Amendment capital-sentencing standard.
Sneed Direct II, 1 So. 3d at 143.
As for Sneed’s contention that the penalty-phase balancing process violated
his right to a jury trial, the ACCA recognized that the Alabama Supreme Court had
foreclosed that Sixth Amendment issue too. Sneed Direct II, 1 So. 3d at 143 (first
quoting Ex parte Hodges, 856 So. 2d 936, 943 (Ala. 2003); and then quoting Ex parte
Waldrop, 859 So. 2d 1181, 1190 (Ala. 2002)). Specifically, the ACCA explained that
“whether the aggravating circumstances outweigh the mitigating circumstances is not
a finding of fact or an element of the offense.” Sneed Direct II, 1 So. 3d at 143
75
(internal quotation marks omitted). With the understanding that the balancing process
does not involve determining facts, the ACCA observed that neither Ring nor
Apprendi “require[s] that a jury weigh the aggravating circumstances and the
mitigating circumstances.” Sneed Direct II, 1 So. 3d at 143 (internal quotation marks
omitted).
The ACCA disposed of Sneed’s arbitrary override “argument” as one “without
merit.” Id. at 144. Here, the ACCA referred to Harris v. Alabama, 513 U.S. 504
(1995), in which the Supreme Court upheld the constitutionality of Alabama’s
judicial override provision under the Eighth Amendment. Sneed Direct II, 1 So. 3d
at 143-44; see also Harris, 513 U.S. at 512 (“hold[ing] that the Eighth Amendment
does not require the State to define the weight the sentencing judge must accord an
advisory jury verdict”); id. at 515 (“The Constitution permits the trial judge, acting
alone, to impose a capital sentence.”). The ACCA noted that Ring “did not invalidate
[the] earlier holding in Harris.” Sneed Direct II, 1 So. 3d at 143. Consequently, the
ACCA rejected Sneed’s arbitrary override claim. Id. at 144.
c.
With this background in mind, the court considers Sneed’s habeas override
claim and starts with the Sixth Amendment component.
76
i.
The gist of Sneed’s Sixth Amendment habeas override allegations is that “[t]he
imposition of a death sentence . . . violated [his] rights under Apprendi, Ring, and
Hurst, in that the jury did not make the fact-finding necessary for a death sentence to
be imposed.” Doc. 1 at 25 ¶ 38. To overcome AEDPA deference, Sneed relies heavily
upon Hurst.
According to Sneed, Hurst is “a natural and logical application of Apprendi
and Ring.” Doc. 1 at 22 ¶ 32. Sneed argues that the similarities between Florida’s preHurst capital sentencing structure and the application of Alabama’s judicial override
provision in his capital case mean that his affirmed death sentence is objectively
wrong under the Sixth Amendment. But central to § 2254(d)(1)’s contrary to and
unreasonable application clauses is the existence of “clearly established Supreme
Court law,” “at the time” of the last merits-based denial of an appealed constitutional
claim. Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1316 (11th Cir. 2015).
Here, the ACCA reviewed Sneed’s claims in his second direct appeal substantively,
and the Alabama Supreme Court declined review. Consequently, only Supreme Court
precedent predating the ACCA’s 2007 decision in Sneed Direct II qualifies as clearly
established Sixth Amendment law for (d)(1) purposes. See Greene, 565 U.S. at 3940 (explaining that if a state supreme court declines to hear an appeal, the date of the
77
intermediate appellate decision is the “temporal cutoff” for clearly established
Supreme Court precedent).
The court accepts for analysis purpose that Hurst establishes the Sixth
Amendment unsoundness of Alabama’s former judicial override scheme without any
ambiguity. Still, such hypothetical clarity from Hurst did not exist until nearly ten
years after Sneed Direct II. And because Ҥ 2254(d)(1) requires federal courts to . . .
measure state-court decisions against th[e] [Supreme] Court’s precedents as of the
time the state court renders its decision,” Greene, 565 U.S. at 38 (alterations added)
(internal quotation marks and emphasis omitted) (first quoting Cullen, 563 U.S. at
182; and then quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)), that gap in
time means that Sneed cannot rely upon Hurst to prove objective constitutional error
occurred on direct review in state court.
Additionally, the Supreme Court has clarified that “Hurst do[es] not apply
retroactively on collateral review.” McKinney v. Arizona, 140 S. Ct. 702, 708 (2020)
(citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)). Thus, Hurst is beyond
Sneed’s reach under (d)(1) and the Supreme Court’s retroactivity framework under
Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). See Greene, 565 U.S. at 39
(“explain[ing] that AEDPA did not codify Teague, and that the AEDPA and Teague
78
inquiries are distinct”) (internal quotation marks omitted) (quoting Horn v. Banks,
536 U.S. 266, 272 (2002) (per curiam)).25
ii.
The Supreme Court issued the predecessor opinions to Hurst—Ring and
Apprendi—before the conclusion of Sneed’s second direct appeal, and Ring was the
express basis for Sneed’s override claim in state court. Thus, this court must
determine whether the ACCA’s rejection of Sneed’s Sixth Amendment override
challenge was contrary to or an unreasonable application of the holdings in Ring and
Apprendi.
Considering Apprendi first, the non-death penalty context of that decision is
too dissimilar from Sneed’s override claim. Specifically, Apprendi neither dictates an
opposite outcome under (d)(1)’s first clause nor illustrates an unreasonable
application in the ACCA’s resolution of Sneed’s override claim under (d)(1)’s second
clause. Thus, Apprendi does not establish that the ACCA committed clearly
established error under AEDPA.
25
Alternatively, Hurst’s Sixth Amendment holding falls short of showing clearly established
error on the part of the ACCA akin to the Ring analysis below. Materially missing from the
invalidated Florida and Arizona formats in Hurst and Ring was the requirement that a jury find an
aggravating factor beyond a reasonable doubt unanimously before imposing the death penalty.
79
As a capital-sentencing decision, Ring is contextually closer to Sneed’s
override claim. Ring addressed whether Arizona’s capital sentencing framework—
which lacked any unanimous jury finding in aggravation beyond a reasonable
doubt—violated the petitioner’s right to a jury trial under the Sixth Amendment. The
Court invalidated Arizona’s exclusively judicial-sentencing approach as an
impermissible infringement upon the right to a jury trial.
Ring does not help Sneed because Alabama sentenced him under a materially
distinguishable sentencing structure. Specifically, Alabama utilized a system that
required a unanimous jury determination of an aggravating factor beyond a
reasonable doubt in the guilt phase of a capital case as a prerequisite to a death
sentence. Thus, Ring is unpersuasive as a first-clause (d)(1) authority.
Ring also does not help Sneed in the (d)(1) second-clause analysis. First, again,
Ring’s scope does not address a capital-sentencing structure like Alabama’s—one in
which a jury finding in aggravation is a prerequisite to imposing the death penalty.
Second, Ring did not consider a Sixth Amendment claim challenging judicial
override or a death sentence in which a judge found an additional aggravating factor
independent of a jury. And even accepting that Ring raises concerns about the
ACCA’s denial of Sneed’s override claim under the Sixth Amendment, Sneed must
do more than merely cast doubt on the ACCA’s reasoning to benefit from (d)(1)’s
80
second clause. Instead, Sneed must persuade this court that the ACCA’s denial of this
claim was so objectively wrong that no room for disagreement among fairminded
jurists exists. After all, the Court has made clear that “[a] state court’s determination
that a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.” Richter, 562 U.S. at
101 (internal quotation marks omitted). 26
26
Indeed, in a concurring opinion, Justice Scalia, “with whom Justice Thomas join[ed],”
endorsed the view that Ring’s holding did not invalidate a death sentence with unanimous jury
support on one aggravating factor beyond a reasonable doubt. Ring, 536 U.S. at 612; see id.
(explaining that under Ring a “jury must find the existence of the fact that an aggravating factor
existed”) (emphasis in original); id. at 612-13 (“Those States that leave the ultimate life-or-death
decision to the judge may continue to do so—by requiring a prior jury finding of [an] aggravating
factor in the sentencing phase or . . . placing the aggravating-factor determination . . . in the guilt
phase.”).
Additionally, two dissenters in Ring wanted the Court to overrule Apprendi instead of
Walton. Ring, 536 U.S. at 619, 621 (O’Connor, J. dissenting) (Rehnquist, C.J. joining). These
justices “fear[ed]” the ripple effect of Ring’s “expan[sion] on Apprendi,” including incentivizing
petitioners to challenge their death sentences under Alabama’s “hybrid sentencing scheme[].” Ring,
536 U.S. at 621; id. at 608 n. 6.
Thus, a more nuanced understanding of Ring reveals that Sneed relies upon an unsettled—
rather than a clearly established—interpretation of that precedent to overcome AEDPA deference.
In Kilgore, the Eleventh Circuit bolstered its AEDPA deferential analysis on the basis that the
Supreme Court, in undergoing a Teague retroactivity assessment, had relied on dissenting opinions
to demonstrate why “existing precedent” did not “dictate[] [a] holding in a case.” Kilgore, 805 F.3d
at 1311-12 (citing Beard v. Banks, 542 U.S. 406, 416 (2004)). Akin to Kilgore’s adoption of the
Beard approach to claims requiring AEDPA deference, “the observations from [two of] [Ring]’s
[concurring as well as two] dissenting Justices further illustrate that [Sneed’s broader interpretation
of Ring’s] holding was not clearly established in the Court’s existing precedent.” Kilgore, 805 F.3d
at 1312.
81
iii.
Another Sixth Amendment authority that Sneed references is Rauf v.
Delaware, 145 A.3d 430 (Del. 2016) (per curiam). Doc. 1 at 20 ¶ 29. The Delaware
Supreme Court determined in Rauf that the State’s “current death penalty statute
violate[d] the Sixth Amendment role of the jury as set forth in Hurst.” Rauf, 145 A.3d
at 433. To substantiate its Hurst-driven holding, the state supreme court provided
“succinct” responses to several certified questions on the roles of the judge and jury
under Delaware’s invalidated capital-punishment provisions.27 Id. at 433-34.
Comparable to Alabama’s pre-repealed sentencing structure, Delaware
required a unanimous jury finding that one aggravating circumstance existed beyond
a reasonable doubt before the imposition of the death penalty. Id. at 433 n. 3. The
jury played a non-binding role in sentencing, and the penalty proposed did not require
unanimity. Id. at 432-33 & n. 4. In overriding a jury’s recommendation, a sentencing
court had the authority to consider proof of an aggravating factor, “independent of
the jury.” Id. at 434 & n. 3.
Against this backdrop, Sneed argues that the Delaware Supreme Court’s Sixth
Amendment analysis in Rauf means that the ACCA should have determined that his
27
One justice dissented in Rauf. 145 A.3d at 501-07. And in separate concurring opinions,
the justices in the majority expressed their “diversity of views” on the scope of the jury-trial
guarantee in death sentences. Id. at 433-501.
82
death sentence by judicial override was unconstitutional. Doc. 1 at 20 ¶ 29. The court
disagrees. To begin, the Delaware court relied primarily on Hurst, and this court has
explained already why Hurst does not qualify as clearly established law or overcome
AEDPA deference under (d)(1). Moreover, the Delaware Supreme Court’s nonbinding understanding of Supreme Court Sixth Amendment precedent in 2016 does
not clearly establish that the ACCA applied Ring unreasonably to Alabama’s override
structure in 2007. Instead, the dissenting opinion in Rauf reinforces the room for
fairminded disagreement on whether the ACCA rejected Sneed’s Sixth Amendment
override claim correctly. 28
iv.
The other Supreme Court decisions Sneed cites in support of Claim A analyze
the death penalty’s constitutionality under the Eighth Amendment’s cruel and
unusual punishments clause. See doc. 1 at 18 ¶ 27 (citing Gregg v. Georgia, 428 U.S.
153 (1976) (plurality opinion); Godfrey; California v. Brown, 479 U.S. 538 (1987),
holding modified by Boyde v. California, 494 U.S. 370 (1990)). Consequently, these
28
Cf. Rauf, 145 A.3d at 503 (Vaughn, J. dissenting) (“Ring stands only for the principle that
the jury must find the existence of at least one statutory aggravating factor, unanimously and beyond
a reasonable doubt, in order to elevate the defendant’s maximum punishment from life
imprisonment to death.”); Rauf, 145 A.3d at 505-06 (observing that if the Hurst Court “had intended
to broaden Ring to require that the jury make findings of fact in the weighing process or be the
actual sentencing authority, I think it would have said so more directly and more expressly”).
83
cases do not substantiate Sneed’s contention that the ACCA committed clearly
established Sixth Amendment error in rejecting his judicial override claim.29
v.
These Supreme Court opinions or the additional ones Sneed includes in Claim
H also do not show that the ACCA erred clearly under (d)(1) in rejecting his arbitrary
override claim as an Eighth Amendment violation. 30 To begin, Sneed acknowledges
that the “Supreme Court upheld Alabama’s judicial override system in Harris” under
the Eighth Amendment. Doc. 1 at 20 ¶ 30. While Sneed suggests that this court should
reconsider Harris given the Court’s later Sixth Amendment holdings in Apprendi and
Ring, doc. 1 at 20-21, 119 ¶¶ 30, 206, as the ACCA explained in Sneed Direct II,
29
See Gregg, 428 U.S. at 169, 188 (holding that a death sentence “does not invariably violate
the [Eighth Amendment’s]” prohibition against “cruel and unusual punishments”); id. at 206
(concluding that Georgia’s revised sentencing structure, which “focus[ed] . . . on the particularized
nature of the crime and . . . characteristics of the individual defendant,” addressed “[t]he [prior]
basic concern” of “capricious[] and arbitrar[y]” capital punishment); Godfrey, 446 U.S. at 423, 433
(holding that the “broad and vague construction of the . . . aggravating circumstance [tied to a
murder involving vile, tortious, depraved, or aggravated conduct] . . . violate[d] the Eighth and
Fourteenth Amendments”); Brown, 479 U.S. at 541 (explaining that the Eighth Amendment
requires a capital punishment structure which “prevent[s] . . . arbitrary and unpredictable” death
sentences and permits the “introduc[tion] [of] any relevant mitigating evidence”); Brown, 479 U.S.
at 541-43 (holding that a reasonable understanding of an “instruction not to rely on ‘mere
sympathy’” did not “interfere[] with the jury’s consideration of mitigating evidence” or “violate the
provisions of the Eighth and Fourteenth Amendments”).
30
Sneed’s additional authorities cited in Claim H include Lockett v. Ohio, 438 U.S. 586
(1978) (plurality opinion), Maynard and Clemons. Doc. 1 at 119-20 ¶¶ 206-07. The Supreme Court
decided Harris years after Lockett, Maynard, and Clemons. Consequently, Sneed’s reliance upon
those earlier cases to overcome the override holding in Harris is a non-starter on AEDPA review.
84
Harris precludes Sneed from obtaining Eighth Amendment relief due to an allegedly
arbitrary override decision, 1 So. 3d at 143-44. And nothing in Ring or Apprendi
altered that Eighth Amendment landscape. Sneed Direct II, 1 So. 3d at 143.
Consequently, the clearly established validity of Alabama’s override process in
Harris forecloses Sneed from demonstrating clearly established Eighth Amendment
error on the part of the ACCA.
Likewise, the dissenting opinions in capital cases on denied petitions for a writ
of certiorari Sneed references are unhelpful to his override claim under (d)(1)’s legal
standards. 31 While the undersigned agrees with them, the constitutional concerns
which Justices Marshall and Sotomayor expressed in Johnson and Woodward are not
clearly established law under (d)(1). Thus, neither dissenting opinion overcomes the
deference attached to the ACCA’s rejection of his override claim. 32
31
See doc. 1 at 18-19 ¶ 27 (quoting Johnson v. Alabama, 488 U.S. 876, 876 (1988) (Marshall,
J. dissenting for Eighth Amendment reasons)); id. at 19-22 ¶¶ 28, 30-31 (quoting Woodward v.
Alabama, 571 U.S. 1045, 134 S. Ct. 405, 406, 410-11 (2013) (Sotomayor, J. dissenting on Sixth
and Eighth Amendment grounds)).
32
For the same reasons, Sneed’s reliance on Justice Breyer’s concurring opinion in Ring to
overcome AEDPA deference on his denied override claim, doc. 1 at 119 ¶ 206, is unavailing.
85
vi.
As for § 2254(d)(2)’s unreasonable factual standard, if a petitioner proves that
an adjudicated claim contains a (d)(2) error, then AEDPA deference no longer
constrains the habeas court’s review. Jones, 540 F.3d at 1288 n. 5. In Sneed’s case,
the (d)(2) evaluation of his override challenge is straightforward. In his petition,
Sneed leaves unspecified both the unreasonable factual determination and evidence
which substantiates—clearly and convincingly—that fact’s objective wrongfulness.
28 U.S.C. § 2254(d)(2), (e)(1). 33 Instead, Sneed simply tracks (d)(2)’s wording
conclusively. Doc. 1 at 121 ¶ 210. As a result, Sneed has neither developed nor
proven that the ACCA tied the denial of his override claim to an egregious (d)(2)
factual error. And without the detachment of deference under (d)(1) or (d)(2),
AEDPA bars this court from granting habeas relief on Sneed’s adjudicated override
allegations.
d.
Beyond seeking habeas relief under the Sixth and Eighth Amendments, Sneed
challenges the sentencing court’s override based upon “fundamental[] unfair[ness],”
33
Here, the court has combined the (e)(1) factual standard with (d)(2)’s. But as explained
earlier, the Supreme Court has “not defined the precise relationship between § 2254(d)(2) and §
2254(e)(1).” Burt v. Titlow, 571 U.S. 12, 18 (2013).
86
the absence of due process, and “violat[ions]” of the Fifth and Fourteenth
Amendments. Doc. 1 at 18, 119 ¶¶ 27, 206. Sneed’s references to due process and
the Fourteenth Amendment are consistent with asserting Sixth and Eighth
Amendment claims against the State through the incorporation doctrine. But like his
briefing on direct appeal, doc. 26-10 at 121, Sneed leaves undeveloped how the
override sentence violated his Fifth or independent Fourteenth Amendment rights.
Thus, to the extent that Sneed seeks Fifth or free-standing Fourteenth Amendment
habeas relief, the court denies those claims for lack of exhaustion, proper pleading,
development, and proof.
To close, Sneed fails to detach AEDPA deference from or otherwise
substantiate these override allegations.34 Thus, the court denies Claims A and H.
B.
In Claims B and C, Sneed contends that trial counsel represented him
ineffectively in the guilt and penalty phases in violation of the Sixth Amendment.
1.
In Claim C of his petition, Sneed asserts that trial counsel performed
ineffectively because they did not pursue an intoxication defense to capital murder.
34
Citing mostly Ring and Hurst in reply, Sneed defends his override allegations on Sixth
Amendment grounds. Doc. 31 at 7-8, 11-22. However, Sneed fails to prove clearly established legal
or unreasonable factual error under (d)(1) or (d)(2). See id.
87
Doc. 1 at 84. According to Sneed, his intoxicated state at the time of the crime—if
developed properly through expert testimony—would have shown that he lacked a
“specific and particularized intent to kill” Mr. Terry. Doc. 1 at 85 ¶ 139. Sneed asserts
two other guilt-phase Strickland subclaims pertaining to trial counsel’s omitted
objections to alleged prosecutorial misconduct. Doc. 1 at 84 ¶ 137; id. at 93, 95; Doc.
31. But Sneed failed to develop these claims. For example, while Sneed discusses
intoxication in the context of trial counsel’s ineffective mitigation in his reply, 35
Sneed makes no effort to refute Respondent’s position that the ACCA rejected his
guilt-phase Strickland subclaims error-free under AEDPA, cf. doc. 31 at 51 (“The
State has failed adequately to rebut Mr. Sneed’s claim of ineffective assistance of
counsel at the penalty phase.”) (emphasis and capitalization omitted). Accordingly,
as reshaped through the parties’ briefing, Sneed has abandoned the pursuit of habeas
relief attributable to trial counsel’s alleged ineffective assistance in the guilt phase.36
Alternatively, Sneed has not proven extreme error in the ACCA’s adjudication of his
guilt-phase Strickland subclaims. Consequently, AEDPA’s overriding deference to
the Alabama courts’ collateral resolution of these ineffective assistance allegations
35
See, e.g., doc. 31 at 95 (arguing that “available expert testimony from an
addiction/intoxication expert . . . would have had strong mitigating value”).
36
See n. 22 above.
88
precludes this court from awarding habeas relief. 28 U.S.C. § 2254(d); see Tharpe,
2014 WL 897412, at *3 n. 4 (pointing out that obtaining habeas relief on an
adjudicated claim requires a petitioner to prove an AEDPA exception under (d)(1) or
(d)(2)).
2.
The court turns now to the ACCA’s denial of Sneed’s Strickland penalty-phase
subclaims in Claim B—a primary focus of his petition and reply. Sneed divides Claim
B into several subclaims. Specifically, Sneed faults trial counsel for overlooking
available lay witnesses in an unreasonably curtailed investigation—subclaim B.1; not
calling known and available lay witnesses—subclaim B.2; failing to retain available
expert witnesses in the areas of mental health, addiction, and intoxication—subclaims
B.3 and B.4; omitting evidence of his remorse for the offense—subclaim B.5; and
not introducing governmental reports with corroborating references to his mental
disorders, intoxication, and remorse—subclaim B.6. 37 Doc. 1 at 43, 51, 57, 67, 71,
76. In his last subclaim B.7, Sneed argues that the Alabama courts failed to consider
37
Within his guilt-phase subclaims, Sneed asserts that trial counsel should have objected to
the prosecutor’s view that cooperation was an unproven mitigating circumstance. Specifically,
Sneed argues that trial counsel left unchallenged the prosecutor’s “personal opinion” that Sneed’s
post-arrest confession was insufficient to show mitigating cooperation. Doc. 1 at 94 ¶ 154. Sneed
does not revisit this issue in reply. See generally doc. 31. Consequently, Sneed has abandoned this
penalty-phase subclaim—included in Claim C—as a basis for habeas resentencing relief.
89
the cumulative prejudicial impact of trial counsel’s professional errors under
Strickland’s reasonable probability assessment. Doc. 1 at 79.
a.
Consistent with his habeas allegations in subclaim B.2, Sneed alleged in his
Rule 32 petition that trial counsel failed to present several known lay witnesses who
could have provided helpful mitigating testimony. Doc. 26-15 at 165-176 ¶¶ 146-97.
The circuit court denied these allegations, referencing mostly Alabama Criminal
Procedure Rule 32.7(d)—Alabama’s postconviction summary dismissal rule—and
occasionally adding Alabama Rules 32.3 and 32.6(b)—Alabama’s collateral pleading
rules. Doc. 26-19 at 154-58.38 In affirming the circuit court, the ACCA referenced
Sneed’s abandonment of allegations, incomplete briefing under Alabama Appellate
Procedure Rule 28(a)(10), and deficient pleading under Rules 32.3 and 32.6(b). Doc.
38
Under Rule 32.7(d), a circuit court “may either dismiss the petition or grant leave to file
an amended petition” upon a “determin[ation] that the petition is not sufficiently specific, or is
precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle
the petitioner to relief under this rule and that no purpose would be served by any further
proceedings.” Ala. R. Crim. P. 32.7(d). Rule 32.3 addresses the parties’ respective burdens and
provides that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of
the evidence the facts necessary to entitle the petitioner to relief” and “disproving” any defense of
preclusion alleged by the State. Ala. R. Crim. P. 32.3. Finally, Rule 32.6(b) requires a petitioner to
present for each Rule 32 claim “a clear and specific statement of the grounds upon which relief is
sought, including full disclosure of the factual basis of those grounds.” Ala. R. Crim. P. 32.6(b).
Consequently, “bare allegation[s]” and mere conclusions of law that a constitutional violation
occurred will not “warrant any further proceedings.” Id.
90
26-19 at 97-101. The court discusses the scope of Rule 28(a)(10) and then addresses
the ACCA’s rationale in more detail below.
i.
Rule 28(a) governs “[b]riefs of the appellant/petitioner” and requires certain
contents organized in a specific order. Ala. R. App. P. 28(a) (italics omitted). Subpart
10 of Rule 28(a) addresses the argument section of an appellate brief and describes it
as “containing the contentions of the . . . petitioner with respect to the issues
presented, and the reasons therefor, with citations to the cases, statutes, other
authorities, and parts of the record relied on.” Ala. R. App. P. 28(a)(10). Rule
28(a)(10) refers also to acceptable sources for formatting citations and states that
“[c]itations shall reference the specific page number(s) that relate to the proposition
for which the case is cited.” Id.
As previously discussed in the standards of review section, state-barred
procedural default applies on habeas review when three requirements are met. Here,
the parties dispute satisfaction of the third requirement—whether Rule 28(a)(10) is
“adequate, i.e., firmly established and regularly followed and not applied ‘in an
arbitrary or unprecedented fashion.’” Ward, 592 F.3d at 1157 (quoting Judd, 250 F.3d
at 1313).
91
In Ex parte Borden, 60 So. 3d 940 (Ala. 2007), the Alabama Supreme Court
recognized that not all applications of Rule 28(a)(10) are firmly established under
Alabama law. Referencing Borden and other cases in his habeas reply brief, Sneed
maintains that his collateral appeal brief provided notice of his arguments and
supporting legal authority “in the aggregate.” Doc. 31 at 37-41. Thus, Sneed contends
that the ACCA’s reliance upon Rule 28(a)(10) in the denial of this collateral claim
will not support state-barred procedural default on habeas review. Doc. 31 at 40-41.
To better understand how Alabama appellate courts apply Rule 28(a)(10), the court
examines Borden contextually.
In Borden, the petitioner sought postconviction relief due to ineffective
assistance of counsel. 60 So. 3d at 944. The trial court summarily dismissed those
Rule 32 claims and the petitioner appealed. Id. In his brief to the ACCA, the petitioner
alleged “22 pages of facts addressing why the trial court [had] erred.” Id. The
petitioner included also “11 pages of argument . . . [and] some 25 citations to case
law, along with explanations and quotations from the cited cases.” Id. The ACCA
rejected the petitioner’s appeal on the basis that his brief did not comply with Rule
28(a)(10). Borden, 60 So. 3d at 944. The Alabama Supreme Court granted certiorari
review on whether the ACCA had “correctly held that [the petitioner] failed to
92
comply with Rule 28(a)(10) . . . , and thereby waived his ineffective-assistance-ofcounsel claims.” Borden, 60 So. 3d at 942.
The Alabama Supreme Court reversed, holding that the petitioner’s brief was
compliant with Rule 28(a)(10) and that the petitioner had “not waive[d] his claims of
ineffective assistance of counsel.” Borden, 60 So. 3d at 944. In rejecting the ACCA’s
procedural rationale, the Alabama Supreme Court observed that “another attorney”
may have briefed the argument “differently.” Id. Still, the Court concluded that the
petitioner’s “brief [wa]s sufficient to apprise the [ACCA] of [his] contentions with
regard to his ineffective-assistance-of-counsel claims.” Id. The Court noted too that
“waiver of an argument for failure to comply with Rule 28(a)(10) [was applicable] .
. . to those cases” in which a petitioner presented “no argument” and provided “few,
if any, citations to relevant legal authority” in the brief. Id. The Court explained that
under that noncompliant scenario, a petitioner’s argument amounted to “undelineated
general propositions,” which thwarted meaningful appellate review. Id. (citing
collected cases); see, e.g., Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076, 1092
(Ala. 2007) (explaining that a “lone citation to a general principle of law without
specific relevance to [a claim] does not meet the requirements of Rule 28(a)(10)”).
Against this backdrop, the court understands that whether an appellate court’s
reliance on Rule 28(a)(10) is firmly established for habeas purposes will depend on
93
how developed the petitioner’s brief is on the applicable claim. Put differently, if an
appellate court denied a claim because the petitioner’s brief lacked argument or
contextualized authority, then that limited, but firmly-established, application of Rule
28(a)(10) will support state-barred procedural default on habeas review. But an
appellate court’s reliance on Rule 28(a)(10) when the petitioner gave adequate notice
of his claim will fall outside the firmly-established range of application and a defense
based upon state-barred procedural default will fail. See, e.g., Gaines v. Price, No.
2:15-CV-1822-VEH-TMP, 2017 WL 2296962, at *21 (N.D. Ala. May 2, 2017)
(declining to apply state-barred procedural default on habeas review because “the
brief . . . sufficiently supplied facts and authority that would have allowed the [state]
appellate court to address the issue on the merits”), report and recommendation
adopted, 2017 WL 2289105 (N.D. Ala. May 25, 2017).
ii.
Turning back to the ACCA’s discussion of Sneed’s collateral allegations which
correspond with subclaim B.2, as a threshold matter to the Rule 28(a)(10) analysis,
the ACCA divided Sneed’s postconviction known-witness allegations into eight
categories. Doc. 26-19 at 97. Referring to Sneed’s collateral brief, the ACCA
determined that Sneed had abandoned most of those categories except for “lay
testimony about his unstable, impoverished, and traumatic childhood and behavioral
94
problems.” Doc. 26-19 at 97 & n. 1; see also doc. 26-17 at 86 (Sneed’s argument for
resentencing on collateral appeal). Because of Sneed’s more narrow discussion of the
known-witness allegations on appeal, the ACCA “deemed” “all other aspects of this
claim abandoned.” 39 Doc. 26-19 at 97 n. 1. Alternatively, the ACCA concluded that
Sneed had waived the remaining allegations by failing to comply with Rule 28(a)(10)
on those unpresented allegations. Doc. 26-19 at 97 n. 1.
The ACCA focused then on the unabandoned category of omitted testimony—
Sneed’s abusive childhood and troubled behavioral background from known lay
witnesses. Doc. 26-19 at 97. The ACCA noted Sneed’s observation in his brief that
the circuit court had dismissed these allegations “largely” for cumulative evidence or
lack of prejudice reasons. Doc. 26-17 at 86. The ACCA pointed out that Sneed then
narrowed the scope of his Rule 32 appellate challenge to the circuit court’s
cumulative assessment based upon Ms. Terrell’s testimony. Doc. 26-19 at 97.
39
The remaining seven categories the ACCA identified as abandoned were that Sneed:
2) . . . was raped as a child; 3) . . . had behavioral problems; 4) . . . ha[d] positive
and endearing qualities; 5) . . . protect[ed] others; 6) . . . ha[d] artistic talents; 7) . . .
[had] f[a]ll[en] in with a bad crowd; and 8) . . . ha[d] matured and found God since
being in prison.
Doc. 26-19 at 97.
95
Specifically, Sneed argued in his brief that Ms. Terrell’s reference to “entries
about [his] [terrible] upbringing” were not as compelling as “the first-hand testimony
about his terrible upbringing that his childhood friends . . . could have provided.”
Doc. 26-17 at 86. To support that contention, Sneed relied upon the American Bar
Association’s Guidelines for the Appointment and Performance of Defense Counsel
in Penalty Cases (the “Guidelines”). Doc. 26-17 at 86. Sneed mentioned additionally
the Supreme Court’s discussion of the Guidelines in the analysis of an ineffective
mitigation investigation in Wiggins v. Smith, 539 U.S. 510, 524 (2003). Sneed did not
raise other cumulative-evidence concerns in briefing this Strickland subclaim.
Against this backdrop, the ACCA concluded that even Sneed’s unabandoned
argument tied to prejudice “from [the] decision to present mitigating evidence
through [Ms. Terrell] rather than lay witnesses . . . [did not] comply with Rule
28(a)(10).” Doc. 26-19 at 98. The ACCA noted that Sneed had not explained how
trial counsel’s conduct fell below the Guideline’s standards or why a decision to rely
upon Ms. Terrell’s testimony could not have been a strategic choice. Id. at 100. The
ACCA observed that Sneed had offered nothing to dispute the circuit court’s
collateral finding that “Ms. Terrell was credible and persuasive.” Id. (internal
quotation marks omitted). According to the ACCA, these gaps in Sneed’s collateral
96
brief meant that he had waived the unabandoned category of allegations under Rule
28(a)(10)’s requirements. Doc. 26-19 at 101.
“It is a dominant theme of the Supreme Court case law . . . that a federal habeas
petitioner shall not be denied federal review of a federal constitutional claim on the
basis of an asserted state procedural ground that is manifestly unfair in its treatment
of that claim.” Spencer v. Kemp, 781 F.2d 1458, 1470 (11th Cir. 1986) (en banc).
This means that to benefit from state-barred procedural default on habeas review,
Respondent bears the burden of meeting the firmly established requirement. As
explained in Borden, Rule 28(a)(10) requires adequate—not precise—notice of an
appellate claim. Given Borden’s holding, Respondent has not shown that the ACCA
rejected the unabandoned category of this subclaim under a firmly established
application of Rule 28(a)(10). Doc. 23 at 16-17 ¶ 23. This is evident by the fact that
the ACCA was able to analyze this particular Strickland argument on the merits.
Consequently, the court agrees with Sneed that he presented sufficient argument to
the ACCA to prevent the application of state-barred procedural default to the
unabandoned portion of this subclaim on habeas review.
iii.
Because state-barred procedural default does not apply, the court turns to the
ACCA’s alternative merits-based assessment. Here, the ACCA agreed with the
97
circuit court “that counsel will not be held ineffective for failing to present cumulative
evidence.” Doc. 26-19 at 98. The ACCA restated some of the same points discussed
in the Rule 28(a)(10) analysis, including that trial counsel may have chosen to rely
solely on Ms. Terrell for strategic reasons. Id. at 101. The ACCA noted too that Sneed
had failed to allege facts establishing Strickland prejudice. Id. These factual
deficiencies, which the ACCA identified, included allegations establishing that the
“lay witnesses would have been more credible than [Ms.] Terrell or that the judge or
jury failed to consider his mitigating evidence because . . . [the testimony] [came]
through a social worker.” Id.
In his habeas reply, Sneed challenges the ACCA’s reliance upon cumulative
evidence as a reason to affirm the circuit court’s decision. See doc. 31 at 9
(“Respondent’s primary response . . . is that there was some evidence on these issues
and the omitted evidence was merely cumulative.”). Sneed contends generally that
the Alabama courts reached “a decision that was contrary to or involved an
unreasonable application of . . . Supreme Court [precedent] and that was based on an
unreasonable determination of the facts.” Id. But Sneed has not pointed to Supreme
Court decisions or evidence in the state court proceeding which substantiates his
AEDPA contentions with respect to the unabandoned portion of this subclaim.
98
For example, Sneed does not address the alleged unreasonableness of the
ACCA’s Strickland performance point that trial counsel could have made a strategic
choice to introduce information about his tumultuous upbringing and destructive
behaviors through Ms. Terrell. Likewise, Sneed does not discuss why the ACCA
erred unreasonably in reaching its Strickland prejudice conclusion. And on this
record, the sentencing court’s identification of five mitigating factors about Sneed’s
arduous life attributable to Ms. Terrell’s testimony demonstrates the reasonableness
of the ACCA’s conclusion that no reasonable probability of a different sentencing
outcome existed if lay witnesses had testified about Sneed’s difficult childhood and
behavioral problems. Doc. 1 at 138. Thus, Sneed has not demonstrated a right to
habeas relief on the unabandoned part of this subclaim B.2 which the ACCA
addressed, alternatively, on the merits.
Returning to those allegations which the ACCA rejected as abandoned, neither
party focuses on that procedural basis in the habeas filings applicable to this subclaim.
Docs. 1 at 51-56 ¶¶ 76-86; 23 at 16-17 ¶ 31; 24 at 28-29; see also, e.g., Waldrop v.
Johnson, 77 F.3d 1308, 1318 (11th Cir. 1996) (“agree[ing] with the district court that
th[e] claim [wa]s defaulted” on habeas review because the petitioner had abandoned
it on appeal to the ACCA). Accepting that the ACCA applied abandonment in a
firmly established manner, then Sneed has the burden to overcome this procedural
99
default on habeas review, which he has failed to do. Alternatively, even if the ACCA
overstepped in the application of abandonment on collateral appeal, Sneed—in his
silence on habeas review—has waived a right to challenge the soundness of that
procedural conclusion. Additionally, the ACCA’s reliance on Rule 28(a)(10) as
another procedural bar to those seven undeveloped categories in Sneed’s brief falls
within the firmly established scope of that state rule. 40
For these reasons, state-barred procedural default precludes habeas relief on
the remainder of this subclaim.
b.
Moving to subclaim B.6, Sneed argues that trial counsel provided ineffective
assistance by failing to introduce two known governmental reports, which contained
“powerful mitigation evidence.” Doc. 1 at 76 ¶ 124. One document “was the
Outpatient Forensic Evaluation Report of Dr. Lawrence Maier, [a] licensed forensic
psychologist retained by the State”—the Maier Report.41 Id. at 77 ¶ 126. The other
40
Cf. Ferguson v. Allen, No. 3:09-CV-0138-CLS-JEO, 2014 WL 3689784, at *58 (N.D. Ala.
July 21, 2014) (“Thus, the [ACCA] did not arbitrarily apply Rule 28(a)(10) to [the petitioner]’s
footnote reference to all 141 pages of his Rule 32 petition.”), vacated in part on unrelated grounds,
2017 WL 2774648 (N.D. Ala. June 27, 2017), appeal filed July 22, 2020.
41
Sneed fails to provide a corresponding evidentiary citation to the Maier Report. And the
court’s search of the electronic record for the Maier Report proved unsuccessful. Based on Sneed’s
reply brief, the court understands that Dr. Maier addressed Sneed’s competency to stand trial in the
Maier Report and that “all counsel and the [circuit] court” received a copy of the document in April
1994. Doc. 31 at 96 (internal quotation marks omitted).
100
document was the 1995 Alabama Board of Pardons and Paroles’ presentencing report
on Sneed—the 1995 PSR. 42 Id. at 78 ¶ 127; Doc. 27-23 at 24-31. In response to
Respondent’s assertion that “Sneed did not raise [this contention] on collateral
appeal” to the ACCA, doc. 23 at 26 ¶ 27; doc. 24 at 59, Sneed explains that he made
“repeated[] reference[s]” to the Maier Report in his appellate brief, doc. 31 at 42. 43
Sneed adds that he referred to the 1995 PSR’s documentation “of his consistent
remorse,” doc. 31 at 43; doc. 26-17 at 88, that the ACCA addressed both documents
in the merits-based evaluation of his subclaim that trial counsel failed unreasonably
to introduce evidence of his remorse, doc. 31 at 43; doc. 26-19 at 101-02, and that
the ACCA never considered his “other contentions” about intoxication and mental
illness as documented in the Maier Report, doc. 31 at 43. Sneed continues further that
the ACCA did not “hold that [his] contentions relating to the [Maier Report and 1995
PSR] and the sub-claims they support [we]re procedurally defaulted.” Id. 44
42
After Sneed’s second capital conviction in 2006, the Alabama Board of Pardons and
Paroles prepared a new PSR. Doc. 26-3 at 24-29.
43
See doc. 26-17 at 53 (discussing the Maier Report in the context of a guilt-phase Strickland
claim); id. at 64, 72 (mentioning the Maier Report in support of an unreasonable investigation
subclaim); id. at 89 n. 23, 92 (noting the Maier Report’s references to Sneed’s remorse).
44
Given Sneed’s reply, the court handles Respondent’s defense of unexhausted procedural
default in two different ways. One, part of this subclaim overlaps with subclaim B.5—trial counsel’s
failure to introduce the Maier Report and the 1995 PSR as evidence of his remorse. Consequently,
the court will consider the issue of unexhausted procedural default with respect to these records
when addressing subclaim B.5.
101
But missing from Sneed’s references to his appellate brief is any collateral
argument that trial counsel should have introduced the Maier Report or the 1995 PSR
for reasons beyond his remorse. And Sneed’s discussion of the Maier Report in the
context of other Strickland subclaims did not fairly present a theory that trial counsel
failed unreasonably to introduce that document for other mitigating reasons.
Consequently, Respondent observes correctly that unexhausted procedural default
bars habeas relief on the intoxication and mental illness portions of subclaim B.6.
c.
In subclaim B.7, Sneed asserts that the Alabama courts “disregard[ed]”
Supreme Court and Eleventh Circuit precedent in analyzing Strickland prejudice in
the penalty phase. Doc. 1 at 79 ¶ 129. Citing Sears v. Upton, 561 U.S. 945, 955-56
(2010) (per curiam), Sneed argues that cumulative prejudice under Strickland’s
second prong is “a required method of judicial analysis” and “not a ‘claim.’” Doc. 1
at 80 ¶ 130. Sneed continues that cumulative prejudice “need not be pled” and
“cannot be waived.” Id.
In his collateral attack in state court, Sneed argued that the circuit court failed
to consider cumulative prejudice in denying his Rule 32 petition and instead adopted
a “piecemeal” approach. Doc. 26-17 at 36-38; see id. at 36 (“The circuit court refused
to evaluate counsel’s performance as a whole in order to make a determination as to
102
cumulative prejudice.”). Sneed cited several cases, including guilt- and penalty-phase
authority. Doc. 26-17 at 37. The ACCA rejected Sneed’s argument procedurally and
on the merits. Doc. 26-19 at 79-81. Procedurally, the ACCA determined that Sneed
had not preserved the penalty-phase argument for appellate review. Doc. 26-19 at 80.
Specifically, the ACCA concluded that Sneed’s Rule 32 cumulative prejudice claim
in the guilt phase was “distinct” from challenging “the circuit court’s handling of all
[Strickland] claims.” Doc. 26-19 at 80. The ACCA gave no explanation how Sneed
could have anticipated and preserved an issue in his Rule 32 petition that arose in the
circuit court’s denial of that petition.
Relevant here, however, Sneed combined both his guilt- and penalty-phase
claims into one cumulative-prejudice argument in his collateral appeal. Doc. 26-17
at 36-38. And Sneed has not identified where he ever presented to the ACCA the
more particularized arguments about the cumulative prejudice error the circuit court
made in the penalty-phase assessment of his new mitigating evidence. To that extent,
unexhausted procedural default arguably applies to this subclaim. Still, the court will
analyze Strickland prejudice consistent with the cumulative framework dictated by
Supreme Court and Eleventh Circuit precedent if Sneed shows deficient performance
on his remaining penalty-phase allegations—subclaims B.1 and B.3-B.5. See, e.g.,
Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1278 (11th Cir. 2016)
103
(detaching AEDPA deference because the ACCA did not “consider[] what would be
the combined effect of all mitigating evidence in producing a different outcome at
sentencing” under clearly established Strickland precedent).
The court moves now to Sneed’s expert witness allegations in subclaims B.3
and B.4, which the ACCA decided on the merits.
d.
In subclaim B.3, Sneed asserts that trial counsel ineffectively failed to retain a
mental health expert even though “their own investigator had . . . [made that
recommendation] . . . in 2003, more than two years before trial.” Doc. 1 at 57 ¶ 87.
Sneed identifies Dr. Stan Brodsky, “a mental health professional,” as that
postconviction expert. Doc. 1 at 58 ¶ 90. According to Sneed, Dr. Brodsky would
have offered the following mitigating health information:
a.
Following a comprehensive mental health assessment of Mr.
Sneed and based on his medical history, Mr. Sneed suffered from major
mental illnesses; to wit: Post-Traumatic Stress Disorder (Chronic), and
Major Depressive Disorder (Chronic), arising from a childhood history
of being beaten by his father and being raped at age 9 by a stranger. . . .
b.
These types of illnesses negated Mr. Sneed’s capacity to form a
specific particularized intent to kill, which is required for capital murder.
c.
The medical records of Mr. Sneed and his immediate family
members ([his] mother[,] Sharon and younger brother[,] Avery) show a
systemic family pattern of major mental illness in all three individuals.
...
104
d.
The medical records show that Mr. Sneed experienced ‘hearing
voices.’. . .
e.
The medical records show that Mr. Sneed tried to commit suicide
as a teenager. . . .
f.
The medical records show that Mr. Sneed would talk to himself,
beat walls, and yank out faucets until staff sedated him with the
antipsychotic drug Thorazine. . . .
g.
The medical records show that Mr. Sneed had significant inpatient hospitalizations: at Keller Partial Hospitalization Program (3
months), Norton’s Children’s Hospital (nearly one year), Cardinal
Treatment Center (seven months), and the Psych unit at Humana
Hospital – University of Louisville (at least two weeks).
h.
Mental health professionals at the institutions diagnosed him,
variously, with: borderline personality disorder, dysthymic disorder
(akin to major depression), and obsessive-compulsive disorder. The
assessments describe Mr. Sneed as ‘anxious and depressed;’ as having
‘anxiety, depression;’ ‘evidence of depression and [an] inability to cope
. . . ;’ ‘. . . feel[ings] [of] intense insecurity and [a] lack of affection from
others . . . ;’ ‘. . . and . . . many unmet dependency needs.”
Doc. 1 at 59-60 ¶ 91 (citations omitted). According to Sneed, the jury and the
sentencing court never heard about the mitigating information contained in subparts
a, c-f. Id. at 59 ¶ 91.
i.
In his Rule 32 petition, Sneed combined his Strickland mental health and
addiction expert allegations. Doc. 26-15 at 182-86 ¶¶ 215-25. Additionally, Sneed
105
incorporated into the mental health expert subclaim allegations about his mental
health medical records, which formed the basis of Dr. Brodsky’s mental illness
opinion. See doc. 26-15 at 186 ¶ 224 (incorporating by reference id. at 176-82 ¶¶ 198214).
The Rule 32 court summarily denied the mental health expert subclaim as
refuted by the record. Doc. 26-16 at 161. In particular, the court noted that trial
counsel had retained a psychologist, Dr. Rosenzweig, who testified about Sneed’s
mental health in the penalty phase. Id. For its part, the ACCA affirmed the Rule 32
court’s dismissal of this subclaim using a different rationale. According to the
ACCA’s assessment, “[m]uch of the testimony Sneed argue[d] could have been
presented by a qualified mental health expert would have been cumulative to the
testimony presented during the penalty phase.” Doc. 26-19 at 92. After drawing this
conclusion, the ACCA acknowledged one noncumulative area—“neither Dr.
Rosenzweig nor Ms. Terrell testified that Sneed was mentally ill at the time of the
crime.” Id.
Still, the ACCA rejected that allegation as pled insufficiently. Id. The ACCA
noted that “Sneed [had] failed to plead the symptoms he suffered as a result of PTSD
at the time of the crime, how PTSD constituted an ‘extreme mental or emotional
disturbance’ . . . , or how PTSD impaired his ‘capacity . . . to appreciate the
106
criminality of his conduct.’” Id. (citing Ala. Code § 13A-5-51(2), (6)). The ACCA
concluded that “[t]he bulk of [this] subclaim . . . was comprised of cumulative
testimony, and those portions . . . that were not cumulative were [pled] insufficiently.”
Doc. 26-19 at 93. The ACCA did not address Strickland’s deficient performance
prong. 45
ii.
Before undertaking the § 2554 analysis, the court addresses a threshold issue
regarding Sneed’s allegations on collateral versus habeas review. Citing Alabama
caselaw, the ACCA noted that it did not consider “referenced evidence” alleged
elsewhere in Sneed’s Rule 32 petition in deciding the merits of this expert subclaim.
Doc. 26-19 at 91 n. 8. Instead, the ACCA indicated that Sneed should have reasserted
that same medical information within the subclaim pertaining to Dr. Brodsky rather
than seeking collateral relief by incorporating other parts of the petition. Id.; see also
Coral v. State, 900 So. 2d 1274, 1284 (Ala. Crim. App. 2004), overruled on other
grounds by Ex parte Jenkins, 972 So. 2d 159 (Ala. 2005); Jackson v. State, 133 So.
3d 420, 451 (Ala. Crim. App. 2009). As a result, the ACCA did not consider the
45
In a situation where, as here, “there is no square finding from the trial [or appellate] court
about whether counsel satisfied Strickland performance[,] [t]he most we can say is that [the court]
raised the question, but then disposed of [the petitioner]’s claim by finding that he failed to establish
Strickland prejudice.” Kokal, 623 F.3d at 1341-42.
107
impact of mitigating information that supported Dr. Brodsky’s mental illness opinion
such as Sneed’s attempted suicide and family history of mental illness.
The court respectfully disagrees with the ACCA. First, Coral and Jackson did
not involve the issue of incorporating ineffective assistance allegations by reference.
Second, the ACCA did not assert that Sneed violated an Alabama procedural rule by
incorporating allegations about his mental health medical evidence which Dr.
Brodsky reviewed. Finally, Respondent does not raise the issue that state-barred
procedural default applies because of Sneed’s incorporated allegations on collateral
review or demonstrate the firmly established nature of such a defense. See generally
doc. 23 at 19-20 ¶ 24; doc. 24 at 41-45. Consequently, the court will not exclude from
the habeas analysis those Rule 32 allegations which Sneed incorporated—with a clear
reference—on collateral review.
iii.
In reviewing Sneed’s claim, the court seeks guidance from the Eleventh
Circuit’s Daniel decision in structuring the analysis. The petitioner in Daniel, like
Sneed, challenged the ACCA’s summary dismissal of his ineffective assistance
allegations pertaining to the penalty phase. Id. at 1261. The Eleventh Circuit
explained that the petitioner’s habeas appeal required it to “answer two questions.”
Id. The “[f]irst[] [was] whether [the petitioner]’s second amended Rule 32 petition
108
and its attached exhibits pleaded enough specific facts that, if proven, amount[ed] to
a valid penalty phase ineffective assistance of counsel claim.” Id. If the answer to the
initial inquiry was “in the affirmative,” then the second question was “whether the
[ACCA]’s decision to the contrary was unreasonable under § 2254(d).” Daniel, 822
F.3d at 1261. Thus, Daniel directs that the court determine first whether a petitioner’s
allegations are sufficient to state a Strickland ineffective assistance claim and, if yes,
the impact of AEDPA deference.
iv.
Here, the state court record establishes unambiguously that Sneed has no viable
Strickland subclaim tied to Dr. Brodsky because trial counsel’s documented pretrial
actions refute Sneed’s deficient performance allegations. And no additional
development through discovery or an evidentiary hearing will change this court’s first
prong assessment. Specifically, the crux of Sneed’s deficient performance allegations
is that trial counsel failed or waited unreasonably to retain Dr. Brodsky. Doc. 1 at 5758 ¶¶ 87, 91. Sneed argues that trial counsel knew the importance of retaining Dr.
Brodsky from a mitigation specialist, Cyrus T. Johnston. Id. at 57 ¶ 87; Doc. 26-9 at
77 ¶ 25; Doc. 26-9 at 57 ¶ 10. Sneed adds that he would have been able to show the
existence of Alabama’s extreme mental disturbance and diminished mental capacity
mitigating factors through Dr. Brodsky’s mental health assessment and expert
109
testimony. Doc. 1 at 57-60 ¶¶ 89-91. And with those additional statutory factors in
play, Sneed contends that he meets Strickland’s reasonable probability test.
Sneed fails to consider the context of the state court record and his ability to
actually prove deficient performance. Specifically, the state court record confirms
that trial counsel tried more than once with the circuit court to secure the necessary
funding to retain Dr. Brodsky. In December 2004, trial counsel asked for the approval
of $7,500 to hire Dr. Brodsky. Doc. 26-9 at 14-23. Within thirty days of the trial
court’s denial of that request, counsel moved for reconsideration. Doc. 26-9 at 24-29,
61-62. In mid-January 2005, the trial court granted trial counsel’s request partially
and approved additional expert funding in the amount of $3,500. Doc. 26-9 at 63.
Trial counsel followed the partial relief with an ex parte motion to continue
filed near the end of January. Id. at 65-72. In that requested continuance, counsel
explained that they would be unable to retain Dr. Brodsky without the full $7,500. Id.
at 71 ¶ 10. Counsel attached to their request Mr. Johnston’s affidavit in which he
“identifie[d] and explaine[d] the need for additional experts,” including Dr. Brodsky.
Id. at 70 ¶ 4; Doc. 26-9 at 73-85. Mr. Johnston acknowledged the existence of Ms.
Terrell’s psychosocial report on Sneed, doc. 26-9 at 79 ¶ 28, but maintained that “[i]t
[wa]s imperative” for Sneed to “receive a comprehensive psychological evaluation”
from Dr. Brodsky, id. at 81 ¶ 32.
110
The court agreed to continue the trial but denied the request “for further
mitigation expert assistance and money.” Doc. 26-9 at 86. As reasoning, the circuit
court noted its approval of $3,500, as well as the “over $10,000” approved generally
“for mitigation expert assistance.” Id. The court found that counsel’s “request for
more funds . . . [was] unreasonable” and stated that “no further sums [would] be
approved at this time.” Id. The court offered to “enter an order for mental evaluation
to be performed by the State,” if Sneed “fe[lt] the need for further psychological
examination,” and set a deadline for that option. Id.
Based on this record, trial counsel made reasonable efforts to secure the expert
testimony of Dr. Brodsky. Counsel’s inability to persuade the court to allow more
funding does not establish deficient performance. Moreover, Sneed has not alleged
that trial counsel failed unreasonably to take advantage of another source of money
that could have satisfied Dr. Brodsky’s financial requirements.
As for the argument that trial counsel waited too long to respond to Mr.
Johnston’s “preliminary mitigation strategy” outlined in July 2003 and his repeated
follow-up efforts to counsel, Sneed has not linked that alleged error to trial counsel’s
inability to retain Dr. Brodsky. According to the timeline which Mr. Johnston
provided in his affidavit, as of December 2003, trial counsel remained hopeful that
Sneed would agree to plea. Doc. 26-9 at 76 ¶ 19. And when Mr. Johnston informed
111
trial counsel that Sneed wanted “to proceed with the experts,” id., counsel obtained a
continuance and $3,000 to retain Ms. Terrell in February 2004. Id. at 77 ¶ 20.
Trial counsel followed the hiring of Ms. Terrell with motions to secure Dr.
Brodsky beginning in December 2004. The circuit court reminded trial counsel in the
January 2005 order applicable to Dr. Brodsky that “that the trial was reset for
February 28, 2005, after receiving assurances . . . that everyone was ready” and
approving expert funds for Ms. Terrell. Doc. 26-9 at 63. But, importantly for
Strickland deficient performance purposes, the circuit court did not reduce trial
counsel’s requested funding for Dr. Brodsky because of an unreasonable delay.
Instead, the circuit court noted that trial counsel’s request was “substantially more
money . . . but with another expert.” Id. The court added that Sneed’s “rights to a fair
trial, due process, etc. had already been considered when prior expert assistance was
approved and funds allocated.” Id. Finally, the court emphasized that the trial would
proceed as scheduled with the retention of Dr. Brodsky. Id.
Thus, the underlying state court documents do not show that trial counsel’s
alleged delay in preparing an expert motion prevented them from using Dr. Brodsky
as a mental health expert. Instead, financial constraints prevented counsel from using
Dr. Brodsky. Therefore, the court determines on habeas review that the state court
record refutes Sneed’s allegations of deficient performance with respect to Dr.
112
Brodsky. And without cognizable deficient performance, Sneed’s argument that the
state courts evaluated prejudice in isolation and contrary to clearly established
Strickland precedent in failing to consider Dr. Brodsky’s anticipated mental health
testimony is of no consequence.46
e.
The court reaches a similar deficient performance conclusion with respect to
subclaim B.4, i.e., Sneed’s contention that trial counsel proved ineffective by failing
to secure “available expert testimony from an addiction/intoxication expert like Dr.
Greg Skipper.” Doc. 1 at 67 ¶ 108. Again, Sneed points to the mitigation specialist’s
identification of the need to retain an addiction expert and the specialist’s efforts to
communicate with trial counsel about that mitigating strategy as early as July 2003.
Doc. 1 at 67 ¶ 108. As Sneed puts it, trial counsel disregarded “th[e] advice from their
own experienced investigator” and “never asked the court for funds to hire an
addiction expert.” Id. (internal quotation marks omitted).
This factual statement is consistent with the state court record—trial counsel
did not seek expert funds to retain an addiction expert. Sneed ignores however that
46
Thus, the court does not reach Strickland prejudice or the reasonableness of the ACCA’s
assessment of that prong given Dr. Brodsky’s postconviction opinion that Sneed was mentally ill
from post-traumatic stress disorder at the time of the offense versus Dr. Rosenzweig’s more
speculative opinion about his mental health.
113
the trial court was unwilling to lift its prior limitation on additional expert funding
for a mental health expert in February 2005. In doing so, Sneed does not allege how
trial counsel could have reasonably requested funding for another expert witness
given the circuit court’s denial of full funding for Dr. Brodsky. Likewise, Sneed’s
allegations do not account for trial counsel’s possible reasonable reluctance to press
the trial court for more expert funding in light of prior motions and the outcome in
the February 2005 order.
Consequently, Sneed’s allegations do not overcome the presumption that trial
counsel did not perform unreasonably in failing to move for funds to retain Dr.
Skipper—an action which trial counsel could have determined was futile and even
detrimental under the circumstances. And Sneed has not alleged enough to show that
trial counsel’s failure to file another funding motion, rather than the circuit court’s
concerns about excessive expert funding, was the “[b]ut for” reason Dr. Skipper was
not an expert witness. Doc. 1 at 67 ¶ 108 (internal quotation marks omitted).
Because of Sneed’s first prong failing on the Dr. Skipper subclaim, ending the
Strickland analysis here is appropriate under Daniel. And without cognizable
deficient performance, Sneed’s argument that the state courts evaluated prejudice in
isolation and contrary to clearly established Strickland precedent in failing to
consider Dr. Skipper’s anticipated addiction testimony is of no consequence.
114
f.
Sneed contends in subclaim B.5 that trial counsel provided ineffective
assistance by failing to introduce available evidence of his “long-standing remorse”
over Mr. Terry’s murder.47 Doc. 1 at 71 ¶ 114.
i.
Procedurally, Respondent asserts “Sneed waited until he filed his brief on
collateral appeal to raise specific facts about this subclaim.” Doc. 24 at 55. Citing
Alabama cases, Respondent references a “well-settled” principle that “an appellate
court will not consider facts or arguments raised for the first time on appeal.” Id.
According to Respondent, the gap between Sneed’s limited Rule 32 allegations in his
petition and the more-developed facts asserted in his collateral brief means that Sneed
is precluded from relying on those newer factual assertions on habeas review. Doc.
24 at 55-56. Thus, Respondent invokes state-barred procedural default.
In its mostly merits-based decision, the ACCA mentioned one procedural issue
tied to Sneed’s collateral brief. Specifically, the ACCA pointed out that Sneed had
identified, for the first time on appeal, a specific study which “show[ed] that jurors
47
The Supreme Court has noted—in a capital case involving a jury instruction challenge—
that “remorse, which by definition can only be experienced after a crime’s commission, is
something commonly thought to lessen or excuse a defendant’s culpability.” Brown, 544 U.S. at
142-43.
115
in capital murder cases are often moved by a defendant’s genuine expression of
remorse.” Doc. 26-19 at 102 (internal quotation marks omitted). The ACCA noted
that “Sneed’s attempt to supplement his [Rule 32] pleading through his brief on
appeal . . . [was improper] because . . . [he had not] included [that information] in his
petition.” Id. n. 11. But the ACCA did not exclude from consideration anything else
within Sneed’s brief as procedurally noncompliant.
Sneed asserts correctly that the ACCA did not rely on his “purported
introduction of new facts and arguments not considered by the [circuit] court” in
affirming the Rule 32 judgment. See doc. 31 at 41-42. This contention does not
address, however, the ACCA’s procedural decision to exclude Sneed’s new
allegation about the study on remorse in capital cases. Under these circumstances, the
scope of state-barred procedural default precludes this court’s consideration of
Sneed’s allegation about the specific study on remorse. But the other newer facts
which Sneed argued in his collateral brief are before this court because the ACCA
considered them without raising a procedural concern.
116
ii.
Turning to the merits-based reasoning on collateral review, the circuit court
rejected this subclaim as pled inadequately,48 and the ACCA affirmed. Doc. 26-19
at 101, 103. In reviewing the adequacy of Sneed’s allegations, the ACCA determined
that Sneed’s sources of remorse (the Maier Report; the 1995 PSR; and testimony from
Decatur Police Lieutenant Dwight Hale, his friends, and himself, doc. 26-15 at 187 ¶
228) were insufficient to show “that counsel could have presented evidence that he
was remorseful.” Doc. 26-19 at 101. According to the ACCA, Sneed should have
specified “what” specifically in the Maier Report and the 1995 PSR “indicated that
he was remorseful.” Doc. 26-19 at 102. The ACCA noted also that Sneed had “failed
to plead what testimony he, his friends, or Lieutenant Hale would have provided that
would have indicated that he was remorseful.” Id.
The ACCA determined also that Sneed had failed to substantiate Strickland
prejudice with specific studies supporting his contention that genuine remorse
matters to juries. Id. Because of that omission, the ACCA concluded that Sneed’s
description of Strickland prejudice amounted to a “bare assertion that had the
evidence of his remorse been presented, more jurors would have voted for a non48
See doc. 26-16 at 161 (concluding that Sneed had failed to “plead[] specific facts
indicating how he was prejudiced” by establishing how “the presentation . . . of the alleged evidence
of his remorse” would have created a reasonable probability of a different sentencing outcome).
117
death sentence.” Doc. 26-19 at 102-03. To plead prejudice adequately, the ACCA
indicated that Sneed should have “allege[d] how evidence of [his] remorse would
have altered the balance of mitigating circumstances and aggravating circumstances.”
Id. at 103. As another example, the ACCA added that Sneed should have “allege[d]
how evidence of [his] remorse would have moved more jurors to recommend a
sentence of life . . . or the judge to” accept a recommended life sentence. Id. The
ACCA did not analyze Strickland’s deficient performance component.
iii.
Against this backdrop, the court addresses the merits of this subclaim. As
Daniel instructs, the court considers first Sneed’s allegations setting aside any
deference owed under AEDPA.
Turning to deficient performance, most of Sneed’s alleged sources of remorse
lack the requisite specificity to meet the heightened pleading standard on habeas
review. With the exception of the Maier Report, Sneed contends only generally that
trial counsel could have introduced evidence of his remorse. However, Sneed failed
to summarize the nature of that anticipated evidence or testimony. Additionally, as
shown below, the state court record and Sneed’s own arguments undermine his
reliance upon several categories of his alleged remorse.
118
(a)
In supporting this Strickland subclaim, Sneed argues that trial counsel
performed unreasonably by failing to ask Lt. Hale about Sneed’s remorse even
though Lt. Hale covered that subject on direct examination. Doc. 1 at 75 ¶ 121.
Specifically, Lt. Hale testified in the guilt phase that when he showed the video tape
of the murder, Sneed “dropped his head and immediately started to say, ‘I’m sorry,
I’m sorry, I’m sorry.’” Doc. 26-6 at 127-28. And in response to Lt. Hale’s question,
“‘Well, is that you and Hardy?’” in the video, Sneed answered, “‘Yeah, that is us, but
I didn’t shoot anybody. I’m sorry, I’m sorry, I’m sorry.’” Id. at 128.
Sneed does not allege with specificity what more trial counsel could have done
on cross examination in light of Lt. Hale’s favorable testimony about Sneed’s
remorse. Likewise, Sneed has not cited any on-point authority which establishes
unreasonable trial counsel error for failing to develop a witness’s topical testimony,
where, as here, the witness testified about that same subject at trial.
Also related to Lt. Hale’s testimony, Sneed contends that trial counsel referred
to Sneed’s remorse “erroneously” in closing. Doc. 1 at 72 ¶ 116; see also doc. 26-8
at 139 (“And lastly but not least, [Sneed] had expressed remorse. Not some, but has
expressed remorse.”). Allegedly, counsel’s mistake enabled the prosecutor “to
strengthen the State’s penalty phase case by highlighting the absence of remorse
119
evidence,” including testimony directly from Sneed. Doc. 1 at 72 ¶ 116. But trial
counsel did not argue that Sneed had testified about his remorse at trial. Doc. 26-8 at
139. Consequently, trial counsel’s comments in closing were not erroneous but rather
consistent with Lt. Hale’s guilt-phase testimony about Sneed’s remorse. Thus, Sneed
falls short of establishing deficient performance with the remorse testimony from Lt.
Hale.
(b)
Sneed alleges that unnamed “friends” could have provided testimony about his
remorse. Doc. 1 at 73 ¶ 117 (internal quotation marks omitted). For the most part,
Sneed fails to identify those lay witnesses’ names and their expected testimony with
any specificity. Doc. 1 at 73 ¶ 117; see also doc. 26-15 at 187-88 ¶¶ 226-29. Those
key factual omissions are fatal under § 2254’s heightened pleading standard.
One exception is Sneed’s identification of Chuckie Reed. Doc. 1 at 74 ¶ 120.
Referring to allegations made in the Rule 32 petition, in a section unrelated to the
remorse subclaim, Sneed contends that he saw Mr. Reed after the crime. Id.; compare
doc. 26-15 at 151 ¶ 96, with id. at 187-88 ¶¶ 226-29. Mr. Reed recalled that Sneed
“seemed ‘different and clearly devastated’” during the encounter. Doc. 1 at 74 ¶ 120.
Allegedly appearing to be different post-offense as observed by a lay witness is not
the equivalent of expressing remorse or regret over the victim’s death. Thus, Mr.
120
Reed’s anticipated testimony does not show that trial counsel unreasonably failed to
call him as a witness available to speak of Sneed’s remorse.
Alternatively, unexhausted procedural default precludes the court from
considering the allegations about Mr. Reed’s anticipated testimony. Specifically,
Sneed did not fairly present this possible deficient performance issue—through an
incorporation of allegations or otherwise—to the state courts. And Respondent has
not waived—through counsel—the exhaustion requirement on this subclaim in his
answer or brief. Doc. 23 at 23-26 ¶ 26; Doc. 24 at 55-59; see also 28 U.S.C. §
2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement
or be estopped from reliance upon the requirement unless the State, through counsel,
expressly waives the requirement.”). Thus, Sneed’s reference to “friends” does not
support Strickland’s deficient performance prong sufficiently on habeas review.
(c)
Sneed asserts also that he “would . . . have provided [testimony on remorse],
had he been questioned about that subject on the witness stand by counsel.” Doc. 1
at 73 ¶ 117. Again, Sneed has not summarized what specific testimony he would have
provided. Regardless, Sneed’s willingness to provide testimony about his remorse—
alone—does not establish the absence of a strategic reason by counsel. After all, trial
counsel could have decided that Lt. Hale’s testimony proved sufficient to support
121
Sneed’s mitigating remorse and even preferable to what the jury might construe as
self-serving testimony from Sneed. Thus, Sneed’s willingness to provide undescribed
testimony of his remorse is inadequate to establish trial counsel’s deficient
performance for lack of specificity and a potential and reasonable strategic purpose
in light of Lt. Hale’s more neutral remorse testimony.
(d)
Sneed contends also that the Maier Report would have provided documentary
evidence of his remorse. Doc. 1 at 73 ¶ 117. The court discussed the Maier Report in
subclaim B.6 and noted that it is not a part of the habeas record. But regardless of that
omission, Sneed has the burden to plead what anticipated information within the
Maier Report would have been available for trial counsel to introduce on remorse. In
that regard, Sneed cites the description of the contents, which corresponds with a
different subclaim in his Rule 32 petition, to allege what Dr. Maier reported on
remorse in 1994. Compare doc. 1 at 73-74 ¶ 118, with doc. 26-15 at 188-89 ¶ 232,
and Doc. 26-15 at 187 ¶¶ 226-29. In particular, Sneed identifies the portions of the
report stating that he “was exhibiting . . . remorse over what he claims to have done”
and “admitt[ed] to some feelings of remorse and depression.” Doc. 1 at 73-74 ¶ 118
(internal quotation marks omitted).
122
But, on collateral review, Sneed did not incorporate the allegations about the
contents of the Maier Report by reference into his remorse subclaim. Doc. 26-15 at
187 ¶¶ 226-29. Thus, Sneed did not fairly present the Maier portion of his remorse
subclaim to the state courts. And, as explained above, Respondent has not waived the
exhaustion requirement on this subclaim. Doc. 23 at 23-26 ¶ 26; Doc. 24 at 55-59.
Consequently, unexhausted procedural default precludes Sneed from relying upon
the contents of the Maier Report to meet the heightened pleading standard on his
remorse subclaim.
Alternatively, from a deficient performance standpoint, Sneed has not alleged
why trial counsel’s failure to introduce the Maier Report could not have been a
strategic decision. Specifically, much of what Dr. Maier noted—beyond remorse—
might have proved detrimental to Sneed’s mitigation case. For example, counsel may
have concluded that “exhibiting” remorse is not the equivalent of expressing remorse
such as, the testimony by Lt. Hale that Sneed said, “I’m sorry, I’m sorry, I’m sorry.”
Also, counsel may have concluded that Sneed’s reported admission of “some
remorse” would invite the court and the jury to query why he did not express “feelings
of [complete] remorse” over Mr. Terry’s murder. Ultimately, without allegations
about the entire contents of the Maier Report in the record, Sneed has not alleged
enough to overcome the presumption that trial counsel performed reasonably with
123
respect to that document. Cf. Dunn v. Reeves, 594 U.S. __, 141 S. Ct. 2405, 2413
(2021) (per curiam) (recognizing that “a silent record cannot discharge a prisoner’s
burden” to overcome the presumption that counsel performed reasonably). Thus,
Sneed’s reliance on excerpts from the Maier Report—if unexhausted procedural
default does not apply here—are insufficient to show that trial counsel performed
unreasonably in not introducing that document in the penalty phase.
(e)
The last source of remorse which Sneed identifies is the 1995 PSR. Doc. 1 at
73 ¶ 117. Again, Sneed has not summarized what specific language supports his
remorse subclaim. Id. Consequently, unexhausted procedural default bars habeas
relief due to Sneed’s failure to fairly present to the Alabama courts what specifically
in the 1995 PSR supported his remorse. With that omission, Sneed fails also to meet
§ 2254’s heightened pleading standard applicable in this court.
Alternatively, based on the court’s review of the 1995 PSR, doc. 27-23 at 2431, the closest reference to remorse it contains is Sneed’s account that “It was not
supposed to be any shooting. We went in and John started shooting,” doc. 27-23 at
26. Again, Lt. Hale’s testimony about Sneed’s “I’m sorry, I’m sorry, I’m sorry”
comments is stronger than the ambiguous reference in the 1995 PSR. Also, Sneed
fails to address that other parts of the 1995 PSR contain information that trial counsel
124
understandably did not want to interject into the penalty phase, such as Sneed’s record
of arrests and inability “to provide child support.” Doc. 27-23 at 27-28. Consequently,
Sneed has not alleged adequately how trial counsel performed deficiently.
Because of Sneed’s first prong failing, ending the Strickland analysis here is
appropriate under Daniel. Likewise, Sneed’s remorse allegations are not subject to a
cumulative prejudice assessment under Strickland.
g.
In subclaim B.1, Sneed asserts that because trial counsel ended the mitigation
investigation prematurely—over two years before trial—counsel failed to interview
several lay witnesses—“the mothers of [Sneed’s] three children, many other friends
. . . , [and] [childhood] neighbors”—who were available to testify about mitigation in
the penalty phase. Doc. 1 at 43-44 ¶¶ 63-64 (internal quotation marks omitted).
Sneed’s description of the testimony that these specific lay witnesses could have
provided fall generally into one of four categories: his good character and gentle
nature; difficult childhood; role as a father; and gullibility and willingness to please
others.
The Rule 32 court and the ACCA denied Sneed’s collateral allegations that
trial counsel had cut short their mitigation investigation unreasonably or caused
prejudice because of any omitted mitigating evidence. Doc. 26-16 at 150-53; Doc.
125
26-19 at 93-97. Consistent with the Daniel framework, the court considers first
whether Sneed has stated enough to support an ineffective mitigation investigation
claim. The court begins with an examination of Wiggins, an AEDPA decision which
Sneed argues supports the adequacy of this subclaim’s allegations. Doc. 1 at 45 ¶ 65.
i.
The petitioner in Wiggins “argue[d] that his attorneys’ failure to investigate his
background and present mitigating evidence of his unfortunate life history at his
capital sentencing proceedings violated his Sixth Amendment right to counsel.” 539
U.S. at 514. The Supreme Court agreed. 539 U.S. at 534, 538. Analyzing the
constitutional merits of deficient performance first, the Supreme Court found that
“counsel abandoned their investigation of petitioner’s background after having
acquired only rudimentary knowledge of his history from a narrow set of sources”
and failed to follow up on mitigating leads “actually discovered in [some of the
petitioner’s] records.” 539 U.S. at 524-25; see id. at 525 (agreeing with the district
court’s assessment that “any reasonably competent attorney would have realized that
pursuing these leads was necessary to making an informed choice among possible
defenses, particularly given the apparent absence of any aggravating factors in
petitioner’s background”). The Court determined that the record from the sentencing
hearing, which reflected “a halfhearted mitigation case,” was at odds with “the
126
‘strategic decision’ the state court[] . . . invoke[d] to justify counsel’s limited pursuit
of mitigating evidence.” Id. at 526.
The Court faulted the state court for assuming that trial counsel’s possession
of “some information with respect to the petitioner’s background” was sufficient to
show that they made “a tactical choice not to present a mitigation defense.” Id. at 527
(emphasis in original). The Court observed instead that the evaluation of an
investigation under Strickland includes “not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.” Id. The Court added that even accepting that trial
counsel had “limited the scope of their investigation for strategic reasons, Strickland
does not establish that a cursory investigation automatically justifies a tactical
decision with respect to sentencing strategy.” Id. The Court identified “the
reasonableness of the investigation [offered] to support that strategy” as a mandatory
part of the deficient performance assessment. Id.
After the constitutional analysis, the Wiggins Court concluded that the state
court had unreasonably applied Strickland’s deficient performance prong. The Court
found AEDPA legal error because despite agreeing with the petitioner that the
“failure to prepare a social history ‘did not meet the minimum standards of the
profession,’” the state court stopped the Strickland analysis prematurely. 539 U.S. at
127
527 (quoting state court opinion). Specifically, the state court “did not conduct an
assessment of whether the decision to cease all investigation upon obtaining the
[presentence investigation and social services] records actually demonstrated
reasonable professional judgment.” Id. The Court observed that “[t]he state court
merely assumed that the investigation was adequate” even though trial counsel’s
“abandonment [of] their investigation at an unreasonable juncture[] ma[de] a fully
informed decision with respect to sentencing strategy impossible.” Id. at 527-28. The
Court found also that the state court unreasonably “defer[red] to counsel’s strategic
decision not ‘to present every conceivable mitigation defense,’ . . . [because] counsel
based this alleged choice on . . . an unreasonable investigation.” Id. at 528 (quoting
state court opinion).
In assessing deficient performance, the Court flagged a “clearly erroneous”
state court assumption under § 2254(d)(2) and (e)(1) regarding the contents of the
social services records. Wiggins, 539 U.S. at 528-29. The Court explained that “[t]his
partial reliance on an erroneous factual finding further highlight[ed] the
unreasonableness of the state court’s decision.” Id.
ii.
With this Wiggins summary in mind, the court evaluates Sneed’s overriding
allegation that trial counsel ended the mitigation investigation of lay witnesses
128
unreasonably. Unlike the deficient performance assessments in subclaims B.3, B.4,
and B.5, preliminarily Sneed has stated enough for this court to consider each
category of omitted lay witness testimony in more detail.
Among other facts, Sneed alleges that trial counsel had “a full two and a half
years before the 2006 trial” to investigate lay witnesses beyond the “preliminary
[family] interviews,” which Mr. Johnston had conducted in April 2003. Doc. 1 at 44
¶ 64 (internal quotation marks omitted). According to Sneed, with the exception of
some prison guards, trial counsel did not interview any other lay witnesses, over that
pretrial time period. Id. Sneed argues that in curtailing the investigation of additional
lay witnesses prematurely, trial counsel never learned about the “powerful mitigating
evidence that could have been presented to the court and jury in the sentencing
phase,” id. (internal quotation marks omitted), and that “cutting short a mitigation
investigation in a capital case in this unreasonable way” is at odds with Wiggins, doc.
1 at 45 ¶ 65. Finally, Sneed relies also upon the Guidelines’ reference to
“interview[ing] friends, co-workers, acquaintances, and associates” as “fundamental
. . . [to] a capital mitigation investigation.” Id. at 43-44 ¶ 64 (internal quotation marks
omitted).
129
iii.
Without factoring in AEDPA deference preliminarily—as Daniel instructs—
Sneed has the stronger deficient performance position. Thus, Sneed’s deficient
performance allegations about trial counsel’s lay witness investigation are sufficient
to trigger a deeper examination of the remainder of subclaim B.1. Therefore, the court
must consider the impact of AEDPA and decide whether the Alabama courts’ meritsbased rejection of Sneed’s deficient performance allegations deserve deference.
The Rule 32 court noted that “abundant documentation” reflected Sneed’s trial
counsel’s mitigation efforts “after the 2003 calendar year.” Doc. 26-16 at 150. The
Rule 32 court observed too that “Strickland does not require counsel to investigate
every conceivable line of mitigating evidence.” Doc. 26-16 at 150 (internal quotation
marks omitted) (quoting Wiggins, 539 U.S. at 533).
For its part, the ACCA pointed to specific examples of trial counsel’s
mitigation efforts contained in the record which occurred closer to trial. Doc. 26-16
at 94. This included trial counsel’s hiring of Ms. Terrell as a mitigation expert in
2004. The ACCA noted that later that year, Ms. Terrell “provided counsel with a
comprehensive report detailing the interviews with Sneed’s family and the mitigation
she discovered.” Id. After Ms. Terrell submitted her report, the ACCA pointed out
that trial counsel retained Dr. Rosenzweig for “possible [additional] mitigation.” Id.
130
The ACCA added that in 2006, trial counsel “received funds to go to Louisville,
Kentucky to investigate mitigation.” Id. Given these investigative activities, the
ACCA determined that the circuit court had not erred in the finding that the record
refuted Sneed’s claim that trial counsel stopped investigating mitigation over two
years before trial.
Missing from both state courts’ analyses was Sneed’s point that trial counsel
had stopped investigating potential lay witnesses prematurely. As Sneed argues in
reply, “[r]ather than focus on the claim asserted, the [ACCA] reformulated the claim
and discussed trial counsel’s other mitigation activities during the same [time]
period.” Doc. 31 at 33. Under these circumstances, the court agrees with Sneed that
the ACCA’s reliance upon the state record to refute allegations materially different
from what he alleged collaterally is due no deference legally or factually under §
2254(d)(1), (d)(2), (e)(1).
iv.
The court must next consider the sufficiency of Sneed’s underlying allegations
about the additional mitigating evidence that trial counsel failed to discover because
of a purportedly unreasonable lay witness investigation. In particular, in subclaim
B.1, Sneed identifies eight lay witnesses by name, confirms their willingness to
testify on his behalf, and summarizes their anticipated testimony. Doc. 1 at 44-49 ¶¶
131
64, 66-72, 74. The omitted mitigating evidence includes Sneed’s reputation “among
. . . friends and acquaintances” as “an endearing figure” and “a gentle giant;” his lack
of aggression and unwillingness to hurt others “unprovoked,” including strangers; his
slowness to catch on and inability to think about the consequences of his actions; his
gullibility and tendency to follow others; his desire to be loved; his impoverished and
“isolat[ed]” childhood, including lack of food; his mother’s depression and illnesses;
his efforts to be a good father and love for his three children; and his lack of gun
ownership or experience. Doc. 1 at 44-49 ¶¶ 64, 66-72 (internal quotation marks
omitted).
Sneed’s collateral allegations about trial counsel’s unreasonable failure to
discover this mitigating information from lay witnesses are comparable to subclaim
B.1. See generally doc. 26-15 at 147-65 ¶¶ 93-145. In denying this part of Sneed’s
Rule 32 petition, the circuit court did not address the sufficiency of his allegations
about deficient performance. Doc. 26-16 at 151-53. Instead, the circuit court focused
on the adequacy of Sneed’s allegations of prejudice. Doc. 26-16 at 151-53.
Referencing Rules 32.3, 32.6(b), and 32.7, the circuit court found that Sneed’s
Strickland allegations failed under the second prong. Doc. 26-16 at 151-53. The
circuit court did not analyze the prejudicial impact collectively but rather within
categories of evidence. Doc. 26-16 at 151-53.
132
The ACCA affirmed the circuit court’s Rule 32 judgment. Doc. 26-19 at 95.
For most of the allegations, the ACCA focused on prejudice. Doc. 26-19 at 94-97.
The ACCA rejected Sneed’s allegations “that he was a desperate, gullible follower
seeking acceptance and friends and that he was immature for his age as a child” for
insufficient pleading of prejudice. Doc. 26-19 at 95. The ACCA described Sneed’s
allegations of prejudice as “bare.” Id. (internal quotation marks omitted).
Regarding Sneed’s allegations that he “was a gentle giant, who could not be
convinced to hurt others;” “was always concerned with the well[-]being of others;”
and “was inexperienced with guns or violence,” the ACCA pointed out that the
prosecutor and trial counsel had reached an agreement about such good-character
evidence. Id. at 95-96 (internal quotation marks omitted). Specifically, the ACCA
explained that Sneed had failed to show prejudice because trial counsel’s presentation
of good-character evidence would have opened the door to the prosecutor’s
introduction of the disciplinary reports Sneed had received in prison. Id. at 96; see
also doc. 26-2 at 23-193 (collecting Sneed’s incident reports and disciplinary
records).
The ACCA rejected Sneed’s allegations “that he was a good, caring father” as
“refuted by the record.” Id. Here, the ACCA referred to Ms. Terrell’s mitigation
report, which summarized that Sneed had “ha[d] [no] contact with [his] twin[]
133
[daughters] in years” and had received a letter from his older daughter in 2004. Id.
(internal quotation marks omitted). The ACCA concluded that because “trial counsel
did investigate Sneed’s relationship with his children,” a summary denial was proper.
Id.
The circuit court did not address Sneed’s allegations about his traumatic
childhood. Doc. 26-16 at 151-53. In introducing the subclaim, the ACCA mentioned
Sneed’s allegations within this category, doc. 26-19 at 93, but did not revisit that area
in its analysis, id. at 95-96.
v.
Against this backdrop, the court moves to the habeas analysis. The court
disposes of the good character and role as a father categories of undiscovered lay
witness testimony quickly. The court dives deeper on the third and fourth
categories—new mitigating allegations of Sneed’s difficult childhood and his gullible
nature.
(a)
Sneed cannot prevail on the good character category because if any prejudice
resulted from trial counsel’s omission of good character evidence, that amount is
negligible. As the ACCA pointed out, the introduction of evidence of Sneed’s good
character would have allowed the prosecutor to introduce competing prisoner
134
disciplinary reports under the parties’ pretrial agreement. And with respect to Sneed’s
cumulative error contention, adding a negligible amount of prejudice to his prior
sentencing picture of aggravators and mitigators is insufficient to create a reasonable
probability of a life sentence if trial counsel had introduced good character evidence.
Even accepting that this court has made an incorrect assessment of Sneed’s
ability to show prejudice with his allegations of good character evidence, habeas
relief is still inappropriate under AEDPA. Specifically, Sneed has not shown an
unreasonable legal or factual error on the part of the ACCA. For example, Sneed has
not demonstrated—with Supreme Court precedent—that the ACCA reached an
unreasonable conclusion that he had not alleged adequate prejudice because his
competing prisoner disciplinary reports would negate the mitigating value of any
good character evidence. See Raheem v. GDCP Warden, 995 F.3d 895, 932 (11th Cir.
2021) (explaining that a state-court determination “could not have been contrary to
or an unreasonable application of clearly established law” when “no Supreme Court
case was on point”), cert. denied sub nom. Raheem v. Ford, 142 S. Ct. 1234 (2022).
Sneed has not demonstrated either that the ACCA committed clearly established error
under the Strickland cumulative prejudice framework. Instead, fair-minded jurists
could reasonably disagree whether opening the door to the evidence of Sneed’s bad
character would cancel out any appreciable mitigating value of his alleged good
135
character evidence. And factually, Sneed does not dispute the existence of the
character evidence agreement with the State or his prisoner disciplinary reports under
§ 2254(d)(2). Thus, habeas relief is inappropriate based upon the first category.
(b)
Moving to the second category, the record—in particular Ms. Terrell’s
investigation—refutes Sneed’s allegations that trial counsel failed to investigate his
relationships with his children. See doc. 26-19 at 96-97 (describing the limited contact
between Sneed and his three girls). And nothing in Ms. Terrell’s notes about Sneed’s
children suggests that trial counsel ended the investigation of that topic unreasonably
or prematurely. Thus, these investigative allegations are inadequate under
Strickland’s first prong. Alternatively, Sneed has not demonstrated that the ACCA
reached an unreasonable decision that he could not establish ineffective assistance
given Ms. Terrell’s mitigation report. Accordingly, AEDPA deference provides a
secondary basis for denying these allegations in the second category.
(c)
Any omitted allegations of Sneed’s difficult childhood from lay witnesses
would be cumulative to the expert witnesses’ testimony on that same subject. 49 The
49
AEDPA deference does not apply to the third category because the state courts did not
address those allegations on the merits.
136
court recognizes that the cumulative nature of evidence alone does not mean that its
omission cannot show Strickland prejudice. Additionally, lay witness mitigating
testimony may strengthen an expert witness’s testimony on the same topic. Still, on
this record, Sneed’s allegations of prejudice tied to his childhood are inadequate as
reflected in the sentencing order. As mentioned in the background section, the circuit
court gave Sneed the benefit of that non-statutory mitigating factor. Doc. 1 at 138.
But in the overall weighing, the sentencing court “d[id] not attribute [Sneed]’s
unfortunate upbringing and experiences as excuses . . . or explanations for his total
lack of regard for the life of Mr. Terry.” Id. at 140. Thus, because of the sentencing
court’s reasoning contained in the override decision, Sneed’s allegations that
additional testimony about his difficult childhood from lay witnesses are inadequate
to create a reasonable probability of a different sentencing outcome.
(d)
The court turns to the fourth category of omitted lay testimony—allegations of
Sneed’s gullibility and tendency to follow others, i.e., the anticipated testimony of
one of his childhood friends, Keith “Toby” Jennings, and Mr. Jennings’ sister,
Lynetta Jennings. Doc. 1 at 45-46 ¶¶ 66-67. As to Mr. Jennings, the omitted testimony
included that Sneed “was incapable of forming plans to rob or kill; had always been
afraid of prison and . . . tried to avoid being involved in a serious crime[;] was gullible
137
and tended to follow others[;]” and that “it was totally out of character and
unthinkable for . . . Sneed to intentionally engage in the violent use of bodily harm
against a mere stranger (like a store clerk), in that . . . Sneed could never be persuaded
to hurt others who had not provoked him.” Id. at 45 ¶ 66 (internal quotation marks
omitted). As for Ms. Jennings, her anticipated testimony included that Sneed “was a
follower, a ‘hangout dude,’ who must have been told by others that the robbery in
Decatur would be very easy (like saying they had done it before), and that ‘Charles
[Sneed] just went along,’ never dreaming someone would be killed.” Id. ¶ 67 (internal
quotation marks omitted).
The circuit court summarily dismissed this category for inadequate pleading,
finding that Sneed’s lay-witness allegations “that he was desperate for attention and
a gullible follower” as a child were inadequate to show prejudice. Doc. 26-16 at 151.
The ACCA affirmed, explaining that the allegations that Sneed “was a desperate,
gullible follower seeking acceptance and friends and that he was immature for his
age as a child” lacked facts “that would establish a reasonable probability” of a
different sentencing outcome. Doc. 26-19 at 95. The ACCA continued that Sneed had
offered “bare allegation[s] that prejudice had occurred without specific facts
indicating how [he] was prejudiced.” Id. (internal quotation marks omitted) (quoting
Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006)).
138
In this court’s assessment—following the Daniel framework—some of the
allegations of the omitted testimony tied to Sneed’s gullibility would open the door
to the introduction of his disciplinary incidents as a prisoner. Consequently, for the
same reasons discussed in the first category above, the court concludes that those
parts of Sneed’s gullible allegations are inadequate to show any appreciable prejudice
or contribute to Sneed’s claim of a cumulative Strickland prejudice error.
For those follower allegations more removed from Sneed’s character, the court
concludes that he has not provided enough detail to establish Strickland prejudice.
Specifically, this court cannot tell from Sneed’s allegations whether the impressions
which Mr. and Ms. Jennings expressed about his gullibility pertained to when he was
growing up in Kentucky or closer to the time of the capital offense when he was
twenty-three years old. Without that temporal clarification, the court can only
speculate about the potential mitigating value of the remaining alleged testimony
from those omitted witnesses. Consequently, Sneed has not met the heightened
pleading requirement on his allegations of Strickland prejudice.
And accepting that this court has made an incorrect prejudice assessment of
this last category, Sneed has not demonstrated that the ACCA reached an
unreasonable decision that his allegations of prejudice were too “bare” to create a
139
reasonable probability of a different sentencing outcome. Accordingly, AEDPA
deference provides an alternative basis for denying these allegations.
h.
As a final matter in this penalty-phase Strickland section, the court addresses
the collective impact of prejudice under subclaim B.1.50 Accepting that the alleged
lay witness testimony would strengthen Sneed’s penalty-phase presentation, the new
mitigation when compared to the old mitigation (and unaffected aggravation) does
not “paint[] a vastly different picture” of the sentencing circumstances. Williams, 542
F.3d at 1342; cf. Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“The prison files
pictured [the petitioner]’s childhood and mental health very differently from anything
defense counsel had seen or heard.”).
Likewise, the cumulative impact of trial counsel’s allegedly unreasonable
penalty-phase errors in this subclaim are insufficient to create a reasonable
probability of a different sentencing outcome given the reasoning behind the override
decision.
50
The Alabama courts did not address Sneed’s allegations of cumulative penalty-phase error
on the merits. The court does not include subclaims B.2-B.6 or Sneed’s relationships with his
children under B.1 in this alternative analysis because the allegations in those claims are insufficient
to support habeas relief under Strickland’s first prong or procedurally defaulted.
140
Accordingly, the court denies Claim B for these multiple reasons. 51
IV.
After applying AEDPA, de novo review, or principles of procedural default,
Sneed has not shown an entitlement to habeas relief based on his allegations of
constitutional error in his capital conviction and sentence. Consequently, the court
denies Sneed’s § 2254 petition, doc. 1, and will not hold an evidentiary hearing.52
The court will enter a separate order consistent with this memorandum opinion.
DONE the 31st day of August, 2022.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
51
Although to show Strickland pleading sufficiency Sneed cites a host of authorities, see
generally doc. 1 at 29-32, 45, 50, 53 & n. 7, 55-56, 58 n. 8, 62, 64-66, 70-72, 75, 80-82 ¶¶ 45-51,
65, 78, 82-86, 91, 97, 102-04, 106, 112, 115, 122, 131-34; doc. 31 at 52-54, 56-59, 62-63, 67, 7074 & n. 27, 78-81, 86-89, 91-92, 94 n. 32, 99-104, those cases are too dissimilar factually or
procedurally to salvage his penalty-phase allegations on this record.
52
See Martinez v. Sec’y, Fla. Dep’t of Corr., 684 F. App’x 915, 926 (11th Cir. 2017) (“[T]he
district court need not conduct an evidentiary hearing if the record refutes the petitioner’s factual
allegations, otherwise prevents habeas relief, or conclusively demonstrates that the petitioner was
not denied effective assistance of counsel.” (citing Schriro, 550 U.S. at 474)); see also Cullen, 563
U.S. at 182 (“Limiting § 2254(d)(1) review to the state-court record is consistent with [Supreme
Court] precedents interpreting that statutory provision.”).
141
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