Shanklin v. Dunn et al

Filing 43

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/27/2024. (MEB2)

FILED
2024 Mar-27 PM 01:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
CLAYTON ANTWAIN
SHANKLIN,
Petitioner,
vs.
JEFFERSON DUNN,
Commissioner, Alabama
Department of Corrections, et al.
Respondents.

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6:20-cv-2020-LSC

MEMORANDUM OF OPINION
This matter is before the Court on the amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Clayton Antwain Shanklin
(“Shanklin”), a death row inmate at Holman Correctional Facility in Atmore,
Alabama. (Docs. 24 & 25-1 (sealed)). Shanklin challenges the validity of his 2011
capital murder convictions and death sentence in Walker County, Alabama. Shanklin
was convicted of one count of capital murder for killing Michael Crumpton
(“Michael”) during the course of a first-degree robbery, in violation of section 13A–
5–40(a)(2) of the Code of Alabama; a second count of capital murder for killing
Michael during the course of a first-degree burglary, in violation of section 13A–5–

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40(a)(4), Ala. Code; and one count of attempted murder for attempting to cause the
death of Ashley Crumpton, Michael’s wife, in violation of sections 13A–4–2 and
13A–6–2, Ala. Code. Shanklin’s amended petition raises allegations of ineffective
assistance of trial counsel, error by the trial court, and prosecutorial misconduct. He
also claims that he should not be executed for a variety of reasons.
Upon thorough consideration of the entire record and the briefs submitted by
the parties, the Court finds that Shanklin’s amended petition for habeas relief is due
to be denied.
I.

FACTS OF THE CRIME
The Alabama Court of Criminal Appeals (“ACCA”) summarized the facts of

this case in its opinion on direct appeal, as follows:
The evidence introduced at trial established the following: On
October 11, 2009, Shanklin sent Tracy Ward, his girlfriend, a text
message telling her that he wanted to “meet up” and smoke marijuana.
Ward then drove to Parrish[, Alabama], to pick up Shanklin at his
grandmother’s house; she arrived at approximately 9:00 p.m. Ward and
Shanklin then drove to Shanklin’s mother’s house and, thereafter,
drove to the Warrior River Apartments in Cordova, because Ward was
going to purchase marijuana from her long-time friend, Michael. Ward
telephoned Michael and told him that she would be coming by his
apartment to purchase marijuana. According to Ward, Shanklin had
never been to Michael’s apartment and he stayed in the vehicle when
she went into Michael’s apartment to purchase the marijuana.
When Ward entered Michael’s apartment, she saw Michael,
Ashley [Crumpton], Michael’s mother, Lori Crumpton, and Michael’s
uncle, Lonnie Beard. Ward and Michael went into the master bedroom
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where Ward paid Michael $25 for one gram of marijuana. According to
Ward, when Michael gave her the marijuana she observed more
marijuana “in individual sacks” and also observed “a stack of cash.”
According to Ashley, when Ward and Michael returned from the
master bedroom, Ward said, “‘Y’all have a lot of money.’” (R. 590.)
Ward then left Michael’s apartment and returned to her vehicle.
Ward and Shanklin left the apartment complex and, according to
Ward, Shanklin asked her whom she had seen in the apartment, how
much marijuana she had seen in the apartment, and what kind of
marijuana she had seen in the apartment. Ward told Shanklin that she
had seen “only a few sacks” of marijuana but that it was “hydro,”
which, she said, means “a very high grade of marijuana.” Ward told
Shanklin that she had seen “a stack of money in there also.” Ward and
Shanklin returned to Parrish, where they went to an abandoned house
and smoked the marijuana. Thereafter, Ward told Shanklin that she was
going to go home; Shanklin, however, told Ward that he wanted to go
to Jasper to pick up his cousin Kevin Shanklin (“Kevin”). Ward stated
that she suspected that Shanklin and Kevin were going to rob Michael
because Shanklin had mentioned “earlier that he wanted to go in
there,” presumably talking about Michael’s apartment.
Ward then drove Shanklin to Kevin’s house. Shanklin went
inside Kevin’s house where he remained for approximately 20 minutes;
thereafter, both Shanklin and Kevin came out of Kevin’s house and got
into Ward’s vehicle. Shanklin then told Ward that they wanted to go to
“Jeremiah’s” apartment—Jeremiah, like Michael, lived at the Warrior
River Apartments. Ward then drove Shanklin and Kevin to the Warrior
River Apartments and let them out in front of Jeremiah’s apartment
sometime “before midnight.” According to Ward, Shanklin sent her
approximately 100 text messages between 11:49 p.m. and 2:40 a.m.
Although Ward stated that she knew what was going to happen, she did
nothing to stop it. FN 1
FN 1. Ward testified that she pleaded guilty to murder, see
§ 13A–6–2(a)(3), Ala. Code 1975, and, as a result of a plea
agreement, was sentenced to 20 years’ imprisonment,
which sentence was split and she was ordered to serve 5
3

years’ imprisonment. According to Ward, as part of her
plea agreement, she “agreed to tell the truth on every
related matter of this case.” (R. 685.)
According to Ashley, after Ward left the apartment, the family
continued to watch television. Around midnight Ashley decided to go
to sleep in the master bedroom; Michael and Lonnie, however, stayed
awake. At that time, Michael and Ashley’s two-year-old and eightmonth-old children were asleep in the bedroom they shared, which was
adjacent to the master bedroom. Around 1:30 a.m., Ashley awoke and
went outside to smoke a cigarette, and Michael joined her—Lonnie had
already left the apartment. Michael and Ashley then went back inside
the apartment, checked to make sure the doors were secured, and went
to sleep in the master bedroom.
Thereafter, Ashley was awakened by voices, and she attempted
to wake Michael but she noticed someone in the room. Ashley then lay
back down because, she said, she “was going for [her] gun,” which was
normally kept under her pillow; her gun, however, was not there.
Ashley then sat up in the bed, and the individual next to the bed pulled
out a gun, which she described as a silver, revolver-type gun, and said,
“‘Bitch, don’t move.’” Ashley also saw a second individual at the foot
of the bed. According to Ashley, the individual with the gun was
wearing a ski mask and the individual at the foot of the bed was wearing
a bandana, which, she said, covered only the bridge of his nose and his
mouth. Ashley screamed at them to get out of the apartment.
At that time, the individual wearing the ski mask fired the gun,
hitting her in the upper thigh. The individual wearing the ski mask then
gave the gun to the individual wearing the bandana, who then “put[ ]
the gun in [her] face and pull[ed] the trigger three times”; the gun,
however, misfired, and he passed the gun back to the individual wearing
the ski mask. While the gun was in her face, Ashley noticed that the
individual wearing the bandana had “[l]ight skin . . . [and] a scar on the
right side of his face.” (R. 609.) After the individual wearing the
bandana handed the gun back to the individual wearing the ski mask,
Ashley began fighting the individual wearing the bandana, and Michael
awoke and began yelling at the two individuals.
4

According to Ashley, the two individuals also had in their
possession “big and bulky looking” rocks, which, she said, appeared to
be from the nearby railroad tracks. As Ashley was fighting the individual
wearing the bandana, he struck her twice in the chest with the rock.
Ashley, however, was able to “get the rock from his hand and start
striking him with it.” (R. 611.) Then the individual wearing the ski mask
struck Michael on the head with a rock and the individual wearing the
bandana escaped from Ashley and ran “back down the hallway.” (R.
611.) Ashley then turned to help Michael fight the individual wearing
the ski mask. According to Ashley, while Michael was facing the wall,
the individual wearing the ski mask “had the gun pointed at Michael’s
back. . . . [and] [h]e pull[ed] the trigger and sho[t] him four times in the
back.” (R. 612.) Michael grabbed his back in pain, and the individual
wearing the ski mask attempted to run out of the master bedroom.
Ashley, however, grabbed him, trapped his head in the bedroom door,
and “was hitting him with the door and his head against the wall.” (R.
613.) Ashley then turned on the bedroom lights and, because the ski
mask had come off during the struggle, Ashley saw the side of his face.
While Ashley had the individual with the ski mask pinned in the
doorway, Michael got up from the bedroom floor with a gun in his hand
and told Ashley “to get out.” At that point Ashley let go of the
individual with the ski mask. According to Ashley, the individual with
the ski mask ran down the hallway into the living room where the
individual with the bandana was waiting, and the two left the apartment.
Ashley then went to Michael and they both walked down the
hallway. Ashley then looked into her children’s room and noticed that
her children were both awake and in the eight-month-old’s crib; Ashley
explained that she did not know how the two-year-old ended up in the
crib. Then, according to Ashley, the following occurred:
“[W]e both walked to the sofa, the loveseat, and he has his
gun in his hand and I asked him just to put it down and he
drops the gun on the couch. And I asked him if he was
okay, and he looked at me and asked me if I were okay and
he said no. And I told him I was fine, I had just been shot
in the leg. I went to try to open the front door and my hands
5

were shaking so bad I couldn’t open it so he opened it for
me. And I told him I was going to call an ambulance so I
ran back down the hallway to get our phone that usually
sits on the computer stand.
“. . . .
“[Michael] looked pale. He couldn’t breathe and he was
just hurting.”
(R. 617–18.) Ashley could not find her telephone and told Michael that
she was going to Karen Nicholson’s apartment to telephone an
ambulance. On the way to Nicholson’s apartment, Ashley saw her
upstairs neighbor, Steven Madison, and told him what had happened to
Michael. Madison went to Michael’s apartment to tend to Michael, and
Ashley went to Nicholson’s apartment to telephone an ambulance.
When Ashley arrived at Nicholson’s apartment, which, Nicholson
stated, was around 3:00 a.m., Nicholson would not let Ashley leave
because Nicholson “was afraid that [the intruders] were still on the
grounds.” Nicholson then telephoned 911. FN 2
FN 2. According to the evidence presented at trial,
multiple telephone calls reporting the incident were made
to 911.
According to Madison, when he entered Michael’s apartment he
saw Michael “slumped over the arm of the couch and [he saw
Michael’s] oldest daughter standing in the hallway.” (R. 1393.)
Madison moved Michael from the couch to the floor in front of the
apartment door. Madison stated that Michael looked like “he was
trying to hang on.” (R. 1395.) Madison told Michael “to try to hang on
and somebody was going to call 911.” (R. 1396.) While Madison was
tending to Michael, Madison’s wife came downstairs and took
Michael’s children from the apartment. Shortly thereafter, Michael
died, which Madison described as “[j]ust a gasp, you know, it was his
last breath leaving.” (R. 1399.) Madison then attempted to perform
C.P.R. on Michael, but was unsuccessful. According to Madison,

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Michael appeared to be focused and maintained eye contact with
Madison until he died.
According to Ashley,
“[a]s [she] was sitting there on the couch, [she] could hear
[Madison] talking to Michael and said, ‘Come on, man. I’ll
take you over there.’ And they were trying . . . to get out of
the apartment. And they never made it out of the
apartment.”
(R. 621.) Shortly after 3:00 a.m., paramedics and law enforcement
arrived at the apartment.
Josh Bankston, a paramedic with Regional Paramedic Services in
Jasper, responded to the 911 call. Bankston assessed Michael and
determined that Michael showed no signs of life. Bankston stated that
Michael was “apneic and pulseless,” and Michael was declared dead
on the scene. After the paramedics treated Ashley, she was taken by way
of ambulance to the hospital. Keith Concord, the head investigator for
the Cordova Police Department, went with Ashley to the hospital.
Ashley was treated and released from the hospital the same day. When
she was released from the hospital, Ashley went directly to the
courthouse to speak with Investigator John Softley and Investigator
Frank Cole. Ashley described to Investigator Cole and Investigator
Softley the two men who had shot her and Michael. Specifically, Ashley
told them:
“[T]hey were two black males, both wearing masks, dark
clothing, anywhere from 5′11″ to maybe 6 feet tall.
“. . . .
“I told them they were small in size.
“. . . .

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“. . . I told them that the guy at the foot of the bed had a
scar on the right side of his face, kind of, I told them they
both kind of had big ears.”
(R. 625.)
Shortly after 3:00 a.m., Shanklin sent Ward a text message asking
her to come pick him up. Although Ward initially declined to do so, she
eventually agreed. Ward stated that Shanklin told her to pick him up on
River Road, which, she said, was “[b]y the asphalt plant by the railroad
tracks.” (R. 721.) According to Ward, when she arrived at River Road,
it was raining and Shanklin and Kevin appeared to be “[s]cared,
terrified, [and] nervous” (R. 722), and Shanklin was not wearing shoes.
When Shanklin got into Ward’s car, Ward asked him what was wrong
and Shanklin told her, “[w]e shot him.” (R. 725.) Shanklin told Ward
to drive to Kevin’s house. When they arrived at Kevin’s house, Kevin
got out of the car and then Shanklin and Ward drove to Shanklin’s
grandmother’s house in Parrish. According to Ward, Shanklin told her
that, if anyone asked, she was to tell them that she had not seen him.
After being dropped off at his Grandmother’s house, Shanklin
spoke with his cousin, Isaiah Howze, and told him that “he messed up
and killed someone” in an apartment. FN3 At some point, Shanklin also
had a conversation with another cousin, Tyrone Dickerson, and,
according to Dickerson, Shanklin told him that “some shit went
wrong” and that “it was a scuffle and she wasn’t backing down. He
wasn’t backing down.” FN 4 (R. 839, 841.)
FN 3. According to Howze, before October 12, Shanklin
had told him that he “had a lick,” which, Howze
explained, was “a robbery” and that the place had “some
weed or some money.”
FN 4. Like Howze, before October 12, Shanklin told
Dickerson that he “was gonna . . . hit a lick,” which, he
said, was going to happen “[s]omewhere in Cordova.” (R.
834, 836.)

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Later that morning Ward received a “MySpace instant
messag[e]” from Shanklin. According to Ward, Shanklin asked her if
she had “talked to any police.” (R. 729.) By the time Ward had received
the instant message from Shanklin, she had learned that Michael had
died, and she asked Shanklin if they had killed him. According to Ward,
Shanklin did not respond.
Around 5:30 a.m., Shanklin sent Amber Piper, another girlfriend,
text messages asking her to come pick him up, and Piper did so.
According to Piper, Shanklin left his grandmother’s house “with a
garbage bag of clothes, threw them in the back of the truck,” and they
left. Piper stated that Shanklin appeared to be nervous and that she
“knew something was wrong.” Piper asked Shanklin what was wrong,
and Shanklin told her that he had shot somebody. When Piper asked if
he had actually shot somebody, Shanklin told her “he was just playing.”
(R. 764.) Piper stated, however, that she knew something was wrong.
Piper and Shanklin then drove to Piper’s grandfather’s house in
Gadsden. While at her grandfather’s house, Piper continued to ask
Shanklin what was wrong, and, according to Piper, Shanklin told her
that he had killed somebody, explaining:
“He said that earlier that day, the day that the shooting
actually happened, the girl Tracy went into the house,
unlocked the back door, that she went there to buy weed
because the guy that got shot, I guess, sold weed to her.
And she went in there and hung out for a little while and
unlocked the back door, and later on that night him,
[Shanklin], another guy and Tracy went in the house
through the back door and proceeded to look around for
the drugs and the money. And [Shanklin] walked up to the
guy while he was asleep in the bed and put a gun to his back
and said, ‘MF’er, are you ready to die.’ And the guy
jumped up and started fighting for his money. [Shanklin]
shot him, and [Shanklin] and all of them ran out of the
house and jumped in Tracy’s parents’ car and left. And
when they left [Shanklin] threw out the clothes and the
gun out the window, and I assume that Tracy went home
after she took them home.”
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(R. 769–70.) Piper stated that, after Shanklin told her that he had shot
someone, she was scared, and Shanklin told her that he would kill her
and her child if she told anyone. According to Piper, Shanklin then took
her cellular telephone because he did not want her to telephone anyone.
Piper and Shanklin then went to Piper’s mother’s house in Albertville.
On October 14, Ashley met with Investigator Softley,
Investigator Cole, and Cordova Police Department Chief of Police
Kenneth Bobo at the Cordova Police Station. At that time, Ashley was
given 29 photographs to look through to see if she could identify the
individuals that had been in her apartment. According to Chief Bobo,
Ashley
“was flipping through the stack of photographs and she
immediately recognized one photograph and said, ‘Oh my
God, this is one of them,’ and become very hysterical,
excited. She kept on flipping through the photographs,
flipped through maybe five or ten more, found another
picture and said, ‘This is the other one, this is the other
one,’ and she started crying. You know, we had to give her
a few moments to recoup herself.”
(R. 1165–66.) Ashley identified Shanklin and Kevin. Thereafter,
Investigator Cole, Investigator Softley, and Chief Bobo picked up Ward
to question her and also arrested Kevin. Around 7:00 p.m., Investigator
Cole and Investigator Softley were interviewing a witness, and
Investigator Softley received a telephone call from Shanklin. According
to Investigator Softley, he
“stepped outside of the office in another room and I
answered the phone and the caller identified himself as
Twan. And he asked me, he said, ‘John, I heard y’all had
been looking for me.’ I said, ‘Yeah, Antwain,’ I said, ‘We
have.’ I said, ‘We have a witness up here that we’ve been
talking to them and we need to talk to you and where are
you located.’ He said, ‘I’m in Parrish.’ He said, ‘Let me
talk to Frank.’”
10

(R. 1510.) Thereafter, Investigator Softley returned to the interview
room and told Investigator Cole that Shanklin was on the telephone and
wanted to speak with him. According to Investigator Cole, the following
conversation occurred:
“I said, ‘Hello.’ He said, ‘Hey, this is Antwain.’ I said,
‘What’s up man?’ Antwain said, ‘Man, this shit bad ain’t
it?’ I said, ‘Sure is.’ I said, ‘You need to come up here.’
He then stated, ‘Man, shit just went crazy.’ He said, ‘Is
there anything you can do for me?’ I said, ‘Not one thing
in the world, Antwain.’ I said, ‘You need to come on in
here.’ And Antwain said, ‘How bad is it?’ And I said it was
real bad. I then asked him if he was going to come in and
when. He said, ‘I’ll be there in about two hours,’ and that
he would call [Investigator Softley] when he got close to
Jasper.”
(R. 1498–99.) Shanklin, however, did not turn himself in.
Gary Stanfield, the chief investigator at the Boaz Police
Department, was contacted by law-enforcement officers from Walker
County and was told that Shanklin might be in his area. Investigator
Stanfield was provided with a description of Shanklin and information
that he might be with a girl from that area and that the girl had family in
that area.
On October 15, 2009, Investigator Stanfield visited Piper’s
family but was informed that, although Shanklin and Piper had been at
the house earlier, they had left. Thereafter, Investigator Stanfield stated
that he “had gotten with [the] Albertville Police Department” and had
begun searching for Shanklin at “some of the lower end motel areas.”
(R. 1223.) According to Investigator Stanfield, when he pulled into the
parking lot of the Royal Inn Motel, he saw Piper getting something out
of a vehicle that matched the description and license-plate number
provided to him by Walker County law-enforcement officers.
Investigator Stanfield then approached Piper and asked her if Shanklin
was in the room. Piper told Investigator Stanfield that Shanklin was in
11

the motel room and gave Investigator Stanfield a key to the room.
Thereafter, Investigator Stanfield entered the motel room and took
Shanklin into custody.
On October 16, 2009, Investigator Cole and Investigator Softley
spoke with Jerrell Thomas. Thomas stated that before October 12,
2009, Shanklin had asked Thomas if Thomas had a handgun and asked
if he could use it. Thomas testified that he “told him [he would] see if
[he] [could] get it to him” but claimed that he never gave Shanklin the
handgun. Thomas, instead, explained that he “gave it to someone,” but
could not remember whom he had given it to. Thomas explained,
however, that the person he gave it to knew Shanklin. Thomas stated
that the gun was a silver .32–caliber revolver.
On October 17, 2009, Chief Bobo drove to the Albertville Police
Department to pick up Shanklin. According to Chief Bobo, Shanklin,
without being questioned, stated that “the girl didn’t have nothing to
do with this” and that he “just wanted to tell his side of the story.” (R.
1143.) Shanklin also asked Chief Bobo how they were able to find him
and “said that he bet it was the cell phone.” (R. 1143.) Shanklin
explained to Chief Bobo that he knew Investigator Softley and that
Shanklin “actually called [Softley] on his cell phone.” (R. 1143.)
Shanklin was then transported to the Walker County jail.
While in the Walker County jail, Shanklin spoke with Joshua
Moreland, a trustee. According to Moreland, Shanklin told him what
had happened on October 12, 2009, and Shanklin explained that “they”
went to Cordova “to rob them. He supposedly had some high grade
weed and some cash and he was trying to come up and they were going
to make a hit.” (R. 849.) Moreland stated that Shanklin then explained:
“He said that they had went in to rob them and caught
them off guard, and the lady, I guess the guy’s spouse,
attacked the other one, Kevin, attacked him. During the
time while she was attacking him, she was shot in the leg.
And he said he shot her in the leg. She fell down, and I want
to say that he said that the guy was trying to pick up a brick
to hit him with it. And then he said he unloaded on him,
12

fired at him, and I believe he said he hit him in the chest
several times.”
(R. 851.) Moreland also stated that Shanklin told him that he had
“wished he would have killed Kevin” because “it would have been a
witness gone.” (R. 851, 852.)
While in the Walker County jail, Shanklin also spoke with
Kenneth Traywick, another inmate. According to Traywick, Shanklin
said that he and Kevin went to Cordova “to rob somebody for some
marijuana and some money.” (R. 873.) Shanklin told Traywick that he
was armed with a handgun and that they shot “a white guy in an
apartment complex in Cordova” and “a female, his wife, girlfriend, I
don’t know, shot her in the leg.” (R. 874.) According to Traywick,
Shanklin stated that “once they started shooting they kind of got scared
and ran.” (R. 874.)
Dr. Emily Ward, a medical examiner for the Alabama
Department of Forensic Sciences, conducted an autopsy on Michael.
According to Dr. Ward, Michael was shot four times in the back. Dr.
Ward stated that Michael had “about a liter of blood in the right side of
his chest. And there was also blood inside the sac around the heart,”
which, she said, would indicate that Michael lived for “several
minutes” after he was shot. (R. 1453.) Dr. Ward stated that two of the
bullets entered Michael’s back and that “[b]oth of those wounds . . .
just ripped through the muscles of his back and ended up lodged . . .
behind his fifth rib and the other one behind his eleventh rib.” (R. 1454.)
Dr. Ward stated that both of those wounds would cause “severe pain.”
(R. 1455.) Dr. Ward testified that a third bullet wound entered
Michael’s “right flank” and “ended up on the left side of the pelvis.”
Dr. Ward testified that the fourth bullet
“went through the right side of his back and it went into
the mid part of his chest area called the mediastinum. It
went through the vena cava which is a vein that returns
blood to the heart, and then it went into the heart itself. It
went through the right ventricle of the heart and the
septum in the middle of the heart. It continued through the
13

heart and it impacted the inside of the breastbone where
we could see a little bit of blood on the inside of the
breastbone and then it kind of ricocheted backward into his
diaphragm.”
(R. 1457–58.) Dr. Ward stated that the fourth bullet caused Michael’s
death. Dr. Ward agreed that Michael’s death would be “a slow,
relatively agonizing death” explaining:
“Once the bullet went through the heart and the vena
cava, those areas started to bleed. Because the bullet is
coming from the back of the heart to the front, the blood
left the sac of the heart first of all and went into the right
side of his chest. So, we found about a liter of blood in the
right side of his chest and the chest wall is fixed relatively.
So if you put a liter of blood, and you can just visualize a
two liter bottle of soda and half of that amount of volume
is in the right side of his chest so his lung is not going to be
able to expand well because the blood is going to keep it
from expanding. And that means he can’t take a deep
breath of air and he is going to get the sensation of
smothering or of not being able to breathe. In addition to
that, the blood does collect eventually inside that sac
around the heart and that is going to mean that his heart
can’t expand and contract when it beats, so he is going to
have a sensation that he is not getting enough blood to his
brain and to the rest of his body and at the same time he is
suffering from not being able to get a good breath of air, so
it would be the equivalent of smothering.”
(R. 1461–62.) During the autopsy Dr. Ward recovered four bullets from
Michael’s body.
Dancy Sullivan, a firearms and toolmarks analyst at the Alabama
Department of Forensic Sciences, testified that she received and
examined four bullets from Dr. Ward and a fifth bullet that had been
recovered from Michael’s apartment. Sullivan concluded that they
were .32–caliber bullets.
14

Shanklin v. State, 187 So. 3d 734, 745–53 (Ala. Crim. App. 2014) (footnote omitted).
II.

PROCEDURAL HISTORY
On March 8, 2010, Shanklin was indicted on three counts: capital murder

during a robbery in the first degree, capital murder during a burglary in the first
degree, and attempted murder, in violation of sections 13A-5-40(a)(2), 13A-540(a)(4), and 13A-4-2, Ala. Code, respectively. Vol. 1 at C. 24–26.
Shanklin initially entered a plea of not guilty by reason of mental disease or
defect. Id. at C. 29. The trial court ordered a competency evaluation. Id. at C. 31.
Doug McKeown, Ph.D., conducted a forensic evaluation, which resulted in a report
in which he opined that, although Shanklin functioned in the “low-average” range
of intelligence and had a history of substance abuse and suicide attempts, there was
no indication that Shanklin could not appreciate appropriate and inappropriate
behavior during the time of the crime or that Shanklin had a severe mental disease
or defect or substance abuse issue during that time that would provide a basis for a
mental state defense. Id. at C. 40–41. Once the trial court determined Shanklin to be
competent, Shanklin amended his plea to not guilty. Id. at C. 35–41; R. 76; Vol. 2 at
R. 189.

15

Although two other attorneys had represented Shanklin prior to his trial, Nath
Camp and Dustin Whisenhunt were appointed to represent him at trial. Vol. 1 at C.
43.
Shanklin’s trial began on October 17, 2011. Vol. 1 at R. 79. The State presented
its case over five days, and its witnesses included Ashley Crumpton (Michael’s
widow); Lori Crumpton (Michael’s mother); Shanklin’s girlfriend Tracy Ward;
another girlfriend of Shanklin’s Amber Piper; his neighbor Steven Madison; his
cousins Isaiah Howze and Tyrone Dickerson; Joshua Moreland, a trustee at the
Walker County Jail; and Kenneth Traywick, another inmate. Id. at R. 4–5. Dancy
Sullivan from the Alabama Department of Forensic Science testified that the four
bullets recovered during Michael’s autopsy and a fifth found on the floor of his
bedroom were .32 caliber, and that four bullets were determined to have been fired
from the same gun, while the fifth, which was an autopsy bullet, was inconclusive.
Vol. 6 at R. 996; Vol. 8 at R. 1332–35, 1339–43. Although the bullets were designed
to be fired from a semiautomatic pistol, he testified that they could have been fired
from a revolver. Vol. 8 at R. 1374. He added that misfires are consistent with a
revolver loaded with cartridges intended for semiautomatic use. Id. at R. 1375–76.
The defense presented no guilt-phase witnesses. Vol. 9 at R. 1557.

16

The defense submitted an affidavit signed by Shanklin in which he waived jury
instructions on lesser included offenses and stated that he was instead pursuing an
“all or nothing” approach. The court announced that it would not instruct on lesser
included offenses because it believed that the evidence did not support them, so the
three charges were submitted to the jury without lesser included offenses. Id. at R.
1633–36; see Vol. 1 at C. 44–45.
On October 26, the jury found Shanklin guilty on all counts. Vol. 9 at R. 1675–
76; Vol. 1 at C. 48. After the verdict was announced, the court briefly recessed
before starting the penalty phase that evening. During the penalty phase, the State
presented victim impact testimony from Ashley and Lori Crumpton. Vol. 9 at R.
1688–91; Vol. 10 at R. 1692. The defense offered testimony from Shanklin’s aunt and
uncle, his father, and his wife. Vol. 10 at R. 1693–1711. The jury unanimously
recommended life in prison without parole. Id. at R. 1739; Vol. 1 at C. 49.
Following the advisory sentencing verdict, the trial court ordered a
presentence investigation report and set a sentencing hearing for April 4, 2012. Vol.
1 at C. 50–52. Mr. Camp moved to withdraw due to a conflict, as he had accepted an
appointment as a public defender for Walker County. Id. at C. 53–56. The motion
was granted, and attorneys Martin Adams and Joshua McKeown were appointed to
represent Shanklin along with Mr. Whisenhunt. Id. at C. 57.

17

At the sentencing hearing, the State offered victim impact testimony from
Michael’s mother and grandmother. Vol. 10 at R. 1747–53. The defense offered
testimony from Shanklin’s parents. Id. at R. 1754–59. The trial court sentenced
Shanklin to death on both counts of capital murder. Id. at R. 1762–63; Vol. 1 at C. 61–
91. At the time, Alabama law permitted a judge to override the jury’s
recommendation. In its written sentencing order, the trial court found the existence
of five statutory aggravating circumstances: 1) the capital offense was committed by
a person under sentence of imprisonment; 2) the defendant was previously convicted
of another capital offense or felony involving the use or threat of violence; 3) the
defendant knowingly created a great risk of death to many persons; 4) the capital
offense was committed during the commission or attempted commission of a rape,
robbery, burglary, or kidnapping; and 5) the capital offense was especially heinous,
atrocious, or cruel. Vol. 1 at C. 69–75. The trial court did not find the existence of
any statutory mitigating circumstance, but it did consider the testimony of
Shanklin’s family members. Id. at C. 76–80.
The trial court then gave its reasons for overriding the jury’s life
imprisonment without parole recommendation. First, it considered the unanimity of
the recommendation, and while it gave the recommendation “great weight,” it
concluded “that several jurors[’] emotions may have hindered their ability to follow

18

the law and impose the death penalty,” as “[t]he aggravating circumstances clearly
weigh in favor of the death penalty.” Vol. 1 at C. 82. Second, the court noted that
while some jurors may have had doubts as to the identity of the triggerman, “the
overwhelming evidence in this case pointed to Shanklin as the major perpetrator.”
Id. Third, the court noted that the Crumpton family had not recommended life
without parole. Id. at C. 83. Fourth, the court considered the witnesses Shanklin had
not killed—Ashley, her children, and Piper and her child—but gave this factor “the
absolute minimum consideration” in Shanklin’s favor. Id. at C. 83–84. Finally, the
court recounted facts known to it but not to the jury about Shanklin’s extensive
criminal history. Id. at C. 84–85.
Shanklin’s counsel filed a motion for new trial, which was denied by the trial
court after conducting a hearing. Vol. 1 at C. 99.
Shanklin’s family retained new counsel, James W. Parkman, III, for his direct
appeal. Vol. 1, C. at 98, 100–01. The ACCA affirmed Shanklin’s convictions and
death sentence in 2014. Vol. 13, Tab #R-37; Shanklin, 183 So. 3d 734. The Alabama
Supreme Court denied certiorari in 2015. Vol. 13, Tab #R-37; Ex parte Shanklin, No.
1140922 (Ala. Aug. 28, 2015). The United States Supreme Court denied certiorari
in 2016. Vol. 15, Tab #R-41; Shanklin v. Alabama, 136 S. Ct. 1467 (2016).

19

For state postconviction proceedings pursuant to Rule 32 of the Alabama
Rules of Criminal Procedure, Shanklin was represented by pro bono counsel J.D.
Lloyd, Eric Allen, and Gregory Gardner. E.g., Vol. 24, Tab #R-52. Shanklin filed a
Rule 32 petition on August 25, 2016, allegedly pro se but admittedly with the help of
the Equal Justice Initiative. Vol. 16, Tab #R-42. He filed an amended petition
through counsel on June 12, 2017. Vol. 17, Tab #R-44. The State moved to dismiss
in July 2017. Vols. 17–18, Tab #R-45. On December 20, 2017, the Honorable H.
Douglas Farris, Jr.—who had presided over Shanklin’s trial—summarily dismissed
the amended petition. Vol. 19, Tab #R-46.
Shanklin timely appealed, through counsel. The ACCA affirmed in an
unpublished memorandum opinion in October 2018. Vol. 23, Tab #R-50; Shanklin
v. State, No. CR-17-0416 (Ala. Crim. App. Oct. 5, 2018). The Alabama Supreme
Court denied certiorari on May 22, 2020. Vol. 24, Tab. #R-53; Ex parte Clayton
Antwain Shanklin, No. 1180254 (Ala. May 22, 2020).
Shanklin filed a petition for a writ of habeas corpus in this court on December
15, 2020, represented by counsel from the Federal Defenders for the Middle District
of Alabama. (Doc. 1). Shanklin filed an amended petition on March 30, 2022. (Docs.
24 & 25-1 (sealed).) He attached eleven exhibits to his amended petition, seeking to
expand the record pursuant to Rule 7 of the Rules Governing § 2254 Cases in the

20

U.S. District Courts. (Docs. 24-1 through 24-11 & Doc. 25-1 (sealed)). On June 8,
2022, Shanklin filed a “Motion to Stay, and Hold in Abeyance, the Instant
Proceedings Pending Exhaustion of Claim III in State Court.” (Doc. 26.) The motion
to stay was briefed (docs. 27 & 28), and Respondent also filed an answer to the
amended habeas petition and an accompanying brief on July 26, 2022. (Docs. 32 &
33.) Originally having been assigned to another district judge, on October 19, 2022,
this action was reassigned to the undersigned. (Doc. 38.) Shanklin subsequently
replied in support of his amended habeas petition. (Doc. 41.) This Court denied the
motion to stay proceedings on March 3, 2023. (Doc. 42.) The amended petition is
therefore fully briefed and ripe for review.
This Court has jurisdiction because Shanklin’s conviction and sentence were
imposed in Walker County, Alabama. 28 U.S.C. § 2241(a). Shanklin’s petition was
also timely filed. See 28 U.S.C. § 2244(d)(1)(A).
III.

STANDARDS OF FEDERAL HABEAS REVIEW
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 Corr., 663 F.3d 1336, 1345 (11th Cir. 2011). Pursuant to § 2254(a), a
federal district court is prohibited from entertaining a petition for writ of habeas
corpus “in behalf of a person in custody pursuant to the judgment of a State court”

21

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). In other words, this Court’s
review of habeas claims is limited to federal constitutional questions. Claims
pertaining solely to “an alleged defect in a [state] collateral proceeding” or to a
“state’s interpretation of its own laws or rules” do not provide a basis for federal
habeas corpus relief under § 2254. Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 1325–
26 (11th Cir. 2010) (quotation marks and citations omitted).
A.

Exhaustion of State Remedies and Procedural Default

Under § 2254(b) and (c), a federal court must limit its grant of habeas
applications to cases where an applicant has exhausted all state remedies. Cullen v.
Pinholster, 563 U.S. 170, 182 (2011). This means that “‘[s]tate 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 last court of last resort, even if review in that court is
discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358–59 (11th Cir. 2003) (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Alabama’s discretionary direct
review procedures bring Alabama prisoner habeas petitions within the scope of the
rule. Id. The purpose of this requirement is to ensure that state courts are afforded
the first opportunity to correct federal questions affecting the validity of state court

22

convictions. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998); see also
Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) (“Federal courts are not
forums in which to relitigate state trials.”) (citation omitted)). Moreover, “to
exhaust state remedies fully the petitioner must make the state court aware that the
claims asserted present federal constitutional issues. ‘It is not enough that all the
facts necessary to support the federal claim were before the state courts or that a
somewhat similar state-law claim was made.’” Snowden, 135 F.3d at 735 (quoting
Anderson v. Harless, 459 U.S. 4, 5–6 (1982)). “[A]n issue is exhausted if ‘the
reasonable reader would understand the claim’s particular legal basis and specific
factual foundation’ to be the same as it was presented in state court.” Pope v. Sec’y
for Dep’t of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012) (quoting Kelley v. Sec’y for
Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004)) (brackets in original
omitted).
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, i.e., “the petitioner will have
procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.
2010). Moreover, a “state court’s rejection of a petitioner’s constitutional claim on
state procedural grounds will generally preclude any subsequent federal habeas

23

review of that claim.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (quoting
Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)). “Where there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon the same ground.”
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Yet as the Eleventh Circuit has noted, a claim will only be procedurally
defaulted in the following circumstance:
[A] state court’s rejection of a federal constitutional claim on
procedural grounds may only preclude federal review if the state
procedural ruling rests upon “adequate and independent” state
grounds. Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995)
(citation omitted).
We have “established a three-part test to enable us to determine when
a state court’s procedural ruling constitutes an independent and
adequate state rule of decision.” Judd, 250 F.3d at 1313. “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.” Id. Second, the state
court’s decision must rest entirely on state law grounds and not be
intertwined with an interpretation of federal law. See id. Third, the state
procedural rule must be adequate, i.e., firmly established and regularly
followed and not applied “in an arbitrary or unprecedented fashion.”
Id.
Ward, 592 F.3d at 1156–57 (footnote omitted).
There are also instances where the doctrines of procedural default and
exhaustion intertwine. For instance, if a petitioner’s federal claim is unexhausted—

24

i.e., the petitioner never presented the claim to the state court—a district court will
traditionally dismiss it without prejudice or stay the federal 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) (citation omitted).
B.

Overcoming Procedural Default

“[A]n adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show cause for
the default and prejudice attributable thereto, or demonstrate that failure to consider
the federal claim will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 749–50 (1991) (citations and internal quotation marks
omitted).
The “cause and prejudice” exception is framed in the conjunctive, and a
petitioner must prove both cause and prejudice. Id. at 750. To show cause, a
petitioner must prove that “some objective factor external to the defense impeded

25

counsel’s efforts” to raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488
(1986). Examples of such objective factors include:
. . . interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal
basis for a claim was not reasonably available to counsel. In addition,
constitutionally ineffective assistance of counsel . . . is cause. Attorney
error short of ineffective assistance of counsel, however, does not
constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 494 (1991) (internal quotation marks, brackets, and
citations omitted). As for 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) (emphasis in original).
Finally, a petitioner may also escape a procedural default bar if he “can
demonstrate a sufficient probability that [the court’s] failure to review his federal
claim will result in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529
U.S. 446, 451 (2000). To make such a showing, a petitioner must establish that
either: (1) “a constitutional violation has probably resulted in the conviction of one
who is actually innocent,” Smith v. Murray, 477 U.S. 527, 537 (1986) (quoting
Carrier, 477 U.S. at 496), or (2) the petitioner shows “by clear and convincing
evidence that but for a constitutional error, no reasonable juror would have found

26

the petitioner eligible for the death penalty.” Schlup v. Delo, 513 U.S. 298, 323 (1995)
(emphasis in original) (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).
C.

AEDPA Review of State Court Decisions Under § 2254(d) and (e)

When a constitutional claim upon which a petitioner seeks relief under § 2254
is not procedurally defaulted but has instead been adjudicated on the merits in state
courts, this Court is still restricted in its ability to grant relief on those claims by §
2254(d). The AEDPA “imposes a highly deferential standard for evaluating statecourt rulings” and “demands that state-court decisions be given the benefit of the
doubt.” Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted).
To grant habeas relief on a claim, this Court must not only find 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.
28 U.S.C. § 2254(d)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir.
2010) (quoting § 2254(d)). The burden of showing that an issue falls within §
2254(d)(1) or (d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25
(2002). Section 2254(d)(1)’s “contrary to” and “unreasonable application of”

27

clauses have independent meanings. See Alderman v. Terry, 468 F.3d 775, 791 (11th
Cir. 2006) (“[T]he ‘contrary to’ and ‘unreasonable application’ clauses are
interpreted as independent statutory modes of analysis.”) (citation omitted). 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) (citation omitted). On the other hand, to
determine whether a state court’s decision is an “unreasonable application” of
clearly established Federal law, the Supreme Court has stated:
The pivotal question is whether the state court’s application of the
[relevant constitutional] standard was unreasonable . . . For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from
an incorrect application of federal law. A state court must be granted a
deference and latitude that are not in operation when the case involves
review under the [relevant constitutional] standard itself.
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. And as the [Supreme Court]
has explained, evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation and quotation marks omitted)
(emphasis in original); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The
28

question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.”); Guzman, 663 F.3d at 1346 (“Ultimately, before a
federal court may grant habeas relief under § 2254(d), ‘a state prisoner must show
that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’”) (quoting
Harrington, 562 U.S. at 103). As the Supreme Court has stated, “If this standard is
difficult to meet, that is because it was meant to be. As amended by AEDPA, §
2254(d) stops short of imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” Harrington, 562 U.S. at 102.
If a federal court determines that a particular claim for relief was adjudicated
on the merits in state court, the § 2254(d) analysis that follows must be shaped by
the content, if any, of the last reasoned state court decision. Wilson v. Sellers, 138 S.
Ct. 1188, 1192 (2018) (“when the last state court to decide a prisoner’s federal claim
explains its decision on the merits in a reasoned opinion[,] . . . a federal habeas court
simply reviews the specific reasons given by the state court and defers to those
reasons if they are reasonable”).

29

Additionally, a state court’s factual determination is entitled to a presumption
of correctness under § 2254(e)(1). And commensurate with the deference accorded
to a state court’s factual findings, “the petitioner must rebut ‘the presumption of
correctness [of a state court’s factual findings] by clear and convincing evidence.’”
Ward, 592 F.3d at 1155–56 (alterations in original) (quoting § 2254(e)(1)).
D.

The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions

Additionally, because habeas corpus review is limited to review of errors of
constitutional dimension, a habeas corpus 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) (citation omitted). “[T]he petition must ‘specify all the grounds for
relief available to the petitioner’ and ‘state the facts supporting each ground.’”
Mayle v. Felix, 545 U.S. 644, 655 (2005) (quoting Rule 2(c) of the Rules Governing
§ 2254 Cases in the U.S. District Courts). The burden of proof is on the habeas
petitioner “to establish his right to habeas relief and he must prove all facts necessary
to show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th
Cir. 2008) (citation omitted); see also Smith v. Wainwright, 777 F.2d 609, 616 (11th
Cir. 1985) (holding that a general allegation of ineffective assistance of counsel is
insufficient; a petition must allege specific errors in counsel’s performance and facts
showing prejudice).
30

E.

The General Standard for Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established the following two-pronged standard for judging, under the Sixth
Amendment, the effectiveness of attorneys who represent criminal defendants at
trial or on direct appeal:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687.
Because Strickland’s preceding two-part test is clearly framed in the
conjunctive, a petitioner bears the burden of proving both “deficient performance”
and “prejudice” by “a preponderance of competent evidence.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); see also Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied
in order to show a violation of the Sixth Amendment, the court need not address the

31

performance prong if the defendant cannot meet the prejudice prong, [ ] or vice
versa.”).
In order to establish deficient performance, a habeas petitioner “must show
that counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. That reasonableness is judged against “prevailing
professional norms.” Id. Moreover, under Strickland, lower federal courts must be
“highly deferential” in their scrutiny of counsel’s performance. Id. at 689. As the
Strickland Court outlined:
Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because
of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. There are
countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client
in the same way.
Id. (citations and quotation marks omitted).

32

Simply put, a habeas petitioner “must establish that no competent counsel
would have taken the action that his counsel did take” to overcome the presumption
that counsel’s conduct fell within the wide range of reasonable professional
assistance. Chandler, 218 F.3d at 1315. The reasonableness of counsel’s performance
is judged from the perspective of the attorney, at the time of the alleged error, and in
light of all the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th
Cir. 2008) (“We review counsel’s performance ‘from counsel’s perspective at the
time,’ to avoid ‘the distorting effects of hindsight.’”) (quoting Strickland, 466 U.S.
at 689).
To satisfy the prejudice prong, a habeas petition “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.” Strickland, 466 U.S. at 694.
Stated differently, “[a] finding of prejudice requires proof of unprofessional errors
so egregious that the trial was rendered unfair and the verdict rendered suspect.”
Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001) (citations and quotation
marks omitted). Further, the fact that counsel’s “errors had some conceivable effect
on the outcome of the proceeding” is insufficient to show prejudice. Strickland, 466
U.S. at 693. Therefore, “when a petitioner challenges a death sentence, ‘the

33

question is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d
1193, 1209 (11th Cir. 2007) (quoting Strickland, 466 U.S. at 695).
Because Strickland and § 2254(d) both mandate standards that are “‘highly
deferential’”, “when the two apply in tandem, review is ‘doubly’ so.” Harrington,
562 U.S. at 105 (citations omitted). The inquiry is not then “whether counsel’s
actions were reasonable,” but is instead “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id. The court must
determine “whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance
fell below Strickland’s standard.” Id. at 101. This “[d]ouble deference is doubly
difficult for a petitioner to overcome, and it will be a rare case in which an ineffective
assistance of counsel claim that was denied on the merits in state court is found to
merit relief in a federal habeas proceeding.” Evans v. Sec’y, Fla. Dep’t of Corr., 699
F.3d 1249, 1268 (11th Cir. 2012).
Finally, “[s]tate court findings of historical facts made in the course of
evaluating an ineffectiveness claim are subject to a presumption of correctness under
28 U.S.C. § 2254(d).” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001).

34

F.

Shanklin’s Exhibits

With regard to the exhibits Shanklin attaches to his amended petition, the
Court will not consider them. These exhibits were not part of the state court record.
As the Supreme Court made clear in Cullen v. Pinholster, “review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on
the merits.” 563 U.S. 170, 181 (2011). See also French v. Warden, 790 F.3d 1259, 1266
(11th Cir. 2015) (relying upon Pinholster in denying the petitioner’s motion to admit
five affidavits that were not made part of the state record).
IV.

DISCUSSION OF SHANKLIN’S CLAIMS
Shanklin’s amended petition raises twelve claims for relief, many with

numerous subclaims. Each claim is addressed separately.
A.

Shanklin’s claim that he was denied effective assistance of trial
counsel during the guilt phase of his trial

Shanklin first argues that he was denied his Sixth Amendment right to
effective assistance of counsel during the guilt phase of his trial in four distinct ways:
1) his counsel waived a jury instruction on lesser included offenses to capital murder;
2) his counsel failed to object to the jury instruction on accomplice liability; 3) his
counsel failed to object to various instances of prosecutorial misconduct; and 4) his
counsel failed to locate and investigate witnesses, prepare an adequate defense,

35

conduct reasonable cross-examinations of key State witnesses, and present a defense
theory of the case. Each of these four subclaims is addressed separately.
1.

Shanklin’s subclaim that his trial counsel were ineffective in
allowing Shanklin to waive a jury instruction on lesser
included offenses to capital murder

Near the end of the State’s case-in-chief during Shanklin’s trial, Shanklin’s
counsel filed an affidavit signed by Shanklin stating that he did not want the trial
court to give the jury any instructions on lesser included offenses, such as felony
murder, that would not carry with them a penalty of death. Vol. 1 at C. 44–45. The
affidavit further stated that Shanklin was waiving these instructions against the
advice of his trial counsel, who had advised him that a lesser included offense
instruction would be in his best interest. Id. The affidavit stated that Shanklin wanted
to pursue an “all or nothing approach.” Id.
Before the trial court gave the jury instructions, it held a brief discussion on
the record. Vol. 9 at R. 1633–35. The court noted that the day before, the court had
had an “informal charge conference” with the parties regarding the jury
instructions, and that the court was finding no basis to include an instruction on
lesser included offenses “based upon [its] own findings and the affidavit filed by the
defendant, Mr. Shanklin, requesting that no lesser included charges be included in
the instructions to the jury.” Id. at 1633. The court then read Shanklin’s affidavit

36

into the record. Id. at 1634–35. At that point, the State indicated that, just for the
record, it was requesting a lesser included offenses jury instruction. Id. at 1635.
Shanklin argues that his counsel’s allowing him to waive a jury instruction on
lesser included offenses violated his constitutional right to effective counsel. He
divides this subclaim into several allegations: 1) his counsel were ineffective for
drafting and filing the affidavit signed by Shanklin; 2) his counsel were ineffective for
inviting the trial court to accept Shanklin’s affidavit; and 3) his counsel created a
conflict of interest by preparing the affidavit instead of demanding a waiver
colloquy.1 The Court will address each of the three parts of this subclaim about the
waiver affidavit separately.
i.

drafting and filing the waiver affidavit

Shanklin contends that his counsel were ineffective for drafting and filing the
affidavit. He argues that counsel “knew the State had presented an overwhelming
case of Mr. Shanklin’s guilt as to felony murder,” that there was “no reasonable
strategic basis for having obtained or filed the purported waiver” or for following
Shanklin’s wishes, and that counsel now admit this was a mistake on their part. (Doc.
24 at 37–39.) In support, Shanklin identifies testimony that he says would have
Shanklin actually divides this subclaim into five parts, but since two of the five parts are
arguments as to why 28 U.S.C. § 2254(d) should not bar relief as to the other three allegations, the
Court will consider those arguments within its discussion of the other three allegations.
1

37

proven that he was guilty of felony murder rather than capital murder. For example,
Shanklin points out that Investigator Softley testified that the day after the incident,
Ashley Crumpton, the surviving victim and Michael’s wife, had identified codefendant Kevin Shanklin as her husband’s killer and Shanklin as merely being
present at the scene. Vol. 2 at R. 151, 167–68. He also points to trial testimony from
various individuals that Shanklin had told them after the incident that the burglary
and robbery went “wrong” or “crazy,” or otherwise not according to plan. Vol. 5 at
R. 714–18, 722, 839, 873; Vol. 6 at R. 917–19; Vol. 9 at R. 1498–99. Thus, according
to Shanklin, his trial counsel could have argued that he was involved in the burglary
and robbery of the Crumpton home, but that he did not intend for anyone to die,
making him guilty only of felony murder.
Shanklin also offers new declarations from trial counsel Mr. Camp and Mr.
Whisenhunt, prepared for this federal habeas proceeding, in which they both state
generally that they were inexperienced in capital litigation at the time of Shanklin’s
trial, that they allowed Shanklin to make decisions that they should not have, and
that they had no strategic reason for allowing Shanklin to make his own decisions
about what instructions should be presented to the jury. (See generally Docs. 24-1 &
24-2.)

38

Shanklin exhausted this claim during his Rule 32 proceedings as claim 2.I.H.
(“Trial counsel unprofessionally drafted and filed a statement to exclude all lesser
included offenses.”). Vol. 17 at C. 256–62; Vol. 21, Tab #R-47, at 34–37; Vol. 24,
Tab #R-52, at 42–48. The ACCA, in its decision affirming the circuit court’s denial
of Shanklin’s amended Rule 32 petition, quoted the circuit court’s opinion
dismissing this claim and agreed with its reasoning, as follows:
Shanklin argues that trial counsel were ineffective for drafting
and filing a statement in which Shanklin waived instructions on lesserincluded offenses. Shanklin argued this claim in his petition and argues
on appeal that trial counsel had a conflict of interest because they
drafted and filed a statement waiving instructions and that trial counsel
were ineffective by doing so.
This Court, as addressed above in Part III, found that trial
counsel did not have a conflict of interest when they drafted and filed
the statement. Likewise, trial counsel was not ineffective for doing so.
The facts concerning this claim are discussed above. In its order, the
circuit court addressed this claim as follows:
“First, Shanklin alleges that counsel’s decision to
file the affidavit was per se ineffective. This claim is
insufficiently pleaded because Shanklin failed to plead
facts showing that the affidavit did not represent his
wishes or that he would have disavowed it during a waiver
colloquy. Moreover, the affidavit and counsel’s in-court
statements show that counsel wanted to pursue lesser
included offenses and were merely following their client’s
wishes. Counsel were not ineffective for memorializing
Shanklin’s decision and having the affidavit read into the
record. Further, Shanklin pleaded nothing showing
prejudice. As discussed above, this Court found no basis
for instructing the jury on lesser included offenses, and the
39

Court of Criminal Appeals found no plain error in the
instructions. The jury obviously agreed that Shanklin was
guilty of the offenses charged, as they returned their
verdict on the day they received the case and still had time
to render a penalty-phase recommendation that afternoon.
(See R. 1673, 1676, 1739; C. 48-49.) Therefore, this claim
is dismissed pursuant to Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure.
“Second, Shanklin claims that counsel’s decision to
file his affidavit was particularly prejudicial to him because
there was sufficient evidence to support lesser included
offenses. This claim is both insufficiently pleaded and
meritless. As noted, the affidavit was a memorialization of
Shanklin’s wishes for trial strategy. He pleaded nothing
suggesting that if he had not signed the affidavit, counsel
would have requested instruction[s] on lesser included
offenses against his wishes. Moreover, this Court found no
reason to give an instruction on lesser included offenses,
and the Court of Criminal Appeals found no plain error in
the charge. Shanklin has not pleaded facts showing that but
for the affidavit, the court would have given his
instruction, and he would not have been convicted of
capital murder. Further, the evidence showed that
Shanklin had a specific intent to kill. . . . Ashley Crumpton
testified that both men used the gun during the assault:
while Shanklin shot her in the leg and killed Michael,
Kevin Shanklin tried three times to shoot her in the face.
(R. 600-09.) Shanklin repeatedly admitted to being the
triggerman, telling at least four people that he shot
Michael. Shanklin, 187 So. 3d at 794. As Shanklin pleaded
nothing that would overcome these facts or show he was
entitled to a felony murder instruction, let alone why the
jury would have convicted him of the lesser offense, this
claim is dismissed pursuant to Rules 32.3, 32.6(b), and
32.7(d) of the Alabama Rules of Criminal Procedure.”
(C. 772-73.)
40

The circuit court’s findings are supported by the record and we
adopt them as part of our memorandum. It appears that Shanklin chose
not to have the jury instructed on lesser included offenses after
consulting with trial counsel and that trial counsel recorded that
decision. The record also indicates that the trial court did not think that
the lesser included offenses were applicable and would not have
instructed the jury on those offenses even if trial counsel had requested
it do so. Therefore, Shanklin failed to show that trial counsel were
ineffective in drafting and filing the affidavit or for not requesting
instructions on lesser included offenses. In addition, Shanklin failed to
show that even if trial counsel had requested the instructions, he was
entitled to them, particularly when the trial court stated that it did not
think Shanklin was entitled to have the jury instructed on lesserincluded offenses. Accordingly, the circuit court properly dismissed
this claim.
Vol. 23, Tab #R-50, at 65-67 (some citations omitted).
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Shanklin argues that he can establish unreasonableness as to both of the
ACCA’s conclusions on this claim, specifically: 1) that Shanklin failed to show that
his trial counsel performed deficiently in drafting and filing the affidavit and 2) that

41

Shanklin failed to show prejudice because the trial court stated that it did not think
he was entitled to a lesser included offenses instruction even if he had asked for one.
Taking the ACCA’s second conclusion as to prejudice first, Shanklin argues
that it is contrary to Beck v. Alabama, 447 U.S. 625, 627 (1980), in which the Supreme
Court held that “when the jury was not permitted to consider a verdict of guilt of a
lesser included noncapital offense, and when the evidence would have supported
such a verdict . . . the death penalty may not be imposed[.]” Shanklin reads Beck as
a constitutional mandate that all defendants facing the death penalty are entitled to
lesser included offenses instructions, but that is not the case. They are only so
entitled when the evidence would support such a verdict for a noncapital offense. See
id. Thus, although the ACCA did not cite Beck, it’s conclusion is not at odds with it.
The circuit court on Rule 32, whose findings were adopted by the ACCA, found that
Shanklin was not entitled to an instruction on felony murder, citing the heavy
evidence of his intent to kill and his repeated admissions to being the triggerman. See
Vol. 19, Tab #R-46, at C. 773. Thus, Beck was not violated because “the evidence
would [not] have supported such a verdict,” see Beck, 447 U.S. at 627.
Shanklin also argues that the ACCA’s conclusion about prejudice is an
unreasonable determination of the facts, pursuant to § 2254(d)(2), because there was
“ample evidence from the trial record to support the lesser included offense of felony

42

murder.” (Doc. 25-1 at 49 (sealed)). Again, the state courts disagreed (and the Rule
32 judge was the same judge who presided over Shanklin’s trial and heard all of the
evidence). Indeed, multiple witnesses testified as to Shanklin’s actions and
incriminating statements. Federal review under § 2254(d) weighs heavily in favor of
the state courts’ decisions. “[A] state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). So long as
“fairminded jurists could disagree on the correctness” of the state courts’ decisions,
this Court may not grant relief. Harrington, 562 U.S. at 88. This Court finds no
reason to overturn the state courts’ ruling.
With regard to the ACCA’s first conclusion about deficient performance,
Shanklin contends that it is contrary to Beck and the record. The Court again
disagrees. The circuit court found that the record demonstrated that Shanklin
wanted an “all or nothing” approach, thereby avoiding the risk that he could be
found guilty of felony murder, and even though his counsel disagreed, there was
nothing inappropriate about counsel memorializing Shanklin’s decision for the
record. Shanklin cites Alabama law for the proposition that counsel, not the
defendant himself, should decide which jury instructions to request, see Parker v.
State, 510 So. 2d 281, 286 (Ala. Crim. App. 1987), but that case is not federal

43

constitutional law as determined by the Supreme Court. Further, while Mr. Camp
and Mr. Whisenhunt now claim in declarations prepared for the first time in this
proceeding that they should not have allowed Shanklin to make the decision as to
jury instructions, see docs. 24-1 at ¶ 13 & 24-2 at ¶ 11, neither attorney states that this
decision to forgo instructions on lesser included offenses was not what their client
wanted or that the affidavit was anything other than a reflection of Shanklin’s wishes.
As stated previously, this Court will not consider these declarations, as they were
not part of the state court record. See section III.F., supra. But even if this Court were
to consider those declarations, they would not undermine the deference that this
Court must give to the state courts’ decisions in this regard.
Accordingly, Shanklin’s claim that his counsel was ineffective in drafting and
filing the waiver affidavit is denied.
ii.

inviting the trial court to accept the waiver affidavit

Apart from Shanklin’s preceding claim, Shanklin also claims that his trial
counsel were constitutionally ineffective in inviting the trial court to accept the waiver
of jury instructions on lesser included offenses.
Respondent argues that Shanklin never raised this specific claim in the state
courts, and so it is not properly before this Court. True, the Court can find no claim
described in this specific way in Shanklin’s Rule 32 amended petition. Shanklin urges

44

that the preceding claim “necessarily encompassed” this claim, and that “the
substance” of this claim was sufficiently presented to the state courts. (Doc. 41 at 21
(quoting Picard v. Connor, 404 U.S. 270, 278 (1971) (“We simply hold that the
substance of a federal habeas corpus claim must first be presented to the state
courts.”))). But the Eleventh Circuit has held that “an issue is exhausted if ‘the
reasonable reader would understand [the] claim’s particular legal basis and specific
factual foundation’ to be the same as it was presented in state court.” Pope, 680 F.3d
at 1286 (quoting Kelley, 377 F.3d at 1344–45) (emphasis added). The Court is
perplexed as to why Shanklin would raise this claim as a separate claim in his federal
habeas proceedings because it seems to be repeating arguments from his preceding
claim, but in any event, assuming that this claim is considered an offshoot of the
preceding claim and that it has thus been sufficiently exhausted, Shanklin cannot
overcome the § 2254(d) hurdle for the reasons stated in the previous section.
iii.

creating a conflict of interest by preparing the affidavit
instead of demanding a waiver colloquy

Shanklin also claims that his trial counsel were constitutionally ineffective
when they created a conflict of interest between Shankin’s best interests and
counsel’s best interests by preparing the waiver affidavit instead of requesting that
the trial court conduct a waiver colloquy with Shanklin. He contends that the

45

affidavit is a clear attempt to insulate trial counsel from liability for failing to request
a lesser included offenses instruction.
Shanklin exhausted this claim during his Rule 32 proceedings in the Alabama
state courts, as claim 1.II.A. (“Trial counsel’s preparation of an affidavit for Mr.
Shanklin to preemptively defend future ineffectiveness claims showed that counsel’s
interests had divulged from Mr. Shanklin’s.”). Vol. 17 at C. 221–24; Vol. 21, Tab
#R-47, at 13–14; Vol. 24, Tab #R-52, at 12–14. The ACCA, in its decision affirming
the circuit court’s denial of Shanklin’s Rule 32 petition, heavily quoted the circuit
court’s opinion dismissing this claim, and agreed with it, as follows:
Shanklin contends that his trial counsel had a conflict of interest.
Specifically, Shanklin argues that by drafting and filing an affidavit by
Shanklin indicating that he waived jury instructions on lesser-included
offenses, trial counsel demonstrated an “allegiance to themselves and
their decision to elevate their own interests over the interests of the
client.” (Shanklin’s brief, at 14.) Shanklin claims that by preparing the
affidavit, trial counsel prevented Shanklin from waiving his right to jury
instructions in open court on lesser-included offenses following a
waiver colloquy. The circuit court addressed the various parts of this
claim, including the part that asserts that the conflict caused trial
counsel to be ineffective. The circuit court stated the following when
summarily dismissing this claim:
“Shanklin contends that his trial counsel were
conflicted because they asked Shanklin to sign an affidavit
concerning lesser included offenses. For the reasons that
follow, this claim is dismissed pursuant to Rules 32.3,
32.6(b), and 32.7(d) of the Alabama Rules of Criminal
Procedure.

46

“The relevant facts are as follows. On October 25,
2011, while his trial was ongoing, Shanklin executed an
affidavit stating that he was directing his attorneys not to
propose instructions on lesser included offenses. Although
counsel had advised Shanklin that pursuing lesser included
offenses would be in his best interest, Shanklin stated that
he was declining to follow their advice and wished to take
an ‘all or nothing’ approach. (C. 44-45.)
“Prior to charging the jury, this Court stated that it
found no basis to instruct on lesser included offenses,
based upon both its own findings and on Shanklin’s
affidavit. (R. 1633.) This court also read the affidavit into
the record. (R. 1634- 35.) The Court of Criminal Appeals
found no plain error in the guilt-phase instructions.
Shanklin, 187 So. 3d at 795-96.
“. . . .
“. . . Shanklin contends that his counsel were
ineffective because they failed to raise the issue of this
Court’s decision not to instruct on lesser included offenses
before closing arguments. But as the Court’s decision was
in line with Shanklin’s wishes, as stated in his affidavit,
Shanklin failed to plead how counsel erred or how he was
prejudiced. See, e.g. Ex parte Mills, 62 So. 3d 574, 581-90
(Ala. 2010) (no error where trial court followed
defendant’s wish to not instruct on lesser included
offenses); Adkins v. State, 930 So. 2d 524, 536-40 (Ala.
Crim. App. 2001) (defendant estopped from arguing
penalty-phase ineffective assistance where he instructed
counsel not to present mitigation case).
“As this claim fails to meet the pleading and
specificity requirements of Rules 32.2 and 32.6(b) of the
Alabama Rules of Criminal Procedure, it is dismissed.
“. . . .
47

“. . . Shanklin contends that ‘there is no reasonable
strategic reason for submission of this affidavit other than
an attempt to protect [counsel] from future litigation.’
(Am. Pet. 21.) Here, although counsel recognized the
benefit of pursuing instructions on lesser included
offenses, Shanklin chose to ignore their professional
advice. As an unexplained failure to seek these instructions
could have exposed counsel to a claim of ineffective
assistance, counsel were wise to submit the affidavit and
explain the situation to this Court.
“Shanklin pleaded no facts showing how his
counsel behaved unethically for putting this explanation
on the record. He also failed to cite any authority standing
for the proposition that presenting an affidavit from a
defendant is improper or that a colloquy hearing is
required by law. As this claim fails to meet the pleading
and specificity requirements of Rules 32.2 and 32.6(b) of
the Alabama Rules of Criminal Procedure, it is dismissed.
“. . . .
“. . . Shanklin alleges that counsel’s drafting of the
affidavit ‘was improper under the law.’ (Am. Pet. 21.) He
now claims that he was not told of the affidavit before trial,
that counsel approached him to ask if he would approve an
‘all or nothing’ approach, that counsel failed to explain the
risks of waiving lesser included offenses, and that counsel
did not ask the Court to conduct a waiver colloquy.
“Here, Shanklin failed to plead facts showing that
the affidavit did not represent his wishes or that he would
have disavowed it during a waiver colloquy. Moreover, the
affidavit and counsel’s in court statements show that
counsel wished to pursue lesser included offenses and
were merely following their client’s wishes. The notion
that counsel would goad Shanklin into taking this
48

approach, then do everything in their power to convince
this Court that the idea was Shanklin’s alone is, frankly,
absurd. Thus, this claim fails to meet the pleading and
specificity requirements of Rules 32.2 and 32.6(b) of the
Alabama Rules of Criminal Procedure, and it is dismissed.
“. . . .
“. . . Shanklin argues that counsel had a conflict of
interest because they drafted the affidavit, induced
Shanklin to sign it, and thereby caused him to waive his
rights. This contention is nonsensical and utterly
meritless. Nothing in the record suggests that trial counsel
wanted to waive lesser included offenses, as Shanklin now
contends. On the contrary, the affidavit expressly states
that counsel informed Shanklin that instruction on lesser
included offenses would be in his best interest, and he
declined to follow that advice. (C. 45.) As counsel were
bound to follow their client’s wishes, they simply put an
explanation for the decision in writing.
“Shanklin failed to plead any facts showing that this
was a conflict of interest. Rather, submitting this affidavit
was a prudent decision guarding counsel against a claim of
ineffective assistance for merely honoring Shanklin’s
request. Therefore, this claim is dismissed pursuant to
Rule 32.7(d) of the Alabama Rules of Criminal Procedure.
“. . . .
“Finally . . . Shanklin alleges that because his
counsel were conflicted, they limited their explanation to
him about the ramifications of forgoing instruction on
lesser included offenses, thereby inducing him to waive his
rights. He further avers that it was error for counsel to
discuss the waiver off the record.

49

“Again, Shanklin pleaded no facts establishing a
conflict of interest or any error on counsel’s part.
Moreover, he failed to plead facts that, if true, would show
how further explanation would have caused him to change
his decision. As this claim fails to meet the pleading and
specificity requirements of Rules 32.2 and 32.6(b) of the
Alabama Rules of Criminal Procedure, it is dismissed.”
(C. 754-57.) This Court agrees with the circuit court’s findings.
Therefore, Shanklin is not entitled to relief on this claim.
Vol. 23, Tab #R-50, at 23-26.
Thus, the ACCA, the last reasoned state court opinion, see Wilson, 138 S. Ct.
at 1192, affirmed the circuit court’s dismissal of this claim based upon Shanklin’s
failure to plead the claim with specificity, which he was required to do by Rules 32.3,
32.6(b), and 32.7(d) of the Alabama Rules of Criminal Procedure. A Rule 32
dismissal for failure to plead a claim with sufficient specificity is a merits ruling in
this circuit, to which the 28 U.S.C. § 2254(d) presumption attaches. Borden v. Allen,
646 F.3d 785, 812-13 (11th Cir. 2011). Shanklin must thus demonstrate that the
ACCA’s decision reviewing his Rule 32 appeal and rejecting his ineffective
assistance of counsel claim is contrary to or an unreasonable application of clearly
established Federal law as determined by the Supreme Court or based upon an
unreasonable determination of the facts. See Borden v. Allen, 646 F.3d 785, 812 (11th
Cir. 2011) (“A ruling by an Alabama court under Rule 32.6(b) is . . . a ruling on the
merits.”).
50

As well as Strickland, Shanklin refers this Court to other Supreme Court cases
addressing conflicts of interest specifically. Indeed, the right to effective assistance
of counsel includes “a correlative right to representation that is free from conflicts
of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). As noted by Shanklin, under
Cuyler v. Sullivan, 446 U.S. 335 (1980), conflict claims are an exception to the
Strickland standard, requiring only that a defendant show that the conflict actually
“affected the adequacy of his representation.” Id. at 349. An actual conflict exists
where the interests of the attorney and the client “diverge with respect to a material
factual or legal issue or to a course of action.” Id. at 356 n.3.
However, this Court sees no reason to disturb the Alabama state courts’
decision that no conflict existed here. Shanklin has not demonstrated that obtaining
a waiver affidavit from a defendant is improper or that a waiver colloquy is required
by law in this circumstance. The circuit judge in Shanklin’s Rule 32 proceedings,
who also presided over his trial, found that it was “absurd” that Shanklin would
claim after the fact that his counsel persuaded him to sign the affidavit against his
wishes but then take extreme measures to persuade the trial court that the decision
was his alone. Vol. 23, Tab #R-50, at 23-26. This Court must presume the state
court’s factual finding to be correct, and Shanklin has not rebutted that presumption

51

by clear and convincing evidence. See Ward, 592 F.3d at 1155–56 (quoting §
2254(e)(1)).
As the foregoing demonstrates, Shanklin is due no relief on his ineffective
assistance of counsel claim premised on his waiver of a jury instruction on lesser
included offenses, including all parts of the claim.
2.

Shanklin’s subclaim that his trial counsel were ineffective for
failing to object to the jury charge on accomplice liability

The trial court stated the following at the conclusion of its jury charge on
accomplice liability: “When two or more persons join in an unlawful enterprise, each
is responsible for everything which may consequently and proximately flow from the
unlawful purpose, whether committed by the accused or not and whether specifically
intended or not.” Vol. 9, Tab #R-18, at R. 1661. Shanklin did not raise any
contemporaneous objection to this charge, nor did he claim error on direct appeal.
However, the ACCA addressed the correctness of the jury instructions sua
sponte in its review for plain error on direct appeal. Shanklin, 187 So. 3d at 795; Vol.
13, Tab #R-37, at 795. The ACCA explained that the accomplice liability instruction
was incorrect because to convict a defendant of capital murder and sentence him to
death, he must be found to have had a particularized intent to kill. Nonetheless, the
ACCA determined that there was no plain error, as follows:

52

Although Shanklin did not object to the circuit court’s jury
instructions during the guilt phase of his trial and does not argue on
appeal that the circuit court’s jury instructions during the guilt phase of
trial were erroneous, we have reviewed the guilt-phase instructions for
plain error. Doing so, we recognize that at one point the circuit court’s
instruction on accomplice liability was incorrect. Specifically, with
regard to intent under accomplice liability the circuit court instructed
the jury that “[w]hen two or more persons join in an unlawful
enterprise, each is responsible for everything which may consequently
and proximately flow from the unlawful purpose, whether committed by
the accused or not and whether specifically intended or not.” (R. 1661
(emphasis added).)
It is well settled and
“‘Alabama appellate courts have repeatedly held that, to
be convicted of capital offense and sentenced to death, a
defendant must have had a particularized intent to kill and
the jury must have been charged on the requirement of
specific intent to kill. E.g., Gamble v. State, 791 So. 2d 409,
444 (Ala. Crim. App. 2000); Flowers v. State, 799 So. 2d
966, 984 (Ala. Crim. App. 1999); Duncan v. State, 827 So.
2d 838, 848 (Ala. Crim. App. 1999).’
“Ziegler v. State, 886 So. 2d 127, 140 (Ala. Crim. App. 2003).
“‘“‘[N]o defendant is guilty of a capital offense
unless he had an intent to kill, and that intent to kill
cannot be supplied by the felony murder doctrine.
Beck v. State, 396 So. 2d 645, 662 (Ala. March 6,
1981)’; Carnes, Alabama’s 1981 Capital
Punishment Statute, 42 Ala. Law. 456, 468 (1981).
See also E[n]mund v. Florida, 458 U.S. 782, 102 S.
Ct. 3368, 73 L.Ed.2d 1140 (1982), but see Godbolt v.
State, 429 So. 2d 1131, 1134 (Ala. Cr. App. 1982),
holding that E[n]mund is inapplicable to a
defendant who does not receive the death penalty.
However, a non-triggerman can be convicted of a
53

capital offense if he was a knowing accomplice to
the intentional killing itself. Ritter v. State, 375 So.
2d 270 (Ala. 1979). ‘[T]he accomplice liability
doctrine may be used to convict a non-trigger man
accomplice if but only if the defendant was an
accomplice in the intentional killing as opposed to
being an accomplice merely in the “underlying
felony.’” Ex parte Raines, 429 So. 2d 1111, 1112
(Ala. 1982), cert. denied, 460 U.S. 1103, 103 S. Ct.
1804, 76 L.Ed.2d 368 (1983).
“‘“Alabama’s 1981 capital punishment statute
under which [the defendant] was convicted
‘provides that a defendant who does not
personally commit the intentional killing which is
part of the capital offense is nonetheless guilty of it
and can be convicted of the capital offense, if that
defendant intentionally promotes or assists in the
commission of the intentional killing which is
actually done by another.’ Carnes, 42 Ala. Law at
471.
“‘“Our duty on appeal was stated in Raines, 429
So. 2d at 1113. ‘To affirm a finding of a
“particularized intent to kill”, the jury must be
properly charged on the intent to kill issue, and
there must be sufficient evidence from which a
rational jury could conclude that the defendant
possessed the intent to kill.’”
“‘Lewis v. State, 456 So. 2d 413, 416–17 (Ala. Cr. App.
1984).’
“Rowell v. State, 570 So. 2d 848, 850–51 (Ala. Crim. App.
1990).”
Brown v. State, 72 So. 3d 712, 715–16 (Ala. Crim. App. 2010).

54

Although this Court in Brown found plain error in the circuit
court’s instructions, this case is distinguishable from Brown.
Specifically, Brown was charged with 17 counts of capital murder. The
State, when arguing its case to the jury, leaned heavily on proving its
case through accomplice liability. Additionally, when charging the jury,
the circuit court, although instructing on specific intent, instructed on
numerous occasions that the State had to prove that Brown “intended
to kill the deceased, or another person, or another individual who he
aided and abetted intended to kill.” Id. at 717. After reviewing the entire
instructions, this Court held that “it [was] clear that the trial court did
not adequately inform the jury that Brown could not be convicted of
capital murder unless it determined that he had the specific,
particularized intent to kill.” Id. at 718 (emphasis in original).
Here, unlike in Brown, Shanklin was charged with only two
counts of capital murder. Additionally, unlike in Brown, the State,
throughout its closing arguments, argued that Shanklin was, in fact, the
individual who shot both Michael and Ashley. In fact, the State in its
closing argument attempted to discredit evidence of Ashley’s
identification of Kevin as the shooter. Additionally, unlike in Brown, the
circuit court, when it instructed the jury as to the charges of capital
murder, explained that the State had to prove that Shanklin himself
“caused the death of [Michael] by shooting him; that in committing the
act which caused the death of [Michael], [Shanklin] intended to kill
[Michael],” and also that “[t]he intent to kill must be real and
specific.” (R. 1645–46, 1651.) Thus, unlike in Brown, after a review of
the entire instructions, it is clear that the circuit court adequately
instructed the jury that it could not convict Shanklin unless it
determined that Shanklin, himself, had the specific, particularized
intent to kill.
Shanklin, 187 So. 3d at 796–96.
In his Rule 32 proceedings, Shanklin raised and exhausted the claim that his
trial counsel were ineffective for failing to object to the accomplice liability jury
instruction. Vol. 17, Tab #R-44, at C. 262–64; Vol. 21, Tab #R-47, at 37–39; Vol. 24,
55

Tab #R-52, at 48–51. The ACCA, in its decision affirming the circuit court’s denial
of Shanklin’s Rule 32 petition, heavily quoted the circuit court’s opinion dismissing
this claim, and agreed with it, as follows:
Shanklin argues that trial counsel were ineffective because
counsel failed to object to the trial court’s instruction on accomplice
liability. Specifically, Shanklin contends that the instruction eliminated
the intent requirement for a murder conviction. In his brief, Shanklin
states that the trial court gave the following instruction:
“A person is legally accountable for the behavior of another
constituting a criminal offense if, with the intent to promote or
assist the commission of the offense, he aids or abets such other
person in committing the offense. . . . When two or more
persons join in an unlawful enterprise, each is responsible for
everything which may consequently and proximately flow from
the unlawful purpose, whether committed by the accused or not
and whether specifically intended or not.”
(Shanklin’s brief, at 37-38.)
Shanklin contends that the instruction was “highly
inappropriate” because, he says, he “could be held responsible for the
death of Michael Crumpton, whether or not he pulled the trigger or
specifically intended it to happen, as long as he joined with his codefendant in an unlawful enterprise.” (Shanklin’s brief, at 38.) Shanklin
argues that the instruction was magnified by the State during its closing
argument when the prosecutor said:
“[T]he Judge is going to tell you, you don’t have to
consummate, the attempt is good enough. The other thing he’s
going to say is if you believe Kevin was the shooter and not
Antwain that aiding and abetting that if you enter into
something with a co-defendant and both of ya’ll have the intent
to do this, that you’re just as guilty even if you didn’t pull the
trigger. You’re going to hear the word aiding and abetting.
56

Listen to what that means. The law covers that just in case, the
law covers that.”
Id. Shanklin states that this Court recognized the instruction was error
in addressing this claim on direct appeal.
In dismissing this claim, the circuit court acknowledged that on
direct appeal this Court determined that the instruction was incorrect
but that this Court found no plain error. . . . The circuit court dismissed
this claim, finding that
“[i]n light of [the ACCA’s opinion on direct appeal], Shanklin
pleaded no facts showing that the jury was not adequately
instructed about the necessity of determining that he had the
specific intent to kill Michael Crumpton or that he was
prejudiced by counsel’s failure to object to this instruction.
Beyond Ashley Crumpton’s eyewitness testimony and
identification, four witnesses testified that Shanklin admitted
he had been the shooter. The State did not need accomplice
liability to convict Shanklin of capital murder because the
evidence showed that Shanklin had been the triggerman. Even
if the State’s case had hinged on accomplice liability, the Court
of Criminal Appeals found that the jury was sufficiently
instructed in that area, and Shanklin pleaded nothing to show
how the jury’s decision would have been different if counsel had
objected. Therefore, this claim is dismissed pursuant to Rules
32.3, 32.6(b), and 32.7(d) of the Alabama Rules of Criminal
Procedure.”
(C. 774.)
“[A] determination on direct appeal that there has been no plain
error does not automatically foreclose a determination of the existence
of the prejudice required under Strickland to sustain a claim of
ineffective assistance of counsel.” Ex parte Taylor, 10 So. 3d 1075, 1078
(Ala. 2005). “In determining whether to grant a Rule 32 petitioner
relief, a court must examine both the plain-error and prejudice
standards of review.” Id. For the same reasons this Court found no
57

plain error, this Court finds that Shanklin failed to show that, but for his
trial counsel’s failure to object to the instruction, there is a reasonable
probability that the outcome of his trial would have been different. The
State did not rely on accomplice liability to prove that Shanklin
committed capital murder. At trial, the State contended that Shanklin
was the shooter. The trial court instructed the jury on capital murder,
and, after reviewing the entire instructions, this Court concluded that
the trial court adequately instructed the jury regarding intent.
Therefore, Shanklin failed to show how he was prejudiced as a result of
counsel’s failure to object to the trial court’s instructions. Accordingly,
the circuit court correctly dismissed this claim.
Vol. 23, Tab #R-50, at 70-71.
Because the ACCA denied this claim on the merits, Shanklin must
demonstrate that the ACCA’s decision is contrary to or an unreasonable application
of clearly established Federal law as determined by the Supreme Court or based upon
an unreasonable determination of the facts, 28 U.S.C. § 2254(d).
Shanklin fails in this endeavor. Shanklin submits Mr. Whisenhunt’s new
declaration, in which he states that the failure to object to the accomplice liability
instruction was an “oversight.” (Doc. 24-2 at ¶ 14.) Even if the Court were to
consider this declaration, which it will not for the reasons stated in section III.F.,
supra, it does not necessarily demonstrate deficient performance by trial counsel. See
Strickland, 466 U.S. at 687 (explaining that a showing of “deficient performance”
means that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment”). And even if it did,

58

Shanklin still cannot show prejudice flowing from his counsel’s failure to object.
While Shanklin claims that the State’s case against him was weak, multiple witnesses
testified that Shanklin told them that he was the triggerman. Thus, as the state courts
reasonably found, accomplice liability was not needed to convict Shanklin of capital
murder. Shanklin thus failed to plead facts showing how an objection would have
likely resulted in a different outcome at trial. Moreover, the jury was correctly
instructed as to what specific intent in the capital murder context means. Vol. 9, Tab
#R-18, at C. 1645–46 (robbery–murder); id. at C. 1650–51 (burglary–murder). Given
the strength of the State’s case and the evidence pointing to Shanklin as the killer,
the state courts’ decision was neither contrary to nor an unreasonable application of
clearly established Federal law, nor was it an unreasonable determination of the facts.
3.

Shanklin’s subclaim that his trial counsel were ineffective for
failing to object to numerous instances of prosecutorial
misconduct

Shanklin’s third subclaim is that his trial counsel were ineffective for failing to
object to various instances of prosecutorial misconduct during his trial. Shanklin
identifies these alleged instances of misconduct in “Claim VIII” of his Amended
Petition, arguing that the Alabama courts violated his rights to due process, a fair
trial, and a reliable sentencing determination under the Sixth, Eighth, and

59

Fourteenth Amendments, by allowing the prosecutor to make improper arguments
and references to facts not in evidence.
As the ineffective assistance of trial counsel and underlying prosecutorial
misconduct claims are related, the Court will address them together in this section.
The court will first address each of Shanklin’s eight underlying claims of
prosecutorial misconduct and then turn to Shanklin’s claim that his trial counsel
were ineffective in failing to object to these instances. For the reasons explained
below, all but two of these claims are unexhausted and procedurally defaulted from
this Court’s review.
i.

the court’s statement regarding Lori Crumpton

Many of Shanklin’s claims of prosecutorial misconduct center around the
same themes: that the prosecutor improperly identified himself as the victims’
representative and regularly described the victims and their family as parties entitled
to a fair trial. Shanklin’s first allegation of misconduct follows this theme: he alleges
that the trial court erred by stating during the beginning of jury selection that “Ms.
Lori Crumpton [Michael’s mother] will also be sitting at the table here as the
representative for the State.” See Vol. 2 at R. 134. Shanklin alleges that the
prosecutor improperly designated Ms. Crumpton as a representative of the State.
Shanklin argues that prosecutors may not imply that they represent the victim’s

60

family, citing Berger v. United States, 295 U.S. 78, 88 (1935) (“The [prosecutor] is
the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at
all . . . .”).
While Shanklin’s direct appeal brief argued that prosecutorial misconduct
occurred, see Vol. 12 at 58-66, it did not include any facts about this particular
instance. So Shanklin did not raise this particular claim before any state court, as he
was required to do before presenting it here. Shanklin thus did not give the “state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate process.” O’Sullivan, 526 U.S.
at 842-45. Thus, he did not exhaust the claim. Further, this Court finds that this
claim is procedurally defaulted because no state remedy still exists through which he
could pursue relief on this claim. Shanklin would be barred from attempting to raise
the claim now in state court under Rule 32.2(c), Ala. R. Crim. P. (statute of
limitations bar) and under Rule 32.2(b), Ala. R. Crim. P. (successive petition bar).
Thus, because any state remedy with respect to this claim is procedurally barred by
Alabama’s procedural rules, the claim is procedurally defaulted from this Court’s
review. See, e.g., Bailey, 172 F.3d at 1305 (“if it is clear from state law that any future
attempts at exhaustion [in state court] would be futile” under the state’s own

61

procedural rules, a court can simply find that the claim is “procedurally defaulted,
even absent a state court determination to that effect”); Henderson v. Campbell, 353
F.3d 880, 899 (11th Cir. 2003) (finding if petitioner asserted his undue influence
claim in a “new Rule 32 petition” the Alabama courts would reject it based upon the
“firmly established and consistently applied procedural grounds” of Rule 32.2(b)
(barring successive petitions) or Rule 32.2(c) (statute of limitations) of the Alabama
Rules of Criminal Procedure).
With regard to this and every other unexhausted claim in his petition, Shanklin
asks this Court not to rule that the claim is procedurally defaulted from this Court’s
review but instead permit him to return to state court to exhaust the claim by filing a
petition for a writ of habeas corpus directly in the Alabama Supreme Court. (See
docs. 41 at 9 & n.3; 28 at 3). Shanklin takes the position that any claim is capable of
exhaustion by way of an original writ of habeas corpus in Alabama’s highest court. In
support, he cites the Alabama Constitution, which he notes grants the Alabama
Supreme Court “original jurisdiction . . . to issue such remedial writs or orders as
may be necessary to give it general supervision and control of courts of inferior
jurisdiction.” Ala. Const., Art. VI, § 140(b). In the alternative, Shanklin asks this
Court to certify to the Alabama Supreme Court, pursuant to Ala. R. App. P. 18, the
question of whether he should be allowed to file an original petition for a writ of

62

habeas corpus in the Alabama Supreme Court. He argues that the Alabama Supreme
Court is in the best position to decide whether he can still obtain state court review
of the claims that he never exhausted.
For several reasons, the Court will not acquiesce to Shanklin’s proposed plan
for handling his unexhausted claims. As an initial matter, both times Shanklin has
raised this argument about his perceived ability to return to state court to exhaust his
claims by pursuing an original writ of habeas corpus in the Alabama Supreme Court,
it has been in a reply brief to which Respondent has not been entitled to respond
without seeking leave of the Court. (See docs. 41 at 9 & n.3; 28 at 3). The Court has
thus not heard from Respondent on the matter. Arguments raised for the first time
in reply are generally deem abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008). Regardless of that fact, however, the more important point is that
Shanklin does not direct the Court to any precedent or any other authority that
instructs this Court that allowing a petitioner to seek an original writ of habeas corpus
directly in the Alabama Supreme Court is an appropriate method of handling
unexhausted and procedurally defaulted habeas claims. Further, the Court declines
to certify the question of whether this is appropriate to the Alabama Supreme Court.
The Eleventh Circuit has instructed courts in this district as to the procedure for
handling claims that a petitioner never exhausted in state court, including that courts

63

may deem them procedurally defaulted if a state’s procedural rules would bar further
relitigation in the state courts. See, e.g., Bailey, 172 F.3d at 1305. Allowing Shanklin
to start afresh in the Alabama Supreme Court would contravene this guidance.
Additionally, the Supreme Court of Alabama has already been apprised of Shanklin’s
habeas claims once during Rule 32 proceedings, denying his petition for certiorari. It
is not likely to allow him to pursue a new writ with additional claims.
Finally, Shanklin also argues with regard to this and every other unexhausted
claim in his petition, that this Court should employ 28 U.S.C. § 2254(b)(1)(B)(i)-(ii)
to find that the claim is not procedurally defaulted. Section (b)(1) provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted
unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of
the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.
28 U.S.C.A. § 2254(b)(1). Thus, even if a federal habeas petitioner has not exhausted
a claim in state court, habeas relief may still be granted if “there is an absence of
available State corrective process; or [] circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B).
64

According to Shanklin, Alabama does not provide death row prisoners adequate
corrective processes. In support, he argues that since he was “limited to unqualified,
underpaid out-of-state counsel,” he “never stood a chance in Rule 32 proceedings
against his well-funded opponent.” (Doc. 41 at 10.)
The Court declines to rule that Alabama’s Rule 32 procedures are ineffective
to protect habeas petitioners’ rights. Shanklin was represented by three attorneys, as
well as the Equal Justice Initiative, in his Rule 32 proceedings, who aided him in
pursuing many other claims to the state’s highest court.
Accordingly, because none of Shanklin’s arguments as to why this Court
should excuse the procedural default of his claims succeeds, this claim of
prosecutorial misconduct based upon the prosecutor’s statement about Ms.
Crumpton will not be considered by this Court.
ii.

the prosecutor’s statements regarding a fair trial for
the victim’s family

Next, Shanklin alleges that the prosecutor erred by making six statements to
the venire asking if they could give the victim’s family a fair trial. See Vol. 1 at R. 215
(“Could you still set that aside and if you were chosen to be on this jury give this man
here a fair trial, listen to the evidence and base your verdict on the evidence and then
giving Michael and his family a fair trial as well?”) (emphasis added); R. 224 (“Is there
anyone in here because of a situation where the State of Alabama, who I represent,
65

or the prior DA before me, made a deal with one of these co-defendants to offer
testimony as to what all transpired that would hold that against the State of Alabama or
Ms. Crumpton or Ashley Crumpton?”) (emphasis added); R. 243 (“One of the things,
of course, in any kind of case like this for both sides, both for the defense and for Ms.
Crumpton and the State is to make sure that” any verdict is “based on what you hear”
in court) (emphasis added); R. 269 (asking a prospective juror whether, “if by chance
my office is somehow involved in the prosecution of that, would that make it difficult
for you to be fair to Ms. Crumpton and the State of Alabama?”) (emphasis added); R.
476 (asking whether, in light of the fact that “Ms. Crumpton[’s] . . . son is dead,” a
prospective juror could “give us a fair trial, as well?”); R. 491 (asking about whether
a prospective juror could give Shanklin a fair trial before asking, “And what about
this lady back here that, the mother of Michael Crumpton, and the State of
Alabama?”). Shanklin alleges that it was improper for the prosecutor to have told
the venire that the victim was entitled to a fair trial.
While Shanklin argued on direct appeal that prosecutorial misconduct
occurred, Shanklin did not raise this particular claim in his state court proceedings.
Thus, for all of the reasons explained in the preceding section, see section IV.A.3.i.,
supra, it is not exhausted, it is procedurally defaulted from this Court’s review, and
Shanklin’s arguments as to why procedural default should not bar relief are denied.

66

iii.

the prosecutor’s statements about holding Ashley
Crumpton’s actions against her

Shanklin alleges that the prosecutor erred by asking the venire if they would
hold Ashley Crumpton’s actions in self-defense against her. Specifically, the
prosecutor asked:
Would any of you hold it against Ashley Crumpton, the wife of Michael,
if she fought in her home against assailants, tried to hit them and get
them off of her husband and get them out of her house where her two
children were sleeping, would any of y’all hold it against her if she
fought for her life and her children’s life [sic]?
Vol. 2 at R. 221-22. According to Shanklin, the prosecutor’s statements were
designed to inflame passions and prejudices in favor of the victims at the cost of the
constitutional rights to fundamental fairness and due process to which Shanklin was
entitled.
Again, while Shanklin argued on direct appeal that prosecutorial misconduct
occurred, Shanklin did not raise this particular claim in his state court proceedings.
Thus, for all of the reasons explained in section IV.A.3.i., supra, it is not exhausted,
it is procedurally defaulted from this Court’s review, and Shanklin’s arguments as
to why procedural default should not bar relief are denied.
iv.

the prosecutor’s statements showing appreciation for the
jury

67

Shanklin alleges that the prosecutor erred by thanking the jury on the
Crumptons’ behalf during voir dire and during his rebuttal closing argument. Vol. 2
at R. 244; Vol. 9, Tab #R-17, at R. 1632. Specifically, the prosecutor expressed his
appreciation for the jury’s “being very attentive on Ms. Crumpton’s behalf and
Ashley’s behalf[.]” Vol. 2 at R. 244. At closing, he said, “And on behalf of their
family, I really appreciate you going through this because I know some of you didn’t
want to be here. Thank you.” Vol. 9 at R. 1632.
Read liberally, Shanklin’s brief to the ACCA on direct appeal could be said to
have included this claim. Shanklin argued on direct appeal that the prosecutor
“thanked the jury on behalf of the family thereby implying again that he represented
the victims. (R. 1632.).” Vol. 12, Tab #R-33, at 62. The ACCA on direct appeal
found that these comments, when viewed in context, were not improper, and even if
they were, they did not amount to plain error. Shanklin, 187 So. 3d at 792-93.
However, Shanklin did not mention this claim in his petition to the Alabama
Supreme Court for certiorari review.2 Thus, it is not exhausted because he did not

Shanklin addressed only two specific instances of alleged prosecutorial misconduct in his
certiorari petition, which were different from this allegation. Nonetheless, Shanklin argues that the
following general statement in his petition served to exhaust this allegation as well: “Thus, Mr.
Shanklin’s substantial rights were violated by repeated prosecutorial misconduct, and the
reviewing court below failed to recognize the extent and gravity of the prejudice suffered by Mr.
Shanklin as a result of the prosecutor’s improper comments.” (Doc. 41 at 61, quoting Vol. 14, Tab
#R-39, at 26 (footnote omitted).) This Court does not agree that he gave the Alabama Supreme
Court the opportunity to review this particular claim.
2

68

give the “state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate process.”
O’Sullivan, 526 U.S. at 842-45. And, for all of the reasons explained in section
IV.A.3.i., supra, it is procedurally defaulted from this Court’s review, and Shanklin’s
arguments as to why procedural default should not bar relief are denied.
v.

the prosecutor’s statements about the importance of the
trial to the victim’s family

Shanklin alleges that the prosecutor erred by telling the jury at the beginning
of his opening statement that the trial was “very important to the defendant and it’s
very important to Michael Crumpton’s family.” Vol. 4, Tab #R-11, at R. 539.
Similar to the previous claim, Shanklin’s appellate brief could be read to have
included this claim. See Vol. 12, Tab #R-33, at 62 (“The prosecutor within the first
minute of his opening arguments stressed the status of this case saying it was
‘important’ three times within the first five sentences of addressing the jury. (R. 539,
194, 244.)”). However, as with the previous claim, Shanklin did not mention this
claim in his certiorari petition before the Alabama Supreme Court. Thus, it is not
exhausted because he did not give the “state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established
appellate process” O’Sullivan, 526 U.S. at 842-45. And, for all of the reasons
explained in section IV.A.3.i., supra, it is procedurally defaulted from this Court’s
69

review, and Shanklin’s arguments as to why procedural default should not bar relief
are denied.
vi.

the prosecutor’s statements about Tracy Ward’s race

Shanklin alleges that the prosecutor erred by highlighting the interracial
nature of Shanklin’s relationship with Tracy Ward in his opening statement.
Specifically, the prosecutor stated: “They [Kevin and Mr. Shanklin] had this
girlfriend, Tracy Ward, and you’ll see her. She’s a white girl. She’s not real bright, I
think that will be obvious to you. They didn’t pick out real smart people to go do
this.” Vol. 4, Tab #R-11, at R. 549. Shanklin argues that Ms. Ward’s race was not
relevant to anything other than appealing to prejudice.
While Shanklin argued on direct appeal that prosecutorial misconduct
occurred, he never raised this particular allegation. Thus, for all of the reasons
explained in section IV.A.3.i., supra, it is not exhausted, it is procedurally defaulted
from this Court’s review, and Shanklin’s arguments as to why procedural default
should not bar relief are denied.
vii.

the prosecutor’s statement: “These women are his
people.”

Shanklin alleges that the prosecutor erred by stating in his rebuttal closing
argument, “These women are his people.” Vol. 9, Tab #R-17, at R. 1616. In context,
the prosecutor said: “But sometimes when you’re trying the devil, you’ve got to go
70

to hell for some witnesses, because that’s the kind of people Antwain Shanklin hangs
out with. That’s the kind of folks, these are people that we went to find that are his
people. These women are his people. It’s not Frank Cole and John Softley, these are
the folks he’s dating, having sex with and getting to go get dope with and trying to go
hit a lick with.” Id. Shanklin argues that this comment also improperly appealed to
the jurors’ prejudices.
While Shanklin argued on direct appeal that prosecutorial misconduct
occurred, he never raised this particular allegation. Thus, for all of the reasons
explained in section IV.A.3.i., supra, it is not exhausted, it is procedurally defaulted
from this Court’s review, and Shanklin’s arguments as to why procedural default
should not bar relief are denied.
viii. the prosecutor’s alleged vouching for the State’s witnesses
Shanklin alleges that the prosecutor improperly vouched for the credibility of
the State’s witnesses by doing two things: 1) telling the jury that the State’s witnesses
(some of them Shanklin’s cousins) faced retaliation for testifying against Shanklin
and 2) stating that he would show the jury why he believed that the State’s witnesses
were telling the truth. In context, the prosecutor’s full statements were as follows:
I submit to you that you need to take into consideration as jurors
the kind of risks some people have in coming into this courtroom and
testifying against somebody like this. What kind of risk does it take for
71

this man’s cousin to come into this courtroom and have to say that he
hit them up to go hit a lick?
You saw it, you judge the credibility, you judge how it took me
having to get up here and force the man to look at his statement to say,
yeah, he asked me to go hit a lick. Yeah, I, yeah, robbery, yeah. Finally.
They didn’t want to say that. What do you think those two guys are
going to live through? What do you think Isaiah Howze and Tyrone
Dickerson are going to live through for saying what they said in here?
What do you think Mr. Traywick is going to live with down at Bloody
Bibb [County Correctional Facility]? How much do you think Ms.
Piper, [who’s] got a child, has got to worry about looking over her
shoulder?
I submit to you there’s a lot of price that has been paid to bring
these witnesses in here and it’s not money. It’s not the DA trying to get
or the investigators trying to get professionals over in Birmingham to lie
about something. It’s not anything like that. The price to pay is risk,
with risk, to come into this courtroom and tell you stuff.
I’m going to ask you to listen to what they said. That’s what I’m
going to ask you to do, to listen to what they said. And I’m going to show
you in a minute why I think they’re telling the truth about every dang
bit of this. But the other thing that I’m going to ask you to do is I’m
going to ask you to consider the risk that each one of these people are
putting up with.
Vol. 9, Tab #R-17, at R. 1616–17.
This is the first of the two allegations of prosecutorial misconduct in this
section that Shanklin fully exhausted through the state direct appeal process. Vol.
12, Tab #R-33, at 61; Vol. 14, Tab #R-38, at 23. The ACCA reviewed the claim for
plain error because Shanklin did not object at trial, but it found no plain error, stating
the following:
72

Shanklin contends that the prosecutor engaged in misconduct
because, he says, the prosecutor in his rebuttal closing argument
“stated that he would show the jury why he believes his witnesses
‘are telling the truth.’ (R. 1617.) He went on at great length to
talk about the dangers the witnesses faced in testifying against
Mr. Shanklin, even going so far as to imply that Amber Piper’s
child may face retaliation for her testimony against Mr. Shanklin.
(1616–17.)”
(Shanklin’s brief, p. 61.) Although Shanklin correctly argues that it is
improper for a prosecutor to vouch for the credibility of a witness, see
Johnson v. State, 120 So. 3d 1130, 1170 (Ala. Crim. App. 2009), the
prosecutor’s comments, when viewed in context, do not amount to
vouching for the credibility of a witness. . . .
Here, the prosecutor’s [ ] argument did not rise to the level of
giving personal assurance that the State’s witnesses were, in fact, telling
the truth, see, e.g., Ex parte Parker, 610 So. 2d 1181, 1182 (Ala. 1992)
(holding that a prosecutor’s comment in closing argument that, “I can
assure you he told you the truth,” was improper); instead, the
prosecutor correctly told the jury that it had to judge the credibility of
the witnesses and, thereafter, argued why, based on the evidence at
trial, those witnesses told the truth. Additionally, although the
prosecutor stated that he was “going to show [the jury] in a minute why
I think they’re telling the truth about every dang bit of this,” this Court
has held that “qualifying statements, such as ‘I think’ as used in the
present case, may result in a comment falling outside the prohibition
against personally vouching for the witness.” Johnson v. State, 120 So.
3d 1130, 1170 (Ala. Crim. App. 2009). Moreover, even if the
prosecutor’s arguments were improper, they would not rise to the level
of plain error. See Ex parte Parker, 610 So. 2d at 1184.
Shanklin, 187 So. 3d at 790–91.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
73

ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Without further explanation, Shanklin argues that the decision was an
unreasonable determination of the facts because “it ignored crucial facts.” (Doc. 41
at 62.) Shanklin also appears to argue that it violates Berger v. United States. In Berger,
the Supreme Court stated that vouching for the credibility of witnesses “can convey
the impression that evidence not presented to the jury, but known to the prosecutor,
supports the charges against the defendant and can thus jeopardize the defendant’s
right to be tried solely on the basis of the evidence presented to the jury.” 295 U.S.
at 88-89. The Court further noted that a prosecutor’s “opinion carries with it the
imprimatur of the Government and may induce the jury to trust the Government’s
judgment rather than its own view of the evidence.” Id. However, the ACCA’s
decision was not an unreasonable application of Berger because the prosecutor
merely correctly told the jury that it had to judge the credibility of the witnesses and,
thereafter, argued why, based on the evidence at trial, those witnesses told the truth.
Habeas relief is not warranted on this claim.
viii. the prosecutor allegedly changing Ashley Crumpton’s
testimony
74

Shanklin alleges that the prosecutor attempted to change Ashley Crumpton’s
testimony in his closing statement to better fit with the State’s theory of the case,
which was that Shanklin, not his brother, was the triggerman who shot and killed
Michael. Ashley Crumpton testified at trial that [Clayton Antwain] Shanklin was the
assailant who she had hit in the head with the rock, and that he then ran down the
hallway before Michael Crumpton was shot by the other assailant. Vol. 2 at R. 609–
12. According to Shanklin, this testimony revealed that he had left the scene before
Michael was shot and therefore could not have been the triggerman. Because this
testimony did not fit with the State’s theory of the case that [Clayton Antwain]
Shanklin, not Kevin Shanklin, was the shooter, Shanklin asserts that the prosecutor
attempted to change Ashley’s testimony in his closing statement by stating:
Also, you can look at the photographs of Mr. Kevin Shanklin. I submit
to you he’s got within two days of this offense you’ll see the scar right
there on his nose. The only thing Ms. Crumpton got wrong, Ashley
Crumpton got wrong was which one of them she popped with a rock.
You remember, she said, I popped him with a rock and hit him right in
here. Remember that? The only thing she got wrong is which one she
popped with the rock. She got Kevin with the rock.
Vol. 9 at R. 1629-30.
As with the previous claim, Shanklin exhausted this claim through the direct
appeal process. Vol. 12, Tab #R-33, at 64; Vol. 14, Tab #R-38, at 24. On direct appeal,

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the ACCA reviewed the claim for plain error because Shanklin did not make an
objection at trial, but found no plain error, as follows:
Shanklin contends that the “prosecutor improperly attempted to
change evidence in closing.” (Shanklin’s brief, p. 63.) Specifically,
Shanklin argues that the evidence presented at trial through Ashley’s
testimony established that Shanklin did not shoot either Ashley or
Michael. Shanklin further contends that “[d]uring his rebuttal close,
[the prosecutor] apparently did not like the facts the way they came out
at trial” and he argued as follows:
“‘The only thing Ms. Crumpton got wrong, Ashley Crumpton
got wrong as which one of them she popped with a rock. You
remember, she said, I popped him with a rock and hit him right
in here. Remember that? The only thing she got wrong is which
one she popped with the rock. She got Kevin with the rock.’”
(Shanklin’s brief, p. 64 (quoting R. 1329–30 (emphasis in original)).)
Contrary to Shanklin’s argument on appeal, the prosecutor’s argument
did not “change evidence”; rather, the prosecutor’s argument was a
reasonable inference based on the evidence presented at trial.
This Court has explained:
“‘“‘“During closing argument, the prosecutor, as well as
defense counsel, has a right to present his impressions from the
evidence, if reasonable, and may argue every legitimate
inference.”‘ Reeves v. State, 807 So. 2d 18, 45 (Ala. Crim. App.
2000), quoting Rutledge v. State, 523 So. 2d 1087, 1100 (Ala.
Crim. App. 1987) (citation omitted), rev’d on other grounds, 523
So. 2d 1118 (Ala. 1988).
“‘“‘“The test of a prosecutor’s legitimate argument is that
whatever is based on facts and evidence is within the scope of
proper comment and argument. Kirkland v. State, 340 So. 2d
1139 (Ala. Crim. App.), cert. denied, 340 So. 2d 1140 (Ala. 1976
[1977]). Statements based on facts admissible in evidence are
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proper. Henley v. State, 361 So. 2d 1148 (Ala. Crim. App.), cert.
denied, 361 So. 2d 1152 (Ala. 1978). A prosecutor as well as
defense counsel has a right to present his impressions from the
evidence. He may argue every legitimate inference from the
evidence and may examine, collate, sift, and treat the evidence in
his own way. Williams v. State, 377 So. 2d 634 (Ala. Crim. App.
1979); McQueen v. State, 355 So. 2d 407 (Ala. Crim. App.
1978).”’ . . .
Johnson, 120 So. 3d at 1164.
Here, the prosecutor’s argument was based on an inference from
the evidence. Although the prosecutor argued that Ashley “got wrong
which one she popped with the rock,” the prosecutor explained that
Ashley was wrong because “you can look at the photographs of Mr.
Kevin Shanklin. I submit to you he’s got within two days of this offense
you’ll see the scar right there on his nose.” (R. 1629.) The prosecutor’s
argument is grounded in Ashley’s testimony that she struck the
individual who put the gun to her head in the face with a rock. Thus,
there is no plain error.
Shanklin, 187 So. 3d at 793–94 (some citations omitted).
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Without further explanation, Shanklin argues that the decision was an
unreasonable determination of the facts because “it ignored crucial facts.” (Doc. 41
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at 62.) Shanklin has not met his burden under § 2254(d), and the Court finds the
ACCA’s decision reasonable in any event. The jurors were entitled to judge Ashley’s
memory of the night of Michael’s death as they saw fit. The prosecutor offered the
jury his interpretation of Ashley’s testimony, which was that Ashley misidentified
the person who she hit with a rock and who did not kill Michael as [Antwain Clayton]
Shanklin because photos of Kevin Shanklin taken shortly after the incident showed
a new scar on his face. See Vol. 4, at R. 661-63; Vol. 7 at R. 1150-51, 1155-58; Vol. 9 at
R. 1629-30. The prosecutor merely interpreted what he thought the evidenced
showed and did not change the testimony. Regardless, the trial court instructed the
jury that the arguments of counsel were not evidence. Vol. 9 at R. 1666. And the
prosecutor himself told the jury, “[Y]a’ll get to determine what ya’ll saw from the
witness stand.” Id. at R. 1614. The ACCA was reasonable in determining that even
if the prosecutor’s statement was improper, it did not rise to the level of plain error.
ix.

trial counsel failed to object to any of the aforementioned
instances of prosecutorial misconduct

As noted, Shanklin also claims that his trial counsel were ineffective for failing
to object to the instances of alleged prosecutorial misconduct enumerated in sections
i. through viii., supra.
Shanklin never raised this claim in the state courts. Thus, for all of the reasons
explained in the section IV.A.3.i., supra, it is not exhausted, it is procedurally
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defaulted from this Court’s review, and Shanklin’s arguments as to why procedural
default should not bar relief are denied.
4.

Shanklin’s subclaim that his trial counsel were ineffective in
their defense preparation and presentation

Shanklin’s fourth subclaim within his ineffective assistance of trial counsel
claim is that his trial counsel failed in several areas including witness preparation,
cross-examination, and case presentation. Each area is addressed below.
i.

Engaging in an offensive trial strategy,
including unreasonably attacking the Crumptons in
opening statements without proof

Shanklin first alleges that his trial counsel improperly engaged in an offensive
trial strategy in which they argued to the jury that the victim Michael Crumpton was
a “gangster type,” thus opening up the door to attack from the prosecution. (Doc.
25-1 at 58.) He also alleges that his counsel “unreasonably attacked the Crumptons,
including Ashley Crumpton, arguing that she ‘laughed’ after being shot in the leg,
that she was contemplating a divorce from her husband, and that she knew that
Michael had a life insurance policy,” but that his counsel had no proof for these
statements. (Id.)
Shanklin exhausted this claim in his state postconviction proceedings. Vol. 17,
Tab #R-44, at C. 240–43; Vol. 21, Tab #R-47, at 20–22; Vol. 24, Tab #R-52, at 24–
26. The circuit court denied relief based upon Rules 32.3 and 32.6(b) of the Alabama
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Rules of Criminal Procedure. That court noted that there was a strong case against
Shanklin, that his counsel did the best they could by poking holes in the State’s case
to try to convince the jury that the State had not carried its burden, and that Shanklin
failed to plead what arguments his counsel should have made that would have
resulted in a different outcome. Vol. 19, Tab #R-46, at C. 763–64. In particular, the
court explained that the prosecution “painted a sympathetic picture of the
Crumptons and their two young children, attacked in the middle of the night by
assailants after money and drugs,” while the defense “tried to show that not
everything was perfect in the Crumpton home” so as “to stop the jury from feeling
sympathetic toward Michael and to cast doubt upon Ashley’s credibility.” Id. at C.
764. The ACCA affirmed, quoting the circuit court’s opinion, and also denying relief
pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure. Vol. 23, Tab
#R-50, at 51–54.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort

80

to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
ii.

Failure to adequately interview Shanklin’s family,
friends, and acquaintances, who would have presumably
told counsel that Kevin Shanklin was the triggerman

Without identifying any witnesses by name, Shanklin alleges generally that his
trial counsel failed to interview his family, friends, and acquaintances, who
presumably would have indicated that Kevin Shanklin was the triggerman, not him.
Shanklin exhausted this claim in state postconviction proceedings. Vol. 17,
Tab #R-44, at C. 235–37; Vol. 21, Tab #R-47, at 19–20; Vol. 24, Tab #R-52, at 22–
23. In the circuit court in his Rule 32 proceedings, Shanklin identified as potential
witnesses Shanklin’s cousins, Isaiah Howze and Tyrone Dickerson, and several of
Kevin Shanklin’s cellmates (Geno Shanklin, Daniel Tucker, and Jason Clay).
Shanklin did not identify any witnesses by name in his brief to the ACCA or petition
for certiorari. The circuit court dismissed this claim pursuant to Rule 32.3, 32.6(b),
and 32.7(d) of the Alabama Rules of Criminal Procedure because of Shanklin’s
deficient pleading. Vol. 19, Tab #R-46, at C. 760–61. The ACCA affirmed, writing
as follows:

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Shanklin argues that trial counsel were ineffective because they
failed to adequately interview and to investigate his friends and family.
Shanklin’s entire argument in his brief follows:
“Because counsel was unaware of this potential testimony, their
decision not to investigate key sources of information like the
primary actors in the crime could not be the result of reasonable
strategy. And because this evidence would have solidified that
Mr. Shanklin killed no one and defeated the main corroborating
witnesses, counsel’s failures prejudiced him. There is a
reasonable probability that the jury’s culpability verdict and
sentence would have been different. U.S. Const. Amend. V, VI,
VIII, XIV.”
(Shanklin’s brief, at 20.)
In his petition, Shanklin named the friends and family members
that counsel should have investigated. Shanklin stated that Kevin
Shanklin, his cousin and codefendant, told his cellmates Geno Shanklin,
Daniel Tucker, and Jason Clay that he was the person who pulled the
trigger during the murder and not Shanklin. Shanklin stated that if
counsel had investigated Kevin’s cellmates, they would have obtained
proof of Kevin’s confession. Shanklin also stated that counsel failed to
investigate his cousins Isaiah Howze and Tyrone Dickerson. Shanklin
claimed that had counsel investigated Howze and Dickerson they would
have learned that Howze had a robbery charge dismissed in exchange
for his testimony. Shanklin stated that Howze testified that Shanklin
had been told by a man with tattoos to avoid committing a robbery in
Cordova until the weekend. Shanklin argued that had counsel
investigated Dickerson they would have learned that Dickerson had
been threatened that he would be charged with a crime if he did not
testify for the State. Shanklin claimed that had counsel investigated
Howze and Dickerson themselves, they would have learned that Howze
and Dickerson were coerced by the State to testify.
In dismissing this claim, the circuit court found:
“This claim is insufficiently pleaded and meritless.
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“Turning first to Kevin Shanklin, whether Clayton Shanklin
was the triggerman is immaterial—a non-triggerman is just as
guilty of capital murder as the triggerman if he was a knowing
accomplice to an intentional killing. E.g., Doster v. State, 72 So.
3d 50, 95-96 (Ala. Crim. App. 2010); Sneed v. State, 1 So. 3d 104,
123-26 (Ala. Crim. App. 2007). Moreover, as the Court of
Criminal Appeals noted, Shanklin repeatedly admitted to being
the triggerman, telling at least four people that he shot Michael
Crumpton. Shanklin, 187 So. 3d at 794. Thus, he failed to plead
specific facts that counsel should have learned from investigating
his family and friends or from interviewing him and how these
facts would have helped his case, and he failed to establish a
reasonable probability that the result of his trial would have been
different had counsel learned these facts. Thus, this claim is
dismissed pursuant to Rules 32.3 and 32.6(b) of the Alabama
Rules of Criminal Procedure.
“Second, concerning Howze and Dickerson, Shanklin failed
to plead facts showing that they testified falsely. He also failed to
plead how he was prejudiced or how, had counsel conducted
further investigation into these witnesses, the result of his trial
would have been different.
“Moreover, the claim concerning these two witnesses is
meritless. Howze admitted that he had been charged with
robbery after a bar fight, that the case was dismissed, and that he
was on work release due to a child support issue. He also stated
that he had not been promised anything or threatened to make
him testify. (R. 831-82.) Dickerson testified that he was picked
up and brought to the police station to give a statement, that the
police threatened to charge him with a crime if he did not give a
statement, and that the police turned the recorder off at one point
and reminded him that he would be prosecuted if he did not tell
them what he knew. (R. 843-44.) Shanklin pleaded nothing
showing that these statements were untruthful or that counsel
would have discovered anything through further investigation
that would have changed the outcome of his case. Therefore, this
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claim is dismissed pursuant to Rules 32.3, 32.6(b), and 32.7(d) of
the Alabama Rules of Criminal Procedure.”
(C. 760-61.)
This Court agrees that Shanklin’s claim was insufficiently
pleaded and that no material issue of fact or law entitled Shanklin to
relief. Shanklin did not plead how trial counsel should have known
about Kevin’s statement to his cellmates or that counsel would have
learned anything differently through an investigation into Dickerson
and Howze than what was testified to at trial. Because Shanklin did not
plead facts showing that he is entitled to relief, this claim was correctly
summarily dismissed. See Rules 32.6(b) and 32.7(d), Ala. R. Crim. P.
Vol. 23, Tab #R-50, at 47–50.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
iii.

Failure to interview people who knew the Crumptons,
people who knew the co-defendants, and people who were
at the apartment on the evening of the crime

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Shanklin does not identify these individuals, plead the substance of their
testimony, or plead how this testimony have changed the outcome of the trial.
Respondent argues that since Shanklin never raised this specific claim in the
state courts, and it is not properly before this Court. Indeed, the Court can find no
claim described in this specific way in Shanklin’s Rule 32 amended petition. Shanklin
urges that “the substance” of this claim was sufficiently presented to the state
courts. (Doc. 41 at 24 (quoting Picard, 404 U.S. at 278)). But the Eleventh Circuit
has held that “an issue is exhausted if ‘the reasonable reader would understand [the]
claim’s particular legal basis and specific factual foundation’ to be the same as it was
presented in state court.” Pope, 680 F.3d at 1286 (quoting Kelley, 377 F.3d at 1344–
45) (emphasis added). Thus, for all of the reasons explained in section IV.A.3.i.,
supra, it is not exhausted, it is procedurally defaulted from this Court’s review, and
Shanklin’s arguments as to why procedural default should not bar relief are denied.
iv.

Unable to challenge the testimony of Tracy Ward

Shanklin next alleges that because of their failure to prepare and investigate,
counsel were unable to challenge the testimony of Tracy Ward.
This claim was exhausted in state postconviction. Vol. 17, Tab #R-44, at C.
243, 246–47; Vol. 21, Tab #R-47, at 24–25; Vol. 24, Tab #R-52, at 26, 29–30. In his
amended Rule 32 petition, Shanklin claimed that counsel erred by conducting a joint

85

interview of Tracy Ward with Sam Bentley, Kevin Shanklin’s attorney. Vol. 17, Tab
#R-44, at C. 246–47. The Rule 32 court deemed this claim insufficiently pleaded.
Vol. 19, Tab #R-46, at C. 766. The ACCA agreed on appeal, writing as follows:
Shanklin’s next claim relates to another claim he raised regarding
trial counsel’s conducting an interview with Ward. Shanklin argues that
his trial counsel should not have interviewed Ward alongside Kevin
Shanklin’s counsel because “Ward might have assigned different
culpability to the actions of Clayton and Kevin Shanklin.” (Shanklin’s
brief, at 25.)
The circuit court found the claim insufficiently pleaded, stating:
“Shanklin failed to plead facts showing that Ward would have
offered different testimony had she only been interviewed by his
counsel, that the testimony she gave was untruthful, or that he
was prejudiced by the joint interview. He also failed to cite any
authority stating that a joint interview with a codefendant’s
counsel is presumptively prejudicial.”
(C. 766.)
We agree with the circuit court’s conclusions here. Shanklin
failed to plead facts that, if true, would establish that counsel was
ineffective for meeting with Ward while codefendant’s counsel was
present. Because Shanklin did not plead facts showing that he is entitled
to relief, this claim was correctly summarily dismissed. See Rule
32.7(d), Ala. R. Crim. P.
Vol. 23, Tab #R-50, at 57.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
86

Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
v.

Unable to challenge the testimony of Ashley Crumpton

Shanklin next alleges that because of their failure to prepare and investigate,
counsel were unable to challenge the testimony of Ashley Crumpton.
This claim was exhausted in state postconviction. Vol. 17, Tab #R-44, at C.
243–46; Vol. 21, Tab #R-47, at 22–24; Vol. 24, Tab #R-52, at 26–29. In his amended
Rule 32 petition, Shanklin identified several complaints with counsel’s performance:
counsel failed to clarify the identities of the two men and who did what; counsel
asked Ashley about Michael’s life insurance, and she denied receiving any; Ashley
recalled the Chicago Bears playing on the night of the murder, but that was a bye
week. Vol. 17, Tab #R-44, at C. 244–46. The circuit court held that this claim was
insufficiently pleaded and meritless. The ACCA affirmed, writing as follows:
Shanklin argues that trial counsel were ineffective because
counsel failed to investigate basic facts of the crime and, thus, counsel
was unable to adequately cross-examine important State witnesses.
This Court will address the witnesses in turn. . . .
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Shanklin contends that trial counsel failed to challenge Ashley’s
inconsistent statements and point out that she remembered the wrong
team playing football on the night of the murder.
The circuit court stated the following when summarily
dismissing this claim:
“. . . Shanklin alleges that counsel failed to sufficiently
prepare to cross-examine Ashley Crumpton. He cites three
supposed missteps: (1) counsel failed to pursue Ashley when she
supposedly identified Shanklin as the man who both shot her and
put the gun in her face, (2) counsel failed to learn prior to trial
that Ashley had not received a life insurance payout from her
husband’s death, and (3) counsel failed to impeach Ashley based
on naming the wrong football team that had played on the
evening of her husband’s murder.
“This claim is dismissed because Shanklin failed to
specifically plead how he was prejudiced by this crossexamination or how, had counsel examined Ashley differently,
the result of his trial would have been different.
“Moreover, these allegations are meritless. On direct
examination, Ashley testified to the events of the crime. The
State questioned her about a series of photographs of Shanklin,
noting that he had changed his appearance since the murder by
getting a tattoo on his face. (R. 642-45.) They then had the
following exchange after showing Ashley a picture of him:
“Q. Ashley, is there any doubt in your mind that this man
was one of those people inside your home that night when
your husband ended up dead?
“A. No doubt whatsoever.
“Q. Is there any doubt in your mind that this man right
here was one of the men in there that shot you in the leg?
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“A. No, no doubt.
“Q. And who put the gun to your face and pulled the
hammer back three times and tried to kill you?
“A. That is the man that was in my apartment.
“Q. Do you know why he has changed his appearance
today, do you have any idea?
“(R. 644-45.) Ashley did not say that the man who shot her and
the man who then attempted to do so were identical, but rather
that Shanklin had been one of the men in her bedroom. Given this
record, any objection would have been meritless, and thus,
Shanklin failed to plead a sufficient factual basis showing that
competent counsel would have objected.
“As for the life insurance policy, Shanklin is correct that
counsel stated in opening that he believed the evidence would
show that Ashley knew there was a life insurance policy on her
husband. (R. 567.) On cross-examination, Ashley only stated that
she had not received any life insurance money—she was not
asked whether such a policy existed. She did, however, admit that
she and Michael were having marital problems and that she had
threatened to throw him out of their house. (R. 650.)
“Finally, turning to the football game, Ashley testified that
the Crumptons and Michael’s uncle had watched the game on
Sunday, October 11, 2009, and that she spent at least part of her
time cooking, cleaning, and tending to the children. (582-83.)
While Shanklin is correct that Ashley was mistaken if the family
had been watching a live game, which was never established in
the record, he pleaded nothing showing that the result of his case
would have been any different if Ashley had been questioned
more thoroughly about the NFL teams playing hours before her
husband was murdered. Therefore, this claim is dismissed.”

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(C. 765-66.)
Because Shanklin did not plead facts showing that he is entitled
to relief and because Shanklin failed to state a material issue of fact or
law that would entitle him to relief, this claim was correctly summarily
dismissed. See Rules 32.6(b) and 32.7(d), Ala. R. Crim. P.
Vol. 23, Tab #R-50, at 54–56.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
vi.

Unable to challenge the testimony of jailhouse informants

Shanklin next alleges that because of their failure to prepare and investigate,
counsel were unable to challenge the testimony of “the State’s jailhouse
informants.” (Doc. 24 at 59.) In particular, he alleges that this failure led to damaging
testimony from Kenneth Traywick. (Id. at 60–62.)

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This claim was exhausted in state postconviction. Vol. 17, Tab #R-44, at C.
243–44, 246–49; Vol. 21, Tab #R-47, at 25–27; Vol. 24, Tab #R-52, at 30–34. In his
amended Rule 32 petition, Shanklin claimed that counsel were unprepared to
challenge the testimony of Isaiah Howze, Tyrone Dickerson, Josh Moreland,
Laronda Brown, and Kenneth Traywick. Vol. 17, Tab #R-44, at C. 247–49. The
circuit court found that this claim was insufficiently pleaded:
As Shanklin failed to plead facts showing what supposed benefits
these witnesses received that they testified falsely, or that the result of
his trial would have been different had counsel conducted further
investigation, this claim is dismissed pursuant to Rules 32.3 and 32.6(b)
of the Alabama Rules of Criminal Procedure.
Moreover, as discussed above, the trial transcript shows that this
claim is meritless. Howze admitted that he had been charged with
robbery after a bar fight, that case was dismissed, and he was on work
release due to a child support issue. He also stated that he had not been
promised anything or threatened to make him testify. (R. 831–32.)
Shanklin pleaded nothing to show that Howze testified falsely.
Dickerson testified that he was picked up and brought to the
police station to give a statement, that the police threatened to charge
him with a crime if he did not give a statement, and that the police
turned the recorder off at one point and reminded him that he would be
prosecuted if he did not tell them what he knew. (R. 843–44.) Shanklin
pleaded nothing to show that this statement was untruthful or that
counsel would have discovered anything else through further
investigation.
Moreland, who was incarcerated for theft of property, was a
trustee at the Walker County Jail when Shanklin was brought in. (R.
846–47.) He testified that after hearing Shanklin’s story, he told the
administrator, then gave a recorded statement to police. (R. 853–54.)
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Moreland stated that he was not threatened, promised anything, or
coerced into giving his statement. (R. 854–55.) After that, he was
shipped to another facility in Marion County for a week, and at the time
of the trial, he was on work release. (R. 865.) When asked whether his
statement secured him a spot in work release, Moreland denied it; he
had completed a six-month drug addiction program, and completion
meant automatic work release. (R. 865–66.) He explained that every
qualifying prisoner was offered an opportunity to do the program and
that no one in the prison system knew he had given the statement. (R.
67.) Shanklin pleaded nothing to show that Moreland’s testimony was
untrue or that his counsel would have learned anything different had
they conducted additional investigation.
Brown testified that she was convicted of third-degree robbery
prior to the murders, that she pleaded guilty in March 2010, that she
was sentenced to ten years split time served, that she violated her
probation, and that she had since been in rehab through Community
Corrections and was about to graduate. (R. 919–20.) She stated that no
one made any promises or threats to her for her testimony and that she
did not worry that her probation would be revoked if she refused to give
a statement. (R. 920–21, 924.) Again, Shanklin failed to plead anything
showing that this testimony was untruthful or that his counsel would
have learned anything different if they had further investigated her case.
[. . .]
Shanklin also claims that counsel were ineffective in their examination of Kenneth Traywick, an inmate who testified to
conversations he had with Shanklin and stated that he feared retaliation
when he returned to the penitentiary. (R. 876.) Attempting to discredit
Traywick, counsel asked if Shanklin had impregnated Traywick’s
sister, which Traywick denied. (R. 877.) Traywick also admitted that
prior to telling investigators about Shanklin’s statements, he had
accused Shanklin, “all five-foot-seven of him,” of raping him. (R. 878.)
Counsel’s apparent motivation in asking these questions was to bring to
light any grudge Traywick held against their client, particularly through
the accusation that Shanklin, a relatively small man, had raped him.
This claim is dismissed pursuant to Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure because Shanklin failed to plead
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facts showing that he was prejudiced by counsel’s questioning
concerning Traywick’s sister or by counsel’s attempt to discredit
Traywick by making his accusation seem ridiculous, and because he
failed to plead facts showing that if counsel had not asked these
questions, the result of his trial would have been different.
Vol. 19, Tab #R-46, at C. 766–69.
The ACCA affirmed, agreeing that the claims were insufficiently pleaded.
Vol. 23, Tab #R-50, at 57–59. The ACCA explained:
Shanklin claims that trial counsel failed to challenge the bias of
four witnesses—Isiah Isaiah Howze, Tyrone Dickerson, Joshua
Moreland, and Laronda Brown—who, Shanklin alleges, were coerced
into testifying on behalf of the State. Shanklin contends that trial
counsel failed to adequately investigate whether the witnesses’
testimonies were the result of agreements or threats from law
enforcement and that counsel struggled with impeaching witnesses
with prior convictions.
The circuit court, again, found Shanklin’s claim to be
insufficiently pleaded. . . .
The circuit court further found the claim without merit, stating
that both Howze and Dickerson testified that they had been charged or
threatened with a charge but that they had not been promised anything
in exchange for their testimony. Moreland and Brown also testified that
they had been incarcerated and that no one had made promises or
threats for their testimony. The circuit court stated that Shanklin failed
to show that the witnesses’ testimonies were untruthful or that counsel
would have learned anything differently if they had conducted further
investigation.
With respect to Shanklin’s claim that trial counsel struggled with
impeaching witnesses with prior convictions, the circuit court found
this claim insufficiently pleaded. In dismissing this claim, the circuit
court stated that “the witnesses were frank about their current and past
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crimes” and that “Shanklin pleaded nothing to show how else his
counsel should have impeached them or how he was prejudiced by his
counsel’s cross-examination.” (C. 768.)
Shanklin failed to show that trial counsel’s performance was
deficient or how he was prejudiced by counsel’s performance. Shanklin
failed to show what questions trial counsel should have asked or that
more cross-examination would have changed the outcome of the
proceedings. Because Shanklin did not plead facts showing that he is
entitled to relief, this claim was correctly summarily dismissed. See Rule
32.7(d), Ala. R. Crim. P.
[...]
Shanklin claims that trial counsel failed to challenge the bias of
Kenneth Traywick who testified that Shanklin confessed to running
away once the shooting started during a robbery. During trial, in an
attempt to discredit Traywick, counsel asked Traywick whether
Shanklin had gotten Traywick’s sister pregnant. Traywick replied that
Shanklin had not, and, according to Shanklin, trial counsel had no
follow-up or proof to the contrary. Counsel asked Traywick if he had
ever accused Shanklin of raping him while incarcerated, and Traywick
admitted that he had. Shanklin argues that evidence of a defendant’s
aggression and prior violence are prejudicial and by trial counsel’s
eliciting the accusation without presenting evidence absolving him of it,
trial counsel’s performance was deficient resulting in significant
prejudice to him.
The circuit court dismissed this claim, finding the claim
insufficiently pleaded.
[...]
We agree with the circuit court’s findings on this claim. This
claim is insufficiently pleaded. See Rules 32.3 and 32.6(b), Ala. R. Crim.
P. Because Shanklin did not plead facts showing that he is entitled to
relief, this claim was correctly summarily dismissed. See Rule 32.7(d),
Ala. R. Crim. P.
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Vol. 23, Tab #R-50, at 57–59.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
vii.

Failure to object to victim impact testimony from Ashley
and Lori Crumpton (Michael’s mother)

Shanklin next alleges that counsel were ineffective for failing to object to guilt
phase victim impact testimony from Ashley and Lori Crumpton.
This claim was exhausted in state postconviction. Vol. 17, Tab #R-44, at C.
254–56, 246–49; Vol. 21, Tab #R-47, at 31–32; Vol. 24, Tab #R-52, at 40–41. In his
amended Rule 32 petition, Shanklin took issue with the following: Ashley testified
about her relationship with Michael, their children, and their life together; Ashley
testified about Michael’s funeral, and the State introduced pictures from the funeral;

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Lori testified about meeting Ashley for the first time and about the wedding; Lori
testified about the children, and the State introduced pictures from Halloween and
Christmas. Vol. 17, Tab #R-44, at C. 255. The circuit court held that this claim was
insufficiently pleaded, noting that the ACCA on direct appeal had held that the
minimal victim impact evidence did not prejudice Shanklin, and Shanklin failed to
plead facts to the contrary. Vol. 19, Tab #R-46, at C. 771–72. The ACCA affirmed,
writing as follows:
Shanklin contends that trial counsel failed to adequately object to
the introduction of victim-impact testimony from Ashley Crumpton
and from Lori Crumpton, Michael’s mother, during the guilt-phase
proceeding. In finding this claim insufficiently pleaded, the circuit court
stated:
“The witnesses were allowed to briefly testify about how
Michael and Ashley met, their residence, and their children, and
the State introduced photographs of Michael with his family and
at his funeral. (R. 572-80, 668-69, 671-75.) The defense objected
to the introduction of certain photographs, renewing the
objection raised in their pretrial suppression motion, but the
objection was overruled. (R. 576.) Counsel did not, however,
object to the testimony.
“While the Court of Criminal Appeals found that some of this
testimony was irrelevant to any guilt phase issue, it held, ‘[T]he
record conclusively shows that the admission of the victim
impact evidence during the guilt phase of the trial did not affect
the outcome of the trial or otherwise prejudice a substantial right
of the defendant.’ Shanklin, 187 So. 3d at 782 (citation and
quotation omitted). As the evidence ‘was brief background
information that did not specifically focus on the effect that
Michael’s death had on’ Ashley and Lori, and in light of ‘the
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overwhelming evidence of Shanklin’s participation in this
offense,’ id., the testimony did not prejudice Shanklin’s
substantial rights.
“Here, Shanklin failed to plead facts showing that he was
prejudiced by the introduction of this testimony or that the
testimony had any effect on the jury’s guilt-phase deliberations.”
(C. 772.)
Shanklin has not pleaded sufficient facts to indicate that there
would have likely been a different outcome but for trial counsel’s
performance. Even if trial counsel’s performance were deficient, as this
Court has previously held, there was no prejudice affecting a substantial
right of Shanklin. Because Shanklin did not plead facts showing that he
is entitled to relief, this claim was correctly summarily dismissed. See
Rule 32.7(d), Ala. R. Crim. P.
Vol. 23, Tab #R-50, at 6465.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.

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viii. Failure to ensure a full recordation
Shanklin’s last allegation in this section is that trial counsel were ineffective
for failing to ensure full recordation of his trial, particularly the jury striking and the
charge conference.
This claim was exhausted in state postconviction. Vol. 17, Tab #R-44, at C.
252–53; Vol. 21, Tab #R-47, at 30; Vol. 24, Tab #R-52, at 37–38. The circuit court
deemed this claim insufficiently pleaded: “Shanklin failed to plead facts showing
how he was prejudiced, such as facts showing that there was any reversible error
committed during these off-record portions of the trial.” Vol. 19, Tab #R-46, at C.
770. The ACCA agreed, finding: “Shanklin has pleaded no facts showing that he was
prejudiced because counsel failed to file a motion for full recordation of the
proceedings. Shanklin did not plead facts showing that any error occurred during
these off-record portions of the trial that would entitle him to relief.” Vol. 23, Tab
#R-50, at 63.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the
ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established
Federal law as determined by the Supreme Court or based upon an unreasonable

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determination of the facts. See 28 U.S.C. § 2254(d). Shanklin has not made any effort
to do so, and the ACCA’s opinion is not unreasonable in any event. The Court sees
nothing in the ACCA’s opinion that is violative of Strickland. Thus, habeas relief is
not warranted on this claim.
B.

Shanklin’s claim that the trial court violated his due process and
Eighth Amendment rights when it declined to instruct the jury on
lesser included offenses

Shanklin claims that because he was facing capital murder charges, Beck v.
Alabama established that he had a constitutional right, under the due process clause
and the Eighth Amendment, to a jury instruction on lesser included offenses,
including felony murder, even in the absence of evidence supporting such an
instruction. See 447 U.S. at 638 (“if 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”). Shanklin specifies that this is a freestanding argument, in addition to his
ineffective assistance of trial counsel claim that is premised on counsel’s failure to
request a lesser included offenses jury instruction, which was discussed by this Court
in section IV.A.1., supra.
Shanklin never raised this particular claim in the state courts. However,
Shanklin argues that this Court should not find it unexhausted and procedurally

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defaulted because the ACCA sua sponte reviewed the jury instructions for plain error
on direct appeal. In support, Shanklin cites the Supreme Court’s statement in
Castille v. Peoples that “[i]t is reasonable to infer an exception [to exhaustion] where
the State has actually passed upon the claim” because “it is fair to assume that
further state proceedings would be useless.” 489 U.S. 346, 351 (1989) (citation
omitted). The ACCA indeed reviewed the jury instructions for plain error on direct
appeal. Shanklin, 187 So. 3d at 795 (“Although Shanklin did not object to the circuit
court’s jury instructions during the guilt phase of his trial and does not argue on
appeal that the circuit court’s jury instructions during the guilt phase of trial were
erroneous, we have reviewed the guilt-phase instructions for plain error.”). The
ACCA engaged in a detailed discussion of one of the other instructions—the
instruction on accomplice liability—ultimately finding that while the instruction was
erroneous there was no plain error. See id. at 795–96. Then, the ACCA concluded by
stating, “Accordingly, there is no plain error in the circuit court’s instructions.” Id.
at 796. However, the ACCA never specifically mentioned the lesser included
offenses jury instruction in its discussion. It is therefore unclear whether it can be
said that the ACCA “actually passed upon” this claim, 489 U.S. at 351.
Regardless, on the merits, Shanklin’s claim fails. Although Beck is clearly
established Federal law, it does not require what Shanklin says it does. Beck holds

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that a death sentence may not be imposed in a capital case “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.” 447 U.S. at 627 (emphasis
added). Here, Shanklin asked that instructions on lesser included offenses not be
given, and the trial court stated that it did not believe that the evidence supported an
instruction on felony murder in any event. See Vol. 19, Tab #R-46, at C. 773.
Shanklin has pleaded no facts that, when considered in light of the record,
establish that he was entitled to a felony murder instruction. Both Shanklin cousins
shot at Ashley Crumpton, Vol. 4 at R. 602, 604, 606, 608, one hitting her in the leg,
the other attempting three times to shoot her in the face. Both cousins fought Ashley
and Michael with rocks and the gun. After the murder, Shanklin told multiple
witnesses of his crime. E.g., Vol. 5 at R. 766, 768, 772 (Amber Piper); R. 851 (Joshua
Moreland); R. 847 (Kenneth Traywick). Moreover, the Supreme Court has held that
a defendant may waive instructions on lesser included offenses, Spaziano v. Florida,
468 U.S. 447, 456–57 (1984), which is what Shanklin did through his affidavit. Thus,
Shanklin was not entitled to an instruction on felony murder, and even if he were, he
waived it. Shanklin failed to plead facts showing error.
C.

Shanklin’s claim that he was denied effective assistance of trial
counsel during the penalty and sentencing phases of his trial

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Shanklin argues that he was denied his Sixth Amendment right to effective
assistance during the penalty and judge-sentencing phases of his trial in numerous
ways, all related to trial counsel’s alleged failure to investigate and present a
compelling mitigation case.
During the penalty phase of his trial, Shanklin presented four witnesses to the
jury. Willodean Shanklin, Shanklin’s aunt, stated that she loved him. She said he was
“a loving child . . . a normal child,” who “liked to play” and had “a good heart.”
While she admitted that he had “had some trouble,” she insisted that he was “still
a good child” who would “help you if he can.” She stated that if Shanklin were
sentenced to life without parole, she would visit him. Willodean agreed that she took
the verdict “especially hard” and said that Shanklin has “a loving family.” She asked
that his life be spared. On cross-examination, she testified that Shanklin had both
parents growing up, that he went to school, and that his parents supported his
education. Vol. 10, Tab #R-23, at R. 1693–97.
Jackie Shanklin, Shanklin’s uncle, testified that he worked for Liberty
National Insurance. He affirmed what Willodean had said about Shanklin, adding
that they had a big family and that he was around while Shanklin was growing up.
Jackie said Shanklin’s family would support him and visit him if he were given life
without parole, and he asked for Shanklin’s life to be spared. On cross-examination,

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he agreed that Shanklin grew up with two parents who had supported him all his life.
He also testified that Shanklin’s family was able to provide him with “some stuff and
spending money and things like that” when he was a child. Id. at R. 1698–1700.
Clayton Shanklin, Sr., Shanklin’s father, testified that he was 45 years old, and
Shanklin was his eldest son, with middle son Maurice and daughter Tina. He said
that Shanklin had “a good childhood” and that he and his wife loved Shanklin very
much. Shanklin, Sr.’s wife could not bring herself to testify at that point because she
had “collapsed on the sidewalk,” but he insisted that she loved Shanklin. He said
they would visit Shanklin if he were given life without parole, no matter where he
was sent. He also begged for Shanklin’s life to be spared. On cross-examination, he
said that the family had supported Shanklin after his previous conviction in Jefferson
County. He stated that he was a coal miner, while his wife was an R.N. He said that
Shanklin “had both parents . . . [t]hat loved him and took care of him” when he was
a child, but he admitted that the Crumpton girls would not have two parents. Id. at
R. 1701–04.
Crystal Marie Coleman, Shanklin’s wife, testified that she married him in
September 2007 and that they had two children together, Xavier and Xandria. She
said that Shanklin knew his children and had a relationship with them prior to his
incarceration, explaining, “He used to pick the kids up every other weekend and then

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he would also stop by and give me money and clothes and different things to help
out.” If Shanklin received life without parole, she said she would take the children
to visit him and try to explain why he was in there. She said she sympathized with
Ashley but asked for the court not to make matters worse by sentencing Shanklin to
death. On cross-examination, she testified that she did not know Laronda Brown,
Tracy Ward, or Amber Piper, Shanklin’s girlfriends, and did not know that he was
dating any of them at the time of the murder. She said that she went to Birmingham
to support him when he was convicted of assault in Birmingham. Id. at R. 1706–10.
After this presentation, the jury unanimously recommended life without
parole. Vol. 10, Tab #R-28, at R. 1739. The sentencing hearing before the trial judge
was held about six months later, with the defense offering two witnesses. Clayton
Shanklin, Sr. again testified. He stated that he had been there throughout the trial
and once again “begg[ed] the Court to spare [Shanklin’s] life.” He said, “I love
[Shanklin] with all my heart. If I could trade places with him, I would.” Vol. 10, Tab
#R-29, at R. 1754–56. Renae Shanklin, Shanklin’s mother, also testified. She
apologized for missing parts of the trial, explaining that she was in “panic mode”
and asking for his life to be spared. She added, “I am sorry as a mother. I sympathize
with Ms. Crumpton. I am very sorry for what happened to your son, but that’s my
son and his family loves him too.” She said that she would still visit Shanklin in

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prison and begged the court to “save him, save his life. His family needs him.” Id. at
R. 1757–58.
The trial court ultimately overrode the jury’s sentencing recommendation and
sentenced Shanklin to death. At the hearing, the trial court stated to Shanklin: “Mr.
Shanklin this was the most difficult decision I’ve ever had to make in my life. You
have cut down a young man in his prime, you’ve maimed a young woman, you’ve
deprived two young children of their father. This community is very fortunate that
four people weren’t killed on that [fateful] night. I pray, sir, that you make amends
with our maker.” Id., Tab #R-30, at R. 1763.
The trial court’s sentencing order gave the following reasons for the judicial
override. The trial court stated that although “[t]he aggravating circumstances
clearly weigh in favor of the death penalty,” some jurors’ emotions “may have
hindered their ability to follow the law and impose the death penalty.” Some of the
jurors looked “visibly upset” when they returned to the courtroom to deliver their
guilt-phase verdict, and there was an outburst following it. Some jurors then asked
the bailiff if the penalty-phase verdict would be made public, and the trial judge was
brought in to explain to the jury that it would be public, causing several jurors to look
“concern[ed] and consternate[ed].” Vol. 1 at C. 82, 88–89. The trial court also noted
that “the overwhelming evidence in this case pointed to Shanklin as the major

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perpetrator,” including Ashley’s and Ward’s testimony; the victim’s family did not
ask for life without parole; the court had knowledge of Shanklin’s criminal history
that was kept from the jury, including the fact that his Jefferson County assault
conviction was pled down from attempted murder and that he had numerous arrests
on drug possession and trafficking, burglary, robbery, and theft charges; and the
court was convinced that “the aggravating circumstances vastly outweigh the
mitigating circumstances” to the point of necessitating an override. Id. at 82–90.
During state postconviction proceedings, Shanklin raised and exhausted
multiple claims of penalty phase and sentencing phase ineffective assistance of
counsel, offering new evidence in support of mitigation that he claimed counsel
should have uncovered. Vol. 17, Tab #R-44, at C. 266–92; Vol. 21, Tab #R-47, at 41–
60; Vol. 24, Tab #R-52, at 52–76. With regard to the penalty phase specifically,
Shanklin alleged that his trial counsel failed to adequately interview him and his
family about potential mitigation evidence; failed to acquire certain records
pertaining to his background; failed to present evidence about his traumatic
childhood; failed to present testimony from an investigator, mitigation specialist,
social worker, mental health expert, and an expert on drug and alcohol abuse; failed
to present a coherent mitigation theory at the penalty phase or explain the relevance
of the evidence; failed to adequately prepare his aunt, uncle, father, and wife to

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testify at the penalty phase; and that he was prejudiced by these failings because the
trial court overrode the jury’s recommendation of life imprisonment without parole.
With regard to the judge-sentencing phase specifically, Shanklin alleged that his trial
counsel failed to act as his advocate during that phase; that Mr. Camp’s decision to
withdraw prior to that phase constituted abandonment; that his trial counsel failed
to adequately investigate and present mitigating evidence; and that these cumulative
failures prejudiced him.
The circuit court considering Shanklin’s Rule 32 petition found that Shanklin
had failed to show prejudice on this claim. Vol. 19, C. 775–83. The judge who
considered Shanklin’s Rule 32 petition was also his trial judge. For prejudice
determinations then, the question was whether that judge would have changed his
mind about sentencing Shanklin to death in light of the new evidence.
The ACCA affirmed the Rule 32 court’s dismissal of these claims in a lengthy
discussion, first writing as follows:
Here, trial counsel presented evidence in mitigation. In fact, the
evidence convinced the jury, by a vote of 12 to 0, to recommend a
sentence of life imprisonment without the possibility of parole. “[T]he
jury’s recommendation of life imprisonment without parole negates
[the appellant’s] showing that he was prejudiced by counsel’s
performance.” Boyd v. State, 746 So. 2d 364, 389 (Ala. Crim. App.
1999).
Counsel presented testimony from Shanklin’s aunt, uncle,
father, and wife. These witnesses testified that Shanklin had been a
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good father who loved his family and children. They asked that his life
be spared and promised to visit and support him.
The circuit court, in its sentencing order, found the existence of
five aggravating factors: 1) that Shanklin was under the sentence of
imprisonment at the time of the murder; 2) that Shanklin had
previously been convicted of two felonies involving the use or threat of
violence to the person; 3) that Shanklin knowingly created a great risk
to many persons; 4) that Shanklin committed the capital offense while
he was engaged or was an accomplice in the commission of a robbery or
burglary; and 5) that the capital offense was especially heinous,
atrocious, or cruel compared to other capital offenses. The circuit court
considered the statutory mitigating circumstances and found none to
exist. The circuit court considered the non statutory mitigating
evidence Shanklin presented via family members, but found this
testimony to be “extremely weak and . . . assign[ed] very little weight
to these factors.” The circuit court considered the jury’s unanimous
recommendation of a sentence of life without the possibility of parole
and assigned the jury’s advisory verdict great weight. After weighing
the aggravating and mitigating circumstances, the circuit court found
that the aggravating circumstances vastly outweighed the mitigating
circumstances and sentenced Shanklin to death.
Vol. 19, Tab #R-50, at 73–74 (citation omitted). The ACCA later added, “Although
a jury’s recommendation of life imprisonment without the possibility of parole does
not preclude a finding of prejudice under Strickland, it does weigh against such a
finding.” Id. at 79 (collecting cases).
Quoting the Rule 32 court, the ACCA then found that none of Shanklin’s
claims was sufficiently pleaded. For example, while he claimed that counsel should
have better interviewed him, “[h]e failed to plead facts showing what evidence he
should have given counsel and how that evidence would have resulted in a different
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outcome,” or that he was unable to communicate this information to counsel. Id. at
75. He failed to plead what other individuals would have testified to and how it would
have overcome his strongly aggravated case. Id. at 76–77. He failed to show how he
was prejudiced by counsel’s failure to acquire his school, medical, or jail records, as
the jury recommended life without parole. Id. at 78–79. Shanklin failed to plead the
identities of witnesses who should have testified to the new mitigation evidence he
offered and their willingness and availability to do so. Id. at 80. He failed to plead the
names of experts who allegedly should have been called, much less the substance of
the experts’ testimony and their availability. Id. Further, the ACCA noted that some
of Shanklin’s new mitigation evidence contradicted the defense’s mitigation case,
and evidence of his drug use and troubled childhood might have served as a doubleedged sword to some jurors. Id. at 80–81. The ACCA also found that although
Shanklin pled that counsel failed to adequately prepare his witnesses to testify, he
failed to plead what other information counsel should have drawn from them on the
stand, and he failed to show prejudice. Id. at 81. Finally, the ACCA rejected his claim
of cumulative ineffective assistance, especially as the circuit court judge—who,
again, had been the trial judge—found no prejudice. Id. at 82–85.
The ACCA then addressed Shanklin’s claims of sentencing-phase ineffective
assistance. The ACCA first found that Mr. Camp had not “abandoned” Shanklin by

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withdrawing prior to the sentencing phase; the Alabama State Bar recommended
that he withdraw because of his conflict, and the trial court appointed Mr. Adams,
whom the family had already retained, and Mr. McKeown to assist Mr. Whisenhunt.
Id. at 85–87. Second, the ACCA found that Shanklin failed to plead what other facts
his counsel should have uncovered and presented, and what witnesses they should
have used to present this information, to convince the trial court not to override the
jury’s recommendation. Id. at 87. The ACCA the Rule 32 court’s finding that
Shanklin suffered no prejudice “is entitled to considerable weight” because the Rule
32 judge was also the sentencing judge. Id. at 88. Finally, the ACCA again rejected
Shanklin’s claim of cumulative ineffective assistance. Id.
In Claim III of his federal habeas petition, Shanklin now presents a 50-page
penalty phase ineffective assistance of trial counsel claim (see doc. 25-1 at 64–116),
most of which consists of a narrative “mitigation story” (id. at 84–109), which
Shanklin states was “developed through the assistance of a mitigation investigator
with a background in mental health” (id. at 84 n.60). He further states that this
investigator “spent hundreds of hours researching the backgrounds of [Shanklin]
and his family; gathering and reviewing relevant records; conducting witness
interviews of family, friends, educators, and others in the community; assisting the
experts; and developing a relationship of trust with” him to prepare the mitigation

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story. (Id.) Broadly speaking, the mitigation story speaks of Shanklin’s parents, their
marriage, and their separations; alleged violence and abuse in the home; unstable
family members; Shanklin’s educational career; Shanklin’s personality; Shanklin’s
brother and sister; the town of Parrish, Alabama; “Mad Dog” Madison, a local drug
dealer whom Shanklin worked for; Shanklin’s two marriages; the deaths of
Shanklin’s great-grandmother and his first wife; incidents of mental illness,
addiction, and incarceration in Shanklin’s extended family; and Shanklin’s mental
health and substance abuse.
Some of this new evidence was never presented to the state courts. 3 With
regard to the parts of this mitigation story that are unexhausted, the Court finds that
they are procedurally barred from this Court’s review for all of the reasons explained
in section IV.A.3.i., supra.
With regard to the portions of this claim that Shanklin did exhaust during his
Rule 32 proceedings, Shanklin has not made an effort to establish that the ACCA’s
decision regarding his ineffective assistance of counsel claim was contrary to or an
unreasonable application of clearly established Federal law or based upon an

Respondent has compared the mitigation information Shanklin now offers with the
information he presented in the state courts, detailing which portions of the current federal claim
are new and which were offered to the state courts and thus exhausted below. (Doc. 33 at 72-73.)
Because the Court finds that the new information is procedurally barred from this Court’s review
and none of the repeated information gives rise to relief under § 2254(d), the Court will not restate
the comparison in detail here.
3

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unreasonable determination of the facts before it. Rather, Shanklin contends in his
reply brief that “[b]ecause this claim cannot be adequately considered until it has
been fully exhausted, [] Shanklin will not address the merits of any portion . . . .”
(Doc. 41 at 21.)4 In any event, the ACCA’s decision was not unreasonable. For many
of these claims, Shanklin failed to plead who should have been called to testify and
what the substance of their testimony would have been, especially as some of the
evidence, such as that concerning Shanklin’s drug abuse, could be considered a
double-edged sword. In sum, the penalty and sentencing phase ineffective assistance
of counsel claim is due to be denied.
D.

Shanklin’s claim that his constitutional rights were violated
because the trial court overrode the jury’s recommendation of life
without parole and sentenced him to death, and the ACCA upheld
that decision

In this claim, Shanklin challenges the trial court’s decision to override the
jury’s unanimous penalty phase recommendation that Shanklin be sentenced to life
in prison without parole and sentence Shanklin to death.
At the time of Shanklin’s sentencing, what has come to be known as “judicial
override” was authorized by section 13A-5-47(e) of the Code of Alabama. In 2017,
the statute was amended to remove the override provision, but only prospectively.
As noted in the procedural history section, Shanklin filed a motion to stay these federal
habeas proceedings so that he could exhaust this claim in state court (Doc. 26), which this Court
denied because any further attempt at exhaustion would be futile. (Doc. 42.)
4

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See Ala. Laws Act 2017-131 (S.B. 16). The amended statute provides that the trial
court must impose the sentence decided by the jury. See Ala. Code § 13A-5-47(a).
But the 2017 amendment “shall not apply retroactively to any defendant who has
previously been convicted of capital murder and sentenced to death prior to April 11,
2017.” Id. § 13A-5-47.1.
Shanklin emphasizes that he is one of only five Alabama prisoners facing
execution despite a jury unanimously recommending a life sentence. (Doc. 25-1 at
6). He adds that the practice of allowing a judge to override a jury’s vote for a life
sentence in a capital case has now been abolished in every state. Aside from that,
Shanklin argues that his sentence was imposed in violation of his rights to a fair trial,
reliable sentencing, and due process. The crux of his argument is that one of the trial
court’s reasons for overriding the jury’s verdict was improperly based upon an ex
parte and unrecorded interaction that the trial court claimed to have had with the
jury which led the trial court to conclude that it was “very likely these jurors . . . were
unable to carry out their sworn legal obligation during sentencing.” Vol. 1 at C. 89.
Shanklin argues that no evidence in the record supports the trial court’s conclusion
in that regard.
The full context of the portion of the trial court’s sentencing order of which
Shanklin complains reads as follows:

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Taylor v. State, 808 So. 2d 1215 (Ala. 2001), is very instructive.
In justifying the judicial override, the trial court made two key findings.
First, the court found, as in this case, that the aggravating
circumstances substantially outweighed the mitigating circumstances.
Id. at 1219. The trial court’s second finding was that “some jurors”
outbursts of emotion after they found the defendant guilty of capital
murder indicated that they were overwhelmed by their impending duty
to consider the death penalty as required by law. Id. Based on these two
factors the Alabama Supreme Court held that the trial court
“permissibly assessed the jury’s recommendation very little weight.”
A similar situation occurred in this case.
In this case, several jurors were visibly upset upon entering the
courtroom to render their verdict at the conclusion of the guilt phase.
In addition, at the conclusion of the rendering of the verdict at the guilt
phase, there was an outburst among persons in the audience in the
courtroom, requiring order to be restored. The courtroom was ordered
vacated and the jury was quickly sequestered in the jury room. A recess
was taken before the commencement of the penalty phase of the trial.
During this break, several members of the jury asked the bailiff if the
results of the penalty phase portion of the trial would be made public.
This judge presiding over the case was summoned and explained to the
jury that the penalty phase portion of the trial would indeed be public.
There was a look of concern and consternation on the faces of several
of the jurors. As in [Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001)], it is
very likely these jurors, although very cooperative, diligent, and
attentive throughout the trial, were unable to carry out their sworn legal
obligation during sentencing. This Court holds that this was likely a key
factor in the jury’s vote recommending a sentence of life without parole
in the face of the overwhelming weight of the aggravating
circumstances.
IN CONCLUSION … The Court finds that there is only one logical
conclusion as to the defendant’s punishment. That conclusion being
that he should suffer the punishment of death by legal [sic] injection
according to Alabama law.
Id. at C. 86, 88–89.
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Shanklin’s counsel filed a motion for new trial, arguing that:
there was no evidence that the[ jurors’] emotions prohibited them from
following the law, to this attorney’s knowledge. The record is devoid of
any evidence indicating that the jurors in this case displayed emotional
outbursts that prevented them from following the law. … If there was
any “evidence” of jurors being unable to follow the law, neither this
Honorable Court nor the State made any mention of this on the record,
nor was it ever proven otherwise at the time of the supposed trouble.
Id. at C. 95. The trial court conducted a hearing on the motion for new trial and
denied the motion. Id. at C. 99.
Shanklin exhausted this claim on direct appeal, arguing that the trial court’s
sentencing order incorporated facts not in evidence and that the trial court made
incorrect assumptions about the jurors, including about their emotions as to the
penalty phase verdict. Vol. 12, Tab #R-33, at 39–42 (brief to ACCA); Vol. 14, Tab
#R-38, at 14–19 (cert petition to Alabama Supreme Court). Specifically, in his brief
to the ACCA, Shanklin contended that the record was “entirely devoid” of evidence
supporting the trial court’s finding of juror incapacity, and argued that a death
sentence imposed on the basis of such “misstatements” and “speculation” “does
not reflect the rational, reviewable, and guided discretion required of any death
sentence,” citing Gregg v. Georgia, 428 U.S. 153, 189 (1976), and Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982), and he specifically asserted that “the trial court
deprived Mr. Shanklin’s constitutional rights under the Sixth, Eighth and

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Fourteenth Amendments to the United States Constitution.” Vol. 12, Tab #R-33, at
39, 41–42.
The ACCA rejected the claim on direct appeal, heavily quoting the trial
court’s sentencing order, as follows:
Shanklin contends that the circuit court failed to provide a
sufficient basis for overriding the jury’s recommendation under Ex
parte Carroll, 852 So. 2d 833 (Ala. 2002), and Ex parte Taylor, 808 So.
2d 1215 (Ala. 2001).
This Court has explained:
“In Taylor, the Alabama Supreme Court held that, based on the
requirements of § 13A–5–47(d) and (e), Ala. Code 1975, ‘the trial
judge must state specific reasons for giving the jury’s
recommendation the consideration he gave it.’ 808 So. 2d at
1219. . . .
“In Carroll, the Alabama Supreme Court stated:
“‘We take this opportunity to further explain the effect of
a jury’s recommendation of life imprisonment without the
possibility of parole. Such a recommendation is to be
treated as a mitigating circumstance. The weight to be
given that mitigating circumstance should depend upon
the number of jurors recommending a sentence of life
imprisonment without parole, and also upon the strength
of the factual basis for such a recommendation in the form
of information known to the jury, such as conflicting
evidence concerning the identity of the “triggerman” or a
recommendation of leniency by the victim’s family; the
jury’s recommendation may be overridden based upon
information known only to the trial court and not to the
jury, when such information can properly be used to
undermine a mitigating circumstance.’
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“Carroll, 852 So. 2d at 836 (emphasis added). In [Ex parte]
Tomlin, the Alabama Supreme Court held that a 12–0 jury
recommendation of life imprisonment without the possibility of
parole was entitled to ‘great weight.’ 909 So. 2d [283,] at 286
[(Ala. 2003)].”
Stanley v. State, 143 So. 3d 230, 325–26 (Ala. Crim. App. 2011) (opinion
on remand from the Alabama Supreme Court).
Here, the circuit court complied with Taylor, Carroll, and Ex
parte Tomlin, 909 So. 2d 283 (Ala. 2003). Specifically, the circuit court,
as required by Taylor and Carroll, provided its “specific reasons for
giving the jury’s recommendation the consideration [the circuit court]
gave it.” Taylor, 808 So. 2d at 1219. Specifically, the circuit court
explained:
“Carroll and [Ex parte] Martin[, 931 So. 2d 759, 771 (Ala. 2004),]
require that this Court address its reasons for overriding the
jury’s advisory recommendation. Using the factors outlined in
Carroll, this Court distinguishes Carroll from the facts of this
case.
“(a) Number of Jurors Recommending Life: In Carroll, ten jurors
recommended life without parole. In this case, all twelve jurors
made such a recommendation. While no court is able to read the
minds of a jury, the mandates of Carroll and Martin seemingly
require this Court to do just that.
“Based on the overwhelming evidence in this case and the
unanimous verdicts on both counts of capital murder (and the
attempted murder count as well), it is not easy to understand why
all twelve members of the jury voted against the death penalty in
this case. There is evidence that several jurors emotions may
have hindered their ability to follow the law and impose the death
penalty. The aggravating circumstances clearly weigh in favor of
the death penalty. [Shanklin] presented no evidence of any
statutory mitigating factors. The non-statutory mitigating factors
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concerning family factors and character, etc., were extremely
weak and this Court assigns very little weight to these factors.
The only real mitigating circumstance is the jury’s
recommendation of life without parole which, was unanimous,
and given great weight by this Court.
“(b) Conflicting Evidence of the ‘Triggerman’: While the facts
in Carroll may have left some doubt as to the identity of the
‘triggerman,’ the overwhelming evidence in this case pointed to
Shanklin as the major perpetrator. The State presented an
eyewitness who was present at the scene and was herself a victim
of the crime. The State also presented testimony from a
codefendant, Tracy Ward, who clearly pointed out Shanklin’s
role in the crime and his admission to the shooting of Michael
Crumpton. The jury unanimously found that Shanklin
intentionally killed Michael Crumpton. There is no doubt
whatsoever as to [Shanklin’s] involvement in this horrific crime,
as there apparently was in Carroll. Accordingly, in comparison to
Carroll, judicial override is proper in this case.
“(c) Recommendation of the Victim’s Family: In Carroll, the
victim’s family recommended Carroll not receive the death
penalty. No one from Michael Crumpton’s family made such a
recommendation in this case. While there was no testimony
elicited (and this Court would not have allowed such testimony)
from Michael Crumpton’s family as to their recommendations
for Shanklin’s sentence, this Court has little doubt that it would
have been the death penalty. Accordingly, in comparison to
Carroll, judicial override is proper in this case.
“(d) Facts of the Crime/Not Killing the Witnesses: It is accurate
that Shanklin did not kill Ashley Crumpton (although there was
an attempt on her life) and the two infant children in the
apartment. Shanklin did, however, threaten to kill Amber Piper
and her small child if she ‘told anyone’ about his admission to the
crime. It seems unbearably cruel to force anyone to watch or live
through the slaughter of another person, especially when the
witness is related to that person. Yet, that is what also happened
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in Carroll, and the Alabama Supreme Court found that this factor
tipped in favor of a life without parole sentence. Although with
grave reservation, this Court gives the absolute minimum
consideration of this factor as tipping the scales in favor of the
jury’s recommendation in light of Carroll.
“(e) Additional Facts Unknown to the Jury: Finally, Carroll also
allows this Court to consider ‘information known only to the trial
court and not to the jury, when such information can properly be
used to undermine a mitigating circumstance.’ Carroll, 852 So.
2d at 836. The Court does have knowledge of Shanklin’s criminal
history which was unknown to the jury. The defendant was
originally charged with Attempted Murder in CC–2006–4973
and 4974 (Jefferson County, Alabama) which resulted in his
pleading to Assault in the First Degree in both cases. In addition,
Shanklin has had numerous arrests including Possession of a
Controlled Substance, Use/Possession of Drug Paraphernalia,
Burglary in the First Degree, Robbery in the First Degree, Theft
of Property in the First Degree, Burglary in the [Third] Degree,
Theft of Property in the [Second] Degree, and Trafficking Illegal
Drugs. This information conceivably could have weighed against
the ‘non-statutory mitigating circumstances’ if known by the
jury, particularly the testimony from Shanklin’s family members
regarding his character. Accordingly, this court places minimal
weight of this ‘information known only to the trial court and not
to the jury’ as a justification for an override.
“As clearly shown above, this case is clearly distinguishable from
Carroll. Because only one of the factors listed by the Alabama
Supreme Court in Carroll as ‘tipping the scales in favor of
following the jury’s recommendation’ applies in this case, and
that one just minimally, this court sees no legal impediment to
overriding the jury’s recommendation.”
(C. 81–85.)
The circuit court further justified its override of the jury’s
recommendation:
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“In this case, several jurors were visibly upset upon entering the
courtroom to render their verdict at the conclusion of the guilt
phase. In addition, at the conclusion of the rendering of the
verdict at the guilt phase, there was an outburst among persons
in the audience in the courtroom, requiring order to be restored.
The courtroom was ordered vacated and the jury was quickly
sequestered in the jury room. A recess was taken before the
commencement of the penalty phase of the trial. During this
break, several members of the jury asked the bailiff if the results
of the penalty phase portion of the trial would be made public.
This judge presiding over the case was summoned and explained
to the jury that the penalty phase portion of the trial would indeed
be public. There was a look of concern and consternation on the
faces of several of the jurors. . . . [I]t is very likely these jurors,
although very cooperative, diligent, and attentive throughout the
trial, were unable to carry out their sworn legal obligation during
sentencing. This Court holds that this was likely a key factor in
the jury’s vote recommending a sentence of life without parole in
the face of the overwhelming weight of the aggravating
circumstances.” [FN 39]
FN 39. Although Shanklin argues that “the record is
entirely devoid of any such indication” that several jurors’
emotions may have hindered their ability to follow the law
and to impose the death penalty, nothing in the record
demonstrates that the circuit court’s observations were
inaccurate or incorrect.
(C. 88–89.) Under Taylor, the circuit court’s justification for overriding
the jury’s recommendation is not impermissible. Additionally, the
circuit court’s sentencing order complied with Tomlin by assigning the
jury’s recommendation “great weight” based on its 12–0
recommendation for life imprisonment without the possibility of parole.
Consequently, Shanklin’s argument that the circuit court’s sentencing
order was insufficient under Carroll and Taylor is without merit.
Shanklin, 187 So. 3d at 800–03.
120

At first blush, it would appear that since the Alabama state courts addressed
this claim on the merits, this Court’s review is deferential, and to obtain relief
Shanklin must demonstrate that the ACCA’s decision, which is the last reasoned
state court opinion, see Wilson, 138 S. Ct. at 1192, is contrary to or an unreasonable
application of clearly established federal law as determined by the Supreme Court or
based upon an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
However, despite Shanklin framing this claim as a constitutional violation, the
ACCA did not explicitly address the constitutional violation components of
Shanklin’s claim on their merits. Instead, the ACCA framed the issue as one of
compliance with the state law requirement that a sentencing order identify specific
reasons justifying an override decision. Shanklin thus argues that there is no decision
to which this Court owes deference, and this Court should review the constitutional
claim de novo.
In Johnson v. Williams, the Supreme Court addressed this issue, which:
arises when a defendant convicted in state court attempts to raise a
federal claim, either on direct appeal or in a collateral state proceeding,
and a state court rules against the defendant and issues an opinion that
addresses some issues but does not expressly address the federal claim
in question.
568 U.S. 289, 292-93 (2013). The Court asked:
If this defendant then raises the same claim in a federal habeas
proceeding, should the federal court regard the claim as having been
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adjudicated on the merits by the state court and apply deference under
§ 2254(d)? Or may the federal court assume that the state court simply
overlooked the federal claim and proceed to adjudicate the claim de
novo, the course taken by the Court of Appeals in the case at hand?
Id. at 93. The Court held that when such clarity is lacking—e.g., where a state court
“issues an opinion that addresses some issues but does not expressly address the
federal claim in question,” id., “a federal habeas court must presume that the federal
claim was adjudicated on the merits—but that presumption can in some limited
circumstances be rebutted,” id. at 301. When determining whether this presumption
should hold regarding a particular claim, a federal court must remain mindful that
“[a] judgment is normally said to have been rendered ‘on the merits’ only if it was
‘delivered after the court . . . heard and evaluated the evidence and the parties’
substantive arguments.’” Id. at 302 (citations omitted). Thus, if the circumstances
indicate that a federal claim was “rejected” by the state court “as a result of sheer
inadvertence, it has not been evaluated based on the intrinsic right and wrong of the
matter.” Id. at 303. Likewise, if the state court responds to a claim of federal
constitutional error using only state law, and that state law is “different from” or
“less protective” than the applicable federal rule, “the presumption that the federal
claim was adjudicated on the merits may be rebutted.” Id. at 301. In such cases, “§

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2254(d) entitles the prisoner to an unencumbered opportunity to make his case
before a federal judge.” Id. at 303.
Shanklin contends that the question the ACCA recharacterized and decided
was simply not the one that his appellate counsel asserted. He argues that the claim
was not that the trial court failed to give “specific reasons” for overriding the jury’s
life recommendation; it was that the specific reasons the trial court gave had no basis
in fact, such that the death sentence made possible by those reasons was arbitrary
and unreliable. He contends that the “intrinsic rights and wrongs” of those two
questions are different, see Johnson, 568 U.S. at 303.
Shanklin also argues that while Johnson recognizes the possibility that a state
court decision expressed only in state law terms might nevertheless amount to a
merits adjudication of a federal question “if the state-law rule subsumes the federal
standard,” Johnson, 568 U.S. at 301, that did not happen in his case. He points out
that the ACCA cited five cases while discussing Shanklin’s claim: Ex parte Carroll,
852 So. 2d 833 (Ala. 2002); Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001); Ex parte
Tomlin, 909 So. 2d 283 (Ala. 2003); Stanley v. State, 143 So. 3d 230 (Ala. Crim. App.
2011); and Ex parte Martin, 931 So. 2d 759 (Ala. 2004). See Shanklin, 187 So. 3d at
801. Shanklin contends that while each case helped shape how Alabama’s capital
sentencing scheme functions within the federal constitutional framework with which

123

it must comply, none stated a rule that “subsumes” a capital defendant’s right not
to be sentenced based on materially false information.
Ultimately, whether this Court views this claim de novo or whether it views the
ACCA’s decision for reasonableness through the deferential lens of § 2254(d), the
result is the same that Shanklin’s claim lacks merit. Shanklin argues that the trial
court violated his rights to be sentenced on materially accurate information, to be
present and assisted by counsel at all critical stages of his criminal proceedings, and
to due process of law.
Shanklin theorizes that the trial judge’s encounter with the jury never
occurred, and thus Shanklin has been deprived of his Eighth and Fourteenth
Amendment rights not to be sentenced to death based on materially false
information. In support, he cites Johnson v. Mississippi, 486 U.S. 578, 584 (1988)
(“The fundamental respect for humanity underlying the Eighth Amendment’s
prohibition against cruel and unusual punishment gives rise to a special need for
reliability in the determination that death is the appropriate punishment in any
capital case.”), and Townsend v. Burke, 334 U.S. 736, 741 (1948) (sentence imposed
“on the basis of . . . materially untrue” information, “whether caused by carelessness
or design, is inconsistent with due process of law, and . . . cannot stand”). In support
of his theory that the trial court fabricated this encounter, Shanklin points out that

124

at the time, neither the parties nor the judge said anything on the record to suggest
that jurors looked “visibly upset” as they entered the courtroom to announce their
guilt phase verdict. Vol. 9, Tab #R-19, R. 1674-76. Shanklin further argues that
despite the sentencing order claiming that there was an outburst “among persons in
the audience” as the jury announced its verdict, “requiring order to be restored” by
vacating the courtroom, the court reporter captured no outburst and the court
admonished no “persons in the audience.” Ultimately, however, Shanklin offers
only speculation in support of his accusation that the trial judge simply fabricated
this incident. Since nothing in the record supports this theory, this Court will not
entertain it.
Alternatively, Shanklin argues that if the encounter between the trial judge
and the jury did occur, the trial judge should not have engaged with the jury in that
manner without affording Shanklin any notice or opportunity to participate. He cites
Illinois v. Allen, 397 U.S. 337, 338 (1970) (“One of the most basic of the rights
guaranteed by the Confrontation Clause is the accused’s right to be present in the
courtroom at every stage of his trial.”). Yet Shanklin has not explained how his
constitutional rights were violated by the trial court explaining to the jury the mere
fact that the penalty phase portion of the jury trial would indeed be a public
proceeding.

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Ultimately, this Court cannot say that Shanklin’s death sentence was
unconstitutionally imposed. The trial court’s lengthy sentencing order was legal,
logical, and appropriate. As it was required to do, it gave the jury’s life
recommendation great weight. However, it was not required to adopt that
recommendation. The trial court also did what was required under section 13A-5-47
of the Code of Alabama: it considered the aggravating and mitigating circumstances,
weighed them with the jury’s recommendation, and independently concluded that
death was appropriate in Shanklin’s case. As is clear from the order, the trial court
did not think it was a close question as to whether the death sentence should be
imposed. The ACCA’s opinion also did what it was required to do under sections
13A-5-53(b)(2) and (3) and reweighed the aggravating and mitigating circumstances.
The ACCA found that Shanklin’s death sentence was appropriate and in line with
the death sentences imposed in other robbery–murder and burglary–murder cases.
Vol. 13, Tab #R-37, at 811–12 (collecting cases). Habeas relief is not warranted on
this claim.
E.

Shanklin’s claim that the “heinous, atrocious, or cruel compared
to other capital offenses” aggravator is unconstitutionally broad
and that it was applied to him in an arbitrary and capricious manner

Shanklin contends that the “heinous, atrocious, or cruel compared to other
capital offenses” aggravator (hereinafter, the “HAC” aggravator) found in Ala.

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Code § 13A-5-49(8) (1975) is not only unconstitutionally overly broad on its face but
that it was also applied in an arbitrary and capricious manner to him, and that he is
actually innocent of this aggravator.
On direct appeal, Shanklin argued that the HAC aggravator is
unconstitutionally vague and that it did not apply in his case. Vol. 12, Tab #R-33, at
75 (“The application of this aggravator violated Mr. Shanklin’s right to due process,
a fair trial, and reliable sentencing proceedings as protected by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution, the
Alabama Constitution, and Alabama law.”). The ACCA disagreed, writing as
follows:
Shanklin contends that he “was sentenced to death under an
unconstitutionally vague aggravating circumstance; that the alleged
murders were especially ‘heinous, atrocious, or cruel’ . . . when
compared to other capital offenses.” (Shanklin’s brief, p. 74 (quoting §
13A–5–49(8), Ala. Code 1975).) Specifically, Shanklin, in his brief on
appeal, appears to raise two arguments: first, that § 13A–5–49(8), Ala.
Code 1975, is unconstitutionally vague; second, “[e]ven if not
unconstitutionally vague, the facts from this case certainly do not fit the
description of ‘conscienceless or pitiless homicides which are
unnecessarily torturous to the victim.’” (Shanklin’s brief, p. 75.)
As to Shanklin’s first argument—that § 13A–5–49(8), Ala. Code
1975, is unconstitutionally vague—this Court, in Minor v. State, 914 So.
2d 372, 437 (Ala. Crim. App. 2004), rejected the precise argument
Shanklin now raises on appeal, explaining:
“With respect to Minor’s constitutional challenge to the
heinous, atrocious, or cruel aggravating circumstance in § 13A–
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5–49(8), Ala. Code 1975, this Court has repeatedly upheld that
circumstance against similar challenges. See Duke v. State, 889
So. 2d 1 (Ala. Crim. App. 2002) . . . .”
Thus, Shanklin is not entitled to relief as to that claim.
As to Shanklin’s second argument—that “the facts from this
case certainly do not fit the description of ‘conscienceless or pitiless
homicides which are unnecessarily torturous to the victim’”—that
claim is without merit. Shanklin, in his brief on appeal, argues that
“[e]ven accepting the State’s facts as true, there is nothing to
suggest that this crime was the worst of the worst. It was a
robbery gone bad, where a man was shot in the back. He was not
tortured in any way. If this crime fits into the framework of
heinous, atrocious, or cruel then so too does every single
homicide ever committed.”
(Shanklin’s brief, p. 75.)
Thus, it appears that Shanklin’s argument on appeal is that
Shanklin’s actions, as a matter of law, do not rise to the level of
“heinous, atrocious, and cruel.” Shanklin, however, does not cite any
authority to support his claim. Consequently, Shanklin’s argument
does not satisfy Rule 28(a)(10), Ala. R. App. P. Regardless, Shanklin’s
claim is without merit.
“This Court has stated the following concerning the
application of this aggravating circumstance:
“‘The especially heinous, atrocious, or cruel aggravating
circumstance “appl[ies] to only those conscienceless or
pitiless homicides which are unnecessarily torturous to the
victim.” Ex parte Kyzer, 399 So. 2d 330, 334 (Ala. 1981),
citing State v. Dixon, 283 So. 2d 1 (Fla. 1973).
“‘“‘There are three factors generally recognized as
indicating that a capital offense is especially
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heinous, atrocious, or cruel: (1) the infliction on the
victim of physical violence beyond that necessary or
sufficient to cause death; (2) appreciable suffering
by the victim after the assault that ultimately
resulted in death; and (3) the infliction of
psychological torture on the victim.’”
“‘Saunders [v. State], 10 So. 3d [53] at 108 [ (Ala. Crim.
App. 2007)] . . . .’
“Stanley v. State, 143 So. 3d 230, 312 (Ala. Crim. App. 2011).”
Boyle v. State, 154 So. 3d 171, 242–43 (Ala. Crim. App. 2013).
Additionally,
“‘[o]ne factor this Court has considered particularly
indicative that a murder is “especially heinous, atrocious
or cruel” is the infliction of psychological torture.
Psychological torture can be inflicted where the victim is
in intense fear and is aware of, but helpless to prevent,
impending death. Such torture “must have been present
for an appreciable lapse of time, sufficient enough to cause
prolonged or appreciable suffering.” Norris v. State, 793
So. 2d 847, 861 (Ala. Crim. App. 1999).’
“Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004). See also White v.
State, 587 So. 2d 1218, 1234 (Ala. Crim. App. 1990) (noting that
‘[e]vidence as to the fear experienced by the victim before death
is a significant factor in determining the existence of the
aggravating circumstance that the murder was heinous,
atrocious, and cruel. Ex parte Whisenhant, 555 So. 2d 235, 243–
44 (Ala. 1989), cert. denied, [496] U.S. [943], 110 S. Ct. 3230, 110
L. Ed. 2d 676 (1990).’).”
Baker v. State, 87 So. 3d 587, 604 (Ala. Crim. App. 2009) (emphasis
added).

129

Here, the evidence presented at trial established the existence of
all three heinous, atrocious, and cruel factors. As to the first factor, the
State’s evidence at trial established that Michael was subject to
“physical violence beyond that necessary or sufficient to cause death.”
Specifically, Ashley testified that Michael was struck on the head with
a large rock and was shot in the back four times. According to Dr. Ward,
Michael had an injury on the back of his head consistent with being
struck with a gun or a rock and had other facial injuries that were the
result of a “tremendous amount of force.” Additionally, Dr. Ward
testified that Michael received four gunshot wounds but was killed by
only one of those shots. Dr. Ward testified that two of the other bullets
broke Michael’s ribs and would have caused “severe pain.”
As to the second factor, the State’s evidence demonstrated that
Michael experienced “appreciable suffering” before he died.
Specifically, the evidence established that Michael was awakened when
two individuals entered his bedroom and were fighting Ashley. At that
time, Michael began fighting one of the individuals, was struck several
times by a large rock, and was shot four times in the back. Michael,
however, did not die quickly; rather, the testimony at trial indicated that
Michael lived for “several minutes.” According to Ashley, Michael was
pale and had difficulty breathing. Dr. Ward testified that Michael
suffered “a slow, relatively agonizing death,” explaining:
“Once the bullet went through the heart and the vena cava, those
areas started to bleed. Because the bullet is coming from the back
of the heart to the front, the blood left the sac of the heart first of
all and went into the right side of his chest. So, we found about a
liter of blood in the right side of his chest and the chest wall is
fixed relatively. So if you put a liter of blood, and you can just
visualize a two liter bottle of soda and half of that amount of
volume is in the right side of his chest so his lung is not going to
be able to expand well because the blood is going to keep it from
expanding. And that means he can’t take a deep breath of air and
he is going to get the sensation of smothering or of not being able
to breathe. In addition to that, the blood does collect eventually
inside that sac around the heart and that is going to mean that his
heart can’t expand and contract when it beats, so he is going to
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have a sensation that he is not getting enough blood to his brain
and to the rest of his body and at the same time he is suffering
from not being able to get a good breath of air, so it would be the
equivalent of smothering.”
(R. 1461–62.)
As to the third factor, the State’s evidence demonstrated that
Michael was “in intense fear and [was] aware of, but helpless to
prevent, [his] impending death.” Specifically, as noted above, Michael
lived for several minutes after being shot four times in the back and
walking with Ashley down the hallway into their living room. According
to Ashley, they
“both walked to the sofa, the loveseat, and he has his gun in his
hand and I asked him just to put it down and he drops the gun on
the couch. And I asked him if he was okay, and he looked at me
and asked me if I were okay and he said no. And I told him I was
fine, I had just been shot in the leg. I went to try to open the front
door and my hands were shaking so bad I couldn’t open it so he
opened it for me. And I told him I was going to call an ambulance
so I ran back down the hallway to get our phone that usually sits
on the computer stand.
“. . . .
“[Michael] looked pale. He couldn’t breathe and he was just
hurting.”
(R. 617–18.)
Thus, contrary to Shanklin’s argument on appeal, the evidence
presented at trial indicated that this capital offense was especially
heinous, atrocious, or cruel. Accordingly, Shanklin is not entitled to
relief on this claim.
Shanklin, 187 So. 3d at 806–09 (footnote and some citations omitted).

131

After rejection by the ACCA, Shanklin did not repeat this specific claim in his
petition for certiorari in the Alabama Supreme Court. See Vol. 14, C. 1–31 (cert.
petition). Although Shanklin contends in his reply brief that he presented “the
substance of . . . [the] claim” to the Alabama Supreme Court (see doc. 41 at 48), he
also acknowledges that his certiorari petition was a “broad-based attack” on the
judicial sentencing and that this claim was not “presented artfully” (id. at 48–49).
Indeed, the portions of his certiorari petition that Shanklin quotes to support his
contention that he sufficiently presented “the substance of” of the claim merely
speak in general terms of errors and constitutional violations and never specifically
raise any issue about the HAC aggravator. See Vol. 14, C. 14; 18; 29. But the Eleventh
Circuit has held that “an issue is exhausted if ‘the reasonable reader would
understand [the] claim’s particular legal basis and specific factual foundation’ to be the
same as it was presented in state court.” Pope, 680 F.3d at 1286 (quoting Kelley, 377
F.3d at 1344–45) (emphasis added). Thus, for all of the reasons explained in section
IV.A.3.i., supra, Shanklin did not exhaust this claim, it is procedurally defaulted from
this Court’s review, and Shanklin’s arguments as to why procedural default should
not bar relief are denied.
Shanklin also claims “actual innocence” to excuse the procedural default of
this particular claim, see Smith, 477 U.S. at 537, because he claims to be actually

132

innocent of the HAC aggravator, citing Sawyer v. Whitley, 505 U.S. 333, 345 (1992)
(“Sensible meaning is given to the term ‘innocent of the death penalty’ by allowing
a showing in addition to innocence of the capital crime itself a showing that there was
no aggravating circumstance or that some other condition of eligibility had not been
met.”) (footnote omitted)). The Court is not persuaded.
Assuming that Shanklin had pursued this claim through to the Alabama
Supreme Court to fully exhaust it, Shanklin would still not be due relief under §
2254(d). 5 Shanklin argues that the state courts’ decisions were based on an
The Court notes that it does not agree with Respondent that the ACCA denied this claim
based on an adequate and independent state procedural ground.
5

As can be seen from the above-quoted portion of the ACCA’s opinion addressing this
claim, the ACCA made two alternative findings with specific regard to Shanklin’s claim that the
HAC aggravator did not apply to him: 1) that Shanklin failed to cite authority to support the claim
so he did not satisfy Alabama Rule of Appellate Procedure 28(a)(10); and 2) that the claim failed
on the merits. Shanklin, 187 So. 3d at 807 (“Thus, it appears that Shanklin’s argument on appeal
is that Shanklin’s actions, as a matter of law, do not rise to the level of “heinous, atrocious, and
cruel.” Shanklin, however, does not cite any authority to support his claim. Consequently,
Shanklin’s argument does not satisfy Rule 28(a)(10), Ala. R. App. P. Regardless, Shanklin’s claim
is without merit.”).
Alabama Rule of Appellate Procedure 28(a)(10) requires an appellant’s brief to set forth
“[a]n argument containing the contentions of the appellant/petitioner with respect to the issues
presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and
parts of the record relied on.” Ala. R. App. P. 28(a)(10). “The purpose of Rule 28 [ ], outlining the
requirements for appellate briefs, is to conserve the time and energy of the appellate court and to
advise the opposing party of the points he or she is obligated to make.” Ex parte Borden, 60 So. 3d
940, 943 (Ala. 2007).
Respondent argues that the ACCA’s finding that Shanklin failed to satisfy this appellate
procedure rule constitutes an “adequate and independent state procedural ground for denying
habeas relief,” which means that the claim is procedurally defaulted. (Doc. 33 at 81–82).
Respondent cites Taylor v. Dunn, 1:14-cv-00439, 2018 WL 575670, at *15 (S.D. Ala. Jan. 25, 2018)
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unreasonable determination of the facts in light of the record before them, see §
2254(d)(2). Specifically, he takes issue with one of the trial court’s findings that the
HAC aggravator applied because Ashley Crumpton “had to endure the killing of her
spouse in front of her eyes and escaped death herself by the fact of the gun not firing
. . . .” Vol. 1 at C. 74–75. Shanklin argues that in focusing on Ashley’s suffering, the
trial court applied the wrong legal standard because Alabama law provides that the
HAC aggravator applies only to the murder victim. Regardless, assuming that this
one finding by the trial court was inappropriate, the ACCA on direct appeal found
on its own the existence of all three HAC factors, as required by Alabama law, and
did not rely upon Ashley’s suffering. See Shanklin, 187 So. 3d at 808. Shanklin’s
other arguments are essentially that Michael was never in intense fear of his own
impending death and that he did not experience appreciable suffering before he
ultimately died. However, the trial court and the ACCA found the opposite,

(“federal habeas courts have routinely deemed claims to be procedurally defaulted where the state
courts dismissed them pursuant to a Rule 28(a)(10) waiver”).
Shanklin responds that the fact that the ACCA also spent three pages of its opinion
considering and rejecting this claim on the merits means that it did not deny this claim on an
adequate and independent state procedural ground. See Shanklin, 187 S. 3d at 807–09.
The Court agrees with Shanklin on this point. See Harris v. Reed, 489 U.S. 255, 262 (1989)
(“[A] federal claimant’s procedural default precludes federal habeas review, like direct review,
only if the last state court rendering a judgment in the case rests its judgment on the procedural
default.”).
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conclusions that Shanklin has not rebutted by clear and convincing evidence.
Accordingly, habeas relief is not warranted on this claim.
F.

Shanklin’s claim that State’s evidence was insufficient to support
a capital murder conviction

Shanklin claims that the State’s evidence was insufficient to support his
capital murder conviction because the State failed to prove that he had a specific
intent to kill.
The ACCA rejected this claim on direct appeal, writing:
Shanklin contends that the circuit court erred when it denied his
motion for a judgment of acquittal and when it denied his motion for a
new trial because, he says, the State “presented insufficient evidence to
prove capital murder as charged in the indictment” in that, he argues,
the State failed to establish that Shanklin “intentionally killed”
Michael. Specifically, Shanklin, in his brief on appeal, contends that the
State’s evidence was insufficient and against the great weight of the
evidence because, he says, the evidence presented at trial established
that he “was not the triggerman.” (Shanklin’s brief, p. 73.)
Additionally, Shanklin argues that, although “a non-triggerman can be
convicted of capital murder if he was a knowing accomplice to the
intentional killing itself” (Shanklin’s brief, p. 73 (citation and quotation
marks omitted)), “the State did not operate under an accomplice
liability theory[;] instead it argued that [Shanklin] was the triggerman.”
(Shanklin’s brief, p. 74.)
“‘“In a challenge of the sufficiency of the evidence, an appellate
court must consider the evidence in the light most favorable to
the prosecution, and the appellate court will not substitute its
judgment for that of the trier of fact.” Maddox v. State, 620 So.
2d 132, 133 (Ala. Cr. App. 1993). Conflicting evidence presents a
jury question not subject to review on appeal, provided that the
state’s evidence established a prima facie case. Gunn v. State, 387
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So. 2d 280 (Ala. Cr. App.), cert. denied, 387 So. 2d 283 (Ala.
1980). A trial court’s denial of a motion for a judgment of
acquittal must be reviewed by determining whether there existed
legal evidence before the jury, at the time the motion was made,
from which the jury by fair inference could have found the
defendant guilty beyond a reasonable doubt. Willis v. State, 447
So. 2d 199 (Ala. Cr. App. 1983). Furthermore:
“‘“‘“A verdict of conviction will not be set aside on the
ground of insufficiency of the evidence, unless, allowing all
reasonable presumptions for its correctness, the
preponderance of the evidence against the verdict is so
decided as to clearly convince this Court that it was wrong
and unjust.”’”
“‘McCollum v. State, 678 So. 2d 1210, 1215 (Ala. Cr. App. 1995),
quoting Cox v. State, 500 So. 2d 1296 (Ala. Cr. App. 1986),
quoting in turn other cases.’
“Presley v. State, 770 So. 2d 104, 111 (Ala. Cr. App. 1999).”
Broadnax v. State, 825 So. 2d 134, 191 (Ala. Crim. App. 2000).
On appeal, Shanklin argues only that the State’s evidence
demonstrated that he was not the “triggerman” who killed Michael and
shot Ashley. When viewed in a light most favorable to the State,
however, the evidence presented at trial established that Shanklin told
Tracy Ward, Amber Piper, Isaiah Howze, and Tyrone Dickerson that
he shot Michael. Additionally, Joshua Moreland testified that Shanklin
told him that Shanklin shot Ashley in the leg. Thus, the evidence was
sufficient to establish the intent necessary to sustain the convictions for
the capital murder of Michael and for the attempted murder of Ashley.
Moreover, although Shanklin correctly argues that evidence was
presented at trial that established that he was not the “triggerman,”
that evidence merely created a conflict in the State’s evidence for the
jury to resolve.
Accordingly, Shanklin is not entitled to relief on this claim.
136

Shanklin, 187 So. 3d at 794–95.
After rejection by the ACCA, Shanklin did not repeat this specific claim in his
petition for certiorari in the Alabama Supreme Court. See Vol. 14, C. 1–31 (cert.
petition). Thus, it is not exhausted because he did not give the “state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate process.” O’Sullivan, 526 U.S. at 842-45. And, for
all of the reasons explained in section IV.A.3.i., supra, it is procedurally defaulted
from this Court’s review, and Shanklin’s arguments as to why procedural default
should not bar relief are denied.
G.

Shanklin’s claim that prosecutor improperly elicited testimony
implying that he had a prior criminal history

Shanklin claims that the prosecution improperly questioned two of its law
enforcement witnesses and an informant so as to elicit testimony suggestive that
Shanklin had a criminal history.
The prosecution presented Cordova Police Chief Kenneth Bobo to testify
about the investigation. Vol. 6 at R. 1022. At one point, he was asked about compiling
the photo array shown to Ashley Crumpton. The following exchange occurred:
A. We have a system, a statewide system that is called LETS. And
basically what that is, is it’s driver’s license photos, Department of
Correction photos, any background information whatsoever. It is a real
detailed search. I put in the height, description, which you can vary it,
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you can put in a weight description and you can vary that. You can put
in an age description and vary it. You can put in the race and the sex and
you can put in even a location if you want a specific town or specific
county or specific state. I put those descriptions into the system and
pulled off a minimum of twenty to forty photographs off of the system.
Q. That LETS system that you’re talking about, years ago, and I know
you haven’t been a police officer as long as say Frank Cole or John
Softley.
A. That’s correct.
Q. They used to have mug books that they kept reams in rings like
notebooks with mug shots of different types of people in them, people
who had been arrested, their picture and their height and weight and
information. Now, it’s modern, we don’t do that anymore, do we?
A. No.
Q. It’s done computerized?
A. That is correct.
[. . .]
Q. Is it your testimony, Chief Bobo, that at the direction of Mr. Cole
that he requested that you put together like a mug book to show
witnesses; is that correct?
A. That is correct.
Q. And when you did your search to just get some photographs, did you
have some parameters for your search?
A. Yes.
Q. And did that include a general height and weight that y’all had earlier
gotten from Ms. Ashley Crumpton?
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A. Yes.
Q. Did it also include a racial makeup that you got from Ashley
Crumpton?
A. Yes.
Q. Did you also include areas of the county within the parameters of
your search of Parrish–Cordova area?
A. Yes.
Q. Also did you include in that, people that had a background maybe in
doing some situations like this that had been involved in some activities
similar to a violent home invasion situation?
A. Yes.
Q. All right. When you put all of those together, there are approximately
thirty photographs in there?
A. Yes.
[. . .]
Q. Were those mug shots that you have in State’s Exhibit Number 1,
were they given to Ashley Crumpton at some sort of office where there
was a desk where she could sit down and look through them?
A. Yes, sir.
Vol. 7 at R. 1161–63, 65.
When the prosecutor then offered the photos into evidence, he stated, “Your
Honor, at this time the State is going to offer State’s Exhibit Number 1, which is the

139

entire mug shot lineup and then each of the individual photographs that she picked
out, which will be State’s 1-D and 1-C, and then the collage, which is 1-A.” Id. at R.
1167.
Near the end of its case in chief, the prosecution offered Walker County
District Attorney’s Investigator John Softley as a witness. Vol. 9 at R. 1507. The
following exchange occurred:
Q. And what community do you live in?
A. Parrish Community.
Q. And how long have you lived down there?
A. Most of my life, forty years, fifty years, basically.
Q. Okay. Do you know Antwain Shanklin?
A. I do.
Q. And do you know him from your community?
A. I do.
Q. Okay. How long have you known Antwain?
A. Probably most of his life. I’ve known him a long time, fifteen years
maybe, something like that.
Id. at R. 1507–08.
The defense lodged no objections to these portions of Chief Bobo’s and
Investigator Softley’s testimonies.
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The prosecution also offered testimony from Joshua Moreland, a trustee at
the Walker County Jail who was incarcerated at the same time as Shanklin. Vol. 5 at
R. 847. After testifying about the conversations Shanklin had with him, Moreland
was asked whether he believed what Shanklin had told him about the crime, as
follows:
Q. Okay. You had been with Antwain enough to get an idea how he
acted and what he was like when he was down there in jail. Did you
believe him when he told you this?
A. Yeah.
Q. Did he sound pretty serious?
A. Yeah, you hear a lot about him in jail from some of the other people
that know him on the street. He’s kind of curious, but he’s a smaller
guy, you know, he’s got a pretty good rap around the jail about him on
the street being violent.
MR. CAMP: I would object and move to strike. He’s testifying to
hearsay now.
THE COURT: I’m going to sustain that objection. Motion to strike is
granted.
Id. at R. 854.
Shanklin exhausted this claim on direct appeal in the state courts. Vol. 12, Tab
#R-33, at 55–58; Vol. 14, Tab #R-38, at 20–22. To the ACCA, Shanklin claimed that
the trial court had erred by allowing the prosecution to imply that he had a criminal
record through the testimony of Chief Bobo, Investigator Softley, and Moreland set
141

forth above. Vol. 12, Tab #R-33, at 55–58. Specifically, Shanklin found fault with the
prosecutor’s question to Chief Bobo about including people who had been involved
in activities like a violent home invasion in the photo array; references to the array as
“mug shots;” Investigator Softley’s testimony that he knew Shanklin from the
community; and Moreland’s testimony that Shanklin had a reputation for violence.
Id. at 55–56.
The ACCA rejected the claim. The ACCA began by noting that some of these
claims were reviewed only for plain error because they had not been objected to at
trial, Vol. 13, Tab #R-37, at 784, and then found that any error was harmless. First,
as to Chief Bobo, the ACCA wrote:
Although Shanklin correctly notes that the State asked Chief
Bobo if, when preparing the photo lineup, he included “people that had
a background maybe in doing some situations like this that had been
involved in some activities similar to a violent home invasion situation”
(R. 1163), that question did not demonstrate that Shanklin was, in fact,
one of the 29 people who were included in the photo lineup that had
previously committed a “violent home invasion.”
Additionally, Shanklin correctly asserts that the State referred to
the photographs used in the photo lineup as “mug shots.” (R. 1161,
1162, 1165, 1167.) Although this Court has not held that it is improper
to refer to photographs used in a photo lineup as “mug shots,” this
Court “has recognized the danger inherent in the use at trial of ‘mug
shot’ . . . photographs.” Carlisle v. State, 371 So. 2d 975, 978 (Ala. Crim.
App. 1979) (citing Holsclaw v. State, 364 So. 2d 378 (Ala. Crim. App.
1978)); see also McNabb v. State, 887 So. 2d 929, 972–73 (Ala. Crim.
App. 2001). The danger of admitting such photographs is in the
inference created by their use—that the defendant has a prior criminal
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history. Carlisle v. State, 371 So. 2d at 978. “Mug shot”–type
photographs, however, are admissible “[i]f numbers, dates, and the
names of police departments are excised or blocked out . . . so long as
they do not imply that the defendant has a prior criminal record.”
Carlisle v. State, 371 So. 2d at 978.
Here, even if the State’s reference to the photographs used in the
photo lineup as “mug shots” was improper, it does not rise to the level
of plain error. At trial, although the State, when questioning Chief
Bobo, generally referred to the photographs used in the lineup as “mug
shots,” Chief Bobo testified that the lineup was generated by using the
LETS system, which, he said, included “driver’s license photos,
Department of Correction photos, any background information
whatsoever.” (R. 1161.) Additionally, there was no specific reference to
Shanklin’s photograph as, in fact, being a “mug shot”—as opposed to
simply a driver’s license photo.[FN32] Furthermore, when published
to the jury, the photographs used in the photo lineup had been excised
of all criminal history, driving history, “numbers, dates, and the names
of police departments”; thus, we find no plain error.
FN 32. Notably, nothing in Shanklin’s photograph makes it
immediately apparent that it is a “mug shot.” In fact, only two
photographs used in the lineup—neither of which are
Shanklin’s—depict an individual wearing an orange prison
jumpsuit. Shanklin’s photograph is a front-facing picture of
Shanklin, which depicts his head and the top of his shoulders and
a white collar, on a blue background.
Shanklin, 187 So. 3d at 785.
Then, turning to Investigator Softley’s testimony, the ACCA again found no
plain error: “Although Shanklin argues that Investigator Softley’s testimony implied
that he knew Shanklin ‘in his law enforcement capacity,’ Investigator Softley’s

143

testimony clearly established that he knew Shanklin from living in the Parrish
community—not in his law-enforcement capacity.” Id. at 786.
Finally, the ACCA considered Moreland’s testimony about Shanklin’s
jailhouse reputation for violence:
Initially, we recognize that Shanklin objected to Moreland’s
statement, and Shanklin’s objection was sustained and the testimony
was stricken from the record. Thus, “there is no adverse ruling from
which [Shanklin] can appeal, [and] we . . . review this claim pursuant to
the plain error rule.” Melson v. State, 775 So. 2d 857, 873 (Ala. Crim.
App. 1999).
Even assuming Moreland’s statement was improper, we cannot
conclude that the statement resulted in error that adversely affected the
substantial rights of Shanklin. Although Moreland testified that
Shanklin had “a pretty good rap around the jail about him on the street
being violent,” throughout Shanklin’s trial the State presented lawfully
admitted evidence demonstrating Shanklin’s violent behavior.
Specifically, at the time he made the complained-of statement,
Moreland had already testified that Shanklin had confessed to him that
Shanklin “shot the guy,” that “he shot [Ashley],” and that he had said
that “he wished he would have killed Kevin” to eliminate a witness.
Additionally, the jury heard testimony from Amber Piper that Shanklin
threatened to kill her and her child if she told anyone about Shanklin’s
involvement in the crime. Because there was other lawfully admitted
evidence of Shanklin’s violent behavior outside jail, we cannot conclude
that Moreland’s testimony that Shanklin had a reputation for violent
behavior was plain error.
Id. at 786.
Since the Alabama state courts addressed this claim on the merits, this Court’s
review is deferential, and to obtain relief Shanklin must demonstrate that the

144

ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138 S.
Ct. at 1192, is contrary to or an unreasonable application of clearly established federal
law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Shanklin argues that the ACCA’s decision denying relief on this claim both
ignored and unreasonably applied Supreme Court law holding that an accused has
the right to the presumption of innocence. He cites Taylor v. Kentucky, in which the
Supreme Court held that “one accused of a crime is entitled to have his guilt or
innocence determined solely on the basis of the evidence introduced at trial, and not
on grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.” 436 U.S. 478, 485 (1978). Shanklin
states that courts should not allow evidence of prior crimes or wrongs to show one
has a character to act in similar manner, citing Old Chief v. United States, 519 U.S.
172, 180-81 (1997).
However, Shanklin has not established that “the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington, 562 U.S. at 103. Habeas relief is not
warranted on this ground.

145

H.

Shanklin’s claim that he was denied his rights to due process, a fair
trial, and a reliable sentencing determination under the Sixth,
Eighth, and Fourteenth Amendments when the trial court allowed
the prosecutor to make improper arguments and references to
facts not in evidence

The Court addressed this claim as part of Shanklin’s ineffective assistance of
trial counsel claim in section IV.A.3., supra.
I.

Shanklin’s claim that improper victim-impact testimony was
admitted during the guilt phase

Shanklin argues that his rights were violated because the trial court allowed
the prosecution to offer victim-impact testimony during the guilt phase from Ashley
Crumpton and Lori Crumpton. Specifically, he objects to: Ashley’s testimony about
how she and Michael met (Vol. 4 at R. 572); Ashley’s testimony about how long she
and Michael dated (Id. at R. 572–73); Ashley’s testimony about her life with Michael
(Id. at R. 574); Ashley’s testimony about their children (Id. at R. 573–74); Ashley’s
testimony that she did not see Michael take his last breath (Vol. 5 at R. 621); Lori’s
testimony about how long she had known Ashley (Id. at R. 668); Lori’s testimony
about how Ashley and Michael’s relationship began (Id. at R. 668–69); Lori’s
testimony about how Ashley and Michael lived with her for a time (Id. at R. 669);
Lori’s testimony about the frequency of her visits (Id. at R. 669); and Lori’s
testimony about the last time she saw Michael alive (Id. at R. 673–74). Shanklin also

146

objects to the admission of five photographs during these witnesses’ testimony,
which he contends were not necessary to establish any fact.
The context in which these statements were made is helpful in resolving this
claim. The prosecution’s first witness was Ashley Crumpton, whose testimony
began as follows:
Q. Ashley, if you would, tell everybody who you are?
A. My name is Ashley Crumpton. I am Michael Crumpton’s wife.
Q. And Ashley, do you still live in the Jasper/Cordova area?
A. No, sir.
Q. And you have moved away; is that right?
A. Yes.
Q. And tell me a little bit about when did you and Michael meet?
A. High school.
Q. How old are you today?
A. Twenty-two (22).
Q. And back in October the 12th of 2009 how old were you then?
A. Twenty (20).
Q. What year did y’all meet in high school?
A. ‘05.

147

Q. What high school did y’all go to?
A. Cordova High School.
Q. How long did you know Michael before—did you know Michael
before y’all started dating?
A. Uh-huh.
Q. All right. About how old were you when y’all started dating?
A. Fourteen (14).
Q. Eventually—how long was it before you got married?
A. I got married when I was seventeen.
Q. About three years later?
A. Uh-huh.
[. . .]
Q. Now, do you have any kids?
A. I do. Two.
Q. You have two. What are their names?
A. Abby Crumpton and Emma Crumpton.
Q. How old are your children?
A. Now, they are four and two.
Q. Now, back in October 12th, 2009, how old were they then?
A. Abby was about to turn two, and Emma was only eight months
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old.
Q. Abby, is she redheaded?
A. Yes, sir.
Q. Little curly headed, redheaded little girl?
A. (Nods in the affirmative)
Q. Okay. Now, when y’all got married, did y’all get your own place to
live or did y’all stay with parents or what?
A. When we did get married, we had a trailer. And then shortly after,
we lived with Ms. Crumpton, Michael’s mother.
Q. You’re talking about Michael’s mom sitting right here?
A. Yes, sir.
Q. And how long did y’all live with them?
A. I think pretty much after Abby’s first birthday and then we got an
apartment over there at Cordova.
Vol. 4 at R. 572–74.
Later, when discussing Michael’s death, the prosecutor asked Ashley, “And
did you get to see Michael take his last breath?” She answered no. Id. at R. 621.
Next to testify was Lori Crumpton, Michael’s mother. Her testimony also
began with information establishing her connection to the victims:
Q. Okay. How long have you known Ashley?
A. Probably since 2005.
149

Q. How did you meet Ashley?
A. The first time I met Ashley she went to church with us, and her
grandfather had—she was living with her grandfather at the time. He
had brought her over there to let her go to church with us that morning,
and that was the first time I met her.
Q. And did she know Michael?
A. They were just starting to like each other when I first met her.
Q. So, he did invite her to go to church with y’all?
A. Yes, sir.
Q. Did they eventually get married from that?
A Yes, sir.
Q. How long was it from that first time that you met her until they got
married, if you remember?
A. They got married October 5th of 2006.
Q. Did they live with you for a while?
A. They did.
Q. When was that?
A. Right after Abby was born. They lived there for about ten months to
a year.
Q. And Abby is the oldest child; is that correct?
A. Yes, sir.

150

Q. I’m sorry, I believe you said they lived with you for about ten
months; is that right?
A. Ten months to a year.
Q. And when they moved out, where did they move to?
A. To the apartment.
Q. And how long did they live in the apartments?
A. Right at a year.
Q. Did you go over there frequently and visit?
A. Pretty frequently. I work overnight so, I’m off on Friday and
Saturday so, usually on Fridays especially I would go spend some time
during the day.
Id. at R. 668–69. There was no objection made to the testimony above.
During Ashley’s and Lori’s testimony, the prosecution offered five
photographs into evidence. The defense made a pretrial motion to suppress four
photos “of a little girl sleeping in a bed,” and the prosecution agreed to show only
one of that set. Id. at R. 530, 534, 576. The five photographs ultimately admitted
included: a picture of Michael and Abby, Vol. 4 at R. 576, 672; another picture of
Michael and Abby with Michael’s grandparents (“Meemaw” and “Nanna”), taken
during Abby’s first Halloween in 2008, id. at R. 577, 672–73; a picture of Michael
and Abby at Michael’s last Christmas, id. at R. 577, 673; a picture of Abby asleep in
her bedroom in the apartment in February 2009 (one of the objected-to
151

photographs), id. at R. 578, 671; and a picture of Michael in his casket, id. at R. 579,
674–75.
As Lori identified the subjects and circumstances of the photos, she also spoke
about the last time she saw her son:
Q. Do you remember if you went over to the apartment any the week
that this [the murder] occurred, that happened on late Sunday night or
early Monday morning, do you remember if you went over to the
apartment visiting that week?
A. Yes, sir.
Q. When was that?
A. On Saturday. Well, the last time I don’t remember if I had went any
before that, but I know on Saturday before this happened on Sunday
night, Monday morning.
Q. And was Michael there when you went?
A. Yes, sir.
Q. What did y’all do that day?
A. Earlier that day we had all been at my house. We had had a birthday
dinner for him because we were unable to the weekend right after his
birthday.
Q. So, y’all were celebrating his birthday?
A. Right. When I was at his apartment, me and my fiancé had went after
we got through with dinner, we went to his apartment to watch the
Alabama football game with him.

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Q. Okay. And how long did you stay over there that day, if you
remember?
A. The ballgame was already started when we got there, and we stayed
until it was over. I’m not sure how long we were there, but probably at
least one to two hours.
Q. Did you watch the rest of the game?
A. Yes, sir.
Q. Who won?
A. Alabama.
Q. Okay. And you didn’t go back over Sunday, did you?
A. No, sir.
Q. And when was the next time you saw Michael?
A. In the funeral home.
Id. at R. 673–74. There was no objection made to Lori’s testimony.
Shanklin exhausted some portions of this claim through the direct appeal
process. Vol. 12, Tab #R-33, at 50–52; Vol. 14, Tab #R-38, at 19–20. On direct appeal
to the ACCA, Shanklin argued that the trial court erred by admitting the
photographs containing Abby, which allegedly served no purpose but to inflame the
jury. Vol. 12, Tab #R-33, at 26–29. Shanklin did not raise a claim about the
photograph of Michael in his casket. Shanklin also argued that the trial court erred
by allowing victim-impact testimony during the guilt phase, citing the testimony of
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Ashley and Lori set forth above (except Ashley’s testimony that she did not see
Michael take his last breath and Lori’s testimony about the last time she saw Michael
alive, which are raised for the first time here). Id. at 50–52.
The ACCA first addressed Shanklin’s claims about the photographs of Abby,
finding no error in the admission of the photos, writing:
Shanklin contends that the circuit court erred when it admitted
allegedly “irrelevant and prejudicial photos” (Shanklin’s brief, p. 26);
specifically, “prejudicial photos of the victim’s children” (Shanklin’s
brief, p. 26) [. . .]
The following is well settled:
“‘Generally, photographs are admissible into evidence in a
criminal prosecution “if they tend to prove or disprove some
disputed or material issue, to illustrate or elucidate some other
relevant fact or evidence, or to corroborate or disprove some
other evidence offered or to be offered, and their admission is
within the sound discretion of the trial judge.” Magwood v. State,
494 So.2d 124, 141 (Ala. Cr. App. 1985), aff’d, 494 So. 2d 154
(Ala. 1986), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L.Ed.2d
599 (1986). [. . . ]
Sneed v. State, 1 So. 3d 104, 131–32 (Ala. Crim. App. 2007) (quoting
Bankhead v. State, 585 So. 2d 97, 109 (Ala. Crim. App. 1989)).
1.

Photographs of Michael’s Children

Shanklin contends that the circuit court erred when it admitted
State’s Exhibit 8, which includes a total of five photographs: (1) two
photographs of Michael while he was alive with his daughter; (2) one
photograph of Michael while he was alive with his “Mee-maw,” his
“Nanna,” and his daughter; (3) a photograph of Michael’s daughter

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asleep in her bedroom in the apartment; and (4) a photograph of
Michael in his casket at the funeral home.
Before trial, Shanklin moved to suppress “four photographs,”
which, he described, as “pictures of a little girl sleeping in a bed.” (R.
530.) Shanklin argued that “they are not probative at all,” that they
“are definitely prejudicial,” that they “don’t have anything to do with
the case,” that they “weren’t taken . . . at the time of the incident,” and
that they “are meant to inflame the jury or impassion the jury to
prejudice [Shanklin].” (R. 530.)
The State, on the other hand, argued that the pictures were
relevant to show where the two children were in the apartment at the
time Michael was killed and that they would aid Ashley’s testimony
“showing where her kids were and why they had been moved.” (R.
531.) Additionally, the State argued that the photographs of the children
in the bedroom were probative to “show[ ] the bloodthirstiness of these
two men and what they did and plus to show the factual basis of where
these children were in relation to the shootings.” (R. 532.) After
explaining how the photographs of the children in the bedroom would
aid the testimony at trial, the State agreed to show only one photograph
of the children in the bedroom, and it “withdr[e]w the rest.” (R. 534.)
At trial, the State introduced only one picture of Michael’s
daughter sleeping in her bedroom as part of State’s Exhibit 8—which,
as noted above, included four other photographs, and Shanklin renewed
his pretrial objection.
With regard to the photograph of Michael’s daughter sleeping in
her bed, Ashley testified as follows:
“[Prosecutor]: Now, the last one. Do you recognize that?
“[Ashley]: Yes, I do.
“[Prosecutor]: What is that?

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“[Ashley]: [My daughter] asleep in her bedroom in the
apartment.
“[Prosecutor]: So, we have seen the diagram earlier during
opening statement that had the floor plan, and I asked you about
the floor plan a few minutes ago. Is this a picture inside the
children’s bedroom?
“[Ashley]: Yes, sir.
“[Prosecutor]: And it has a date of February 20, 2009. Do you
know as you sit here today whether or not that—
“[Ashley]: That is accurate.
“. . . .
“[Prosecutor]: All right. That door there in the background,
which door would that be?
“[Ashley]: That would be their closet door.
“[Prosecutor]: Now, in relation to your bedroom, if you’re
looking at the crib as it was in the apartment, which direction to
your left or right would be your bedroom?
“[Ashley]: It would be to the right if you were standing sideways
of her bed.
“[Prosecutor]: So, it would be to the right of that photograph as
we’re looking at the photograph?
“[Ashley]: Uh-huh.”
(R. 578–79.) Ashley also testified that the shooting occurred in her
bedroom and that when the shooters left the apartment she noticed that
her eldest child had been moved from her bed into the crib with her
youngest daughter.
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Based on the testimony presented at trial, this complained-of
photograph was relevant to establish the children’s proximity to the
shooting as well as to demonstrate where the children were located after
the shooting occurred. Moreover, although Shanklin contends that this
photograph was used only to inflame the jury, “photographic evidence,
if relevant, is admissible even if it has a tendency to inflame the minds
of the jurors.” Ex parte Siebert, 555 So. 2d 780, 784 (Ala. 1989) (citing
Hutto v. State, 465 So. 2d 1211, 1212 (Ala. Crim. App. 1984)).
Accordingly, the circuit court did not err when it admitted this
photograph.
With regard to the photographs of Michael while he was alive,
both with his daughter and with his “Mee-maw” and “Nanna,”
Shanklin did not first object to these three specific photographs in the
circuit court. As noted above, Shanklin, before trial, moved to suppress
four photographs of Michael’s children sleeping in their bedroom.
Shanklin did not, however, move to suppress any photographs of
Michael with his daughter or of Michael with his “Mee-maw” and
“Nanna.” Additionally, although Shanklin did object to the
introduction of State’s Exhibit 8, he did so only on the basis of renewing
his pretrial objection to the photographs of the children in the bedroom.
Thus, we examine this claim for plain error.
“‘In Jolly [v. State, 395 So. 2d 1135 (Ala. Crim. App. 1981)],
citing McElroy’s Alabama Evidence, this court held:
“‘“‘It generally is agreed that the photograph of the
victim of the homicide, taken before the alleged murder, is
admissible for the purpose of identification. This is usually
admitted in connection with the testimony of a witness
who saw the alleged deceased at the time of the killing and
who is called upon to identify the deceased as the person
in the photograph. The foregoing decisions which admit
the victim’s photograph into evidence for the purpose of
identification are applicable even though there exists no
dispute over the identity of the deceased. (citing Luschen

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v. State, 51 Ala. App. 255, 284 So. 2d 282 (1973) (not error
to introduce “angelic” looking picture of deceased).
...
See Taylor v. State, 666 So. 2d 36, 66 (Ala. Crim. App.
1994) (finding no plain error in the admission during the
guilt phase of a photograph of the victims in front of a
Christmas tree). See also Ferguson v. State, 814 So. 2d 925
(Ala. Crim. App. 2000) (finding no plain error in
admission during the guilt phase of the victims in front of
their boat because it was relevant to show, among other
things, that they were alive before the offense).”
McMillan v. State, 139 So. 3d 184, 226–27 (Ala. Crim. App. 2010).
These three photographs, although depicting Michael with his
daughter and other relatives, were used at trial for Ashley and Lori
Crumpton to identify Michael. Thus, we cannot conclude that there
was error, much less plain error, when the circuit court admitted these
photographs.
Shanklin, 187 So. 3d at 770–73 (footnote and some citations omitted).
The ACCA then turned to Shanklin’s claim about Ashley and Lori’s guilt
phase testimony, finding that while the testimony was not entirely proper, a new trial
was not warranted, writing:
Shanklin contends that the circuit court erred “by allowing the
State to introduce prejudicial victim-impact evidence during” the guilt
phase of his trial. (Shanklin’s brief, p. 50.) Specifically, Shanklin asserts
that, during the guilt-phase proceedings, the circuit court “permitted
the State to introduce testimony about the effect of Michael
Crumpton’s deaths [sic] on the surviving members of the family”—
namely, Ashley and Lori. (Shanklin’s brief, p. 51.) According to
Shanklin,
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“Ashley Crumpton testified about her and [Michael’s]
relationship, how they met and how long they dated. (R. 572–73.)
She talked at length about their lives together and about her
children with the victim. (R. 572–78.) The State also elicited
testimony about the victim’s funeral. (R. 579–81.) The victim’s
mother, Lori [Crumpton], also testified about irrelevant matters
meant to elicit sympathy from the jury. (R. 667–70.) She also
testified about and the State published photos of the victim’s
children during Christmas and in their Halloween costumes. (R.
672–73.)”
(Shanklin’s brief, pp. 51–52.)
Initially, we note that Shanklin did not object to the complainedof testimony of Ashley and Lori; therefore, we review this claim under
the plain-error rule.
“‘It is well settled that victim-impact statements “are
admissible during the guilt phase of a criminal trial only if
the statements are relevant to a material issue of the guilt
phase. Testimony that has no probative value on any
material question of fact or inquiry is inadmissible.” Ex
parte Crymes, 630 So. 2d 125, 126 (Ala. 1993), citing
Charles W. Gamble, McElroy’s Alabama Evidence, §
21.01 (4th ed. 1991). However, “when, after considering
the record as a whole, the reviewing court is convinced
that the jury’s verdict was based on the overwhelming
evidence of guilt and was not based on any prejudice that
might have been engendered by the improper victimimpact testimony, the admission of such testimony is
harmless error.” Crymes, 630 So. 2d at 126.’
“Jackson v. State, 791 So. 2d 979, 1011 (Ala. Crim. App. 2000).”
Gissendanner v. State, 949 So. 2d 956, 965 (Ala. Crim. App. 2006).
“[T]he introduction of victim impact evidence during the guilt phase
of a capital murder trial can result in reversible error if the record
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indicates that it probably distracted the jury and kept it from performing
its duty of determining the guilt or innocence of the defendant based on
the admissible evidence and the applicable law.” Ex parte Rieber, 663
So. 2d 999, 1006 (Ala. 1995). However, “a judgment of conviction can
be upheld if the record conclusively shows that the admission of the
victim impact evidence during the guilt phase of the trial did not affect
the outcome of the trial or otherwise prejudice a substantial right of the
defendant.” Id. at 1005.
Shanklin’s claim that Ashley’s and Lori’s testimony about
Michael’s funeral was improper victim-impact testimony is without
merit. As explained above, Shanklin was indicted for two counts of
capital murder and one count of attempted murder. To prove capital
murder the State was required to prove that Michael was, in fact,
deceased—that element is met by Ashley’s and Lori’s testimony that
they attended Michael’s funeral. [FN 29] Consequently, Lori’s and
Ashley’s testimony about attending Michael’s funeral was admissible
during the guilt phase of Shanklin’s trial because it was “relevant to a
material issue of the guilt phase.”
FN 29. The State, in its closing argument, mentioned
Ashley’s and Lori’s testimony about attending Michael’s
funeral as evidence of Michael’s being deceased.
Shanklin, however, correctly argues that Ashley’s testimony
about her and Michael’s relationship, how they met, how long they
dated, and their children was not “relevant to a material issue of the
guilt phase.” Likewise, Lori’s testimony about how long she had known
Ashley, how Ashley and Michael met, when Ashley and Michael got
married, and the fact that Ashley and Michael lived with her until their
first daughter was born was not “relevant to a material issue of the guilt
phase.” Consequently, that testimony was inadmissible.
Regardless, after examining the record as a whole, we cannot
conclude that their testimony “probably distracted the jury and kept it
from performing its duty of determining the guilt or innocence of the
defendant based on the admissible evidence and the applicable law,” Ex
parte Rieber, 663 So. 2d at 1006; rather, the record “conclusively shows
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that the admission of the victim impact evidence during the guilt phase
of the trial did not affect the outcome of the trial or otherwise prejudice
a substantial right of the defendant.” Id. at 1005.
Here, Lori’s and Ashley’s testimony, although inadmissible, was
brief background information that did not specifically focus on the
effect that Michael’s death had on them. When comparing that brief
testimony to the overwhelming evidence of Shanklin’s participation in
this offense we cannot conclude that the admission of that testimony
“prejudiced a substantial right of [Shanklin].” Ex parte Rieber, 663 So.
2d at 1005.
“It is presumed that jurors do not leave their common sense at
the courthouse door. It would elevate form over substance for us
to hold, based on the record before us, that [Shanklin] did not
receive a fair trial simply because the jurors were told what they
probably had already suspected—that [Michael] was not a
‘human island,’ but a unique individual whose murder had
inevitably had a profound impact on her children, spouse,
parents, friends, or dependents (paraphrasing a portion of Justice
Souter’s opinion concurring in the judgment in Payne v.
Tennessee, 501 U.S. 808, 838, 111 S.Ct. 2597, 2615, 115 L.Ed.2d
720 (1991)).”
Ex parte Rieber, 663 So. 2d at 1006. Accordingly, Shanklin is not entitled
to relief on this claim.
Shanklin, 187 So. 3d at 780–82.
When Shanklin petitioned for certiorari in the Alabama Supreme Court, he
reiterated his claim that the trial court admitted improper guilt-phase victim impact
testimony, Vol. 14, Tab #R-38, at 19–20, but he did not specifically mention the
introduction of the photographs. Consequently, Respondent argues that Shanklin’s
claim about the victim-impact testimony of Ashley and Lori Crumpton has been
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exhausted (except Ashley’s testimony that she did not see Michael take his last
breath and Lori’s testimony about the last time she saw Michael alive), while his
claim about the admission of the photographs during their testimony has not been
exhausted.
On the other hand, Shanklin responds that he sufficiently exhausted the claim
about the photographs by sufficiently presenting the claim to the Alabama Supreme
Court because the ACCA had considered the photographs in conjunction with the
victim impact testimony, which is how he had briefed the issue. But the Eleventh
Circuit has held that “an issue is exhausted if ‘the reasonable reader would
understand [the] claim’s particular legal basis and specific factual foundation’ to be the
same as it was presented in state court.” Pope, 680 F.3d at 1286 (quoting Kelley, 377
F.3d at 1344–45) (emphasis added). Thus, the following portions of Shanklin’s
current claim are not exhausted: Ashley’s testimony that she did not see Michael
take his last breath; Lori’s testimony about the last time she saw Michael alive; and
the admission of the five photographs. For all of the reasons explained in section
IV.A.3.i., supra, these portions of this claim are procedurally defaulted from this
Court’s review, and Shanklin’s arguments as to why procedural default should not
bar relief are denied.

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With regard to the portions of this claim that were exhausted (the victim
impact evidence), since the Alabama state courts addressed them on the merits, this
Court’s review is deferential, and to obtain relief Shanklin must demonstrate that
the ACCA’s decision, which is the last reasoned state court opinion, see Wilson, 138
S. Ct. at 1192, is contrary to or an unreasonable application of clearly established
federal law as determined by the Supreme Court or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Shanklin argues that the ACCA’s decision was unreasonable because the
victim impact evidence admitted during the first moments of the State’s
presentation of its case against him was “so unduly prejudicial that it render[ed] the
trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825 (1991). The Court
is not persuaded. The ACCA correctly held that even though this testimony was
irrelevant, it was harmless in the scope of the trial. Here, the witnesses offered
minimal information about their relationships with Michael and each other,
centering Michael as part of a family. Testimony that Michael once invited Ashley
to go to church with him or that Abby had curly red hair may have been irrelevant,
but the court correctly found that it “did not specifically focus on the effect that
Michael’s death had on them.” Vol. 13, Tab #R-37, at 782. This is not the “unduly
prejudicial” evidence against which the Supreme Court cautioned in Payne, 501 U.S.

163

at 821, but merely background information explaining these witnesses’ connection
to the deceased. The ACCA correctly found that this testimony was not prejudicial
when compared the overwhelming evidence of Shanklin’s crimes. An eyewitness
and victim, Ashley, testified about his actions that night, and four other individuals
similarly testified about incriminating statements he made about his involvement
after the fact. The forensic evidence showed that Michael suffocated on his own
blood from one of the four shots that hit his back. Any prejudice to Shanklin from
these initial statements was de minimis when compared to the strong evidence
against him.
Further, assuming that Shanklin had pursued the specific claim about
introduction of the photographs through to the Alabama Supreme Court to fully
exhaust it, Shanklin would still not be due relief under § 2254(d). The ACCA was
not unreasonable in concluding that their admission did not rise to the level of undue
prejudice and fundamental unfairness described in Payne, supra. The state courts’
decision was neither contrary to nor an unreasonable application of clearly
established federal law, nor was it an unreasonable determination of the facts.
J.

Shanklin’s claim that his death sentence violates the Eighth and
Fourteenth Amendments because the system is rooted in racism

Shanklin advances the theory that his death sentence is unconstitutional
because “[t]he death penalty in Alabama . . . is rooted in racism,” and his sentence
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is thus “a product of systemic racism (whether conscious or not) rather than
justice.” (Doc. 24 at 159.) Shanklin discusses racism in Alabama’s history,
recounting events dating back to America’s colonial period through George
Wallace’s run for Governor of Alabama in 1962 on a promise of segregation. (Id. at
163–70.) Shanklin offers statistics about how historically, Black individuals have
made up a much larger percentage of Alabama’s executions than white individuals.
(Id. at 163.) He also cites a study finding that the proportion of death sentences
imposed by judicial override is often elevated in election years, and he notes that the
Walker County judge that sentenced Shanklin to death in 2012 was up for re-election
that year. (Id. at 169.)
Shanklin admits that he never presented this claim to the Alabama state
courts, neither on direct appeal nor during Rule 32 postconviction proceedings.
Thus, for all of the reasons explained in section IV.A.3.i., supra, this claim is not
exhausted, it is procedurally defaulted from this Court’s review, and Shanklin’s
arguments as to why procedural default should not bar relief are denied. Indeed,
Shanklin raised other claims in state court similar to this: on direct appeal he argued
that Alabama’s method of execution is unconstitutional, Vol. 12, Tab #R-33, at 44–
45; and in postconviction proceedings he argued that judicial override violates Ring
v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 577 U.S. 92 (2016) (despite the

165

Alabama Supreme Court having by then held that Hurst has no effect on Alabama’s
capital sentencing scheme, Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016)). Vol. 17,
Tab #R-44, at C. 329–36. Shanklin’s arguments as to why he was unable to raise this
claim in the Alabama state courts are not persuasive.
K.

Shanklin’s claim that his death sentence violates the Eighth
Amendment because he is severely mentally ill

Shanklin contends that his execution would be unconstitutional because he
was severely mentally ill at the time of his crime. 6 Citing Atkins v. Virginia, 536 U.S.
304, 321 (2002), Shanklin states that the Eighth Amendment prohibits the execution
of severely mentally ill individuals. In Atkins, the Supreme Court held that the Eighth
Amendment’s ban on excessive and cruel and unusual punishment prohibits the
execution of intellectually disabled persons. Atkins did not address the severely
mentally ill, but Shanklin argues that the Court’s reasoning in Atkins dictates that
sentencing people with severe mental illness to death is nothing more than the
purposeless and needless imposition of pain and suffering.
Shanklin raised a claim like this in his Rule 32 petition, arguing that he should
not be executed because he is severely mentally ill, intellectually disabled, and young.
Vol. 17, Tab #R-44, at C. 295-327. The circuit court dismissed the claim as
Shanklin’s amended petition describes him as a “severely mentally ill state prisoner.”
(Doc. 25-1 at 5.) However, in his reply brief he clarifies that “the crux of this claim is that [he] was
severely mentally ill at the time of his crime . . . .” (Doc. 41 at 72.)
6

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insufficiently pleaded and meritless pursuant to Rules 32.3, 32.6(b), and 32.7(d) of
the Alabama Rules of Criminal Procedure. Vol. 19, at C. 784–86. The circuit court
found that Shanklin did not plead that a mental health professional had ever
indicated that he was severely mentally ill. Id. at 785. In his Rule 32 petition, Shanklin
had cited to the report of Dr. McKeown, who had conducted a pretrial competency
evaluation prior to trial. See Vol. 1 at C. 40. The circuit court noted, however, that
while Dr. McKeown had reported that Shanklin had a history of substance abuse and
its side effects, he opined that “there is no indication of a major affective disorder or
any characteristics that would be consistent with a thought disturbance.” Vol. 19, at
C. 785 (quoting Vol. 1 at C. 40-41).
Shanklin did not appeal the circuit court’s denial of this claim to the ACCA,
so he did not fully exhaust the claim. Thus, for all of the reasons explained in the
preceding section, see section IV.A.3.i., supra, it is not exhausted, it is procedurally
defaulted from this Court’s review, and Shanklin’s arguments as to why procedural
default should not bar relief are denied.
In a further attempt to excuse the procedural default of this claim specifically,
Shanklin posits that if the Eighth Amendment categorically bars the execution of the
severely mentally ill, procedural default should not bar relief on this claim in his case.
He similarly argues that he should be found “actually innocent” of the death penalty,

167

citing Sawyer, 505 U.S. at 336 (“[T]o show ‘actual innocence’ one must show by
clear and convincing evidence that, but for a constitutional error, no reasonable juror
would have found the petitioner eligible for the death penalty under the applicable
state law.”).
However, Shanklin has not met the burden of proving that he is actually
innocent of the death penalty because he was severely mentally ill at the time of his
crime. Similarly, Shanklin’s claim would fail on the merits if this Court were able to
consider it de novo. The trial court ordered Shanklin to be assessed for his
competence to stand trial and his mental state at the time of the offense. Dr.
McKeown conducted a forensic evaluation of Mr. Shanklin. Although, as Shanklin
emphasizes, Dr. McKeown found that Shanklin functioned in the “low-average”
range of intellect, had a history of substance abuse and suicide attempts, reported
hearing voices, and had previously taken Elavil, a drug used to treat symptoms of
anxiety with depression or schizophrenia with depression, Dr. McKeown ultimately
opined, “No information is available that would suggest that the Defendant during
the time frame of the index crime lacked the ability to appreciate appropriate and
inappropriate behavior.” Vol. 1, at C. 36-40. Nor was there any “indication of a
severe mental disease or defect and his significant substance abuse use included [sic]

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during the time of the alleged event would not provide a basis for a mental state
defense.” Id. at C. 40-41.
Shanklin has failed to show that he is too impaired to be executed or that he
cannot understand what he did and why he is on death row. Shanklin’s amended
petition in this case noted that he apparently had a period of active psychosis in 2021,
but by November 8 of that year, he “was no longer psychotic and could rationally
communicate with counsel.” (Doc. 24 at 27–28.) Shanklin is not due relief on this
claim.
L.

Shanklin’s claim that executing him after Alabama’s repeal of the
judicial override statute violates the Eighth Amendment and
contemporary standards of decency

Shanklin’s final claim is that Alabama’s repeal of the judicial override statute
renders his death sentence unconstitutional. Shanklin’s theory is that since Alabama
repealed, in 2017, the portion of its capital sentencing scheme that permitted judicial
override of jury penalty-phase verdicts, Alabama concluded that judicial overrides
are no longer consistent with the standards of decency in Alabama.
Shanklin exhausted this claim during state postconviction review. Vol. 17, Tab
#R-44, at C. 365–80; Vol. 21, Tab #R-47, at 62–75; Vol. 24, Tab #R-52, at 79–94.
The ACCA, in affirming the circuit court’s denial of relief on this claim, wrote the
following:

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Shanklin argues that his death sentence is unconstitutional
because, he says, to execute him following the legislative repeal of
judicial overrides would be cruel and unusual punishment and arbitrary.
In rejecting this claim, the circuit court found:
“. . . . Shanklin alleges that his death sentence was invalidated
by the passage of Senate Bill 16 (2017 Alabama Laws Act 2017131) on April 11, 2017. Although the law repealed judicial
override, by its own terms, it did so only prospectively.
Shanklin’s sentencing order is dated April 4, 2012, and therefore,
as the law does not apply to Shanklin, he has failed to state a
claim.
“The plain language of the statute notwithstanding,
Shanklin’s argument is based upon (if not directly taken from) a
brief filed in State v. Santiago, 122 A.3d 1 (Conn. 2015). Santiago
concerned a distinguishable situation. Connecticut abolished the
death penalty by legislation with prospective effect, leaving those
inmates with preexisting death sentences subject to that
punishment. Id. at 7-8. The Connecticut Supreme Court held
that prospective abolition violated the state’s constitutional
prohibition against cruel and unusual punishment. Id. at 9. But
Connecticut’s abolition of the death penalty for all offenders was
a substantive change in that state’s law, quite unlike the
procedural change laid out in Senate Bill 16. The death penalty
remains constitutional in Alabama—the only difference is that
henceforth, the jury’s penalty-phase recommendation as to
sentence is binding on the trial court.
“Many of Shanklin’s arguments are minimally edited from
their source brief, and while they are appropriate in the Santiago
context, they are nonsensical here. For example, Shanklin states:
“It would be both arbitrary and wrong to seek a death
sentence based on the date of the crime because the date
of the crime provides no fundamental, moral distinction
between crimes that can call for death and crimes that
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cannot. To allow the State to execute a judicially
condemned prisoner after it would be exactly the sort of
random or arbitrary imposition of the death penalty that
the Eighth Amendment forbids.
“(Am. Pet. 174.) Here, Shanklin deems equal the abolition of all
death sentences with the decision to make juries the sentencing
authority, which is simply not the case. He pleaded nothing
showing how his sentence is unconstitutional, as the crime for
which he was sentenced to death remains a death eligible crime.
“Later in this claim, Shanklin argues that an inmate
sentenced prior [to] the passage of Senate Bill 16 would violate
principles of equal protection and substantive due process (Am.
Pet. 175-179.) The first sentence of this sub-claim—‘With no
legitimate penological purpose, much less a compelling one, the
effective-date provision singles out a small group of offenders for
the uniquely harsh penalty of death while providing a sentence of
life imprisonment without the possibility of release for all other
similarly situated offenders.’ (Am. Pet. 175)—shows that this is
an argument unsuited to the claim before this Court. Shanklin’s
conclusion that he and all other inmates sentenced to death
before Senate Bill 16’s passage must now be given life sentences
to comport with the requirements of due process is absurd.
“The Court of Criminal Appeals’ decisions following the
enactment of the Habitual Felony Offender Act, 2000 Ala. Laws
2000-759, are instructive in this matter. That act, like Senate Bill
16, was explicitly prospective in application. In cases such as
Zimmerman v. State, 838 So. 2d 404, 406 (Ala. Crim. App. 2001),
the Court of Criminal Appeals refused to give retroactive effect
to the act, explaining, ‘Where legislation confers a benefit not
previously provided and is effective on a certain date, the
apparent inequity results from all such ameliorative legislation
and has been held not to deny equal protection.’ Moreover, there
was no equal protection violation because the act made its
provisions only prospectively applicable; in so doing, it created

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two classes of persons, and those sentenced before and after its
enactment were not, in fact, in like situations. Id.
“Shanklin failed to plead facts stating a claim for relief.
Therefore, this claim is meritless and dismissed pursuant to Rule
32.7(d) of the Alabama Rules of Criminal Procedure.”
(C. 788-90.)
Here, just as in Zimmerman, the circuit court found Shanklin’s
claim to be without merit. Shanklin’s reliance on Santiago is inapposite.
Senate Bill 16, codified at 2017 Alabama Laws Act 2017-131, was
enacted on April 11, 2017, and amended sections 13A-5-45, 13A-5-46,
and 13A-5-47, Ala. Code 1975. This act removed the option for judicial
sentencing in capital sentencing. There is no question as to the
nonretroactivity of the act which, by its terms, stated that it “shall not
apply retroactively to any defendant who has previously been convicted
of capital murder and sentenced to death prior to the effective date of
this act.” The death penalty remains a legal sentence for those
convicted of capital murder in Alabama; the only change is that as of
April 11, 2017, the jury’s penalty-phase advisory verdicts are now
binding. Because Shanklin was charged, tried, and sentenced before the
legislation went into effect, it is not a denial of equal protection to
sentence Shanklin according to the statute in effect at that time.
Shanklin has not demonstrated that the circuit court’s findings
regarding this claim were erroneous, and he is due no relief.
Vol. 23, Tab #R-50, at 92–95.
Shanklin now argues that the ACCA failed to address the portion of his claim
where he argued that by repealing the law allowing judicial overrides in death penalty
cases, the Alabama legislature determined that judicial overrides are no longer
consistent with the standards of decency in Alabama and serve no valid penological
objective. Thus, Shanklin contends that because the ACCA failed to adjudicate the
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merits of the precise claim that he presented, 28 U.S.C. § 2254(d) is not applicable
and this Court can review the claim de novo.
Regardless of whether this Court reviews the claim de novo or for
reasonableness under § 2254(d), Shanklin’s claim fails. Judicial override was
removed from Alabama’s capital sentencing scheme by Act 2017-131, which was
approved on April 11, 2017. Whereas the judge had been the final sentencer after an
advisory penalty-phase jury verdict, capital sentencing is now be left totally in the
hands of the jury. And of course, the death penalty remains a legal sentence for those
convicted of capital murder in Alabama. All along, Alabama juries have been tasked
with finding an aggravating circumstance necessary to make defendants deatheligible, and judges have been obligated to consider their advisory penalty-phase
verdicts. The only change is that as of April 11, 2017, these advisory verdicts are now
binding. Further, the act has only prospective application—it “shall apply to any
defendant who is charged with capital murder after the effective date of this act and
shall not apply retroactively to any defendant who has previously been convicted of
capital murder and sentenced to death prior to the effective date of this act.” Ala.
Laws Act. 2017-131 § 2. Thus, death-sentenced capital murderers like Shanklin who
were sentenced prior to April 2017 are unaffected by the passage of the act. The
legislature could have made Act 2017-131 retroactive, but instead, they determined

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that the procedural change in the manner in which death sentences will be
determined is applicable only prospectively.
In his Rule 32 proceedings, Shanklin relied on State v. Santiago, 122 A.3d 1
(Conn. 2015), a Connecticut case. However, the Santiago case is inapposite.
Connecticut abolished the death penalty on April 25, 2012, by legislation with
prospective effect; thus no defendants could be sentenced to death in that state from
that point onward, but those inmates who already had death sentences imposed
would still be subject to that punishment. Santiago, 122 A.3d at 7–8. The Connecticut
Supreme Court held that prospective abolition violated Connecticut’s constitutional
prohibition against cruel and unusual punishment. See id. Shanklin tries to stretch
Santiago’s ruling—that Connecticut’s abolition of the death penalty meant that the
death sentences imposed on capital murderers sentenced prior to April 2012 served
no legitimate penological goal, Santiago, 122 A.3d at 56–57—to Alabama’s
procedural alteration in the manner in which death sentences are imposed. The state
courts explicitly rejected the Santiago argument and held that Shanklin’s death
sentence remained constitutional. Vol. 23, Tab #R-50, at 94–95. Indeed, Shanklin
has alleged nothing showing how his sentence is unconstitutional. The crime for
which he was sentenced to death remains a death-eligible crime after Act 2017-131,

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a very different situation from that presented in Connecticut after the prospective
abolition of the death penalty. The claim lacks merit.
V.

CONCLUSION
For all of the reasons set forth herein, Shanklin’s petition for writ of habeas

corpus is due to be dismissed, or in the alternative denied.
Rule 11(a) of the Rules Governing Section 2254 Cases requires the district
court to issue or deny a certificate of appealability when it enters a final order adverse
to the applicant. This Court may issue a certificate of appealability “only if the
applicant has a made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must demonstrate
that reasonable jurist would find the district court’s assessment of the constitutional
claims debatable and 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, 336 (2003) (internal quotations omitted). This
Court finds Shanklin’s claims do not satisfy either standard. Accordingly, a motion
for a certificate of appealability is due to be denied.
A separate order in accordance with this opinion will be issued.

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DONE and ORDERED on March 27, 2024.

_____________________________
L. Scott Coogler
United States District Judge

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