Sharifi v. Dunn

Filing 195

MEMORANDUM OPINION. Signed by Judge Anna M Manasco on 03/20/2024. (AKD)

FILED
2024 Mar-20 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MOHAMMAD SHARIFI,
Petitioner,
v.
TERRY RAYBON,
Warden of William C. Holman
Correctional Facility,
Respondent.

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Case No. 5:17-cv-01924-AMM

MEMORANDUM OPINION
Mohammad Sharifi petitions this court for a writ of habeas corpus under 28
U.S.C. § 2254, challenging his 2005 capital murder conviction and death sentence
in the Circuit Court of Madison County, Alabama. Doc. 1. Mr. Sharifi alleges that
various constitutional violations mandate the reversal of his conviction and sentence
and requests an evidentiary hearing. See generally id. The parties have fully briefed
Mr. Sharifi’s claims. Docs. 1, 15, 16, 22, 106, 115. Because Mr. Sharifi has not
established that he is entitled to an evidentiary hearing or habeas relief, his petition
is DENIED.

Table of Contents
I.

Background ......................................................................................................................................... 3
A.

The Murders .................................................................................................................................... 3

B.

Pretrial Procedure .......................................................................................................................... 5

C.

Trial Procedure ............................................................................................................................... 6

D.

Sentencing ........................................................................................................................................ 7

E.

Subsequent Proceedings ................................................................................................................. 8
1.

The Direct Appeal ....................................................................................................................... 8

2.

The Rule 32 Petition.................................................................................................................. 10

3.

The Habeas Petition .................................................................................................................. 14

II.

Legal Standards ............................................................................................................................ 14

A.

Exhaustion of State Court Remedies ........................................................................................... 15

B.

The Procedural Default Doctrine ................................................................................................ 16

C.

Overcoming Procedural Default – Cause & Prejudice .............................................................. 17

D.

The Statutory Overlay: AEDPA & Habeas Review................................................................... 18

E.

Burden of Proof & Heightened Pleading Standards for Habeas Review................................. 19

F.

Claims of Ineffective Assistance of Counsel................................................................................ 21

III.

Analysis of Mr. Sharifi’s Claims .................................................................................................. 24

A.

Constitutionality of AEDPA......................................................................................................... 24

B.

Due Process Claims ....................................................................................................................... 26
1.

Mr. Sharifi’s right to a speedy trial ......................................................................................... 26

2.

Mr. Sharifi’s absence from various court proceedings.......................................................... 51

3.

Mr. Sharifi’s presentation of mitigation evidence .................................................................. 53

4.

Admission of Ms. Smith-Sharifi’s autopsy report.................................................................. 60

5.

Mr. Sharifi’s opportunity to testify ......................................................................................... 70

6.

Failure to charge the jury on lesser included offenses ........................................................... 71

C.

D.
IV.

Ineffective Assistance of Counsel Claims .................................................................................... 76
1.

Failure to protect Mr. Sharifi’s right to testify ...................................................................... 80

2.

Counsel’s effectiveness in the penalty and sentencing phases ............................................... 81

3.

Counsel’s effectiveness in the guilt / innocence phase............................................................ 83
Constitutionality of Mr. Sharifi’s Death Sentence ..................................................................... 90
Mr. Sharifi’s Request for an Evidentiary Hearing .................................................................... 94

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V.

Conclusion ......................................................................................................................................... 96

I.

Background
Mr. Sharifi was indicted, convicted, and sentenced to death for the 1999

murders of Sarah Kay Smith-Sharifi and Derrick Brown. He seeks federal habeas
relief from his conviction and sentence. Relevant history is set forth below.
A. The Murders
In its opinion on direct appeal, the Alabama Court of Criminal Appeals
summarized the evidence in this case:
Sharifi, an Iranian national, came to Huntsville in
December 1998 on a six-month tourist visa. Before the
visa expired he married Sarah Kay Smith, an American
citizen. Following his marriage, Sharifi petitioned to
change his immigration status from “tourist” to “legal
alien.”
Sarah and Sharifi separated in late 1999. Thereafter, Sarah,
accompanied by Derrick Brown, met with Sharifi’s
caseworker at the Immigration and Naturalization Service
(now the Department of Citizenship and Immigration
Services). As a result of that meeting, Sharifi’s petition to
become a legal alien was denied, and his immigration
status was changed to “illegal alien,” because his tourist
visa had expired.
Sharifi purchased a .25–caliber pistol on December 6,
1999. On December 13, 1999, Sharifi went to the
apartment he had shared with Sarah and forced his way
inside. The Huntsville Police were called to the scene, and
Sharifi was prevented from removing anything other than
his clothes from the apartment. Sharifi left, promising to
return. After Sharifi left, Sarah had the locks on the doors
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to the apartment changed. When Sharifi returned later that
same day and discovered that the locks had been changed,
he became upset. Sharifi became even more agitated when
he learned that although he was not allowed inside the
apartment, Derrick Brown was inside. Sharifi demanded
of the apartment manager that Brown be removed.
The manager of the apartment complex filed a missingperson report with the Huntsville Police on December 17,
1999, because the manager had not seen Sarah in several
days. December 13, 1999, was the last day Sarah and
Brown were seen alive. On December 26, 1999, Sarah
Sharifi’s body was found on the banks of the Tennessee
River; it was wrapped in black plastic bags and tied with
an electrical cord. On January 1, 2000, Brown’s body was
found in the Tennessee River; it was partially wrapped in
black plastic bags and tied with an electrical cord. Both
Sarah and Brown had been shot in the head. Subsequent
forensic testing determined that the gun used to shoot both
victims was the gun Sharifi purchased in December 1999.
On December 28, 1999, the FBI arrested Sharifi in Los
Angeles, California, on an unlawful-flight-to-avoidprosecution warrant relative to Sarah’s murder. In
Sharifi’s possession at the time of his arrest were the
murder weapon, a license tag from Brown’s vehicle,
Brown’s driver’s license, one of Brown’s credit cards, and
a pair of sandals that was later determined to have Sarah’s
blood on them.
Sharifi was extradited to Alabama and was incarcerated in
the Madison County jail awaiting trial for the two murders.
During his incarceration, Sharifi met Tasha Borner,
another inmate. Sharifi wrote Borner a number of letters
professing his love for her and asking her to testify that
they were together on the night of December 13, 1999.
Borner, who did not meet Sharifi until 2002, turned the
letters over to the district attorney and was given a plea
deal in exchange for her testimony against Sharifi.
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Sharifi’s defense was that he was in Los Angeles,
California, at the time of the murders. Aghaishahabdin
Moughari testified that Sharifi came by his house in
Huntsville on December 13, 1999, that Sharifi’s car was
loaded with his possessions, and that he told him that he
was moving to California to find work. Moughari also
testified that on December 14, 1999, Sarah came by his
house looking for Sharifi.
Sharifi’s father, Hossain Sharifi, testified that at the time
of the murders he was living in Iran and that he spoke to
Sharifi everyday at approximately 2:00 p.m. Huntsville
time. He said that on December 13, 1999, he telephoned
the apartment Sharifi had shared with Sarah, and a man
answered the telephone and gave the phone to Sarah. He
further testified that on December 15, 1999, Sharifi
telephoned him in Iran and told him that he had moved to
California.
Sharifi v. State (Sharifi I), 993 So. 2d 907, 911–12 (Ala. Crim. App. 2008).
B. Pretrial Procedure
On March 1, 2000, the Madison County Circuit Court held Mr. Sharifi’s
preliminary hearing. Doc. 1 at 4. Mr. Sharifi was represented by counsel at this
hearing; his counsel changed several times between the preliminary hearing and trial.
Id. In February 2004, the trial court appointed Larry Morgan and Alan Mann to
represent Mr. Sharifi, and these attorneys continued to represent Mr. Sharifi through
trial. Id.
In March 2001, a grand jury indicted Mr. Sharifi on three counts of capital
murder for the shooting deaths of Mrs. Smith-Sharifi and Mr. Brown. Doc. 11-11 at
24–26. At his September 2004 arraignment, Mr. Sharifi pleaded not guilty to all three
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counts. Doc. 1 at 4. Before trial, the district attorney elected not to proceed with two
of Mr. Sharifi’s three capital murder charges. Id.; Doc. 11-20 at 18.
Before trial, the trial court “held several hearings on numerous defense
motions, including a motion to appoint a Farsi interpreter.” Doc. 11-20 at 19. “This
motion was granted and a Farsi interpreter from Los Angeles, California was located
in May 2004.” Id. After being certified and sworn in, the interpreter translated
simultaneously for Mr. Sharifi at four separate motion hearings in June and
September 2004. Id.
The case was set for trial and then continued multiple times before ultimately
proceeding to trial. Id. A September 13, 2004 “continuance was premised upon [Mr.
Sharifi’s] request.” Id.
C. Trial Procedure
Beginning on January 24, 2005, Mr. Sharifi was tried on one count of capital
murder under Alabama Code § 13A-5-40(a)(10). Doc. 1 at 4. This statute makes
intentional murder capital under Alabama law when “two or more persons are
murdered by the defendant by one act or pursuant to one scheme or course of
conduct.” Ala. Code §§ 13A-5-40(a)(10), 13A-6-2(a)(1). The Farsi interpreter
translated for Mr. Sharifi throughout trial. Doc. 11-20 at 19.
“The jury . . . convicted Sharifi of murdering Sarah and Brown during one act
or pursuant to one course of conduct,” in violation of Alabama Code § 13A-56

40(a)(10). Sharifi I, 993 So. 2d at 911–12. After finding Mr. Sharifi guilty of capital
murder, the jury voted on punishment; ten jurors voted in favor of the death penalty,
and the two remaining jurors voted for life without parole. Doc. 11-20 at 19.
D. Sentencing
On March 11, 2005, the trial court conducted a separate sentencing hearing.
Doc. 11-20 at 19; Doc. 1 at 4. A pre-sentence investigative report was prepared
before the hearing, and at the hearing, Mr. Sharifi and the State of Alabama
introduced evidence and made arguments regarding the appropriate sentence. See
generally Doc. 11-10; Doc. 11-20 at 19. Defense counsel presented mitigation
evidence, including testimony from Mr. Sharifi and from his father. Doc. 11-10 at
71–82. A Farsi interpreter was available to translate for Mr. Sharifi throughout the
sentencing phase. Id. at 68, 71; Doc. 11-20 at 19.
The trial court concluded that the following aggravating circumstance “was
proven beyond a reasonable doubt: The Defendant committed the capital offense of
murder of two or more persons by one act or pursuant to one scheme or course of
conduct.” Doc. 11-20 at 20 (emphasis omitted). As required by statute, the trial court
considered multiple mitigating circumstances, including the fact that Mr. Sharifi
“had no significant history of prior criminal activity.” Id. at 20–21. The court also
considered testimony from Mr. Sharifi’s father, his education, his prior military

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service, his work history, and the fact that he “has a 12-year old son in Iran and a
supportive family.” Id. at 22.
Ultimately, the trial court accepted the jury’s recommendation and sentenced
Mr. Sharifi to death. Doc. 11-20 at 22–23; Doc. 1 at 4. The trial court reasoned “that
the aggravating circumstances of this offense clearly outweigh any mitigating
circumstances . . . even if all the mitigating circumstances put forth by [Mr. Sharifi]
were in fact proven.” Doc. 11-20 at 22–23.
E. Subsequent Proceedings
Mr. Sharifi’s case has been before the Alabama appellate courts twice — first
on direct appeal following his conviction and sentence, and then on appeal from the
dismissal of his Rule 32 petition.
1. The Direct Appeal
Mr. Sharifi appealed his conviction and sentence to the Alabama Court of
Criminal Appeals through new appellate counsel. Sharifi I, 993 So. 2d at 911–12.
The Court of Criminal Appeals affirmed his conviction and sentence on February 1,
2008, id. at 950, and subsequently denied his request for rehearing, id. at 907. On
May 16, 2008, the Alabama Supreme Court denied certiorari without an opinion. Id.
On November 3, 2008, the U.S. Supreme Court also denied certiorari without an
opinion. Sharifi v. Alabama, 555 U.S. 1010 (2008).

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Mr. Sharifi raised the following issues on direct appeal: (1) various issues
concerning the Vienna Convention on Consular Relations, Sharifi I, 993 So. 2d at
913–19; (2) rights arising under a bilateral treaty between the United States and Iran,
id. at 919–20; (3) rights arising under the International Covenant on Civil and
Political Rights, id. at 920–21; (4) denial of his right to a speedy trial in violation of
the Sixth Amendment to the United States Constitution, id. at 921–24; (5) judicial
error in declining to strike two jurors for cause, id. at 924–26; (6) the State’s violation
of Batson v. Kentucky “by using its peremptory strikes to remove blacks and female
prospective jurors from the venire,” id. at 927–28; (7) judicial error in admitting Ms.
Smith-Sharifi’s autopsy report in violation of Mr. Sharifi’s right to confrontation, id.
at 928–32; (8) unconstitutionality of Alabama law on diminished capacity, id. at
932–33; (9) application of a different burden of proof in capital cases, id. at 933–35;
(10) judicial error “in failing to instruct the jury on the lesser-included offenses of
intentional murder, reckless murder, felony murder, and manslaughter,” id. at 935–
38; (11) judicial error relating to the jury instruction on circumstantial evidence, id.
at 938; (12) unconstitutionality of the death penalty, id. at 938–40; (13) “Alabama’s
death-penalty statute violates Ring v. Arizona,” id. at 940–41; (14) violation of Mr.
Sharifi’s due process rights because he was unable to present mitigation evidence,
id. at 941–42; (15) erroneous jury instructions during the penalty phase, id. at 942–
46; and (16) because “the cumulative errors affected [Mr. Sharifi’s] substantial rights
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and warrant a new trial,” id. at 946–47. The appeals court also “review[ed] the record
for any ‘plain error,’” id. at 947–49, and, as required by statute, “review[ed] the
propriety of Sharifi’s conviction and death sentence,” id. at 949–50. In administering
its “obligation to review the record for any ‘plain error,’” the appeals court noted
several omissions in the presentence report. Id. at 947.
Among these, only issues four, six, seven, ten, thirteen, and fourteen are raised
in Mr. Sharifi’s federal habeas petition, along with an ineffective assistance of
counsel claim based on the presentence report. See generally Doc. 1.
2. The Rule 32 Petition
On May 3, 2009, Mr. Sharifi filed a post-conviction petition pursuant to Rule
32 of the Alabama Rules of Criminal Procedure. Doc. 1 at 5. His original appellate
counsel prepared the Rule 32 petition but then withdrew due to a conflict of interest,
and Mr. Sharifi submitted the petition pro se. Sharifi v. State (Sharifi R.32), 239 So.
3d 603, 606 n.1 (Ala. Crim. App. 2016). His petition “rais[ed] several claims,
including claims of ineffective assistance of counsel.” Id. at 606. Also in May 2009,
Mr. Sharifi filed a pro se supplement to his Rule 32 petition. Id.; Doc. 11-34 at 165–
202. This first supplement was filed before the court appointed replacement counsel.
Doc. 11-60 at 124–25; Doc. 11-35 at 3–24.
In July 2009, Mr. Sharifi obtained replacement counsel, who asked the court
for leave to amend the Rule 32 petition. Doc. 11-60 at 125. The court never ruled on
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this request, and Mr. Sharifi did not file an amended petition through this counsel.
Id.
In February 2012, Mr. Sharifi’s counsel was replaced again, and his new
counsel moved for leave to amend the Rule 32 petition. Id.; Doc. 1 at 6. The court
granted the request, and Mr. Sharifi filed an amended petition adding new claims on
November 30, 2012. Sharifi R.32, 239 So. 3d at 606. Mr. Sharifi filed another motion
for leave to amend the petition, along with an amended petition, on December 30,
2013. Id. That motion was ultimately denied. Doc. 11-60 at 126.
In May 2014, Mr. Sharifi again obtained new appellate counsel. Sharifi R.32,
239 So. 3d at 606. This attorney requested an evidentiary hearing, but the court did
not grant the request. Doc. 11-60 at 126, 132.
During the pendency of the Rule 32 case – and while represented by counsel
– Mr. Sharifi filed multiple pro se amendments, motions, pleadings, and letters. Id.
at 126–29; Sharifi R.32, 239 So. 3d at 606. Upon the State’s motion, the trial court
struck all of these pro se filings, with the exception of the original Rule 32 petition
and the first pro se amendment (filed in May 2009). Doc. 11-60 at 126; Sharifi R.32,
239 So. 3d at 607; Doc. 11-53 at 14. The trial court also directed Mr. Sharifi to stop
filing pro se pleadings. Doc. 11-60 at 126; Doc. 11-53 at 14. This August 14, 2014
order striking the pro se pleadings was predicated upon Belisle v. State, which holds
that “[a] defendant has no right both to represent himself and to have the assistance
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of counsel,” and a circuit court’s refusal to allow a defendant “to act as his own
cocounsel” is a proper exercise of discretion. 11 So. 3d 256, 274–75 (Ala. Crim.
App. 2007); Doc. 11-53 at 14.
Mr. Sharifi did not comply with this order and continued to file pro se
pleadings with the trial court; in response, the trial court directed the clerk to strike
the pro se filings and to exclude them from the record. Sharifi R.32, 239 So. 3d at
607.
On June 26, 2015, the trial court dismissed Mr. Sharifi’s petition and its
amendments. Sharifi R.32, 239 So. 3d at 607; Doc. 11-60 at 132. The court held that
Mr. Sharifi’s claims relating to (a) his counsel’s failure to challenge the State’s
peremptory strikes, (b) his counsel’s failure to object to admission of the autopsy
report, and (c) violation of Mr. Sharifi’s right to a speedy trial were procedurally
barred because they were previously raised and resolved in his direct appeal. Doc.
11-60 at 129–31. The court found that his ineffective assistance of counsel claims
should be dismissed because they did not meet the applicable legal standard. Id. at
131–32. Mr. Sharifi did not file a post-judgment motion. Sharifi R.32, 239 So. 3d at
607.
The Alabama Court of Criminal Appeals affirmed the dismissal of the Rule
32 petition. Id. at 613; Doc. 11-61 at 175. Like the trial court, the appellate court
considered only the original petition, the May 2009 amendment, and the 2012
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amendment. Sharifi R.32, 239 So. 3d at 607. The specific issues the appellate court
considered were: (1) “trial counsel were ineffective for not raising an objection at
trial to the State’s use of its peremptory strikes on the ground that the strikes violated
Batson,” id. at 608; (2) actual innocence, id. at 611; (3) Mr. Sharifi “was denied his
right to confront and to cross-examine his accusers when . . . the autopsy reports on
the victims were admitted into evidence without the testimony of the medical
examiner who had performed the autopsies,” id. at 611–12; (4) “trial counsel were
ineffective for not objecting at trial to the State’s allegedly violating Brady . . . by
failing to disclose” various evidence, id. at 612; and (5) Mr. Sharifi “was denied due
process and access to the courts during the Rule 32 proceedings,” id.
The appellate court noted that Mr. Sharifi did “not pursue on appeal many of
the claims he raised in his petition and amendments.” Id. at 607–08. “Those claims
Sharifi raised in his petition and amendments but [did] not pursue on appeal” were
“deemed abandoned” and were therefore not considered by the Court of Criminal
Appeals. Id. at 608. Mr. Sharifi did not challenge this determination; he never argued
that the appeals court erred in finding these claims abandoned or that the Rule 32
court erred when summarily dismissing these claims. Doc. 11-61 at 68–91, 139–54.
On December 9, 2016, the Alabama Court of Criminal Appeals denied
rehearing, and on May 19, 2017, the Alabama Supreme Court denied certiorari.
Sharifi R.32, 239 So. 3d at 603; Doc. 11-61 at 176–77.
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3. The Habeas Petition
On September 19, 2017, Mr. John Palombi and Ms. Natalie Olmstead, both
Federal Defenders in the Middle District of Alabama, requested appointment as Mr.
Sharifi’s federal habeas counsel and requested that Mr. Sharifi proceed in forma
pauperis. Doc. 1 at 7, 147. This court granted both motions. Id. at 7.
On November 15, 2017, through appointed counsel, Mr. Sharifi petitioned this
court for federal habeas review pursuant to 28 U.S.C. § 2254. Id. In January 2018,
while this habeas action was pending, the U.S. Supreme Court denied certiorari
without an opinion. Doc. 11-62 at 40. This matter has been fully briefed and is ripe
for adjudication. See Docs. 1, 15, 16, 22, 106, 115.
II.

Legal Standards
This action is governed by 28 U.S.C. § 2254, as amended by the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Guzman v.
Sec’y, Dep’t of Corrs., 663 F.3d 1336, 1345 (11th Cir. 2011). Under Section 2254(a),
a federal district court is prohibited from entertaining a writ of habeas corpus on
“behalf of a person in custody pursuant to the judgment of a State court” unless the
petition alleges “he is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Claims of “an alleged defect in a [state]
collateral proceeding” or claims related to a “state’s interpretations of its own laws

14

or rules” are not a basis for federal habeas relief under Section 2254. Alston v. Dep’t
of Corrs., 610 F.3d 1318, 1325–26 (11th Cir. 2010) (cleaned up).
A. Exhaustion of State Court Remedies
A habeas petitioner is required to present his federal claims to the state court
and to exhaust all of the procedures available before seeking relief in federal court.
28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666 (2005). “‘State
prisoners must 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)).
“[T]o exhaust state remedies fully the petitioner must make the state court
aware that the claims asserted present federal constitutional issues. ‘It is not enough
that all the facts necessary to support the federal claim were before the state courts
or that a somewhat similar state-law claim was made.’” Snowden v. Singletary, 135
F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5–6
(1982)). “The ground relied upon must be presented face-up and squarely; the
federal question must be plainly defined.” Kelley v. Sec’y, Dep’t of Corrs., 377 F.3d
1317, 1345 (11th Cir. 2004) (cleaned up). “[A]n issue is exhausted if the reasonable
reader would understand the claim’s particular legal basis and specific factual
15

foundation to be the same as it was presented in state court.” Pope v. Sec’y for Dep’t
of Corrs., 680 F.3d 1271, 1286 (11th Cir. 2012) (cleaned up).
B. The Procedural Default Doctrine
If a petitioner fails to raise his federal claim to the state court at the time and
in the manner dictated by the state’s procedural rules, the state court can decide the
claim is not entitled to a review on the merits. Mason v. Allen, 605 F.3d 1114, 1119
(11th Cir. 2010). A “state court’s rejection of a petitioner’s constitutional claim on
state procedural grounds will generally preclude any subsequent federal habeas
review of that claim,” so long as “the state procedural ruling rests upon adequate and
independent state grounds.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010)
(cleaned up).
The Eleventh Circuit has “established a three-part test” to use “to determine
when a state court’s procedural ruling constitutes an independent and adequate state
rule of decision.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).
First, the last state court rendering a judgment in the case
must clearly and expressly state that it is relying on state
procedural rules to resolve the federal claim without
reaching the merits of that claim. Secondly, the state
court’s decision must rest solidly on state law grounds, and
may not be intertwined with an interpretation of federal
law. Finally, the state procedural rule must be
adequate; i.e., it must not be applied in an arbitrary or
unprecedented fashion.

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Id. (cleaned up). If all three parts of this test are satisfied, a habeas petitioner’s
federal constitutional claim is procedurally defaulted and cannot provide a basis for
federal habeas relief.
The doctrines of procedural default and exhaustion may intertwine. For
instance, if a federal petitioner’s claim is unexhausted, a district court will ordinarily
dismiss it without prejudice or stay the cause of action to allow the petitioner to first
avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519–20 (1982).
But “if it is clear from state law that any future attempts at exhaustion [in state court]
would be futile” under the state’s own procedural rules, a court can simply find that
the claim is “procedurally defaulted, even absent a state court determination to that
effect.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999).
C. Overcoming Procedural Default – Cause & Prejudice
The “cause and prejudice” exception excuses procedural default when a
petitioner can prove both “cause for the default and prejudice attributable thereto.”
Coleman v. Thompson, 501 U.S. 722, 749–50 (1991) (cleaned up). To show cause,
a petitioner must prove “that some objective factor external to the defense impeded
counsel’s efforts” to raise the claim previously. Murray v. Carrier, 477 U.S. 478,
488 (1986). A non-exhaustive list of objective factors that constitute cause includes
“a showing that the factual or legal basis for a claim was not reasonably available to

17

counsel,” “some interference by officials . . . [that] made compliance impracticable,”
and constitutionally “ineffective assistance of counsel.” Id.
To show prejudice, a habeas petitioner must show “not merely that the errors
. . . created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). In the context of a
defaulted claim of ineffective assistance of trial counsel, a petitioner must show not
only “cause,” but also “that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit.” Martinez v. Ryan, 566 U.S. 1, 14 (2012).
D. The Statutory Overlay: AEDPA & Habeas Review
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 (cleaned up). To grant habeas relief, this court must find
not only that the constitutional claims are meritorious, but also that the state court’s
resolution of those claims:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
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28 U.S.C. § 2254(d)(1)–(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir.
2010).
E. Burden of Proof & Heightened Pleading Standards for Habeas Review
The petitioner bears the burden to establish that an issue falls within Section
2254(d)(1) or (d)(2). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002). “[T]he
‘contrary to’ and ‘unreasonable application’ clauses 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 of the United States] 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) (cleaned up).
On the other hand, to determine whether a state court’s decision is an
“unreasonable application” of clearly established federal law, “[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). “For purposes of
[Section] 2254(d)(1), ‘an unreasonable application of federal law is different from
an incorrect application of federal law.’” Id. (quoting Williams v. Taylor, 529 U.S.
362, 410(2000)). “A state court must be granted a deference and latitude that are not
in operation when the case involves review under the [relevant constitutional]
19

standard itself.” Id. “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.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). “The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Id.
Whether a state court’s application of federal law was unreasonable involves
a “substantially higher threshold” than a correctness threshold. Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “Ultimately, before a federal court may grant habeas relief
. . . , ‘a state prisoner must show that the state court’s ruling on the claim . . . was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Guzman, 663
F.3d at 1346 (quoting Harrington, 562 U.S. at 103). “If this standard is difficult to
meet, that is because it was meant to be.” Harrington, 562 U.S. at 102.
Additionally, a state court’s factual determinations are presumptively correct
under Section 2254(e)(1), and “the petitioner must rebut ‘the presumption of
correctness by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56 (quoting
28 U.S.C. § 2254(e)(1)) (cleaned up).
Finally, a habeas petition “must meet [the] heightened pleading requirements
[of] 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849, 856 (1994).
“[T]he petition must ‘specify all the grounds for relief available to the petitioner’
20

and ‘state the facts supporting each ground.’” Mayle v. Felix, 545 U.S. 644, 655
(2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts). The burden of proof is on the habeas petitioner “to establish
his right to habeas relief” by “prov[ing] all facts necessary to show a constitutional
violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008); see also Smith
v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985).
F. Claims of Ineffective Assistance of Counsel
“[T]he Constitution guarantees criminal defendants only a fair trial and a
competent attorney. It does not insure that defense counsel will recognize and raise
every conceivable constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134 (1982).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984). “[T]he ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.” Id. at 696.
“Strickland . . . provides the standard for inadequate assistance of counsel
under the Sixth Amendment.” Premo v. Moore, 562 U.S. 115, 118 (2011). Strickland
states:
A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or
death sentence has two components. First, the defendant
must show that counsel’s performance was deficient. . . .
21

Second, the defendant must show that the deficient
performance prejudiced the defense. . . . Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in
the adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687. “Surmounting Stickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
Regarding the first part of Strickland, “the proper standard for attorney
performance is that of reasonably effective assistance,” and “the defendant must
show that counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687–88. “The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.”
Id. at 688. The court should consider “all the circumstances,” and “[j]udicial scrutiny
of counsel’s performance must be highly deferential.” Id. at 688–89. This part is
only satisfied when “the identified acts or omissions were outside the wide range of
professionally competent assistance,” and “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 690.
Regarding the second part, “actual ineffectiveness claims alleging a
deficiency in attorney performance are subject to a general requirement that the
defendant affirmatively prove prejudice.” Id. at 693. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
22

criminal proceeding if the error had no effect on the judgment.” Id. at 691. “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Explained further, the appropriate inquiry is as follows:
When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt. When a defendant challenges a death
sentence such as the one at issue in this case, the question
is whether there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did
not warrant death.
Id. at 695. In making this evaluation, the court “must consider the totality of the
evidence before the judge or jury.” Id.
“Establishing that a state court’s application of Strickland was unreasonable
under [Section] 2254(d) is all the more difficult.” Harrington, 562 U.S. at 105. In
applying the Strickland standard, the court must also account for the AEDPA
overlay, and “[e]stablishing deficient performance under Stickland has this same
high bar under AEDPA deference.” Mungin v. Sec’y, Fla. Dep’t of Corrs., 89 F.4th
1308, 1317 (11th Cir. 2024). The interplay between Strickland and Section 2254(d)
results in “double deference” on federal habeas review, which “is doubly difficult
for a petitioner to overcome.” Johnson v. Sec’y, Dep’t of Corrs., 643 F.3d 907, 911
23

(11th Cir. 2011). “The Strickland standard is a general one, so the range of
reasonable applications is substantial.” Harrington, 562 U.S. at 105. “When
[Section] 2254(d) applies, the question is not whether counsel’s actions were
reasonable . . . [but] whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
III.

Analysis of Mr. Sharifi’s Claims

Most of Mr. Sharifi’s claims before this court are either due process claims or
ineffective assistance of counsel claims. Mr. Sharifi also attacks the constitutionality
of AEDPA as well as the constitutionality of his death sentence. This court addresses
the claims in the order they were presented in Mr. Sharifi’s petition.
A. Constitutionality of AEDPA
Mr. Sharifi contends that this court should not apply 28 U.S.C. § 2254(d) to
his habeas claims because the statute is unconstitutional. Doc. 1 at 13–19. Mr. Sharifi
asserts that the statute is unconstitutional because it requires this court to abdicate
its authority to apply the Constitution and defer to a state court’s interpretation of
federal law, in violation of Article III and Article VI of the United States
Constitution. See generally id.
“A statute is presumed constitutional,” and “[t]he burden is on the one
attacking the legislative arrangement.” Heller v. Doe by Doe, 509 U.S. 312, 320
(1993) (cleaned up). Because of this presumption, “only the clearest proof [will]
24

suffice to establish the unconstitutionality of a statute.” Communist Party of U.S. v.
Subversive Activities Control Bd., 367 U.S. 1, 83 (1961) (cleaned up). Moreover,
“[t]he presumption of validity which applies to legislation generally is fortified by
acquiescence continued through the years.” Life & Cas. Ins. Co. of Tenn. v. McCray,
291 U.S. 566, 572 (1934).
Mr. Sharifi does not cite any binding authority to support his contention that
Section 2254(d) is unconstitutional. The Eleventh Circuit has not specifically
addressed this issue, but other Circuits have upheld the constitutionality of Section
2254(d). See, e.g., Cobb v. Thaler, 682 F.3d 364, 377 (5th Cir. 2012) (rejecting
“argument that [Section] 2254(d)(1) is unconstitutional under Article III”); Evans v.
Thompson, 518 F.3d 1, 4–12 (1st Cir. 2008) (rejecting claim that Section “2254(d)(1)
violates Article III, the separation of powers, and the Supremacy Clause”); Crater v.
Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (rejecting claim that Section
2254(d)(1) “violates the Suspension Clause and interferes with the independence of
federal courts under Article III”); Green v. French, 143 F.3d 865, 874–75 (4th Cir.
1998) (finding that “section 2254(d) does not limit any inferior federal court’s
independent interpretive authority to determine the meaning of federal law in any
Article III case or controversy” and “only places an additional restriction upon the
scope of the habeas remedy in certain circumstances”), abrogated on other grounds
by Williams, 529 U.S. 362; Lindh v. Murphy, 96 F.3d 856, 871–74 (7th Cir. 1996)
25

(en banc) (“Regulating relief [under Section 2254(d)] is a far cry from limiting the
interpretive power of the courts . . . and Congress has ample power to adjust the
circumstances under which the remedy of the writ of habeas corpus is deployed.”),
rev’d on other grounds, 521 U.S. 320 (1997).
This court will not hold Section 2254(d) unconstitutional absent binding
precedent. Thus, Mr. Sharifi’s request for de novo review of all claims raised under
Section 2254(d)(1) is DENIED.
B. Due Process Claims
Mr. Sharifi maintains that the State of Alabama deprived him of his life and
liberty without due process of law, in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. Doc. 1 at 22.
1. Mr. Sharifi’s right to a speedy trial
Mr. Sharifi asserts that he is entitled to habeas relief because the government
deprived him of his right to a speedy trial in violation of the Sixth Amendment and
Fourteenth Amendment. Id.
Legal Standards
In the light of the “unique policies” underlying the right to a speedy trial,
courts “must set aside any judgment of conviction, vacate any sentence imposed,
and dismiss the indictment” if the right is violated. United States v. Villarreal, 613
F.3d 1344, 1349 (11th Cir. 2010). “A state is constitutionally required to provide an
26

accused with a speedy trial,” and “the delay that is permissible must be determined
on a case-by-case basis.” Solem v. Helm, 463 U.S. 277, 294 (1983); see also Barker
v. Wingo, 407 U.S. 514, 522 (1972).
In Barker, the Supreme Court “identified some of the objective factors that
courts should consider in determining whether a particular delay was excessive.”
Solem, 463 U.S. at 294–95. Courts should consider: (1) the length of the delay, (2)
the reason for the delay, (3) the defendant’s assertion of his speedy trial right, and
(4) actual prejudice to the defendant. Barker, 407 U.S. at 530. The “inquiry . . .
necessitates a functional analysis of the right in the particular context of the case.”
Id. at 522. The four “factors have no talismanic qualities; courts must still engage in
a difficult and sensitive balancing process,” and must carry out “this process . . . with
full recognition that the accused’s interest in a speedy trial is specifically affirmed
in the Constitution.” Id. at 533
Before a speedy trial analysis is begun, a defendant must allege that “the
interval between accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial delay.” Doggett v. United States, 505 U.S. 647, 651–
52 (1992) (cleaned up). If a defendant is able to satisfy the threshold inquiry, only
then should the court consider the remaining Barker factors. United States v. Ingram,
446 F.3d 1332, 1336 (11th Cir. 2006). However, if the length of the delay is
sufficient to trigger the Barker analysis, the factor does not necessarily weigh
27

heavily against the government. See Doggett, 505 U.S. at 651–52; Villarreal, 613
F.3d at 1350.
“The flag all litigants seek to capture is the second factor, the reason for
delay.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986). The Court has
identified three different types of delay: (1) deliberate delay, (2) negligent or neutral
delay, and (3) justifiable or valid delay. Barker, 407 U.S. at 531. The Court also
assigned each type of delay a different weight for consideration by a reviewing court.
See id. For example, “[a] deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government,” while “[a] more
neutral reason such as negligence or overcrowded courts . . . should be considered”
but “weighted less heavily,” and “a valid reason, such as a missing witness, should
. . . justify appropriate delay.” Id.
Barker’s third factor places upon a defendant the affirmative “responsibility
to assert his right.” Id. This factor “is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id. at 531–32.
Should the first three factors “weigh heavily against the [g]overnment, the defendant
need not show actual prejudice,” Barker’s fourth factor. Ingram, 446 F.3d at 1336.
Barker’s fourth factor, prejudice, “should be assessed in the light of the
interests . . . the speedy trial right was designed to protect.” Barker, 407 U.S. at 532.
Those interests are: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize
28

anxiety and concern of the accused; and (iii) to limit the possibility that the defense
will be impaired.” Id. Of these protections, the last is “the most serious . . . because
the inability of a defendant adequately to prepare his case skews the fairness of the
entire system.” Id.
Relevant Background
Mr. Sharifi was arrested on December 28, 1999, and his trial began on January
25, 2005 – over five years later. Sharifi I, 993 So. 2d at 923–24. In the interim
between his arrest and trial, Mr. Sharifi asserted his right to a speedy trial on multiple
occasions. In October 2001, defense counsel objected to the trial court placing Mr.
Sharifi’s case on the administrative docket “when Sharifi was committed to Taylor
Hardin Secure Medical Facility for further mental evaluations,” arguing that transfer
“makes further delay likely and violates the defendant’s constitutional rights to a
speedy trial.” Id. at 924 & n.4.
Defense counsel subsequently filed several motions requesting a speedy trial,
including Mr. Sharifi’s August 2003 motion to dismiss, which asserted that his
speedy trial rights were violated when the government failed to comply with trial
court orders to provide timely discovery. See Doc. 11-13 at 188. Defense counsel
attached to that motion a copy of Mr. Sharifi’s September 2000 handwritten request
for a speedy trial – which presumably had been delivered to the trial court. Sharifi I,
993 So. 2d at 924. In April 2004, Mr. Sharifi’s counsel requested that the trial court
29

schedule hearings on all outstanding motions because of concerns about additional
delay. See Doc. 11-15 at 74–78.
The trial court held a hearing on Mr. Sharifi’s speedy trial motions and related
motions in June 2004 and then denied the speedy trial motion to dismiss and related
filings. Doc. 11-3 at 33–44. In September 2004, Mr. Sharifi “renewed [his] motion
to dismiss,” alleging additional discovery issues. Doc. 11-28 at 124–25.
On direct appeal, Mr. Sharifi asserted that he did not receive a speedy trial, in
violation of the Sixth and Fourteenth Amendments. Doc. 11-28 at 93–135. He
argued that the “case was delayed at every turn by the [government] and its failure
to comply with discovery, failure to comply with the trial court’s [o]rders, requests
for delays in court rulings, requests for continuances of motion hearings and a
motion for continuance of the May 8, 2003, trial setting.” Id. at 127. He rejected the
government’s assertion that “the delays were due to having to wait for autopsy
evidence . . . , due to the defense’s request for mental evaluations for Sharifi, [and]
due to having to get an interpreter to translate for him.” Id. He further complained
that the trial court delayed ruling on motions and was slow to locate an interpreter.
Id. at 130.
Mr. Sharifi argued that the delay was prejudicial in a number of ways. First,
it “caused a rift between Sharifi and his attorneys” that “escalated as Sharifi filed bar
complaints and a lawsuit against his attorneys and the legal system,” thus forcing his
30

counsel to withdraw. Id. at 131. He also argued that the delay prevented cooperation
between the United States and Iran, prevented his counsel from following up with
alibi witnesses, exacerbated his mental health problems, and prevented his mother
from being available to testify at trial. Id. at 132–35.
The appeals court considered each of the four Barker factors. Sharifi I, 993
So. 2d at 922 (citing Barker, 407 U.S. 514). Regarding the first factor – length of
delay – the appeals court concluded that “the 61–month delay was presumptively
prejudicial.” Id. Regarding the second factor—reason for delay—the appeals court
recited numerous factors giving rise to this delay, noting that “[b]y far the vast
majority of the delays were based on the numerous and lengthy motions filed by the
defense.” Id. at 923–24. These delays therefore weighed against Mr. Sharifi. Id. at
924. Although the appeals court found that Mr. Sharifi asserted his right to a speedy
trial (factor three), the court found that his assertions of prejudice were not supported
by the record. Id. “The record shows that the circuit court took every precaution to
ensure that Sharifi was granted a fair trial. It is clear that the majority of the delays
were due to the court’s desire to make every resource available to Sharifi before he
faced trial on the capital charge.” Id. The appeals court therefore held that Mr. Sharifi
was not “denied his constitutional right to a speedy trial.” Id.
Analysis

31

In his federal habeas petition, Mr. Sharifi asserts that all of the Barker factors
weigh in his favor. Doc. 1 at 23. He argues that the appeals court erred in finding
that he was primarily responsible for the delay. Id. at 22–50; Doc. 22 at 4.
Specifically, Mr. Sharifi asserts that (1) the length of his pre-trial delay was sixtyone-months and therefore presumptively prejudicial; (2) the government’s
intentional withholding of discovery in violation of trial court orders is the reason
for this delay; (3) he asserted his speedy trial right early and often; and (4) he
suffered actual prejudice as a result of the delay. See Doc. 1 at 22–50.
Mr. Sharifi asserts that the appeals court decision that he was the primary
reason for the delay “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2); see also Doc. 1 at 22–50. Specifically, Mr. Sharifi claims that the
appeals court’s findings that (1) “[t]he vast majority of the delays were based on the
numerous and lengthy motions filed by the defense” and that (2) “the majority of the
delays were due to the court’s desire to make every resource available to Sharifi
before he faced trial on the capital charge” were based on an unreasonable
determination of the facts presented. Doc. 1 at 40, 42 (quoting Sharifi I, 993 So. 2d
at 924). Thus, Mr. Sharifi asserts that the appeals court’s determination is not due
deference and requests that this court review this claim de novo. Id. at 42. For the
reasons given below, neither habeas relief nor de novo review is warranted.
32

The “unreasonable” requirement in Section 2254 “is difficult to meet” and
does not refer “to ‘ordinary error’ or . . . to circumstances where the petitioner offers
‘a strong case for relief,’ but rather to ‘extreme malfunctions in the state criminal
justice system.’” Mays v. Hines, 592 U.S. 385, 391 (2021) (quoting Harrington, 562
U.S. at 102). “[A] federal court may intrude on a State’s ‘sovereign power to punish
offenders’ only when a decision ‘was so lacking in justification . . . beyond any
possibility for fairminded disagreement.’” Id. (quoting Harrington, 562 U.S. at 103)
(cleaned up). To give this rule its intended effect, “a federal court must carefully
consider all the reasons and evidence supporting the state court’s decision” because
“there is no way to hold that a decision was ‘lacking in justification’ without
identifying—let alone rebutting—all of the justifications” in existence. Id. at 391–
92 (quoting Harrington, 562 U.S. at 103). Mr. Sharifi’s arguments cannot overcome
this stringent standard.
Delays Relating to Defense Motions
First, Mr. Sharifi asserts that the appeals court’s finding that “[t]he vast
majority of the delays were based on the numerous and lengthy motions filed by the
defense,” Sharifi I, 993 So. 2d at 924, was objectively unreasonable “because the
[government], not . . . Sharifi, caused the majority of the delays in this case.” Doc.
22 at 4. Instead, Mr. Sharifi claims that “[t]he record reflects that the [government]
delayed . . . Sharifi’s trial by repeatedly failing to turn over discovery.” Id. Mr.
33

Sharifi presented this argument to the appeals court. See generally Doc. 11-28 at 96–
125.
The record shows that in August 2003, Mr. Sharifi filed a Motion to Dismiss
alleging the government had violated discovery orders and his right to a speedy trial.
Id. at 96–124. In September 2004, Mr. Sharifi renewed this motion, alleging
additional discovery issues. See id. at 124–25. The government responded to Mr.
Sharifi’s initial Motion to Dismiss in September 2003, and the trial court held a
hearing to discuss the motions and supplements on June 22, 2004. See Doc. 11-15 at
43–73; Doc. 11-3 at 32–45.
During the June 2004 speedy trial hearing, defense counsel conceded that “of
course, there are delays incumbent with motions that the defense files” and that
defense counsel was aware “there are arguments both ways.” Doc. 11-3 at 43. The
trial court subsequently denied Mr. Sharifi’s motion and related supplements,
finding no speedy trial violation. Id. at 44. The trial court stated that it was “well
aware of all of the delays and kn[ew] that some could not be avoided, some could
have been avoided possibly,” but ultimately concluded that “this has just been a long,
hard road to get this case to trial and we’re finally there.” Id. at 43–44. Based on the
record and the pleadings before the appeals court, this court can infer that the appeals
court agreed with the trial court’s dismissal of this claim and its associated
allegations. Thus, Mr. Sharifi has failed to demonstrate that no justification exists
34

for the appeals court’s finding that “the vast majority of the delays” were caused by
Mr. Sharifi’s motion practice, such that there is no possibility for fairminded
disagreement. Sharifi I, 993 So. 2d at 924.
Moreover, Mr. Sharifi has not argued that the appeals court refused to consider
his argument about discovery-related delay, nor does he challenge the appeals
court’s findings that defense counsel filed more than 150 motions and nearly 40 ex
parte motions in the trial court. See Doc. 1 at 22–50; Doc. 22 at 4–16; see, e.g., Doc.
11-11 at 12–22. Further, Mr. Sharifi has not presented any evidence that his motion
practice did not cause delay. See Doc. 1 at 22–50; Doc. 22 at 4–16. And he does not
contest the appeals court’s determination that his motions were “numerous” and
“lengthy.” Sharifi I, 993 So. 2d at 924; see Doc. 1 at 22–50; Doc. 22 at 4–16.
Notably, Mr. Sharifi’s appellate brief lends support to the appeals court’s
finding. See Doc. 11-28 at 135. To demonstrate prejudice, Mr. Sharifi offered for
comparison the brevity of the trial court record compared with his expansive clerk’s
record, which is predominately composed of Mr. Sharifi’s motions filed with the
trial court. Id. (“Unlike many capital murder cases[] the clerk’s record is
significantly longer than the actual trial record . . .”). A similar comparison can be
made between the length of the trial record and the length of the motions filed and
the time spent resolving these motions. Compare Doc. 11-1 at 1-10 with Doc. 11-11
at 1-11.
35

Delays Relating to Competency Challenges
The appeals court considered the delay resulting from defense counsel’s
multiple motions challenging Mr. Sharifi’s competency to stand trial and his mental
health at the time of the offense, as well as defense counsel’s related motions and
requests, and concluded that the record showed Mr. Sharifi was malingering to cause
delay. See Sharifi I, 993 So. 2d at 924. Although Mr. Sharifi argues that his
competency evaluation was responsible only for forty-six days of delay, Doc. 1 at
40–41; Doc. 22 at 5, the record establishes that competency-related disputes initiated
by Mr. Sharifi delayed the case for years.
Mr. Sharifi pleaded both not guilty and not guilty by reason of mental disease
or defect. Doc. 11-13 at 81. On April 13, 2001, defense counsel moved for an
evaluation of Mr. Sharifi’s competency, and later moved for funding for expert
testing by psychologists and psychiatrists and a jury determination of Mr. Sharifi’s
mental status. Doc. 11-11 at 54–55, 147–52; Doc. 11-13 at 19–20. The trial court
ordered that Mr. Sharifi’s competency to stand trial be evaluated as requested by
defense counsel. Doc. 11-11 at 51–53.
In October 2001, Dr. Melissa Clinger performed outpatient evaluations of Mr.
Sharifi’s competency and reported her findings. Doc. 11-13 at 44–48. Dr. Clinger
reported that Mr. Sharifi was non-cooperative as “discussion regarding courtroom
procedures or personnel [were] not conducted, given [Mr. Sharifi’s] repeated
36

statements he did not understand words or English well enough to proceed and his
tendency to steer the discussion to his religious convictions.” Id. at 47. Dr. Clinger
also reported that Mr. Sharifi’s defense counsel “later indicated that [Mr. Sharifi]
often refuses to discuss the facts of the case and noted that his demeanor has varied
across different visits and consultations.” Id.
Dr. Clinger also expressed that “[t]he possibility of the exaggeration of
symptoms or malingering [was] another factor,” but was unable to discern if his selfreported symptoms were attributable to a psychological condition or if Mr. Sharifi
was “fabricating symptoms entirely.” Id. Because Dr. Clinger was unable to
definitively evaluate whether Mr. Sharifi was malingering or experiencing genuine
mental illness, she recommended that the trial court send him to Taylor-Hardin
Secure Medical Facility for extensive evaluation and treatment. Id. at 48. The trial
court, at defense counsel’s request, ordered that Mr. Sharifi be transferred to Taylor
Hardin and placed his case on its administrative docket “to avoid further delay.” See
Id. at 55–57, 74–77.
On December 3, 2001, Mr. Sharifi was admitted to Taylor Hardin for the
court-ordered evaluations. Id. at 61; see also Doc. 1 at 43. Mr. Sharifi was discharged
on January 18, 2002. Doc. 11-15 at 61. On January 24, 2002, the trial court filed Dr.
Kamal Nagi’s report regarding Mr. Sharifi’s competency and mental health at the
time of the offenses. Doc. 11-13 at 61–71. Dr. Nagi found that Mr. Sharifi was
37

competent and able to assist in his own defense “if he so desire[d]” and that Mr.
Sharifi was not suffering from any mental disorder or disease at the time of the
murders that would have affected his moral culpability. Id. at 67, 70.
Dr. Nagi also diagnosed Mr. Sharifi with “Axis I: Malingering.” Id. at 67. Dr.
Nagi supported this diagnosis with test results that revealed inconsistencies in Mr.
Sharifi’s performance and education level. Id. at 65. Further, Dr. Nagi recognized
multiple inconsistencies between Mr. Sharifi’s self-reported memory loss and
inability to understand America’s jurisprudence system and Dr. Nagi’s observations
of Mr. Sharifi’s ability to remember details pertaining to his case and relay specific
legal strategies he was employing to avoid prosecution. Id. at 66–67.
In support, Dr. Nagi quoted from his conversation with Mr. Sharifi during
which Mr. Sharifi revealed that it was his strategy to be sent for multiple competency
evaluations based on feigned mental illness to avoid trial and admitted that, were
trial to continue, he would make outbursts to disrupt the proceedings for the purpose
of being sent for additional competency evaluations. Id. at 68–69. Specifically, Mr.
Sharifi stated:
After two or three times [the government] will have to
keep me in a mental hospital and upon the
recommendation of my attorney . . . my parents contacted
my lawyers from the embassy and they told me that my
lawyers are trying to help me and that the more time[s]
[the government] find[s] me not competent the more it
helps me. . . . My strategy is to be found incompetent.
38

Id. at 68 (emphasis added).
Mr. Sharifi also stated that he had learned from another inmate that when that
inmate “caused a disturbance . . . the judge ordered a mental evaluation,” so Mr.
Sharifi said, “I will cause trouble,” and cautioned that his lawyers “better keep me
in a mental hospital” and that if his trial were to continue, “I will stand and hit my
lawyer and scream at the judge. I will grab a chair and cause problems.” Id.
The record lends additional support to Dr. Nagi’s determination that it was
Mr. Sharifi’s intention to disrupt courtroom proceedings to obtain another
competency evaluation and avoid trial. See id. at 68, 70. For example, at the first
hearing with Mr. Sharifi present on April 11, 2002, Mr. Sharifi interrupted counsel
multiple times with declarations including statements such as: “I do believe anything
is a conspiracy against me, Your Honor. That’s conspiracy against me. . . . All of
that is[;] . . . I don’t trust my lawyer[;] . . . Your Honor I feel I am a gorilla. I am an
animal. I need bananas.” Doc. 11-1 at 33–34. Mr. Sharifi interjected again at the end
of that hearing saying, “I don’t need lawyer.” Id. at 96.
During Mr. Sharifi’s motion hearing on his request for an interpreter in August
2002, he again interrupted proceedings to say: “Your Honor, you charge me for
stealing bananas. I didn’t steal bananas,” id. at 136; “I don’t know why I’m here,”
id. at 175; and “Your Honor, I hear voices I don’t understand,” id. at 182.

39

After receiving Dr. Nagi’s report, Mr. Sharifi’s counsel moved for a jury
determination of Mr. Sharifi’s mental state for the second time. Doc. 11-13 at 81–
82. In July 2002, the trial court granted defense counsel’s request for expert funding
for a mental evaluation and ordered Mr. Sharifi be made available for the expert, Dr.
Marianne Rosenzweig, at her request. See id. at 109–11. On August 29, 2002, Dr.
Rosenzweig evaluated both Mr. Sharifi’s mental health and competency. Doc. 1118 at 1.
On September 12, 2002, Dr. Rosenzweig reported the results of these
evaluations to defense counsel. Id. During her clinical interview with Mr. Sharifi,
Dr. Rosenzweig reported that his examples of the “self-reported symptom of
memory loss” were contradictory, “illogical,” and inconsistent with his observed
abilities – “most notably that he demonstrated excellent recall for certain facts.” Id.
Further, Dr. Rosenzweig observed that Mr. Sharifi was able to “relate[] a detailed
account of having filed a [pro se] motion with the judge in his case [five]-[six]
months ago,” and when asked about the motion, he gave “an accurate explanation,
demonstrating not only a good command of English but an understanding of legal
concepts beyond the knowledge of the average citizen.” Id.
In addition to Mr. Sharifi’s self-reported auditory and visual hallucinations of
“dead soldiers” and “his dead wife” along with other “flashbacks” from war, Dr.
Rosenzweig reported that Mr. Sharifi “repeatedly” stated he believed he was “a
40

gorilla, and that his current criminal charge is stealing a banana” and that throughout
her administration of the MacCAT-CA test, Mr. Sharifi “removed his ‘flip flop’
shoe, and gnawed on it.” Id. at 2. Dr. Rosenzweig explained that these “self-reported
symptoms do not usually occur in the[se] combinations . . . in bona fide cases of
mental illness.” Id. Further, Dr. Rosenzweig determined that Mr. Sharifi did not
“demonstrate the gross incapacities in mental functioning that would be expected”
if he was “genuinely experiencing these symptoms” and instead “found him to be
lucid, coherent, [with well-organized] . . . thought processes.” Id.
Like Dr. Nagi, Dr. Rosenzweig also tested Mr. Sharifi’s mathematical abilities
and English comprehension, though she reported that she “experienced no difficulty
communicating in English with Mr. Sharifi.” Id. Dr. Rosenzweig found that Mr.
Sharifi’s performance supported Dr. Nagi’s findings that Mr. Sharifi “was
deliberately not answering questions correctly, as Dr. Nag[i] believed to be the
case.” Id. Dr. Rosenzweig reported that when testing Mr. Sharifi’s competency, he
“scored a zero on every question on the test.” Id. Thus, Dr. Rosenzweig concluded
that Mr. Sharifi was “deliberately feigning incompetence” because he “was not”
“floridly psychotic and unable to respond to questions with any understanding.” Id.
Dr. Rosenzweig’s interviews with jail guards and the jail’s psychiatric nurse about
Mr. Sharifi’s observed behavior also indicated inconsistencies with a finding of
incompetency or Mr. Sharifi’s self-reported mental illness. See generally id. at 2–3.
41

Based on all of this information, Dr. Rozenzweig concluded that Mr. Sharifi
was “attempting to feign mental illness.” Id. at 3. Dr. Rosenzweig recognized that
there was “documented proof that [Mr. Sharifi] was treated for a serious mental
illness in Iran long before he was charged in this case” but ultimately expressed that,
even if Mr. Sharifi did have a “genuine mental illness . . . it was not possible . . . to
detect it underneath the multitude of malingered symptoms he presented.” Id. at 3–
4.
Notably, with only two weeks until Mr. Sharifi’s initial trial date of May 5,
2003, defense counsel had not provided the government Dr. Rosenzweig’s
September 2002 report on Mr. Sharifi’s mental health and competency. See Doc. 112 at 14. Instead, on April 16, 2003, in response to the government’s request for this
report, defense counsel stated that Mr. Sharifi’s mental health evaluations were “still
in the works” and that “no report [had been produced] yet” because they were “still
working on it.” Id.
Two days later, when asked about the status of Dr. Rosenzweig’s report,
defense counsel—after having waived Mr. Sharifi’s presence—indicated for the first
time that they would not be challenging Mr. Sharifi’s competency “at this point,”
nor would they continue to pursue a mental-health-based defense. Id. at 20, 59–60.
Mr. Sharifi’s challenges to his competency and his mental health defense were
officially waived and withdrawn in June 2004, when both Mr. Sharifi and defense
42

counsel stated on the record that they would not be pursuing either. Id. at 98–101.
Even so, in September 2004—the week trial was set to begin—defense counsel
moved for another court-ordered competency evaluation of Mr. Sharifi. Doc. 11-4
at 38; Doc. 11-17 at 170–74. The government objected to that request to prevent
further delay and because the record indicated that Mr. Sharifi had been using
allegations of mental illness and competency challenges to evade trial. Doc. 11-17
at 178–79; see also Doc. 11-4 at 39–42.
The record therefore supports the conclusion that questions concerning Mr.
Sharifi’s mental health and competency contributed to delays from April 2001 until
at least June 2004—and possibly a few months longer. The appeals court’s
consideration and weighing of these events as reasons for delaying Mr. Sharifi’s trial
was not “an unreasonable application of[] clearly established Federal law,” nor was
it “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Delays Relating to Discovery
Mr. Sharifi claims that “[a]lmost every delay in the case was a result of the
State’s refusal to disclose discovery,” and the government’s withholding of
discovery information delayed the case for years. Doc. 1 at 40–41. He relies on
several discovery motions to argue that the government intentionally withheld

43

discovery from the defense in violation of court orders. See Doc. 1 at 24–28; Doc.
22 at 4–6.
In March 2000, Mr. Sharifi’s initial defense counsel filed a general discovery
motion and a motion to preserve evidence in the trial court. Doc. 1 at 24. In April
2001, defense counsel requested the release of Mr. Sharifi’s personal belongings—
namely, a briefcase and its contents that were seized at the time of Mr. Sharifi’s
arrest in Los Angeles. Doc. 11-1 at 26; Doc. 11-11 at 12. On April 20, 2001, the trial
court granted Mr. Sharifi’s request to release all personal belongings that were not
evidence. Doc. 11-11 at 13.
Before the trial court granted Mr. Sharifi’s motion requesting the release of
personal property, Mr. Sharifi had pleaded not guilty by reason of mental disease or
defect, and on April 13, 2001, defense counsel moved to challenge Mr. Sharifi’s
competency to stand trial. See id. at 12–13. Defense counsel sent letters seeking
discovery on April 26, 2001 and June 27, 2001. See Doc. 11-14 at 20–21. In the June
27, 2001 letter, Mr. Sharifi’s counsel acknowledged that they had not been focusing
on Mr. Sharifi’s case because they were preoccupied with another client’s case that
was now resolved. Id. at 21. Defense counsel also asked that the government to
release the briefcase and its contents. Id. at 20–21.
On July 25, 2001, defense counsel filed a motion to compel discovery. See
Doc. 11-1 at 26. On August 7, 2001, the government provided defense counsel with
44

some—but not all—of the requested discovery. See Doc. 11-13 at 34. Defense
counsel again wrote the government on August 22, 2001, noting that six of twelve
pages had not been copied and one fax sheet was not included in the initial file, and
defense counsel “need[ed] to make arrangements to have access to the physical
evidence.” Doc. 11-14 at 26. Nothing in the record indicates that these missing items
were not provided by the government in a timely manner.
In October 2001, the government moved for a continuance of Mr. Sharifi’s
interpreter hearing because of the outstanding competency issue and the absence of
the government’s lead investigator, and defense counsel objected. Doc. 11-13 at 38–
41. In this objection, defense counsel argued that the motion hearing should be held
as scheduled because there were outstanding motions that did not require testimony,
including the disputed discovery motion to release Mr. Sharifi’s briefcase and its
contents, which the government had not provided to defense counsel because of its
potential evidentiary value. See id.
Over defense counsel’s objection, the case was then moved to the
administrative docket while Mr. Sharifi was “committed to Taylor Hardin Secure
Medical Facility for further mental evaluations.” Sharifi I, 993 So. 2d at 924 & n.4.
The trial court held a hearing on March 21, 2002. Doc. 11-1 at 23–32. Because Mr.
Sharifi was not present, the trial court continued the interpreter hearing and generally
reviewed the motions before the court. Id. Defense counsel again raised the issue of
45

the briefcase and its contents, claiming that the government had discoverable
evidence that was critical to the development of Mr. Sharifi’s defense. Id. at 26.
The government responded that the requested property was potential evidence
because of Mr. Sharifi’s mental health defense and his ongoing competency
challenge. Id. at 28–29. The government explained that the requested property could
be used to show Mr. Sharifi’s mental state prior to, during the timeframe of, and
after the murders. See id. The government also stated that release of this briefcase
and contents would result in chain of custody problems and stated that this briefcase
and its contents were available for the defense counsel to inspect, view, and copy.
Id. at 27–32; see, e.g., Doc. 11-15 at 44. Further, the government told the defense
that it would be available to meet defense counsel to view and inspect the physical
evidence anytime during the following week. Doc. 11-1 at 30–32. Defense counsel
agreed to that arrangement. Id. at 32.
Defense counsel did not respond to the government’s attempts to schedule a
viewing of this physical evidence during the week after the hearing. Doc. 11-1 at 46.
Instead, defense counsel asked to view the evidence the following week, when the
government was unavailable. Id. At the next hearing, on April 11, 2002, defense
counsel again complained that they had not been given access to the briefcase or its
contents and requested copies of everything. Id. at 42–43, 47–49. The government
responded that defense counsel’s cooperation was also required. Id. at 46. The
46

government also explained the difficulty presented in fulfilling defense counsel’s
demands because to do so would require copying notebooks, address books, business
cards and the like, and indicated that they were unsure of the resources available to
Investigator Lisa Hamilton. Id. at 49–50, 58–59.
Based on defense counsel’s request for copies of the contents of Mr. Sharifi’s
briefcase and their asserted importance, defense counsel moved for the trial court to
impose a deadline for their production. See id. at 45–46, 48–49. The government
requested that the court refrain from setting any “arbitrary deadlines” but added that
it understood the need to handle these matters expeditiously. Id. at 46–47. Defense
counsel continued representing that their proposed “deadline” was not a firm
deadline but, instead, a “target date to work with,” id. at 49, and the trial court agreed,
id. at 51–52. Mr. Sharifi now claims that the government violated the trial court’s
order by producing these copies for the defense sixteen days beyond its sixty-day
deadline. See Doc. 1 at 28; Doc. 11-1 at 51–52.
Mr. Sharifi identifies additional discovery delays by the government,
including delays in turning over crime scene photos, the affidavit supporting the
search warrant for Mr. Sharifi’s apartment, and a page from a police report. Doc. 1
at 44. He alleges that these delays should “weigh heavily against the State.” Id. at
45.
Delays Resulting from Defense Counsel’s Withdrawal
47

The record also reflects that by January 2004, Mr. Sharifi had filed a
complaint against his defense counsel with the Alabama Bar Association. Doc. 1115 at 113. Because of Mr. Sharifi’s Bar complaint, his defense counsel filed the first
of three motions to withdraw on January 14, 2004. See id. at 113–14. In the first
motion to withdraw, defense counsel advised the court that appointment of new
counsel would be in Mr. Sharifi’s “best interest” and “would not adversely affect”
his case “[b]ecause no trial date [had been] set.” Id.at 114. On March 2, 2004,
defense counsel filed its third motion to withdraw and proposed that because “no
trial date is set [the] trial could be scheduled in such a way as to provide new counsel
adequate time to prepare for trial.” Doc. 11-15 at 177. The trial court subsequently
granted defense counsel’s request to withdraw and appointed new counsel. See
Sharifi I, 993 So. 2d at 923.
Mr. Sharifi contends that he is not to blame for any delay resulting from his
counsel’s withdrawal, because by the time counsel moved to withdraw, the court had
already indicated that trial could not occur until the Fall of 2004. See Doc. 1 at 37;
Doc. 22 at 10 (citing Doc. 11-15 at 176).
After his counsel withdrew, Mr. Sharifi filed a federal lawsuit against them,
also naming the government and prosecuting attorneys, law enforcement, and the
trial judge as defendants. See Doc. 11-28 at 247 n.3 (citing Sharifi v. Dorning, et.
al., United States District Court for the Northern District of Alabama, Case No. 5:0448

cv-00591-CLS-JEO). This federal lawsuit prevented Mr. Sharifi’s newly appointed
trial counsel from obtaining his prior counsel’s files while the federal litigation was
ongoing. See Doc. 11-3 at 47–51.
At the time of their withdrawal, Mr. Sharifi’s prior counsel represented that
they would “gladly give new counsel complete access to [their] entire file on the
defendant and will make themselves available for consultation with new counsel as
to expedite preparations for trial and to avoid any further delay in the trial of this
case.” Doc. 11-15 at 114. But because of the federal litigation, Mr. Sharifi’s newly
appointed trial counsel were required to copy all of the files, delaying their ability to
develop the defense. See Doc. 11-28 at 247.
Additional Factors Contributing to Delays
On September 13, 2004, the week Mr. Sharifi’s trial was set to begin, defense
counsel moved for a continuance because Mr. Sharifi’s mother was not in the United
States. Doc. 11-3 at 87–88. Defense counsel had previously reported in June 2004
that Mr. Sharifi’s mother was no longer in the United States and that counsel
“hope[d]” she would return by trial. See Doc. 11-2 at 189. Defense counsel also said
that they were “sure [she] can testify,” but made no further comments about her
importance to the defense. Id.
In their September 2004 motion, defense counsel asserted that Mr. Sharifi’s
mother’s testimony was “essential” and “critical in the defense.” Doc. 11-3 at 87.
49

Defense counsel represented that it had diligently tried to facilitate Mr. Sharifi’s
mother’s return to the United States for several months but had been unsuccessful
because she left the country because of a “personal situation” after having overstayed
her United States visa. Id. at 88. When asked by the court what testimony Mr.
Sharifi’s mother would offer, defense counsel declined to say. Id. at 89–90. The trial
court granted defense counsel’s requested continuance without this requested
proffer—and despite the fact that Mr. Sharifi’s mother’s reentry in time for trial was
not probable. See id. at 88–90. Defense counsel then waited months to move to
depose Mr. Sharifi’s mother at the Turkish Embassy in Iran. See Doc. 11-19 at 23–
24, 29–32. Defense counsel filed this motion in January 2005, just weeks before Mr.
Sharifi’s trial date. Id. at 29–32. The government objected to motion. Id. at 25–26.
The records presented to the appeals court support the inference that Mr.
Sharifi’s actions contributed to delays in his trial setting. Mr. Sharifi filed 123
motions through counsel, as well as over thirty ex parte motions. See Sharifi I, 993
So. 2d at 924 n.3. Mr. Sharifi has not demonstrated that it is beyond all possibility
for fairminded disagreement that responsibility for the delays rests with the
government. He has not shown that the appeals court decision weighing the third
Barker factor against Mr. Sharifi after finding him responsible for the “vast majority
of the delays” was an unreasonable application of law or an unreasonable
determination of facts. Id. at 924.
50

When considering the fourth Barker factor of prejudice, the state appeals court
determined that Mr. Sharifi was not prejudiced by the delay in bringing the case to
trial, because the trial court wanted “to make every resource available to Sharifi
before he faced trial on the capital charge.” Id. “The record shows that the circuit
court took every precaution to ensure that Sharifi was granted a fair trial.” Id. Mr.
Sharifi argues that this conclusion is “unreasonable and unsupported by the record.”
Doc. 22 at 11. However, based on the various record evidence discussed above, this
court cannot say that the state court applied the law or viewed the facts unreasonably
with respect to the prejudice factor.
For all of these reasons, Mr. Sharifi has failed to show that the state
proceedings adjudicating his speedy trial claim involved “an unreasonable
application of[] clearly established Federal law” or were “based on an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).
Although the length of the delay was presumptively unreasonable and Mr. Sharifi
asserted his right to a speedy trial, his responsibility for the delay weighs against
him, and the finding that he was not prejudiced by the delay was not unreasonable.
Accordingly, Mr. Sharifi is not entitled to habeas relief on this claim.
2. Mr. Sharifi’s absence from various court proceedings
Mr. Sharifi asserts that habeas relief is due because he was neither physically
nor constructively present “during every stage of the proceeding against him in
51

violation of his rights under the Sixth and Fourteenth Amendments.” Doc. 1 at 50
(cleaned up). The Respondent argues that “[t]his claim is procedurally defaulted
from this court’s review because Sharifi failed to fairly present it to the state courts.”
Doc. 15 at 11. Mr. Sharifi replies that he “gave the Alabama courts a fair opportunity
to review and decide this claim” because he raised it “[i]n his first supplement” to
his Rule 32 petition, “which the [Rule 32] court” recognized. Doc. 22 at 26. Mr.
Sharifi contends that because the claim was “presented to the state court but not
decided,” he could not raise the claim on direct appeal, and thus the claim is not
procedurally defaulted. Id. at 28.
Mr. Sharifi concedes that when he raised this claim in the Rule 32 proceeding,
he raised it as an ineffective assistance of counsel claim and not as a due process
claim. Id. at 27. He argues that this court should nonetheless consider the claim as
raised because of the liberal construction afforded pro se pleadings. Id. Mr. Sharifi
further asserts that because the Rule 32 court did not rule on the merits of the claim,
it is “not subject to the deferential standard that applies under AEDPA.” Id. (quoting
Cone v. Bell, 556 U.S. 449, 472 (2009)).
Mr. Sharifi must have clearly and definitively presented his claim to the state
court to have sufficiently exhausted the claim; in order words, he “must have
presented the state court with this particular legal basis for relief in addition to the
facts supporting it.” Kelley, 377 F.3d at 1350. Mr. Sharifi did not fairly present the
52

due process claim he now raises to the state’s highest court, either on direct appeal
or on collateral review. Accordingly, that claim is procedurally defaulted. See
Castille, 489 U.S. at 351; Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002).
Furthermore, Mr. Sharifi was represented by counsel for almost the entirety of his
Rule 32 proceedings, and the petitions prepared by counsel—including the petition
filed by counsel after Mr. Sharifi’s first pro se supplement—did not include this due
process claim. Mr. Sharifi has not met the exhaustion requirement of Section
2254(b)(1) and is procedurally barred from raising this claim in his federal habeas
petition. See Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004).
3. Mr. Sharifi’s presentation of mitigation evidence
Mr. Sharifi claims that his “rights under the Eighth and Fourteenth
Amendments were violated because he was precluded from discovering and
presenting mitigation evidence.” Doc. 1 at 64 (cleaned up). More specifically, he
argues that the trial court violated his due process rights “because counsel was
precluded from discovering and presenting evidence of Mr. Sharifi’s character,
background, and propensity during the sentencing phase of his trial.” Id. He claims
that because his representatives were unable to travel to Iran, they were unable to
obtain key mitigation evidence, and Mr. Sharifi should therefore not have been
eligible for a death sentence. Id. at 65–66.

53

Mr. Sharifi’s argument on this issue rests on Iran’s refusal to issue a travel
visa to his mitigation expert. See id. He asserts that Iran refused to issue the visa
because of the lack of diplomatic relations between Iran and the United States, and
his mitigation expert needed the travel visa to travel to and conduct a mitigation
investigation within Iran. See id. Because his expert was unable to enter Iran, Mr.
Sharifi claims his defense was unable to develop mitigation leads and potentially
obtain beneficial mitigation evidence. See id. As a result, Mr. Sharifi asserts that he
was unable to present a complete mitigation defense, which effectively “precluded”
his sentencer’s consideration of Mr. Sharifi’s character and background. Id.
Mr. Sharifi moved the trial court to prohibit consideration and imposition of
the death penalty because of his inability to conduct the Iranian mitigation
investigation. Doc. 11-28 at 155. The trial court denied this request, and Mr. Sharifi
argues that his death sentence is therefore unconstitutional under various Supreme
Court decisions, including Furman v. Georgia, 408 U.S. 238 (1972), Woodson v.
North Carolina, 428 U.S. 280, 304–05 (1976), Lockett v. Ohio, 438 U.S. 586 (1978),
Eddings v. Oklahoma, 455 U.S. 104 (1982), Gregg v. Georgia, 428 U.S. 153 (1976),
and related precedents. Doc. 1 at 65–71.
Relevant Background
Mr. Sharifi raised this argument on direct appeal, where the court found that
“nothing in the record indicates that Sharifi was prevented from presenting any
54

available mitigation evidence,” and he was “due no relief on this claim.” Sharifi I,
993 So. 2d at 942. The court reasoned that Mr. “Sharifi was allowed every available
resource” to obtain various types of mitigation evidence. Id. at 941. The court noted
that “the record tends to support the conclusion that counsel made a strategic
decision to not present some mitigation evidence at the sentencing hearing before
the jury.” Id. at 942.
The appeals court recognized that the trial court provided Mr. Sharifi
opportunities to develop and obtain mitigation evidence in his defense. See id. For
example, the appeals court found that the trial court ordered that Mr. Sharifi receive
a mental-health examination conducted by a professional and that, based on those
findings, the trial court ordered that Mr. Sharifi receive additional, comprehensive,
mental-health evaluations. Id. at 941. The appeals court also found that the trial court
granted Mr. Sharifi’s requests for professional assistance, providing him with both
an interpreter and a mitigation expert. Id.
The appeals court found that the trial court ensured Mr. Sharifi had the
necessary financial support to pursue his defense. See id. For example, the appeals
court cited the trial court’s approval of multiple defense motions that provided up to
$64,500 in additional funding for Mr. Sharifi’s defense. Id. The appeals court found
this approved sum allocated $14,500 to pay Mr. Sharifi’s mitigation expert and

55

defense counsel’s investigation and deposition expenses and $50,000 to cover
anticipated travel expenses to Iran for Mr. Sharifi’s mitigation expert. Id.
The appeals court determined that “Sharifi was allowed every available
resource” to locate or otherwise obtain mitigation evidence. Id. The appeals court
also found that even though “Sharifi’s investigator was unable to travel to Iran” to
develop mitigation evidence because the United States and Iran do not have
diplomatic relations, Mr. Sharifi had access to mitigation evidence available at the
time of trial and during sentencing that included his father’s testimony. See id. at
941–42.
Additionally, the appeals court inferred from the record that, as a matter of
trial strategy, Mr. Sharifi’s counsel withheld some mitigation evidence from the
penalty-phase jury. Id. at 942. The appeals court observed that during the penalty
phase, Mr. Sharifi presented only one witness: his expert. Id. Mr. Sharifi’s expert
testified that “he was unable to obtain [meaningful] mitigating evidence because he
was unable to secure a travel visa to Iran.” Id. During closing arguments, defense
counsel argued before the jury that it would be fundamentally unfair to sentence Mr.
Sharifi to death because, despite defense counsel’s best efforts, the defense had
failed to conduct a mitigation investigation in Iran. Id. The appeals court inferred
from this testimony and other testimony in the record that Mr. Sharifi’s counsel had
made a strategic decision to limit the introduction of other available mitigating
56

evidence to the sentencing jury. See id. The appeals court also noted that this
“fairness” theme continued into the sentencing hearing through Mr. Sharifi’s
statements, his father’s testimony to the trial court, and defense counsel’s final
arguments before Mr. Sharifi was sentenced to death. Id. The appeals court
ultimately denied Mr. Sharifi’s claim because there was “nothing in the record [that]
indicate[d] that Sharifi was prevented from presenting any available mitigation
evidence.” Id.
Analysis
Mr. Sharifi is not entitled to habeas relief on this claim because he cannot
show that the appeals court decision contradicts “clearly established Federal law.”
28 U.S.C. § 2254(d)(1).
A state-court decision is contrary to . . . clearly established
precedents if it applies a rule that contradicts the governing
law set forth in [Supreme Court] cases, or if it confronts a
set of facts that is materially indistinguishable from a
decision of [the Supreme Court] but reaches a different
result.
Brown, 544 U.S. at 141. When Supreme Court precedent “give[s] no clear answer
to the question presented, let alone one in [the defendant’s] favor, it cannot be said
that the state court unreasonably applied clearly established Federal law,” and habeas
relief is not authorized under 28 U.S.C. § 2254(d)(1). Wright v. Van Patten, 552 U.S.
120, 126 (2008) (cleaned up).

57

This court first discusses each of the Supreme Court cases that Mr. Sharifi
discusses. In Eddings, the Supreme Court vacated a state death sentence after finding
that a trial judge violated the Eighth and Fourteenth Amendments by refusing to
consider mitigating factors other than a defendant’s youth. 455 U.S. at 114–17. The
trial judge expressly refused to consider evidence of the defendant’s “unhappy
upbringing and emotional disturbance.” Id. at 109. The Supreme Court held that
“[j]ust as the State may not by statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to consider, as a matter of law,
any relevant mitigating evidence . . . proffered on [a defendant’s] behalf.” Id. at 113–
14.
Furman, Gregg, Woodson, and Lockett address whether various state capital
punishment statutes violate the Eighth and Fourteenth Amendment. In Furman, the
Court held imposition of the death penalty under certain Georgia and Texas statutes
unconstitutional as cruel and unusual punishment. 408 U.S. at 239–40. The Furman
decision does not discuss the issue of mitigating evidence and sentencing.
In Gregg, the Court upheld Georgia’s post-Furman amended capital
sentencing statute as constitutional and articulated a standard for the constitutionality
of a state’s statutory sentencing procedure. 428 U.S. at 197–99, 203. In upholding
the revised statute as constitutional, the Court noted that “the jury is authorized to
consider any other appropriate aggravating or mitigating circumstances.” Id. at 197.
58

The Court further noted that the scope of the mitigating circumstances was not
defined by statute. Id. at 164.
In Woodson, the Supreme Court held that a state statute that automatically
sentences a defendant convicted of “a broad category of homicidal offenses” to death
“violate[s] the Eighth and Fourteenth Amendments.” 428 U.S. at 287, 302. Woodson
rejects a “mandatory death penalty statute” and endorses “particularized
consideration of relevant aspects of the character and record of each convicted
defendant before the imposition upon him of a sentence of death.” Id. at 303.
In Lockett, the Court found an Ohio statute unconstitutional because it
restricted the type of mitigating circumstances a sentencing judge could consider in
a capital case and did “not permit the type of individualized consideration of
mitigating factors” required under “the Eighth and Fourteenth Amendments.” 438
U.S. at 606–07. The Court held that in almost all capital cases, the “Eighth and
Fourteenth Amendments require that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” Id. at 604 (emphasis omitted).
The appeals court ruling on Mr. Sharifi’s direct appeal does not contradict any
of these decisions—or any other binding precedent. See 28 U.S.C. § 2254(d)(1).
Unlike Eddings, Mr. Sharifi does not assert that the trial judge or the penalty-phase
59

jury here refused to consider any mitigating factor his counsel proffered. See 455
U.S. at 117. Indeed, the record reflects that Mr. Sharifi’s trial judge concluded that
death was the appropriate sentence after considering both statutory and non-statutory
mitigating factors. Doc. 11-20 at 20–23.
Furman, Gregg, Woodson, and Lockett are not on point. None of these cases
hold that the death penalty should be unavailable for consideration or imposition
when, due to events beyond the control of either party, a defendant is prevented from
acquiring potentially beneficial mitigating evidence. Because there is no Supreme
Court precedent clearly establishing that Mr. Sharifi had a right to this type of
mitigation evidence, he is not entitled to habeas relief on this claim under 28 U.S.C.
§ 2254(d)(1). See Wright, 552 U.S. at 126.
4. Admission of Ms. Smith-Sharifi’s autopsy report
Mr. Sharifi claims that “[t]he trial court’s admission of Ms. Smith-Sharifi’s
autopsy report violated Mr. Sharifi’s due process rights and rights under the
Confrontation Clause of the Sixth Amendment to the United States Constitution.”
Doc. 1. at 72 (cleaned up). Specifically, he argues that “[t]he State of Alabama
violated Mr. Sharifi’s rights under the Sixth and Fourteenth Amendments of the
United States Constitution because it deprived him of his right to confront Dr.
Johnny Glenn, a key witness against him.” Id. Dr. Glenn performed the autopsy on
Sarah Smith-Sharifi. Id. Mr. Sharifi argues that Dr. Glenn’s report was testimonial
60

in nature, and the trial court erred by admitting the report as a business record
without giving Mr. Sharifi an opportunity to cross-examine Dr. Glenn. Id. at 72–75,
78.
Relevant Background
Dr. Glenn, a forensic pathologist previously employed by Alabama’s
Department of Forensic Science, performed Mrs. Smith-Sharifi’s autopsy with the
assistance of Mr. Gerald Howard, a forensic pathology technician. Doc. 11-19 at 58.
In the autopsy report, Dr. Glenn documented three gunshot wounds to Mrs. SmithSharifi’s head: two entrance wounds and one exit wound. Doc. 11-20 at 152–53.
Mr. Sharifi claims that less than a month before trial, the state filed a notice
that it planned to offer Dr. Glenn’s autopsy report as evidence as a business record.
Doc. 1 at 73; Doc. 11-19 at 58. In this notice, the state disclosed that, per information
received from Dr. Glenn’s treating physician, Dr. Glenn would be unavailable to
testify at trial due to his “psychological state.” Doc. 1 at 73. Defense counsel moved
to exclude the autopsy report, arguing that its admission would violate the
Confrontation Clause. Id. The trial court determined that the report was admissible
as a business record and that its admission did not violate the Confrontation Clause.
Id.
Mr. Howard testified at trial about the observations he made while assisting
Dr. Glenn during the autopsy. Doc. 11-7 at 133–38. Mr. Howard testified that he
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took photos of Mrs. Smith-Sharifi’s body and her wounds during her autopsy. Id. at
136, 167; Sharifi I, 993 So. 2d at 932. These photographs were introduced and
published to the jury. Doc. 11-7 at 146–49, 150–51, 153–54, 167. Additionally, Mr.
Howard testified that he discovered, collected, and photographed the copper bullet
removed from the left side of Mrs. Smith-Sharifi’s head. Id. at 167–68. In doing so,
Mr. Howard explained that he assisted in preserving, packing, and sealing the
recovered bullet and witnessed Dr. Glenn write his initials on the recovered bullet’s
evidence bag. Id.; Sharifi I, 993 So. 2d at 932.
Dr. Adam Craig, a medical examiner employed by the Department of Forensic
Sciences, also testified as an expert witness. Doc. 11-7 at 192–93. Dr. Craig testified
that he was not present for Mrs. Smith-Sharifi’s autopsy and did not contribute to
Dr. Glenn’s report. See Doc. 1 at 73–74; Doc. 11-7 at 192–96. Dr. Craig testified
that, as a matter of regular business practice, a medical examiner employed by the
Department of Forensic Sciences would prepare and submit a report after conducting
an autopsy. See Doc. 11-7 at 192–97. The trial court then admitted Dr. Glenn’s
autopsy report into evidence under the state’s business-record exception to the
hearsay rule. Id. at 197.
After testifying that he found the autopsy photographs and report to be
“consistent,” Dr. Craig testified about the path the bullets took through Mrs. SmithSharifi’s head. Id. at 202; Doc. 11-8 at 3. Ultimately, Dr. Craig testified that, after
62

considering all evidence from Mrs. Smith-Sharifi’s autopsy and based on his own
expertise, he was able to conclude within “a reasonable degree of medical certainty”
that her death was caused by “[m]ultiple gun shot wounds of the head.” Doc. 11-8
at 4–5. Dr. Craig affirmed this conclusion on cross-examination, opining that one
bullet’s trajectory through Mrs. Smith-Sharifi’s head resulted in “definite” death. Id.
at 21.
The coroner who performed the autopsy on Mr. Brown did testify at trial.
Sharifi I, 993 So. 2d at 932. He “testified that Brown died as a result of a gunshot
wound to his head.” Id.
Mr. Sharifi preserved his objections to the admissibility of Dr. Glenn’s
autopsy report throughout trial and raised this issue on direct appeal, arguing “that
the admission of the report violated his right to confrontation and the United States
Supreme Court’s decision in Crawford v. Washington.” Sharifi I, 993 So. 2d at 928.
After extensive consideration of both United States Supreme Court and Alabama
precedent, the appeals court determined that “an autopsy report is a business record
and nontestimonial in nature and that its admission does not” violate the
Confrontation Clause. Id. at 931.
The appeals court found no error because “Sharifi presented an alibi
defense—he never contested the cause of death for either victim. According to
Alabama caselaw, the autopsy report was properly admitted into evidence under the
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business-record exception to the hearsay rule.” Id. at 932. The court noted that
defense counsel’s closing argument acknowledged that the defense did not contest
that Mrs. Smith-Sharifi and Mr. Brown were intentionally killed—only that Mr.
Sharifi did not cause their deaths. Id. The appeals court also concluded that any error
in admitting the report “was harmless beyond a reasonable doubt.” Id.
Analysis
Contrary to Mr. Sharifi’s arguments, admitting Dr. Glenn’s autopsy report
under the business records exception as nontestimonial hearsay was not “contrary to
[] or . . . an unreasonable application of[] clearly established Federal law” for
purposes of federal relief under 28 U.S.C. § 2254(d)(1).
As an initial matter, AEDPA “requires federal habeas courts to deny relief that
is contingent upon a rule of law not clearly established at the time the state
conviction became final.” Williams, 529 U.S. at 380 (emphasis added). A state
court decision about a question that Supreme Court precedent leaves unresolved
cannot satisfy either the “contrary to” or the “unreasonable application” standard of
Section 2254(d)(1). See Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005); Wright, 552
U.S. at 126. The Supreme Court has clarified:
[R]eview under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that
was contrary to, or “involved” an unreasonable application
of, established law. This backward-looking language
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requires an examination of the state-court decision at the
time it was made. It follows that the record under review
is limited to the record in existence at that same
time[,] i.e., the record before the state court.
Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Thus, this court must consider
only those principles of law that were clearly established at the time of the state court
ruling on Mr. Sharifi’s direct appeal in 2008.
Pursuant to the Confrontation Clause in the Sixth Amendment, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. “Testimonial statements of
witnesses absent from trial [may be] admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to crossexamine.” Crawford v. Washington, 541 U.S. 36, 59 (2004).
In Crawford, the Supreme Court determined that a trial court violated the
Confrontation Clause by admitting into evidence out-of-court statements made by
the defendant’s wife to police officers, when those statements concerned the
altercation during which her husband allegedly stabbed the victim (the offense for
which her husband was on trial). See id. at 38, 68. The Court explained that the
Confrontation Clause bars the admission of “[t]estimonial statements” made by a
non-testifying witness, unless the witness is unavailable, and the defendant had a
prior opportunity to cross-examine him. Id. at 59. The Court was careful to limit this
rule to testimonial evidence, although the court left “for another day any effort to
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spell out a comprehensive definition of ‘testimonial.’” Id. at 68. The Court did clarify
that testimonial evidence includes “at a minimum . . . prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.
With regard to nontestimonial hearsay, the Court endorsed allowing “the States
flexibility in their development of hearsay law.” Id.
Crawford therefore reflects uncertainty about which statements are
testimonial, along with flexibility about nontestimonial hearsay, and offers no
express guidance relating to autopsy reports. Accordingly, this court cannot find that,
at the time of Mr. Sharifi’s conviction in 2005 or at the time of the state appeals court
ruling in 2008, there was “clearly established Federal law” classifying an autopsy
report as testimonial evidence. 28 U.S.C. § 2254(d)(1).
Mr. Sharifi also relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011),
Mendelez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and United States v.
Ignasiak, 667 F.3d 1217 (11th Cir. 2012), in support of his argument. See Doc. 1 at
79–81. These cases are distinguishable and were decided after the conclusion of Mr.
Sharifi’s direct appeal. Furthermore, the Eleventh Circuit—not the Supreme Court—
decided Ignasiak. Thus, Mr. Sharifi has not identified any “clearly established
Federal law” supporting habeas relief under 28 U.S.C. § 2254(d)(1). See, e.g.,
Cullen, 563 U.S. at 182.

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Alternatively, even if Mr. Sharifi is correct that clearly established federal law
held that an autopsy report is testimonial hearsay, his argument that the admission
of the autopsy report was not harmless error fails. Mr. Sharifi argues that the autopsy
“report is the only evidence of Sarah Smith-Sharifi’s cause of death. Without Ms.
Smith-Sharifi’s cause of death the State could not prove that Sarah Smith-Sharifi
and Derrick Brown were murdered by one act or pursuant to one scheme or course
of conduct.” Doc. 1 at 82. Further, “without Dr. Glenn’s report, there was no
evidence that Sarah Smith-Sharifi’s cause of death was a gunshot wound and there
was no evidence of the location of her gunshot wounds.” Id. at 82–83. Mr. Sharifi
contends that “[b]ecause there was scant evidence to show the murders were part of
the same scheme, it is impossible to conclude the improper admission of Dr. Glenn’s
report was harmless and did not contribute to Mr. Sharifi’s conviction of capital
murder.” Id. at 83.
There are two different standards for evaluating harmless error, and “for a
federal court to grant habeas relief, it must be true both that the state court’s
application of the . . . harmless beyond a reasonable doubt standard was objectively
unreasonable and that the error had a substantial and injurious effect or influence on
the verdict.” Mansfield v. Sec’y, Dep’t of Corrs., 679 F.3d 1301, 1307–08 (11th Cir.
2012).

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As acknowledged by the appeals court, Mr. Sharifi’s “defense was that he was
in Los Angeles, California at the time of the murders,” Sharifi I, 993 So. 2d at 912,
and “he never contested the cause of death for either victim,” id. at 932. Defense
counsel expressly acknowledged that the victims were dead and did not dispute that
they were killed intentionally. See id.
The record also reflects that, upon reviewing both the report and the autopsy
photographs, Dr. Craig, an expert witness, testified that he could independently
conclude that Sarah died from “multiple gun shot wounds [to] the head.” Doc. 11-8
at 5. Additionally, Mr. Howard testified at trial, was present for Mrs. Smith-Sharifi’s
autopsy, and took the autopsy photographs showing Mrs. Smith-Sharifi’s head
wounds. See Doc. 11-7 at 136, 167. Mr. Howard also testified that, during the
autopsy, he found the partial copper bullet lodged in Mrs. Smith-Sharifi’s skull. Id.
at 167–68. Accordingly, there was sufficient evidence for the jury to conclude—
separate and apart from the autopsy report—that Mrs. Smith-Sharifi died because of
a gunshot to her head.
Mr. Sharifi asserts that the record contains only “scant” evidence that he
murdered both victims pursuant to one scheme or course of conduct, Doc. 1 at 83,
but this argument is not supported by the record. Multiple uncontested facts support
the finding that both victims were killed as part of the same scheme or course of
conduct. Both victims were found bound in plastic and cordage and were recovered
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from the same river within days of each other. Sharifi I, 993 So. 2d at 912. The
caliber of the bullets recovered from both bodies matched the caliber of bullets used
by Mr. Sharifi’s registered gun. Id. Mr. Sharifi purchased this gun on December 6,
1999—only a few days before the victims were last seen alive—and Huntsville
police responded to a domestic dispute between Mr. Sharifi and Mrs. Smith-Sharifi
on December 13, 1999. Doc. 11-20 at 15–16; Sharifi I, 993 So. 2d at 912. This same
gun was in Mr. Sharifi’s possession at the time of his arrest in Los Angeles. Sharifi
I, 993 So. 2d at 912; Doc. 11-20 at 17. Forensic testing later indicated that Mr.
Sharifi’s gun was the murder weapon. Sharifi I, 993 So. 2d at 912. Also, at the time
of his arrest, Mr. Sharifi had Mr. Brown’s identification, license plate, and credit
cards in his possession, id., and Mrs. Smith-Sharifi’s driver’s license was found in
the clothing on Mr. Brown’s body. Doc. 11-20 at 18. This non-comprehensive list is
more than “scant” evidence.
The appeals court’s holding that any error in admitting the autopsy report “was
harmless beyond a reasonable doubt” was not objectively unreasonable. Sharifi I,
993 So. 2d at 932; see Mansfield, 679 F.3d at 1307. When considering the record as
a whole, any error also did not have “a substantial and injurious effect or influence
on the verdict.” Mansfield, 679 F.3d at 1307–08. Even in the absence of the autopsy
report, ample evidence supported the jury’s guilty verdict. Mr. Sharifi is not entitled
to habeas relief on this claim.
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5. Mr. Sharifi’s opportunity to testify
Mr. Sharifi asserts that he is entitled to habeas relief because the trial court
deprived him “of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments” when it “did not give [him] the opportunity to testify during either
phase of his capital murder trial.” Doc. 1 at 83 (cleaned up). He argues that he wanted
to testify, but he “was not asked during either phase of the trial if he wanted to testify,
and defense counsel did not call him to testify in either phase.” Id. The government
answers that “[t]his claim is procedurally defaulted from this court’s review because
Sharifi failed to fairly present it to the state courts.” Doc. 15 at 17. Mr. Sharifi asserts
that he fairly presented this claim to the Rule 32 court when he raised it in the second
pro se supplement to his Rule 32 petition. Doc. 22 at 28. Notably, the Rule 32 court
struck that supplement from the record because of Mr. Sharifi’s improper practice
of filing pro se motions while represented by appointed counsel. See id.; Doc. 11-60
at 126–29.
Mr. Sharifi attacks the order striking his pro se filings as unsupported by
independent and adequate state law. Doc. 22 at 27–29. Further, Mr. Sharifi asserts
that the Rule 32 court’s general refusal to review the claims found within the stricken
materials prevented him from appealing the claims when challenging the Rule 32
court’s summary dismissal of his amended petition. Id.

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The analysis of this claim tracks the analysis of Part III.B.2. above. As with
the earlier issue, Mr. Sharifi acknowledges that he raised this claim as an ineffective
assistance of counsel claim and not as a due process claim. See Doc. 22 at 28. Raising
this issue as an entirely different claim does not exhaust the claim in the state court.
See Kelley, 377 F.3d at 1344–45. Furthermore, the trial court did not consider the
claim as part of Mr. Sharifi’s Rule 32 petition because it was included in a
“supplement” that was filed in violation of the trial court’s procedural directives,
Doc. 11-60 at 126–27, and Mr. Sharifi did not raise the claim or the trial court’s
refusal to consider it in his Rule 32 appeal. For these reasons, this claim is
procedurally defaulted.
The cause and prejudice exception to procedural default does not apply
because Mr. Sharifi cannot show cause for failing to raise the claim. He was aware
of the factual and legal basis for the claim, and no objective factor prevented him
from raising the claim in the state courts. See Murray, 477 U.S. at 488. Mr. Sharifi
is therefore not entitled to federal habeas relief on this claim.
6. Failure to charge the jury on lesser included offenses
Mr. Sharifi claims that his due process rights were violated when “[t]he trial
court failed to charge the jury on lesser included offenses.” Doc. 1 at 85 (cleaned
up). He argues that the jury should have been charged on “the lesser included offense
of intentional murder.” Id. Mr. Sharifi acknowledges that “[d]uring trial, [he] told
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his attorneys to ask the court not to give a jury instruction on lesser included
offenses.” Id. at 86 (emphasis added). He argues that his counsel should not have
followed his directive. Id. He contends that the trial court’s failure to instruct the
jury on lesser included offenses violated Beck v. Alabama, 447 U.S. 625 (1980), and
that the appeals court unreasonably applied Beck in Mr. Sharifi’s direct appeal. Doc.
1 at 86–88.
Relevant Background
During a pre-trial motion conference, Mr. Sharifi’s counsel argued that “lesser
included offense[s] [were] not authorized” under Holladay v. State, 549 So. 2d 122
(Ala. Crim. App. 1988), and should not be included in the jury charge. Doc. 1 at 86
(citing Doc. 11-4 at 151). Before closing arguments in the guilt phase of the trial,
defense counsel again requested that the trial court exclude any lesser-included
offenses from the jury charge and again invoked Holladay. Doc. 11-9 at 7–9.
Defense counsel pointed to the factual similarities between Mr. Sharifi’s case and
Holladay. See id. at 9. The government suggested a lesser-included charge but then
withdrew that suggestion after reading Holladay. Id. at 9–14, 18. The trial court
initially “indicated that . . . unless the Holladay case dictated otherwise” it would
charge the jury on the single, lesser-included offense of intentional murder. Sharifi
I, 993 So. 2d at 937; see Doc. 11-9 at 11–15. “After researching the case, the [trial]

72

court declined to charge on any lesser-included offenses.” Sharifi I, 993 So. 2d at
936. Neither party objected to this decision. Doc. 11-9 at 17–18.
Mr. Sharifi raised this claim on direct appeal. Sharifi I, 993 So. 2d at 935. The
appeals court found that he “invited any error by specifically requesting that the court
not instruct the jury on any lesser included offenses.” Id. at 936. The court concluded
that “there was no Beck violation” because “there was no reasonable theory from the
evidence that would support a conviction for any lesser included offenses.” Id. at
937–38. The appeals court found that Mr. Sharifi relied on the alibi-based defense
of being in California at the time of the murders and that “[b]oth victims were killed
with the same murder weapon, both were shot in the head, and both were found in
the same body of water.” Id. at 938. Thus the trial “court did not err in declining to
charge the jury on any lesser offenses” under Beck, as “no reasonable theory from
the evidence . . . would support a conviction for any lesser included offenses.” Id.
Analysis
Mr. Sharifi argues that his due process rights were violated because the jury
should have been instructed on the lesser included offense of intentional murder.
Doc. 1 at 85. Mr. Sharifi claims that the appeals court unreasonably applied Beck
because “the jury could have determined that the murders were not committed
pursuant to one . . . course of conduct” from the evidence presented at trial or from

73

the prosecution’s inability to “prove when . . . [or] where the victims were killed.”
Doc. 22 at 22.
Mr. Sharifi concedes that “the government is not required to prove that the
victims were killed in the same place or at the same time to prove two murders
occurred as part of [one] scheme or course of conduct.” Doc. 1 at 93. Nonetheless,
he argues that “[t]he lack of evidence regarding the time and place of [the victims’]
death[s]” “is enough for a juror to have reasonable doubt that these two murders
were committed during the same scheme or course of conduct, even if they were
committed by the same person or with the same gun.” Id. at 94.
To this end, Mr. Sharifi argues that the time of death of both victims remains
a mystery. See id. at 91–92. He relies on evidence that Mrs. Smith-Sharifi’s body
was recovered “in the Tennessee River on December 26, 1999,” and “Brown’s body
was found on January 1, 2000.” Id. at 91. He also emphasizes that the coroner
estimated that Mr. Brown’s “body could have been in the river between two to six
weeks,” that “[Mr.] Brown was last seen alive on December 13, 1999,” and that Mr.
Sharifi presented defense witnesses whose testimony indicated they had spoken with
Mrs. Smith-Sharifi as late as December 16, 1999. Id. Mr. Sharifi insists that “[t]here
was . . . no evidence presented [about] where either victim was killed.” Id. at 92. He
asserts that “based on the evidence it is reasonable to conclude that the murders could
not have occurred simultaneously.” Id.
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The death penalty may not “be imposed after a jury verdict of guilt of a capital
offense, when the jury was not permitted to consider a verdict of guilt of a lesser
included non-capital offense, and when the evidence would have supported such a
verdict.” Beck, 447 U.S. at 627. Stated another way:
[W]hen the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense—but
leaves some doubt with respect to an element that would
justify conviction of a capital offense—the failure to give
the jury the “third option” of convicting on a lesser
included offense would seem inevitably to enhance the
risk of an unwarranted conviction.
Id. at 637. “[I]f the unavailability of a lesser included offense instruction enhances
the risk of an unwarranted conviction, Alabama is constitutionally prohibited from
withdrawing that option from the jury in a capital case.” Id. at 638. Inversely, a trial
court is required to instruct the jury on lesser included offenses only “when there is
a reasonable theory from the evidence to support it.” Roberts v. Comm’r, Ala. Dep’t
of Corrs., 677 F.3d 1086, 1094 (11th Cir. 2012) (cleaned up).
Viewing these standards in the light of Mr. Sharifi’s heightened burden under
AEDPA, habeas relief is not warranted. Numerous facts indicate that no reasonable
view of the evidence could support a conviction for one murder but not the other.
Both victims were shot by the same gun, which was registered to Mr. Sharifi and
purchased by him shortly before the victims were last seen alive. Sharifi I, 993 So.
2d at 911–12. This murder weapon was in Mr. Sharifi’s possession at the time of his
75

arrest in California. Id. at 912. Arresting authorities also recovered evidence
connected to both victims from Mr. Sharifi, including Mr. Brown’s driver’s license,
license plate, and credit card, as well as a pair of sandals with Mrs. Smith-Sharifi’s
blood. Id. Additionally, both bodies were recovered from the Tennessee River within
days of one another, both bodies had gunshot wounds to the head, and both bodies
were found wrapped in plastic and bound with cordage. Id.
In the light of this record, the appeals court did not unreasonably apply Beck
when concluding that the evidence did not support charging the jury on a lesser
offense. Furthermore, Mr. Sharifi invited any error. This claim does not support
habeas relief under Section 2254(d).
C. Ineffective Assistance of Counsel Claims
Mr. Sharifi asserts that his trial counsel failed to render effective assistance in
multiple ways, and the impact of those deficiencies—both individually and
cumulatively—justifies federal habeas relief. Doc. 1 at 98–100, 134–37.
As discussed in more detail in the subsections below, many of Mr. Sharifi’s
ineffective assistance of counsel claims were first raised in pro se supplements to his
Rule 32 petition. As previously discussed, the trial court directed Mr. Sharifi not to
file pro se pleadings, but he continually disregarded that instruction, and the Rule 32
trial court struck and refused to consider the pro se filings. Doc. 11-60 at 126–29.
Mr. Sharifi did not raise either the specific claims or their dismissal in his Rule 32
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appeal. See Doc. 11-61 at 2–39. Mr. Sharifi now argues that “claims presented in
Mr. Sharifi’s supplements are not procedurally defaulted, and the trial court’s choice
not to consider them is not an adequate bar to federal court review.” Doc. 22 at 31.
He further contends that, even if the claims are procedurally defaulted, the cause and
prejudice exception applies. Id. at 30 n.9, 31–42.
“[W]hen a petitioner fails to raise his federal claims in compliance with
relevant state procedural rules, the state court’s refusal to adjudicate the claim
ordinarily qualifies as an independent and adequate state ground for denying federal
review.” Cone, 556 U.S. at 465. “A state court’s invocation of a procedural rule to
deny a prisoner’s claims precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and consistently followed.” Martinez,
566 U.S. at 9.
The cause and prejudice exception to procedural default applies to ineffective
assistance of counsel claims, just as it applies to other procedurally defaulted claims.
See id. at 10. “Inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” Id. at 9. In such cases, cause must be established by
one of two circumstances. Id. at 14. The first circumstance arises “where the state
courts did not appoint counsel in the initial-review collateral proceeding for a claim
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of ineffective assistance at trial,” id., and does not apply here. The second
circumstance arises “where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was ineffective under the
standards of Strickland.” Id. “To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has
some merit.” Id. “It is likely that most of the attorneys appointed by the courts are
qualified to perform, and do perform, according to prevailing professional norms,”
which warrants enforcement of “procedural default in federal habeas proceedings.”
Id. at 15.
Mr. Sharifi procedurally defaulted his ineffective assistance claims to the
extent that he did not properly raise them before the Rule 32 trial court and failed to
pursue them on appeal from that court’s summary dismissal. Without “fairly
present[ing] every issue raised in his federal petition to the state’s highest court,
either on direct appeal or on collateral review,” Mr. Sharifi did not exhaust his state
remedies in compliance with Section 2254(b)(1)(A). Ward, 592 F.3d at 1156
(cleaned up).
Mr. Sharifi’s efforts to excuse his procedural default of his ineffective
assistance of trial counsel claims, based on Martinez, fail. First, Martinez’s limited
exception applies only to initial-review collateral proceedings and “does not concern
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attorney errors in other kinds of proceedings, including appeals from initial-review
collateral proceedings.” 566 U.S. at 16. Mr. Sharifi failed to raise these claims
properly in his initial-review Rule 32 petition—and he also failed to appeal their
dismissal.
Second, Mr. Sharifi cannot show cause based on his lack of counsel in the
initial review proceedings. See id. at 14. He was represented by appointed counsel
throughout almost all the post-conviction proceedings, with the exception of a
window of approximately one-month between the withdrawal of one attorney and
the appointment of a successor. See Sharifi R.32, 239 So. 3d at 606 & n.1.
Third, Mr. Sharifi cannot show that his appointed counsel’s failure to raise
select ineffective assistance claims was ineffective under Strickland. See Martinez,
566 U.S. at 14. Not only did Mr. Sharifi have appointed counsel, but he was
represented by four different sets of attorneys over the course of his Rule 32
proceedings, all of whom had the opportunity to consider which claims should be
raised. For the reasons discussed in more detail below, the decision not to pursue
these claims was not unacceptable under Strickland.
Mr. Sharifi has failed to demonstrate that his abandoned ineffective assistance
claims are equitably excepted from procedural default. Thus, to the extent Mr.
Sharifi did not exhaust his state court remedies regarding his ineffective assistance
claims, those claims are procedurally defaulted.
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1. Failure to protect Mr. Sharifi’s right to testify
Mr. Sharifi asserts that his trial counsel rendered ineffective assistance during
the guilt and penalty phases of his trial by failing to protect his right to testify. Doc.
1 at 98–100. Mr. Sharifi asserts that “[t]he trial court’s reason for refusing to consider
the claims is inadequate to bar federal review,” but he cites no authority to support
that position and does not expand the argument—making only a conclusory
statement. Doc. 22 at 28. He further argues that “his pro se pleading must be
construed liberally by this Court to include a direct claim that his right to testify at
both phases of his trial was denied.” Id.
Mr. Sharifi did not exhaust his state court remedies for this claim. Mr. Sharifi
asserts that he raised this claim in his second pro se Rule 32 supplement, which was
stricken. Id. However, Mr. Sharifi’s counsel properly raised this claim in the
amended Rule 32 petition, Doc. 11-35 at 152–53, and the Rule 32 court expressly
considered and rejected the claim, Doc. 11-60 at 126, 132. Mr. Sharifi then did not
raise the claim on appeal from the Rule 32 court’s dismissal. Doc. 11-61 at 2–39.
The cause and prejudice exception to procedural default under Martinez cannot
apply because it does not extend to “attorney errors in . . . appeals from initial-review
collateral proceedings.” 566 U.S. at 16. Because Mr. Sharifi did not exhaust his state
court remedies, this claim is procedurally defaulted.

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2. Counsel’s effectiveness in the penalty and sentencing
phases
Mr. Sharifi argues that he did not receive effective assistance during the
penalty and sentencing phases of trial for various reasons—specifically (1) his
counsel’s failure to investigate, obtain, and present mitigating evidence, Doc. 1 at
100; (2) failure to object to the presentence investigation report, id. at 114; and (3)
the cumulative effect of the preceding errors, along with counsel’s failure to protect
Mr. Sharifi’s right to testify during these phases, id. at 115.
All of these arguments are procedurally defaulted. Additionally, even if Mr.
Sharifi had properly raised these issues before the state court, he would not be
entitled to relief under Strickland, as discussed in more detail in subsections a–c
below.
a. Failing to investigate, obtain, and present mitigating
evidence
Mr. Sharifi asserts that his counsel rendered ineffective assistance by “failing
to investigate, obtain, and present any mitigation evidence during the penalty phase
of Mr. Sharifi’s capital murder trial.” Doc. 1 at 100 (cleaned up). Mr. Sharifi
acknowledges that when he attempted to raise these issues in his Rule 32 proceeding,
he did so via impermissible pro se supplements to his Rule 32 petition, and the state
court struck the supplements. Doc. 22 at 29. Mr. Sharifi did not raise the claim or
contest the trial court’s order striking his supplements in the Rule 32 appeal. See
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generally Doc. 11-61 at 2–39. Because Mr. Sharifi did not exhaust available state
court remedies, this claim is procedurally defaulted.
Furthermore, even if this claim were excepted from procedural default, Mr.
Sharifi cannot satisfy Strickland. Counsel made a strategic decision at the penalty
phase to emphasize their inability to acquire mitigation evidence through travel to
Iran. Doc. 1 at 100–01. That decision was not outside the bounds of professional
norms as required by Strickland, and Mr. Sharifi is not entitled to federal habeas
relief.
b. Failing to object to the presentence investigation
report
Mr. Sharifi alleges that his counsel were “ineffective for not objecting to the
inadequate presentence investigation report.” Doc. 1 at 114 (cleaned up).
“Specifically, the [presentence investigation report] failed to include any
information from the psychological examinations or information from the letter from
Dr. Ali Baghbanian.” Id. In Mr. Sharifi’s direct appeal, the court noted sua sponte
several omissions from the presentence report—including the omissions now
identified by Mr. Sharifi in his habeas petition—but concluded that the omissions
were harmless. Sharifi I, 993 So. 2d at 947–49. The appeals court reasoned that the
omissions were harmless because “the circuit court had access to the omitted
information.” Id. at 949. Mr. Sharifi subsequently raised this argument in the first
supplement to his Rule 32 petition, which was considered by the trial court, although
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the trial court did not rule on the merits of that particular claim. Doc. 22 at 30; Doc.
11-34 at 172; Doc. 11-60 at 129. Mr. Sharifi did not raise this claim on appeal from
the Rule 32 court’s summary dismissal. See generally Doc. 11-61 at 2–39. He
therefore did not exhaust his available state court remedies. However, even if he had
exhausted his remedies, the appeals court’s conclusion that the omissions were
harmless was not an unreasonable application of law or an unreasonable
determination of facts supporting habeas relief under Section 2254(d).
c. Cumulative effect of errors
Mr. Sharifi contends that “[t]he cumulative effect of counsel’s errors during
the penalty phase of trial prejudiced [him].” Doc. 1 at 115 (cleaned up). Because of
the procedural and substantive deficiencies of the related ineffective assistance of
counsel claims, this claim must also fail.
3. Counsel’s effectiveness in the guilt / innocence phase
Mr. Sharifi claims that his constitutional rights were violated because his
“attorneys were ineffective in preparation for and throughout the guilt/innocence
phase of Mr. Sharifi’s trial.” Doc. 1 at 118 (cleaned up). In support of this contention,
he identifies five instances of alleged ineffective assistance of counsel. Id. at 118–
37. The court discusses each instance in turn below and concludes that Mr. Sharifi
is not entitled to habeas relief on these claims.

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a. Firearm examiner’s testimony
Mr. Sharifi alleges that his counsel were ineffective because they failed to
adequately challenge the firearm examiner’s testimony. Doc. 1 at 118–23. He asserts
that he raised this claim in his sixth pro se Rule 32 supplement, which was stricken.
Doc. 22 at 30. However, he also raised this claim in his first pro se Rule 32
supplement, Doc. 11-34 at 166, which he properly filed while awaiting appointment
of post-conviction counsel and which was not stricken. See Doc. 11-60 at 125–26.
The Rule 32 court expressly considered his first pro se Rule 32 supplement
and rejected his ineffective assistance of counsel claims. Id. at 126, 132. Mr. Sharifi
did not raise this claim on appeal from the Rule 32 court’s summary dismissal. See
Doc. 11-61 at 2–39. The claim is therefore procedurally defaulted and does not
support habeas relief.
b. Mr. Sharifi’s absence or constructive absence
Mr. Sharifi alleges that his counsel were ineffective because they failed to
object to his absence from critical stages of the court proceedings. Doc. 1 at 123–27.
Mr. Sharifi asserts that he raised this claim in “multiple supplements to [his] Rule
32 Petition.” Doc. 22 at 30. He did raise this claim in his first pro se Rule 32
supplement, Doc. 11-34 at 171–72; Doc. 11-35 at 8–20, which he properly filed and
which the Rule 32 court considered. See Doc. 11-60 at 125–26. The Rule 32 court
rejected this claim, id. at 126, 132, and Mr. Sharifi did not raise the claim on appeal
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from the Rule 32 court’s summary dismissal. See Doc. 11-61 at 2–39. The claim is
therefore procedurally defaulted and does not support habeas relief.
c. Charging the jury on lesser included offenses
Mr. Sharifi claims that his counsel rendered ineffective assistance when they
failed to ask the trial court to include lesser included offenses in the jury instructions.
Doc. 1 at 128–31. Mr. Sharifi asserts that he raised this claim in his sixth pro se Rule
32 supplement. Doc. 22 at 30–31 (citing Doc. 11-36 at 29). The trial court did not
consider the sixth supplement in its ruling on Mr. Sharifi’s Rule 32 petition, since
Mr. Sharifi filed the supplement in violation of the court’s instructions. Doc. 11-60
at 126–28. In addition to failing to properly raise this claim before the Rule 32 court,
Mr. Sharifi did not raise this claim—or its dismissal—in argument on appeal from
the Rule 32 court’s summary dismissal. See generally Doc. 11-61 at 2–39. Therefore,
the claim is procedurally defaulted.
Mr. Sharifi cannot show cause and prejudice to overcome procedural default
on this issue. His Rule 32 counsel were not deficient under Martinez and Strickland,
since this claim lacks merit, as discussed in Part III.B.6 above.
d. State’s peremptory challenges
Mr. Sharifi argues that his attorneys “were ineffective for failing to object to
the State’s use of peremptory challenges to remove women from the jury because of
their gender.” Doc. 1 at 131 (cleaned up). The government used twenty of its twenty85

five strikes to remove women. Id. at 132; Doc. 11-22 at 22–28. Mr. Sharifi’s petit
jury ultimately included six women and six men, with one male and one female
alternate. Doc. 11-22 at 22–28. Mr. Sharifi asserts that he was deprived of his right
to effective assistance of counsel when his trial counsel failed to raise a timely
objection under J.E.B. v. Alabama, 511 U.S. 127, 146 (1994), which extends the
framework established for claims of racially discriminatory strikes in Batson v.
Kentucky, 476 U.S. 79 (1986), to claims of gender discrimination in strikes. See Doc.
1 at 131–34.
Relevant Background
This issue was raised by Mr. Sharifi on direct appeal and in his Rule 32
petition. On direct appeal, the Court of Criminal Appeals rejected this claim, noting
that Mr. Sharifi did not identify “any specific jurors who were improperly struck,”
and the court’s own review found “no inference that the prosecutor was engaged in
purposeful discrimination toward . . . female prospective jurors.” Sharifi I, 993 So.
2d at 928.
In the Rule 32 proceeding, the Court of Criminal Appeals determined that this
“claim was not pleaded with sufficient specificity to satisfy the requirements in”
Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure. Sharifi R.32,

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239 So. 3d at 610.1 Specifically, “Sharifi alleged that the State used 20 of its 25
strikes against women . . . but he failed to allege the composition of the venire or the
petit jury.” Id. The appellate court also found Mr. Sharifi’s allegation “that the
Madison County District Attorney’s Office [had] a history of . . . gender
discrimination” was insufficient, where “only one of the cases Sharifi cited involved
gender discrimination, and there was no finding in that case that any gender
discrimination actually occurred.” Id. at 611. The court found that Mr. Sharifi’s
“limited factual pleadings” were insufficient to “indicate that the struck jurors shared
only the characteristic of gender.” Id. In upholding the trial court’s summary
dismissal of this claim, the appeals court concluded that Mr. Sharifi “failed to plead
sufficient facts indicating that the State violated either Batson or J.E.B. when
exercising its peremptory strikes and, thus, failed to plead sufficient facts indicating
that his trial counsel were ineffective for not raising a Batson and/or J.E.B. objection
at trial.” Id.
Analysis
Under the J.E.B. and Batson framework, “the defendant must make out a
prima facie case by showing that the totality of the relevant facts give rise to an

In his Rule 32 appeal, Mr. Sharifi argued that his counsel were ineffective for
failing to object to the State’s peremptory challenges on the basis of both gender and
race. See Sharifi R.32, 239 So. 3d at 610. However, his petition before this court
narrows the issue to only gender. See Doc. 1 at 131–34.
1

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inference of discriminatory purpose” before “the burden shifts to the State to explain
adequately the . . . exclusion by offering permissible [gender]-neutral justifications
for the strikes.” Johnson v. California, 545 U.S. 162, 168 (2005) (cleaned up); see
also Smith v. Comm’r, Ala. Dep’t of Corrs., 924 F.3d 1330, 1343–44 (11th Cir. 2019)
(applying the same burden shifting framework to a gender-discrimination claim).
“[I]f a [gender]-neutral explanation is tendered,” the final step requires the [trial]
court to “decide . . . whether the opponent of the strike has proved purposeful . . .
discrimination.” Smith, 924 F.3d at 1343 (quoting Johnson, 545 U.S. at 168).
To sufficiently plead discrimination, Mr. Sharifi must compare female venire
members who were struck by the government with male members who were not
struck. See Wood v. Allen, 542 F.3d 1281, 1288–89 (11th Cir. 2008). Furthermore,
“the inference of discrimination is weakened where, as here, the state accepts jurors
in the allegedly targeted group.” Ledford v. Warden, Ga. Diagnostic Prison, 975
F.3d 1145, 1156 (11th Cir. 2020) (reasoning that acceptance of “female jurors, even
in small numbers, where a different allocation of strikes could have reduced female
participation even further, tends to undermine the inference that those women who
were peremptorily excluded were targeted on account of their gender”). When an
“underlying substantive claim . . . lack[s] merit . . . any deficiencies of counsel in
failing to raise or adequately pursue them cannot constitute ineffective assistance of
counsel.” Owen v. Sec’y, Dep’t of Corrs., 568 F.3d 894, 915 (11th Cir. 2009).
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The appeals court correctly recognized that this claim was insufficiently
pleaded in Mr. Sharifi’s Rule 32 petition. Furthermore, half of Mr. Sharifi’s petit
jury was ultimately composed of women, which undermines an inference of
discrimination. His counsel cannot be faulted for failing to raise a meritless
objection.
For these reasons, Mr. Sharifi has not shown that the state court decisions
were “contrary to, or involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). He is not entitled to federal habeas relief on
this claim.
e. Cumulative effect of errors
Mr. Sharifi asserts that “[t]he cumulative effect of his counsel’s errors during
the guilt/innocence phase of trial prejudiced Mr. Sharifi.” Doc. 1 at 134. Mr. Sharifi
did not expressly raise this particular claim in the state court proceedings, although
he did make an ineffective assistance of counsel claim in his pro se Rule 32 petition.
See Doc. 11-33 at 23–24. Even if we assume the claim was properly raised in the
Rule 32 petition, that court expressly rejected his ineffective assistance claim, Doc.
11-60 at 126, 131–32, and Mr. Sharifi did not raise this specific claim in argument
on appeal from the Rule 32 court’s summary dismissal, see Doc. 11-61 at 2–39. Mr.
Sharifi therefore did not exhaust his state court remedies, and this claim is
procedurally defaulted. Furthermore, given the procedural and substantive
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inadequacies of Mr. Sharifi’s other ineffective assistance claims, this “cumulative
effect” claim cannot stand.
D. Constitutionality of Mr. Sharifi’s Death Sentence
Mr. Sharifi argues that the state courts incorrectly applied the standards of
Ring v. Arizona, 536 U.S. 584 (2002). Doc. 1 at 137–45. In Ring, the Supreme Court
held that the Sixth Amendment guarantees that “[c]apital defendants, no less than
noncapital defendants, . . . are entitled to a jury determination of any fact on which
the legislature conditions an increase in their maximum punishment.” 536 U.S. at
589. Mr. Sharifi asserts that his death sentence violates Ring because the state trial
judge—not the jury—found the specific aggravating fact that authorized his death
sentence and found that this aggravating fact outweighed the mitigating
circumstances. See Doc. 1 at 137–40.
Relevant Background
The jury convicted Mr. Sharifi on one count of capital murder for the
intentional killings of both victims “pursuant to one scheme or course of conduct.”
Sharifi I, 993 So. 2d at 911; see Ala. Code §§ 13A-5-40(a)(10); 13A-6-2(a)(1). This
capital offense has a corresponding aggravating circumstance that is applicable when
“the defendant intentionally caused the death of two or more persons . . . pursuant to
one scheme or course of conduct.” Ala. Code § 13A-5-49(9).

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At the conclusion of Mr. Sharifi’s penalty-phase, the jury voted ten-to-two in
favor of imposing the death sentence. Sharifi I, 993 So. 2d at 911. After conducting
a separate sentencing hearing, the trial court sentenced Mr. Sharifi to death. Doc. 1110 at 103–07. The trial judge found that the jury’s unanimous guilt-phase verdict
was “supported by the evidence.” Doc. 11-20 at 20. The trial judge also found this
verdict established beyond a reasonable doubt that one aggravating circumstance
existed—namely, that Mr. Sharifi murdered “two or more persons . . . pursuant to
one scheme or course of conduct.” Id. (emphasis omitted).
Next, the trial judge “entered specific findings” regarding the “existence . . .
of aggravating . . . and . . . mitigating circumstance[s].” Id. at 20. The trial judge
found one statutory mitigating circumstance: Mr. Sharifi “had no significant history
of prior criminal activity.” Id. at 20–21. Additionally, the trial court considered “all
aspects” of Mr. Sharifi’s character, including “records and any of the circumstances
that [Mr. Sharifi] offered in mitigation.” Id. at 22. After weighing the mitigating
circumstances against the single aggravating circumstance, the trial judge found
“that the aggravating circumstances of this offense clearly outweigh any mitigating
circumstances . . . even if all the mitigating circumstances . . . were . . . proven.” Id.
at 22–23. Based on these findings, the trial judge sentenced Mr. Sharifi to death. Id.
at 23.

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On direct appeal, the Alabama Court of Criminal Appeals rejected Mr.
Sharifi’s argument “that Alabama’s death-penalty statute violates Ring v. Arizona.”
Sharifi I, 993 So. 2d at 940. The appeals court reasoned, “The appellate courts of
this State have consistently held that the United State[s] Supreme Court’s decisions
in Apprendi and Ring did not invalidate Alabama’s death-penalty statute which
places the ultimate determination of the defendant’s sentence in the hands of a trial
judge and not a jury.” Id. The appeals court explained that the Alabama Supreme
Court has repeatedly rejected this argument, holding that “the jury’s verdict finding
a defendant guilty of capital murder during the guilt phase of his trial[] indicated that
the jury had unanimously found a proffered aggravating circumstance included
within [Alabama’s legal] definition of the . . . [capital] offense charged in the
indictment.” Id. at 941 (cleaned up).
In his habeas petition, Mr. Sharifi argues that under Alabama’s pre-2017
capital sentencing system, “a finding that an aggravating circumstance existed was
not the only finding necessary to impose a death sentence.” Doc. 22 at 24. He claims
that even had a jury found—beyond a reasonable doubt—any number of aggravating
circumstances, “a defendant could not receive a death sentence . . . [absent the jury’s
unanimous finding that] mitigating circumstances . . . did not outweigh the
aggravating circumstances [beyond a reasonable doubt].” Doc. 22 at 24–25.

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Mr. Sharifi alleges that, contrary to Ring, his sentencing “jury did not
determine beyond a reasonable doubt that the aggravating circumstances outweighed
the mitigating circumstances.” Id. at 25. Thus, Mr. Sharifi maintains that he is
entitled to habeas relief under 28 U.S.C. § 2254(d)(1) because the state court’s
decision involved an unreasonable application of Ring. Id. at 24–25.
Analysis
To warrant habeas relief under Section 2254, Mr. Sharifi must show that the
state court’s ruling was “beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. He cannot meet that standard on this claim.
Nothing in Ring forbids the use of an aggravating circumstance implicit in a
jury’s unanimous verdict to impose a death sentence. Indeed, Ring specifically left
open this possibility. See Ring, 536 U.S. at 609 n.7 (“We do not reach the State’s
assertion that any error was harmless because a pecuniary gain finding was implicit
in the jury’s guilty verdict.”).
Mr. Sharifi has not cited any Supreme Court precedent that extends Ring to
prohibit a trial judge from considering aggravating circumstances implicit within the
jury’s verdict or to require the jury to weigh the aggravating and mitigating
circumstances. Thus, Mr. Sharifi has not established that the appeals court’s decision
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement,”
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Harrington, 562 U.S. at 103, nor that the appeals court’s rejection of his claim was
an objectively unreasonable application of Ring. Mr. Sharifi is therefore not entitled
to habeas relief on this claim.
IV.

Mr. Sharifi’s Request for an Evidentiary Hearing

Mr. Sharifi attached multiple evidentiary submissions to his Section 2254
petition and his reply brief and asks this court to consider them in support of his
request for an evidentiary hearing under Rule 8 of the Rules Governing Section 2254
Cases. See generally Docs. 1-1 to 1-5; Doc. 22-1; Doc. 1 at 146. “If the petition is
not dismissed, the judge must review the answer, any transcripts and records of statecourt proceedings, and any materials submitted under Rule 7 to determine whether
an evidentiary hearing is warranted.” Rule 8, Rules Governing Section 2254 Cases
in the United States District Courts.
Rule 7 permits a habeas court to “direct the parties to expand the record by
submitting additional materials relating to the petition.” Here, Mr. Sharifi offered
his evidentiary submissions without this court’s instruction. See Docs. 1-1 to 1-5.
Because these submissions were accepted by this court in lieu of a formal evidentiary
request, this court now considers whether Mr. Sharifi’s petition, pleading, and
accompanying submissions warrant an evidentiary hearing. The court has reviewed
all such documents.

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In a habeas proceeding, “a determination of a factual issue made by a State
court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). A petitioner has “the
burden of rebutting the presumption of correctness by clear and convincing
evidence.” Id. “There is an even higher bar for excusing a prisoner’s failure to
develop the state-court record.” Shinn v. Ramirez, 596 U.S. 366, 381 (2022). In such
circumstances, an evidentiary hearing is permissible only if the claim relies on either
(1) “a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable,” or (2) “a factual predicate
that could not have been previously discovered through the exercise of due
diligence.” 28 U.S.C. § 2254(e)(2); see also Shinn, 596 U.S. at 381. Even if a
prisoner can meet one of these exceptions, “he also must show that further
factfinding would demonstrate, ‘by clear and convincing evidence,’ that ‘no
reasonable factfinder’ would have convicted him of the crime charged.” Shinn, 596
U.S. at 381 (quoting 28 U.S.C. § 2254(e)(2)(B)). “[E]ven if all of these requirements
are satisfied, a federal habeas court still is not required to hold a hearing or take any
evidence.” Id.
The equitable rule set forth in Martinez does not expand the “narrow limits”
set forth in 28 U.S.C. § 2254(e)(2) that govern when a federal court can consider a
defaulted claim and allow a petitioner to introduce new evidence in support of that
claim. Shinn, 596 U.S. at 371. Those limits still apply when “a prisoner’s state
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postconviction counsel negligently failed to develop the state-court record.” Id.
“[U]nder § 2254(e)(2), a federal habeas court may not conduct an evidentiary
hearing or otherwise consider evidence beyond the state-court record based on
ineffective assistance of state postconviction counsel.” Id. at 382. “In such a case, a
federal court may order an evidentiary hearing or otherwise expand the state-court
record only if the prisoner can satisfy § 2254(e)(2)’s stringent requirements.” Id. at
384.
Mr. Sharifi bears responsibility for any failure by his counsel in developing
the post-conviction record. See id. at 383. Mr. Sharifi has not met the requirements
of Section 2254(e)(2) because he has not shown that his habeas claims rely on “a
new rule of constitutional law” or newly discovered facts. 28 U.S.C. §
2254(e)(2)(A)(i)–(ii). Accordingly, this court finds an evidentiary hearing is
unwarranted.
V.

Conclusion
For the reasons stated above, this court finds that Mr. Sharifi’s claims and

request for an evidentiary hearing are due to be denied, and his Section 2254 petition
is due to be dismissed. This court will enter an Order dismissing Mr. Sharifi’s
Petition for a Writ of Habeas Corpus, Doc. 1, contemporaneously with this
Memorandum Opinion. The Respondent’s Motion to Strike portions of Mr. Sharifi’s
supplemental brief on Shinn v. Ramirez is DENIED. Doc. 115.
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Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, this court must issue or deny a certificate of appealability
when it enters a final order adverse to the habeas petitioner. This court may issue a
certificate of appealability “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, a “petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,” Slack v.
McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented were adequate to
deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 326
(2003) (cleaned up).
This court finds that Mr. Sharifi has not met either standard. Accordingly, this
court will deny Mr. Sharifi a certificate of appealability in the Order entered
contemporaneously herewith.
DONE and ORDERED this 20th day of March, 2024.

_________________________________
ANNA M. MANASCO
UNITED STATES DISTRICT JUDGE

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