Stephens v. Haley

Filing 72

ORDER granting petitioner's 37 Motion for Partial Summary Judgment, and CONDITIONALLY GRANTING petitioner's 34 Amended Petition for Writ of Habeas Corpus. This conditional writ shall become unconditional and permanent unless the State of Alabama commences further proceedings within 240 days of the date of this order to afford the petitioner a new trial. Signed by Judge Callie V. S. Granade on 10/6/2011. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
VICTOR STEPHENS,
Petitioner,
vs.
MICHAEL HALEY,
Respondent.

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CIVIL ACTION NO. 01-0257-CG-B

ORDER
Petitioner, Victor Stephens, (hereinafter referred to as APetitioner@ or
AStephens@) initiated this action on April 9, 2001, by filing a Petition for Writ of
Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254. The petitioner challenges a
1987 state court judgment of conviction for two counts of capital murder entered in
the Fourth Circuit Court, Hale County, Alabama, for which he was sentenced to
death by electrocution. (Doc. 1, p. 6). This matter is before the court on the
petitioner=s motion for partial summary judgment (Doc. 37), the respondent Michael
Haley=s (hereinafter referred to as ARespondent@ or AHaley@) response (Doc. 49), the
petitioner=s reply (Doc. 53), and petitioner=s supplemental brief. (Doc. 68). Upon
consideration of all matters presented, and for the reasons stated below, this court
finds that the petitioner=s motion for partial summary judgment is due to be
GRANTED.
I. Facts and Procedural Posture
A. Trial
Upon extensive review of the record, the court finds that the underlying facts

were succinctly stated by the Court of Criminal Appeals of Alabama in Stephens v.
State, 580 So.2d 11 (Ala.Crim.App. 1990):
The bodies of James R. Bailey and Adam APop@ Pickens were
discovered at Bailey=s Grocery Store on Alabama Highway 14 in the
Wedgeworth community near Sawyerville, in Hale County, Alabama,
on January 20, 1986. Mr. Bailey, age 72, the owner of the store, was
found dead inside the store--apparently of multiple gunshot wounds.
Adam Pickens, age 83, was still alive, but also suffering from multiple
gunshot wounds. Mr. Pickens was taken to Druid City Hospital in
Tuscaloosa, Alabama, where doctors attempted to save his life.
However, Mr. Pickens died while in surgery.
The evidence as presented by the State tended to establish that
Mr. Bailey and Mr. Pickens were last seen alive by Mr. Bailey's
daughter-in-law Sandra Bailey. Ms. Bailey Aran down@ to her
father-in-law's store between 4:25 and 4:30 p.m. on January 20 to
purchase a gallon of milk before the store closed for the day. Sylvester
Jackson came to the store between 4:30 and 5:00 p.m. to buy some
gasoline for his car. After pumping the gas, Mr. Jackson entered the
store to pay for the gas. He observed both victims lying on the floor.
Mr. Jackson ran out of the store and rushed home to tell his mother
what he had seen. His mother called the sheriff's department and told
them what her son had seen.
Shortly thereafter, Hale County Sheriff H.C. Colvin, Alabama
Bureau of Investigation investigator C.W. Gibson, and Alabama
Department of Forensic Sciences crime scene examiner John McDuffie
arrived at the store to begin their investigation and to collect any
evidence which might assist them in discovering the identity of the
person or persons who shot the two men. The examination of the store
revealed that Mr. Bailey was robbed of money and food stamps and
that Mr. Bailey had fired his .20 gauge shotgun at the robbers. Adam
Pickens was unarmed. Mr. Bailey was found in the middle of the store
still clutching his shotgun. Mr. Bailey had apparently been shot in a
different location inside the store as there was a trail of blood leading
to Bailey=s body. Further examination of the scene revealed that one
individual--later determined to be the appellant--had been hit by the
shotgun blast as blood was found near the front door together with a
.25 caliber automatic pistol. A number 8 shotgun pellet was removed
from the barrel of the weapon.
Further investigation revealed that Carrie Ingram and Sheila
Kennedy were walking along Alabama Highway 60 in Akron late on
the afternoon of January 20, 1986. The two women were walking in
2

the oncoming traffic lane--approximately 6 miles from Bailey's
store--when they were met by a small black pickup truck traveling at a
high rate of speed. The truck was proceeding in a direction away from
Bailey=s store. The women noticed that the passenger in the truck was
black and that he appeared to be slumped over in the seat. Linda
Johnson and her son Kevin also saw the black pickup on Highway 60
that afternoon. According to Ms. Johnson, she was preparing to turn
left from Highway 60 onto County Road 45 when she looked into her
rear-view mirror and noticed a black pickup truck coming up behind
her at a high rate of speed. Despite the fact that Ms. Johnson had
turned on the vehicle=s left-turn signal, the truck showed no sign of
reducing its rate of speed. Fearing a collision, Ms. Johnson stopped
her vehicle and allowed the truck to overtake her before she completed
her left turn. Although she could not identify the make of the truck or
who was driving it, her son Kevin readily identified it as a black
Nissan pickup truck and told authorities that he had observed two
black males inside the truck.
Pursuant to the information received from various witnesses
and the evidence collected at the scene, the Hale County Sheriff=s
Department issued a regional teletype advising law enforcement
agencies to Abe on the lookout@ for two males, armed, one possibly
injured. The teletype also requested that these agencies check area
clinics and hospitals for persons with possible gunshot wounds. On
Tuesday, January 21, 1986, Georgia Bureau of Investigation agent
Charles Stone and ABI agent Ed Traylor advised the Hale County
Sheriff's Department that both subjects were in custody in Carroll
County, Georgia. Further information from Georgia officials revealed
that Christopher L. Starks was apprehended in possession of a .32
caliber pistol and that the appellant, Victor R. Stephens, was treated
for a shotgun wound to his left hand at the Bowdon Area Hospital in
Carroll County, Georgia, on Monday evening January 20, 1986.
On Wednesday, January 22, 1986, a black Nissan pickup truck
owned by Christopher L. Starks, a co-defendant, was searched by law
enforcement agencies. Found in the vehicle were blood stains on the
passenger=s seat and three (3) one-dollar denomination Afood stamps@
which had been issued from food stamp offices in Hale County and
Tuscaloosa County, Alabama. Also taken from the glove compartment
of the truck were identification papers belonging to the appellant,
Victor R. Stephens.
A series of statements were taken by law enforcement officials
from the appellant while he was in the custody of Georgia officials.
These statements were taken orally on January 23, 25, and 28, 1986.
The gist of the three statements revealed that appellant and
3

Christopher APeabody@ Starks, left Georgia on Saturday, January 18,
1986, and traveled to New Orleans, Louisiana, where they remained
until Monday, January 20, 1986. On Monday, while Stark was driving
through Alabama on the way back to Georgia, the two men decided
they needed some money. According to the appellant, Starks
suggested that they find someplace to rob. They went into a store in
Alabama occupied by an elderly white man--subsequently identified as
James R. Bailey--and an elderly black man--subsequently identified as
Adam Pickens. APeabody@ entered the store and displayed his weapon,
while the appellant guarded the entrance. After the appellant and
Starks obtained the contents of the store=s cash register, they started
to leave. At this time, Mr. Bailey pulled out a shotgun and fired it.
Pellets from the shotgun shell struck the appellant in the left hand. It
was then that the appellant Aemptied@ his .25 caliber pistol. According
to the appellant, Starks was armed with either a .22 or .32 caliber
pistol. Appellant admitted leaving his .25 caliber automatic pistol at
the store. The two men then got back into their truck and drove back
to Georgia.
Autopsies were performed on both victims. The results revealed
that James R. Bailey died as a result of multiple gunshot wounds to
the face, chest, abdomen, and hand. Two expended .32 caliber bullets
and one .25 caliber bullet were removed from Mr. Bailey's body.
Adam=s Pickens= autopsy revealed that he died from four separate
gunshot wounds to the back. All four expended bullets recovered from
Pickens= body were .25 caliber bullets. The seven expended bullets
removed from the victims (three from Bailey, four from Pickens) were
sent to the Alabama Department of Forensic Sciences for examination.
Forensic firearm examiner Lawden Yates examined each of the seven
bullets. His examination revealed that the two .32 caliber bullets
removed from Mr. Bailey=s body were fired from the same .32 caliber
pistol found on the person of Christopher Starks at the time of his
arrest. The five .25 caliber bullets removed from the victims (one from
Mr. Bailey, four from Mr. Pickens) were fired by the .25 caliber
automatic pistol that was left at the store by the appellant. Shotgun
pellets removed from Stephens= hand at the Bowdon Area Hospital in
Carroll County, Georgia, were compared with shotgun pellets removed
from the store and the barrel of the .25 caliber gun. The analysis
revealed all to be number 8 shotgun pellets, consistent with the type
shell recovered from Bailey=s weapon. This concluded the State=s
evidence.
The only evidence presented by the defense was in the form of
testimony from Jessie Portis. Mr. Portis testified that he arrived at
Bailey=s store after Mr. Bailey and Mr. Pickens were shot. He leaned
4

down and asked Mr. Pickens if he could say what color vehicle the
robbers were in. According to Mr. Portis, Mr. Pickens responded that
the robbers were in a red vehicle. When asked if the robbers were
white or black, Mr. Pickens stated, Awhite.@
Id., at 13-15.
The defendant was tried by a jury composed of 7 white jurors and 5 black
jurors following the prosecution=s use of 21 of its 23 peremptory challenges to strike
black prospective jurors. Id. at 15. After the striking process, Stephens= trial
counsel reminded the court that it had previously filed a motion pursuant to Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and that the motion
was ripe. (Tr. 386).1 The trial court ruled that a prima facie case of discrimination
had been made and accordingly ordered the prosecutor to Ajustify your strikes.@ (Tr.
388). The prosecutor complied by giving his race-neutral justifications for striking
black prospective jurors. (Tr. 388-396). After listening to the reasons given and
defendant=s arguments against, the trial court found that Athe [Batson] motion
[was] not well-taken and overrule[d] the motion.@ (Tr. 401).
Based on the evidence outlined above, the jury convicted the defendant on
December 17, 1987, of two counts of violating Ala.Code ' 13A-5-40, Amurder by the
defendant during a robbery in the first degree or an attempt thereof committed by
the defendant.@ Ala.Code ' 13A-5-40(a)(2) (West 2002). (Tr. 853.). The guilty
verdict was returned at approximately 6:00 p.m. on the night of December 17, 1987.

1The

trial transcript is submitted as an exhibit to Document 18 and is cited
hereafter only as ATr.___@.
5

(Tr. 856.). The court reconvened at 7:00 p.m. that night for the sentencing phase of
the trial. Ibid. After hearing testimony, the jury deliberated and thereafter
pronounced a recommendation that the defendant be sentenced to life without
parole. The vote, however, was eight in favor of the death penalty and four in favor
of life imprisonment. (Tr. 903.). The trial court explained that the recommendation
was inconsistent with the jury charge; life imprisonment could only be
recommended if at least seven jurors voted for the life sentence. (Tr. 904.). Defense
counsel moved for a mistrial, arguing that the verdict was inconsistent with the
instructions, that the penalty phase instructions were erroneous, and that the jury
had revealed its numerical division before returning a unanimous verdict. The
motion was denied. (Tr. 905.). The jury returned at 11:00 p.m., and the court
inquired whether further deliberations would be fruitful and whether the court
should reconvene on the following day. The jury returned to the jury room and
reported a verdict at 11:15 p.m. (Tr. 906.). On both murder counts, the jury
recommended life without parole; in each case, the vote was seven for life
imprisonment to five in favor of the death penalty. Ibid.
Some nineteen months later, on July 24, 1989, the court convened for
sentencing. (Tr. 908.). The State asked the court to override the jury=s advisory
verdict of life without parole. The court agreed, finding beyond a reasonable doubt
as aggravating circumstances (1) that the murders were committed in the course of
robbery, and (2) that the defendant had previously been convicted of a felony

6

involving use or threat of violence to the person.2 (Tr. 919-20.). Furthermore, the
court found that no statutory mitigating circumstances existed.3 Considering this
lack of mitigation along with nonstatutory evidence presented and the court=s
advisory verdict of life without parole, the court sentenced defendant to death:
The court has carefully weighed the existence of the statutory and
aggravating circumstances and the non-existence of any of the
statutory mitigating circumstances and has additionally considered
both the nonstatutory mitigating circumstances and the jury=s
recommending of life imprisonment without parole have weighed
heavily in my consideration B I mean, it has weighted heavily in my
consideration, and it is the judgment of this court that they are
substantially outweighed by the aggravating circumstances and nonexistence of statutory mitigating circumstances. There are those who,
for one reason or another, do not believe in capital punishment. The
same people agree, however, in many cases with the doctrine of selfdefense. The individual has a right of self defense. In my opinion,
society has a right of self defense to take a life to protect the house that
we live in. That is our society and, therefore, for those reasons, and
it=s not done lightly, this court orders, adjudges and decrees that you,
Mr. Stephens, be punished by death. Your appeal is automatic. You
have 42 days to take your appeal. (Tr. 929-930.)
2The

court accepted the state=s certified copies of defendant=s convictions for
first degree robbery and attempted murder in the Circuit Court of Randolph
County, Alabama, on October 20, 1987. (Tr. 921.)
3Far

from being insignificant, the court found defendant=s criminal history to
be Aatrocious@; there was no evidence that defendant suffered from Aany psychiatric
disorder@ at the time of the offense; there was no evidence that defendant acted
under Athe influence of extreme mental or emotional disturbance; there was no
evidence suggesting defendant was an unwilling or minor participant in the
murders, nor that the victims provoked their own deaths; there was no evidence
that defendant acted under the substantial influence of another person in
committing the crime; there was no evidence that defendant lacked the capacity to
appreciate the criminality of his conduct; defendant=s age--23 at the time of the
murders--did not mitigate the offense. As to nonstatutory mitigating factors, the
court found it an Aadmirable gesture@ that he had begun writing in prison a book
warning of the dangers of drug use. (Tr. 921-930.)
7

B. Direct Appeal
The petitioner pursued a direct appeal to the Alabama Court of Criminal
Appeals. In his direct appeal, Stephens asserted a Batson claim arguing that the
prosecutor=s race-neutral reasons were not valid and that the prosecutor=s voir dire
was inadequate. (Doc. 18, Tab R-26, pp. 21-23). The Alabama Court of Criminal
Appeals affirmed petitioner=s conviction in an opinion issued August 3, 1990.
Stephens v. State, 580 So.2d 11 (Ala.Crim.App. 1990). In its opinion, the court
examined the prosecutor=s race-neutral reasons and found that the Atenets of
Batson... have been minimally satisfied@ and that under a clearly erroneous
standard of review, found that Aas a whole, the prosecutor provided sufficiently
race-neutral reasons for the exercise of those challenges.@ Id. at 18-20. The
Alabama Supreme Court thereafter affirmed the conviction in a two-sentence per
curiam opinion issued March 15, 1991, and denied rehearing on April 11, 1991.
Stephens v. State, 580 So.2d 26 (Ala. 1991). With new appellate counsel, petitioner
sought review by the Supreme Court of the United States. The Supreme Court
denied certiorari on October 7, 1991. Stephens v. Alabama, 502 U.S. 859
(table)(1991).
C. Rule 32 Petition/Collateral Attack
The petitioner filed an Alabama Criminal Procedure Rule 32 petition for postconviction relief with the Circuit Court of Hale County, Alabama, on April 9, 1993.
The petitioner again raised a Batson claim, specifically arguing that he Awas

8

deprived of a fair trial by an impartial jury through the prosecutor=s racially
discriminatory use of peremptory challenges.@ (Doc. 18, Vol. 15, Tab 47, pp. 23-25).
After a hearing, the court denied the petition on February 19, 1998.4 In regards to
the petitioner=s Batson claim, the court found that A[t]he claim that Stephens was
deprived of a fair trial by an impartial jury through the prosecutor=s racially
discriminatory use of peremptory challenges@ was Abarred from further Rule 32
proceedings@ pursuant to Rule 32.2(a)(2) of the Alabama Rules of Criminal
Procedure because in part Athey were raised or addressed at trial.@ (Doc. 18, Vol.
10, Tab 40, pp. 2-3). Furthermore, the judge found that A[t]he claim that Stephens
was deprived of a fair trial by an impartial jury through the prosecutor=s racially
discriminatory use of peremptory challenges@ was Aprocedurally defaulted@ under
Rule 32.2(a)(4) of the Alabama Rules of Criminal Procedure because it was Araised
or addressed on appeal.@ (Id., p. 6).
Petitioner appealed the denial of the Rule 32 petition to the Alabama Court
of Criminal Appeals on July 17, 1998. (Doc. 18, Vol. 17, Tab 49). The Court of
Criminal Appeals affirmed the decision of the Circuit Court on July 9, 1999.
Stephens v. State, 778 So.2d 869 (table)(Ala.Cr.App. 1999). First, the court agreed
with the Rule 32 trial court that the petitioner=s Batson claim was procedurally
defaulted. (Doc. 18, Vol. 17, Tab 53, p. 4). Second, the court ruled that the evidence
presented by Stephens at the Rule 32 evidentiary hearing - Anotes on the
4

It is unclear why it took the Circuit Court approximately five years to rule on the Rule
32 petition.
9

prosecutor=s strike sheets; evidence that the prosecutor used inaccurate, unverified,
and off-the-record information to strike blacks; and the pattern of the State=s
strikes@ - could not be considered Anewly discovered evidence@ for two reasons.
First, Ahe failed to include it in his petition or supplemental petition to the trial
court@ and A[t]his court will not consider an argument that is raised for the first
time on appeal@ since Aits review is limited to evidence and arguments considered by
the trial court.@ Second, Ahe failed to show that the evidence could not be obtained
through due diligence@, one of five requirements which must be established before a
state post-conviction court can consider Anewly discovered evidence.@ (Doc. 18, Vol.
17, Tab 53, p. 4); see Ala.R.Crim.P. 32.1(e)(1).
Following the decision of the Court of Criminal Appeals, the petitioner filed a
petition for certiorari with the Alabama Supreme Court. The Supreme Court
denied certiorari on April 14, 2000, without rationale. Ex parte Stephens, 787 So.2d
722 (table)(Ala. 2000).
D. § 2254 Federal Habeas Petition
The petitioner filed a 28 U.S.C. ' 2254 federal habeas petition in the federal
district court for the Southern District of Alabama on April 9, 2001. (Doc. 1.). The
case was transferred to the undersigned on February 8, 2002. On January 10, 2003,
the petitioner filed a motion for partial summary judgment arguing that the
Aundisputed evidence shows that the State discriminated against blacks when
selecting the jury for Victor Stephen=s [sic] trial@ and A[t]his discrimination violates
Batson v. Kentucky, 476 U.S. 79 (1986), and thus entitles Victor Stephens to a writ
10

of habeas corpus.@ (Doc. 37, p.1). On August 25, 2004, the respondent filed a
response (Doc. 49), and on September 29, 2004, the petitioner filed a reply. (Doc.
53).
E. Second Rule 32 Petition
The petitioner filed a second Alabama Criminal Procedure Rule 32 petition
for post-conviction relief with the Circuit Court of Hale County, Alabama, on
October 25, 2004. In this petition, he raised the claim that execution by lethal
injection violates the Eighth and Fourteenth Amendments of the United States
Constitution. (Doc. 54-1, pp. 1-10). On November 19, 2004, without a hearing, the
court dismissed the petition. (Doc. 57-2). After the parties were notified of the
dismissal, a petition for writ of mandamus was filed with the Alabama Circuit
Court of Criminal Appeals, and that court directed the Circuit Court to set aside the
order dated November 19, 2004, and to enter a new order. Ex parte Stephens, 907
So.2d 1094 (Ala.Crim.App. 2005). On June 7, 2005, the Circuit Court entered
another order and again dismissed Stephens= second Rule 32 petition without a
hearing. Stephens, thereafter, appealed to the Alabama Court of Criminal Appeals
(See Docs. 57 & 58), and the Court of Criminal Appeals affirmed the Circuit Court
in an unpublished opinion. (Doc. 59-1). On October 26, 2006, the Supreme Court
of Alabama denied Stephens= petition for a writ of certiorari and entered a
Certificate of Judgment. (Doc. 61-1), and on May 12, 2008, the Supreme Court of
the United States denied Stephens= petition for writ of certiorari. Stephens v.
Alabama, 128 S.Ct. 2427, 171 L.Ed.2d 234 (2008).
11

F. Supplemental Brief
On May 29, 2008, the petitioner filed a motion for leave to file a supplemental
Batson brief asserting that A[d]uring the stay of this action for Stephens to exhaust
in state court his claims based on Alabama=s method of performing lethal injection,
the United States Supreme Court reversed two denials of habeas corpus petitions:
Snyder v. Louisiana, 128 S.Ct. 1203 (2008); Miller-El v. Dretke, 545 U.S. 231
(2005).@ (Doc. 66, p. 1). On June 2, 2008, this court granted petitioner=s motion
(Doc. 67), and the petitioner thereafter filed his supplemental brief. (Doc. 68).

II. Statement of the Law
A. The Anti-Terrorism and Effective Death Penalty Act of 1996
Section 2254(a) of Title 28 of the United States Code provides that Aa district
court shall entertain an application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court@ upon a showing that his
custody is in violation of the Constitution or laws of the United States. 28 U.S.C.
§ 2254(a). As the instant petition was filed after April 24, 1996, it is subject to the
more deferential standard for habeas review of state court decisions under § 2254 as
brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996
(AAEDPA@). See Pub.L 104-132, § 104, 110 Stat. 1214, 1218-1219. AUnder AEDPA
the role of the federal court[] is strictly limited.@ This court no longer has Aplenary
authority to grant habeas relief@ but rather this court=s Aauthority to grant relief is
now conditioned on giving deference to the states.@ Jones v. Walker, 496 F.3d 1216,
12

1226 (11th Cir. 2007). Specifically, § 2254(d) provides in relevant part:
(d) 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 with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claimB
(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).
The United States Supreme Court has stated that this court must first determine
whether the AEDPA is satisfied, and only then, may this court review the
petitioner=s constitutional claims Awithout the deference the AEDPA otherwise
requires.@ Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2858-2859, 168
L.Ed.2d 662 (2007); see also Jones, 496 F.3d at 1228.
The United States Supreme Court explained the framework for § 2254 review
in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).5
Justice O=Connor maintained that A§ 2254(d)(1) places a new constraint on the
power of a federal habeas court to grant a state prisoner=s application for a writ of
Unless otherwise noted, reference to Williams are to the majority holding,
written by Justice Stevens for the Court (joined by Justices O=Connor, Kennedy,
Souter, Ginsburg, and Breyer) in parts I, III, and IV of the opinion (529 U.S. at 36775, 390-99); and Justice O=Connor for the Court (joined by Justices Rehnquist,
Kennedy, Thomas, and -except as to the footnote - Scalia) in part II. 529 U.S. at
403-413. The opinion of Justice Stevens in Part II was joined by Justices Souter,
Ginsburg, and Breyer.
5

13

habeas corpus with respect to claims adjudicated on the merits in state court.@ In
other words, A[u]nder § 2254(d)(1), the writ may issue only if one of the following
two conditions is satisfied B the state-court adjudication resulted in a decision that
(1) was contrary to ... clearly established Federal law, as determined by the
Supreme Court of the United States,@ or (2) involved an unreasonable application
of... clearly established Federal law, as determined by the Supreme Court of the
United States.@ First, A[u]nder the >contrary to= clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that reached by
this Court on a question of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable facts.@ Second, A[u]nder the
>reasonable application= clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from this Court=s
decisions but unreasonably applies that principle to the facts of the prisoner=s case.@
Williams, 529 U.S. at 412-413 (O=Connor, J., concurring)(internal citations
omitted); see also Ramdass v. Angelone, 530 U.S. 156, 165-166, 120 S.Ct. 2113,
2119-2120, 147 L.Ed.2d 125 (2000).
In applying this test, the Supreme Court has instructed that, on any issue
raised in a federal habeas petition upon which there has been an adjudication on
the merits in a formal State court proceeding, the federal court should first
ascertain the Aclearly established Federal law,@ namely, Athe governing legal
principle or principles set forth by the Supreme Court at the time the state court
render[ed] its decision.@ Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155
14

L.Ed.2d 144 (2003). The law is Aclearly established@ if Supreme Court precedent at
the time Awould have compelled a particular result in the case.@ Neelley v. Nagle,
138 F.3d 917, 923 (11th Cir. 1998) overruled on other grounds by Parker v. Head,
244 F.3d 831, 835 (11th Cir. 2001).
In the second step, the court must determine whether the State court
adjudication is contrary to the clearly established Supreme Court case law, either
because A>the state court applies a rule that contradicts the governing law set forth
in [the Supreme Court=s] cases= or if >the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] [Supreme] Court and
nevertheless arrives at a result different from [Supreme Court] precedent.=@
Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405-406). The Supreme
Court later clarified that A[a]voiding these pitfalls does not require citation of our
cases B indeed, it does not even require awareness of our cases, so long as neither
the reasoning nor the result of the state-court decision contradicts them.@ Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002). AIf the State
court decision is found in either respect to be contrary, the district court must
independently consider the merits of the petitioner=s claim.@ Williams v. McNeil,
slip op., 2010 WL 144986, at *5 (N.D.Fla. Jan. 7, 2010).
If, on the other hand, this court first concludes that the state court applied
the correct Supreme Court precedent and, second, finds that the facts of the
Supreme Court cases and the petitioner=s case are materially distinguishable, this
court must go to the third step and determine whether the state court
15

Aunreasonably applied@ the governing legal principles set forth in the Supreme
Court=s cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable
application inquiry is Awhether the state court=s application of clearly established
federal law was objectively unreasonable.@ Williams, 529 U.S. at 409. Whether a
state court=s decision was an unreasonable application of legal principle Amust be
assessed in light of the record the court had before it.@ Holland v. Jackson, 542 U.S.
649, 652, 124 S.Ct. 2736, 2737-2738, 159 L.Ed.2d 683 (2004)(per curiam)(citations
omitted); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 1851 n.4, 152
L.Ed.2d 914 (2002)(declining to consider evidence not presented to state court in
determining whether its decision was contrary to federal law).
An objectively unreasonable application of federal law occurs when the state
court Aidentifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner=s case@ or Aunreasonably
extends, or unreasonably declines to extend, a legal principle from Supreme Court
case law to a new context.@ Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).
It is important to note that A[t]he question under AEDPA is not whether a federal
court believes the state court=s determination was incorrect but whether that
determination was unreasonable B a substantially higher threshold.@ Schriro v.
Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007);
see also Williams, 529 U.S. at 412 (Aan unreasonable application of federal law is
different from an incorrect or erroneous application of federal law.@).
Besides obtaining relief under (d)(1), a petitioner may also receive federal
16

habeas relief from a claim adjudicated on the merits in state court where that
adjudication Aresulted 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)(2). In regards to this subsection, the Supreme
Court has provided that Aa decision adjudicated on the merits in a state court and
based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state court
proceeding.@ Miller-El v. Cockrell (AMiller-El I@), 537 U.S. 322, 348, 123 S.Ct. 1029,
1041, 154 L.Ed.2d 931 (2003).
When performing a review under § 2254(d), a federal court presumes the
state court=s factual findings to be sound unless the petitioner rebuts the
Apresumption of correctness by clear and convincing evidence.@ 28 U.S.C.
§ 2254(e)(1); see Miller-El I, 537 U.S. at 340 (explaining that a federal court can
disagree with a state court=s factual finding and, when guided by the AEDPA,
Aconclude the decision was unreasonable or that the factual premise was incorrect
by clear and convincing evidence@); Jones, 496 F.3d at 1226-1227 (11th Cir.
2007)(holding that § 2254(d)(2)=s Aunreasonable determination@ standard Amust be
met by clear and convincing evidence,@ and concluding that the standard was
satisfied where prisoner showed Aclearly and convincingly@ that the state court=s
decision Acontain[ed] an >unreasonable determination= of fact.@).
As stated above, only if this court finds that the petitioner satisfied the
AEDPA and § 2254(d), does this court take the final step of conducting an
17

independent review of the merits of the petitioner=s claims. See Panetti, 127 S.Ct.
at 2858-2859; Jones, 469 F.3d at 1228. In this independent review, the writ will not
issue unless the petitioner shows that he is in custody Ain violation of the
Constitution or laws or treaties of the United States.@ 28 U.S.C. § 2254(a).

III. Petitioner=s Batson claim based on evidence available at trial and
direct appeal
In his motion for partial summary judgment, the petitioner presents this
court with a ground for relief based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986). The petitioner argues that Athe decision of the State
courts resulted in a decision that was contrary to, or involved an unreasonable
application of, Batson and that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.@ (Doc. 37, p.
2).6

The respondent initially argues that this court should deny the petitioner=s
motion for partial summary judgment because this would lead to Apiecemeal
litigation@ which Athe Eleventh Circuit has >express[ed] [its] deep concern over...@
(Doc. 49, pp. 1-2)(citing Clisby v. Jones, 960 F.2d 925, 235 (11th Cir. 1992)). In
Clisby, the Court of Appeals for the Eleventh Circuit expressed concern over the
number of habeas cases that it had to remand for consideration of issues the district
court had not resolved when ruling on an entire petition, thus it instructed the
district courts to resolve all claims presented in a habeas petition, regardless of
whether the district court granted relief. See Clisby, 960 F.2d at 935-936. This
court declines to extend Clisby to this case.
Unlike the situation in Clisby, the petition is not before this court at this
time, but rather the petitioner has filed a motion for partial summary judgment.
The Supreme Court has stated that AHabeas Corpus Rule 11, permits application of
the Federal Rules of Civil Procedure in habeas cases to the extent that [the civil
rules] are not inconsistent with any statutory provisions or [the habeas] rules.@
6

18

A. State Court Decisions on Direct Appeal
As stated above, Stephens, a black male, was tried by a jury composed of 7
white jurors and 5 black jurors following the prosecutor=s use of 21 of its 23
peremptory challenges to eliminate black potential jurors. The petitioner=s counsel
objected to the composition of his client=s jury based on the prosecutor=s alleged
discriminatory use of his peremptory challenges in violation of Batson v. Kentucky,
476 U.S. 79 (1986) and Ex parte Branch, 526 So.2d 609 (Ala. 1987). Finding that
Stephens= counsel had established a prima facie case of racial discrimination, the
trial court required the prosecution to state the reasons for its strikes, and the
Mayle v. Felix, 545 U.S. 644, 654, 125 S.Ct. 2562, 2569, 162 L.Ed.2d 582
(2005)(internal quotations and citations omitted). Thus, A[a]s a general principle,
Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment,
applies with equal force in the context of habeas corpus cases.@ Clark v. Johnson,
202 F.3d 760, 764 (5th Cir. 2000).
If this court were to extend Clisby to a petitioner=s motion for summary
judgment, this court would have to deny the petitioner=s motion automatically, an
action which would bar all motions for summary judgment in the future by any
petitioner. On the other hand, in habeas cases, the Court of Appeals for the
Eleventh Circuit has routinely affirmed district courts who granted summary
judgment for the State. See e.g., Wainwright v. Secretary, Dept. of Corrections, 537
F.3d 1282 (11th Cir. 2007); Summers v. Singletary, 119 F.3d 917 (11th Cir. 1997);
Waldrop v. Jones, 77 F.3d 1308 (11th Cir. 1996). To allow the State to file a motion
for summary judgment but not allow the petitioner to file such a motion is too broad
an application of Clisby.
As a result, this court finds that Clisby=s instruction to district courts to
resolve all claims does not extend to a petitioner=s motion for partial summary
judgment. See Wilson v. Beard, 589 F.3d 651, 655 (3d Cir. 2009)(affirming a
district court which granted partial summary judgment for petitioner on one claim);
Judge v. Beard, 611 F.Supp.2d 415, 419-420 (E.D.Pa. 2009)(granting petitioner=s
motion for partial summary judgment for one claim); Pierce v. Quarterman, 2008
WL 4445064, at *3-4 (S.D.Tex. 2008)(granting partial summary judgment for the
petitioner); Rickman v. Dutton, 854 F.Supp. 1305, 1308-1309 (M.D.Tenn.
1994)(granting petitioner=s motion for partial summary judgment).
19

following reasons were given:
1. Mr. Mickens - Ahis position on capital punishment@
2. Mrs. Ball - Aher position on capital punishment@
3. Mr. Ball - Athe information was that he had answered
affirmatively on drugs, that is, that he, or somemember [sic] of
his family or some close personal friend being so involved. The
information also received was that he was some sort of parttime preacher and that his son had been in some serious
trouble dealing with drugs and/or criminal activity. That was
from law enforcement investigation.@ Finally, he indicated he
did not want to serve and would ask to be let off.@
4. Mr. Patton - he Ahad answered affirmatively on our question
concerning previous knowledge or association of any type of
criminal offense. Our office had prosecuted him for night
hunting. We seized his weapons and sold them and he had also
been convicted of a DUI on other occasions.@
5. Ms. Hood - Ashe asked off and had quite a bit to say about
lack of transportation and inability to get here and she was
concerned and wouldn=t be able to pay attention, etc. Finally it
seems as if she and her husband have a history or problem in
the child support court. Her husband is actually being
prosecuted and even done some time in jail with reference to
that. Of course, our office handles the child support program.
Now that was in Perry County, there was some type of
connection, a cousin or something. That=s the reason we=re so
familiar with them.@
6. Ms. Hollifield - Ashe had been arrested and charged with
worthless checks and similar type offenses on several different
occasions.@
7. Ms. C. Harris - A[t]he information gathered during voir dire
was that she was young, single and unemployed and our
information in our investigation prior to that was that her
brother is a defendant or has been a defendant in a criminal
case which is being prosecuted.@
8. Ms. Spence - AThe information was that her sons had been in
20

some very serious criminal offenses. We just felt like she would
not be a good State=s juror in this case.@
9. Ms. Johnson - AInformation from investigation was that she
had been a defendant in small claims court and been served
with numerous civil suits. She was not particularly well
thought of and recommended to us as a juror to strike. In voir
dire, she seemed to be extremely responsive to the Defendant=s
questions. I noticed that she was chewing gum and not
particularly concerned about this and felt like she would not be
a proper juror to serve on this jury.@
10. Ms. Cottrell - AShe asked off this jury. She did not want to
serve and she answered our questions with reference to
involvement and knowledge of criminal activity in the
affirmative. She indicated that she or someone very close to
her had been charged with some criminal offense.@
11. Mr. Pratcher - AThis is the juror who indicated that he lived
in Atlanta and seemed to be interested in not serving. He was
wearing sunglasses and that to me has always been a point.
When I find jurors doing that, unless there=s a real good reason
for it, generally, they do not tend to make very good State
jurors. He=s the only one in that position. He also was sitting
next to Mr. Gray. Defense counsel brought to the Court=s
attention, of course, our attention at the same time, that Mr.
Gray, a juror struck for his feelings on capital punishment, had
approached defense counsel discussing or talking or making
some comments about buring [sic] the guy or something of that
nature and Mr. Pratcher seemed to have some type of
relationship with him. I felt uncomfortable leaving him on the
jury knowing the propensity of the Juror Gray to verbalize his
position.@
12. Ms. Lewis - AOur information is that she was single and
unemployed. Also, our investigative information indicated that
her son had been involved in a death or a killing. Information
was not clear as to whether it was some type of automobile
accident or whether it was some criminal charge, but in any
event, her son was involved in it in some manner and we felt
like she could not stay on as a juror.@
13. Ms. Shelton - AThis juror, in the course of individual voir
21

dire, is from the community and, of course, was listed here, her
marital status here, as separated. She was very insistent on
that. She reported that she lives in this particular community
and never heard anything about this case whatsoever. We find
that extremely strange and based on that, felt like she should
not remain as a juror in this case.@
14. Ms. E. Williams - AOn individual voir dire, she seemed to be
familiar with the case which, being from the general area of
this offense, that would seem to be a plus, but her individual
voir dire, she seemed to be very concerned and communicated
to us that she was well aware of the fact that one of the men
had lived to tell all about it and she was waiting [sic] very much
to hear that. Of course, we=re very familiar with the evidence
in this case where there is a proposed dying declaration from
the deceased, APop@, indicating some words to the effect that
some two white men did it. We felt that leaving her on the jury
with anticipation of testimony would certainly be detrimental
to us.@
15. Ms. B. Wilson - Sheriff=s Office recommended this juror be
struck. The Sheriff himself indicated he had known her for
quite a long time and felt that she was extremely antiestablishment. That her mother was considered by him to be a
person he thought well of, but he was concerned with Mrs.
Wilson. He believed that her husband had been previously in
some type [of] criminal trouble. We felt that during the voir
dire, she seemed to be very unconcerned about this very serious
matter that she was about.@
16. Ms. A. Harris - AShe had reported from her information as
being single, unemployed and relatively young. The note I
made was that she knew nothing about the case.@
17. Mr. K. Williams - AObservations by our group in observing
the jurors was that this man was once again, seemed to be
involved with the juror, Mr. Gray. He seemed to be associating
with him. His general appearance was very rough and we
simply felt like the combination of the two justified and
required us to remove him from the jury panel.@
18. Ms. Brown - ANow, she, according to our information, had
had a husband who had been killed in a homicide. That seemed
22

to be a plus. Sheriff=s Office was very concerned that she was
extremely negative about that particular case and we felt that
leaving her as a juror would not be wise under these
circumstances. She was not happy or pleased with the
situation, that we should remove her, so we did.@
19. Mrs. Hayes - Agetting the point where some of these jurors
had some pluses. We were concerned about keeping her. Mrs.
Hayes worked with Mrs. Bailey at the nursing home [where the
wife of one of the victims now lived]. However, the reaction
during individual voir dire concerning that, she seemed to be
totally removed from that situation and totally unconcerned
about it and based on that, we felt there might be some
animosity or something we didn=t realize with Mrs. Hayes. We
struck her on that basis.@
20. Mrs. Hobson - Athis was a juror we had decided that we
would leave on the jury or keep on the jury, but we felt that she
was all right, from our standpoint. However, our information
was that she was requesting to get off the jury and had
requested to get off the jury. She had had an invalid husband
and the storm last night essentially damaged their house. So
we went ahead and removed her for those reasons. Otherwise,
we would have kept her.@
21. Ms. S. Harris - AThe information reported was that she had
kinspeople who had been in criminal trouble and though we
had otherwise felt that she was all right, that information
caused us to remove her.@
(Tr. 388-396).
The defense counsel challenged the prosecutor=s reasons for several of his strikes,
but the trial court ultimately Afound that Stephens= Batson motion was not welltaken, and overruled the motion.@
On direct appeal to the Court of Criminal Appeals, Stephens argued that the
prosecutor=s race-neutral reasons were not valid and that the prosecutor=s voir dire
was inadequate. (Doc. 18, Vol. 7, Tab 26, pp. 21-23). Specifically, Stephens argued
23

that A[t]he justification for the State=s strikes ranges from the ridiculous (chewing
gum []), to the sublime (wearing sunglasses []). However in all instances where the
State indicated that it might have some information that was gained by
investigation prior to voir dire, the State never tried to investigate this information
in any manner during voir dire.@ (Id., p. 21). The court affirmed petitioner=s
conviction in an opinion issued August 3, 1990. Stephens v. State, 580 So.2d 11
(Ala.Crim.App. 1990). In its opinion, the court examined the prosecutor=s raceneutral reasons and found that the Atenets of Batson... have been minimally
satisfied@ and, under a clearly erroneous standard of review, found that Aas a whole,
the prosecutor provided sufficiently race-neutral reasons for the exercise of those
challenges.@ Id. at 17-20. In regards to three of the black potential jurors B Ms.
Spence, Ms. S. Harris, and Ms. Lewis B the court maintained that A[c]onnection with
or founded suspicion of criminal activity can also constitute a sufficiently raceneutral reason for the exercise of a peremptory challenge@ and A[t]his connection
with or suspicion of criminal activity includes not only the juror in question, but
also relatives and close friends of the juror.@ Id. at 19(citations omitted).
The Alabama Supreme Court thereafter affirmed the conviction in a twosentence per curiam opinion issued March 15, 1991, and denied rehearing on April
11, 1991. Stephens v. State, 580 So.2d 26 (Ala. 1991). With new appellate counsel,
petitioner sought review by the Supreme Court of the United States. The Supreme
Court denied certiorari on October 7, 1991. Ex parte Stephens, 502 U.S. 859
(table)(1991).
24

B. Federal Review of the State Court Decisions on Direct Appeal
In his motion for partial summary judgment, the petitioner argues that Athe
decision of the State courts resulted in a decision that was contrary to, or involved
an unreasonable application of, Batson...@ (Doc. 37, p. 2). AThe evaluation of a
prosecutor=s race-neutral explanations under Batson is a >pure issue of fact...
peculiarly within a trial judge=s province.=@ McGahee v. Ala. Dept. of Corrections,
560 F.3d 1252, 1255 (11th Cir. 2009)(quoting McNair v. Campbell, 416 F.3d 1291,
1310 (11th Cir. 2005). Hence, Aa Batson claim at habeas is often analyzed under
AEDPA § 2254(d)(2), and is only granted >if it was unreasonable to credit the
prosecutor=s race- neutral explanations.=@ Id.(quoting Rice v. Collins, 546 U.S. 333,
338, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006). However, A[w]here the concern is
that a state court failed to follow Batson=s three steps, the analysis should be under
AEDPA § 2254(d)(1)...@ Id. at 1256. As stated above, under § 2254(d)(1), this court
may only issue a writ of habeas corpus Aif one of the following two conditions is
satisfied B the state-court adjudication resulted in a decision that (1) >was contrary
to ... clearly established Federal law, as determined by the Supreme Court of the
United States,= or (2) >involved an unreasonable application of... clearly established
Federal law, as determined by the Supreme Court of the United States.=@ Williams,
529 U.S. at 412-413 (O=Connor, J., concurring).
Step 1: clearly established Supreme Court case law
In applying the test under § 2254(d)(1), the Supreme Court has instructed
that the first step on any issue raised in a federal habeas petition, upon which there
25

has been an adjudication on the merits in a formal state court proceeding, is that
the federal court should first ascertain the Athe governing legal principle or
principles set forth by the Supreme Court at the time the state court render[ed] its
decision.@ Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166. As stated above, the law is
Aclearly established@ if Supreme Court precedent at the time Awould have compelled
a particular result in the case.@ Neelley, 138 F.3d at 923.
The governing legal principle at the time of the direct appeal was Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the
Supreme Court held it was unconstitutional for the prosecution to challenge
potential jurors based solely on their race or on the assumption that because of
their race, they should be unable to consider the case impartially. 476 U.S. at 89,
106 S.Ct. at 1719. A defendant may raise the necessary inference of Apurposeful
discrimination in selection of the petit jury@ based Asolely on evidence concerning
the prosecutor=s exercise of peremptory challenges@ during the trial. Id. at 96, 106
S.Ct. at 1723.
[T]he defendant first must show that he is a member of a
cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of
the defendant=s race. Second, the defendant is entitled to rely
on the [undisputed] fact... that peremptory challenges constitute
a jury selection practice that permits those to discriminate who
are of a mind to discriminate. Finally, the defendant must show
that these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race.
Id., 106 S.Ct. at 1723 (internal citations and quotation marks
omitted).

26

Once the defendant makes a prima facie showing, the burden shifts to the State to
explain, in clear and reasonably specific terms, the legitimate race-neutral reasons
for striking the jurors in question. Batson, 476 U.S. at 97, 98 n.20, 106 S.Ct. at
1273 & 1274 n. 20.
Finally, the court must determine whether the defendant has established
purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. AThe reasons
stated by the prosecutor provide the only reasons on which the prosecutor=s
credibility is to be judged.@ Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.
2009)(citing United States v. Houston, 456 F.3d 1328, 1335 (11th Cir. 2006)). AThe
credibility of the prosecution=s explanation is to be evaluated considering the
>totality of the relevant facts,= including whether members of a race were
disproportionately excluded.@ Id.(quoting Hernandez v. New York, 500 U.S. 352,
363, 111 S.Ct. 1859, 1868, 114 L.Ed. 2d 395 (1991)). AQuestions arise regarding the
credibility of the explanation and the possibility that the explanation is pretextual
(1) when the prosecutor=s explanation for a strike is equally applicable to jurors of a
different race who have not been stricken; (2) upon a comparative analysis of the
jurors struck and those who remained, including the attributes of the white and
black venire members; (3) or when the prosecution fails to engage in a meaningful
voir dire examination on a subject that it alleges it is concerned.@ Id.(internal
citations omitted). As stated above, A[t]he evaluation of a prosecutor=s race-neutral
explanations under Batson is a >pure issue of fact... peculiarly within a trial judge=s
province.=@ McGahee, 560 F.3d at1255(quoting McNair, 416 F.3d at 1310).
27

Step 2: Whether the State court=s adjudication is
contrary to clearly established Supreme Court case law
This court must next determine whether the State court adjudication is
contrary to the clearly established Supreme Court case law, either because A>the
state court applies a rule that contradicts the governing law set forth in [the
Supreme Court=s] cases= or >if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] [Supreme] Court and
nevertheless arrives at a result different from [Supreme Court] precedent.=@
Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405-406). The record
indicates that the trial court and the appellate court found that Stephens
established a prima facie case of discriminatory jury selection. The prosecutor was
then asked by the trial court to provide his race-neutral reasons for striking the
black jurors. When the prosecutor provided his reasons, the trial court provided
Stephens= counsel with an opportunity to cross the State, which he refused, after
which the trial court found that Athe [Batson] motion [was] not well-taken and
overrule[d] the motion.@ (Tr. 401). On direct appeal, the appellate court analyzed
each reason given by the prosecutor under Batson and state law as it stood at that
time and concluded that each use of the peremptory challenges to remove the black
prospective jurors was proper. Therefore, this court finds that the state courts=
adjudications on direct appeal were not contrary to clearly established Supreme
Court case law since the state courts applied Batson and there were no Supreme
Court cases at that time which were factually materially indistinguishable.

28

Step 3: Whether the State court Aunreasonably applied@ Batson
Since the state court applied the correct Supreme Court precedent and the
facts of Supreme Court cases and the petitioner=s case are not materially
indistinguishable, this court must go to the third step and determine whether the
state court Aunreasonably applied@ the governing legal principles set forth in the
Supreme Court=s cases. See 28 U.S.C. § 2254(d)(1). The standard for an
unreasonable application inquiry is Awhether the state court=s application of clearly
established federal law was objectively unreasonable.@ Williams, 529 U.S. at 409.
As stated above, whether a state court=s decision was an unreasonable application
of legal principle Amust be assessed in light of the record the court had before it.@
Holland, 542 U.S. at 652, 124 S.Ct. at 2737-2738.
This court finds that the appellate court=s decision was an objectively
unreasonable application of clear federal law because the appellate court did not
extend the principles of the third step of Batson to the facts and arguments at hand.
Here, there is no question that the trial court and the appellate court found that
Stephens had shown a prima facie case of discriminatory motive and that the
prosecutor had provided his race-neutral reasons for striking the black proposed
jurors. However, the Alabama Court of Criminal Appeals= adjudication failed to
follow clearly established law when it did not consider Aall relevant circumstances@
in its analysis of the trial court=s ruling.7 Batson is quite clear that A[i]n deciding

This court focuses here on the decision by the Alabama Court of Criminal
Appeals, Stephens v. State, 580 So.2d 11 (Ala.Crim.App. 1990), because it is the
7

29

whether the defendant has made the requisite showing, the trial court should
consider all relevant circumstances.@8 Batson, 476 U.S. at 96, 106 S.Ct. at 1723
(emphasis added).
In its adjudication, upon determining that Stephens had established a prima
facie case of discrimination, the Alabama Court of Criminal Appeals analyzed each
of the State=s explanations for striking the black potential jurors and found that
each reason was a legally acceptable race-neutral reason for exercising a
peremptory strike. Stephens v. State, 580 So.2d at 18-20. The court ultimately
Alast reasoned decision@ of the state courts on this issue. The Court of Appeals for
the Eleventh Circuit has held that Ain discerning whether a state court opinion
rests on federal grounds or state procedural grounds, we >look through= a summary
decision to the >last reasoned decision= on the issue.@ McGahee v. Ala. Dept. of
Corrections, 560 F.3d 1252, 1262 n. 12 (11th Cir. 2009).
The Supreme Court has repeated this point in later opinions applying
Batson. See e.g., Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 1208, 170
L.Ed.2d 175 (2008)(A[I]n considering a Batson objection, or in reviewing a ruling
claimed to be Batson error, all of the circumstances that bear upon the issue of
racial animosity must be consulted.@); Miller-El v. Dretke, 545 U.S. at 251-252, 125
S.Ct. at 2331(A[T]he rule in Batson provides an opportunity to the prosecutor to give
the reason for striking the juror, and it requires the judge to assess the plausibility
of that reason in light of all evidence with a bearing on it.@); Hernandez v. New
York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991)(AAn invidious
discriminatory purpose may often be inferred from the totality of the relevant
facts.@)(quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048-2049,
48 L.Ed.2d 597 (1976)). AOf course, these cases were not >clearly established
Federal law= at the time of [Stephens=] trial and direct appeal, but the opinions
confirm [this court=s] reading of what Batson required.@ McGahee v. Ala. Dept. of
Corrections, 560 F.3d 1252, 1262 n. 13 (11th Cir. 2009). The Supreme Court in
Batson pointed out that A[i]n deciding if the defendant has carried his burden of
persuasion [of proving purposeful discrimination in the selection of the venire], a
court must undertake a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.@ Batson, 476 U.S. at 93, 106 S.Ct. at 1721
(internal quotations and citations omitted).
8

30

found that A[w]hile this Court has concern about several of the reasons articulated
by the prosecutor for the exercise of his peremptory jury challenges, we find that, as
a whole, the prosecutor provided sufficiently race-neutral reasons for the exercise of
those challenges.@ The court then concluded that it did not Afind the trial court=s
ruling@ to be Aclearly erroneous@ thus Ano reversal is warranted.@ Id., p. 20-21.
The court did not, however, address a crucial argument raised by Stephens in
his brief. Stephens maintained in his brief that Athe State expressed it had
information about several of the black jurors that was gained by investigation prior
to voir dire@ but Athe State never tried to investigate this information in any manner
during voir dire.@ In fact, Stephens argued that A[t]he prosecutor, in this instant
case, had the right of almost unlimited voir dire (within reason) to either confirm or
deny his suspicions@ but that Ahe never chose to do so.@ (Doc. 18, Vol. 7, Tab 26, pp.
21-22). This fact was not mentioned or discussed by the Alabama Court of Criminal
Appeals in analyzing any of the State=s proffered reasons, but it should have been
discussed in relation to the third step of Batson.
For example, the State proffered its race-neutral reason for striking Ms. S.
Harris by stating that A[t]he information reported was that she had kinspeople who
had been in criminal trouble and though we had otherwise felt that she was all
right, that information caused us to remove her.@ (Tr. 394-395). This reason was
contradicted by Ms. S. Harris= response in group voir dire.9 Despite the fact that

Mr. Greene asked the potential jurors Aif you had any of the following
experiences: have you personally, ...a member of your immediate family... or a close
9

31

the State expressed it had concerns about Ms. S. Harris that were not established
on-the-record, the State did not further question Ms. S. Harris about these concerns
even though it had opportunity to do so in individual voir dire. By comparison, the
state individually questioned a white potential juror Mr. C. Wyatt about a cousin
who had criminal trouble. (Tr. 355-357). In sum, one of the State=s proffered
reasons for striking a black potential juror is unsupported by the record, thus the
fact that the State did not investigate its Ainformation@ in voir dire should have been
included in the state court=s analysis of the third step of Batson, where all relevant
circumstances must be examined to determine whether the State had struck any of
the jurors based on their race.
Furthermore, like Ms. S. Harris, a similar situation arose in regards to
another black potential juror, Ms. Lewis. The state proffered its race-neutral reason
for striking Ms. Lewis by stating
our investigative information indicated that her son had been
involved in a death or a killing. Information was not clear as to
whether it was some type of automobile accident or whether it
was some criminal charge, but in any event, her son was
involved in it in some manner and we felt like she could not stay
on as a juror.
(Tr. 392).

personal friend, ever been charged with a criminal offense other than traffic
offenses?@ Ms. S. Harris did not respond affirmatively to that question. (Tr. 154155).
32

This reason was again called into issue during group voir dire,10 and even though
the prosecution had concerns that Ms. Lewis= son had Abeen involved in a death or a
killing@ and even though the A[i]nformation was not all that clear@, the prosecution
did not ask Ms. Lewis any question about this information in her individual
voir dire. (See Tr. 293-294). Like with Ms. S. Harris, the fact that the State did not
investigate its unclear Ainformation@ in voir dire should have been included in the
state court=s analysis of the third step of Batson.11 The state court=s failure to
address the State=s lack of questioning Ms. S. Harris and Ms. Lewis is an
unreasonable application of Batson to the facts of this case.12 See Ex parte Travis,

When Mr. Greene asked the potential jurors Aif you had any of the
following experiences: have you personally, ...a member of your immediate family...
or a close personal friend, ever been charged with a criminal offense other than
traffic offenses?@, Ms. Lewis, like Ms. S. Harris, did not respond. (Tr. 154-155)
10

In addition to Ms. Lewis and Ms. S. Harris, a similar situation occurred in
regards to five other black potential jurors. For example, the state proffered its
race-neutral reason for striking Ms. Spence that A[t]he information was that her
sons had been in some very serious criminal offenses@ and that A[w]e just felt like
she would not be a good State=s juror in this case.@ (Tr. 390). Again, like the
previous two black potential jurors, Ms. Spence did not respond to Mr. Greene=s
question concerning criminal offenses of immediate family members (see Tr. 154155) and Ms. Spence was not asked any questions in individual voir dire. (See Tr.
208-210). The State=s proffered reasons as to the other four black potential jurors is
also not based on the trial record, is contradicted by voir dire, and the state failed to
ask any questions concerning its proffered reasons in individual voir dire. (See Tr.
389-390 & 393)(Ms. Hood - husband=s criminal nonpayment of child support; Ms.
Holliefield - two worthless check charges; Ms. Harris - brother a defendant in a
criminal case; and Ms. Wilson - husband Ain some type of criminal trouble@).
11

In Williams v. Taylor, the Supreme Court held that the state court=s failure
to evaluate all available evidence was an unreasonable application of law under
AEDPA, 28 U.S.C. § 2254(d). 529 U.S. 362, 397-398, 120 S.Ct. 1495, 1515, 146
L.Ed.2d 389 (2000)(Stevens, J., writing for the majority). The Court noted that the
12

33

776 So.2d 874, 881 (Ala. 2000)(A[T]he State=s failure to engage in any meaningful
voir dire examination on a subject the State alleges it is concerned about is evidence
suggesting that the explanation is a sham and a pretext for discrimination.@). This
finding is supported by the Supreme Court=s decision in Miller-El v. Dretke (AMillerEl II@), 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). In Miller-El II, the
Supreme Court ultimately held that A[t]he state court=s conclusion that the
prosecutors= strikes of [two black jurors] were not racially determined... was
unreasonable as well as erroneous.@ 545 U.S. at 266. At the trial, the prosecution
struck Billy Jean Fields, a black male who supported the death penalty. Id. at 242.
The prosecution initially proffered the reason for striking Mr. Fields was Ahe said
that he could only give death if he thought a person could not be rehabilitated...@ Id.
at 243. The Court noted that the other evidence Aunequivocally stated that he
would impose the death penalty regardless of the possibility of rehabilitation.@ Id.

state court=s opinion discussed the mitigation evidence developed in the state postconviction hearing, A[b]ut the state court failed even to mention the sole argument
in mitigation that trial counsel did advance.@ Id. at 398, 120 S.Ct. at 1515. Justice
O=Connor agreed that the state court=s Adecision reveals an obvious failure to
consider the totality of the omitted mitigation evidence ... For that reason, and the
remaining factors discussed in the Court=s opinion, I believe that the [state court=s]
decision >involved an unreasonable application of... clearly established Federal law,
as determined by the Supreme Court of the United States.@ Taylor, 529 U.S. at 416,
120 S.Ct. at 1525 (O=Connor, J., concurring)(citation omitted). Relying on this case
and prior precedent, the Court of Appeals for the Eleventh Circuit held that
A[w]here a legal standard requires a state court to review all of the relevant
evidence to a claim, the state court=s failure to do so is an unreasonable application
of law under AEDPA.@ McGahee v. Ala. Dept. of Corrections, 560 F.3d 1252, 1262
(11th Cir. 2009).

34

at 244. The Court concluded that the prosecutor had either misunderstood or had
an ulterior motive for keeping Mr. Fields off the jury. Regardless, A[i]n light of
Fields= outspoken support for the death penalty, we expect the prosecutor would
have cleared up any misunderstanding by asking further questions before getting to
the point of exercising a strike.@ Id.13 Although Miller-El was a § 2254(d)(2) case,
the Supreme Court=s analysis is very persuasive to this court in analyzing
§ 2254(d)(1) since the Alabama Court of Criminal Appeals made no mention of the
State=s failure to question Ms. S. Harris or Ms. Lewis despite conflicting
information, a fact which the Supreme Court in Miller-El II found was crucial in a
Batson analysis.14
In sum, because the Alabama Court of Criminal Appeals omitted the above
highly relevant fact from its Batson analysis, the court did not undertake a review

In addition, the Court stated that although the State did strike two
nonblack jurors Awho expressed similar views about rehabilitation,@ it did not strike
three nonblack jurors who had similar responses to voir dire questions about
rehabilitation. Id. at 244-255 & n. 5. Additionally, at Miller-El=s original
Batson hearing, Aafter Miller-El=s lawyer pointed out that the prosecutor had
misrepresented Fields= responses@ about rehabilitation, the State Acame up with
Fields= brother=s prior conviction as another reason for the strike.@ Id. at 245. The
Supreme Court dismissed this reason because Mr. Fields= Atestimony indicated he
was not close to this brother... and the prosecution asked nothing further [during
voir dire] about the influence his brother=s history might have had on Fields, as it
probably would have done if the family history had actually mattered.@ Id. at 246.
13

Although Miller-El was not Aclearly established Federal law@ at the time of
Stephens= trial, the Court of Appeals for the Eleventh Circuit maintains that MillerEl still Aconfirm[s] our reading of what Batson required@ in regards to a court=s
analysis of Aall relevant circumstances@ in the third step of Batson. McGahee v. Ala.
Dept. of Corrections, 560 F.3d 1252, 1261 & n. 13 (11th Cir. 2009).
14

35

of Aall relevant circumstances@ as required by the third step of Batson. Therefore,
this court holds that the decision was an unreasonable application of clearly
established federal law as determined by the Supreme Court.

IV. De Novo Review
Since this court has determined that the state court decision on direct appeal
was an unreasonable application of clearly established federal law, this court is
Aunconstrained by § 2254's deference and must undertake a de novo review of the
record.@ McGahee, 560 F.3d at 1266. Therefore, this court now reviews the record
below to determine if there was a Batson violation by the State.
As outlined above, district courts employ a three-step procedure for resolving
Batson objections. United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir.
2001). First, the objecting party must make a prima facie showing that the
objected-to peremptory challenge was based on race. There is no question that
Stephens has established a prima facie case of racial discrimination. The defendant
is black, which is a cognizable racial group, and the State used the first 21 of its 23
peremptory strikes to remove black potential jurors, a use of strikes which
constitutes Aa >pattern= of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.@ Batson, 476 U.S. at 97.
Second, the State is required to provide specific explanations for all its peremptory
challenges, a task which the State has done in the present case. (Tr. 388-396).
Third, Batson requires this court to review Athe State=s proffer of specific
36

explanations after the trial to see whether its explanations overcome the very
strong prima facie case of discrimination.@ In this analysis, this court shall Areview
>all relevant circumstances.=@ McGahee, 560 F.3d at 1267(quoting Miller-El II, 545
U.S. at 251-252(A[T]he rule in Batson provides an opportunity to the prosecutor to
give the reason for striking the juror, and it requires the judge to assess the
plausibility of that reason in light of all evidence with a bearing on it.@). The
objecting party may carry its burden by showing that the striking party=s raceneutral reason is mere pretext for discrimination. See Miller-El II, 545 U.S. at 247249(analyzing for pretext the prosecution=s reasons for striking a prospective juror).
A[T]he critical question in determining whether a prisoner has proved
purposeful discrimination at step three is the persuasiveness of the prosecutor=s
justification for his peremptory strike. At this stage, implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination.@ Miller-El I, 537 U.S. at 338-339(internal quotation marks and
citations omitted). AIf a prosecutor=s proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack who is permitted to serve, that
is evidence tending to prove purposeful discrimination to be considered at Batson=s
third step.@ Miller-El II, 545 U.S. at 241.
In determining purposeful discrimination, the Supreme Court has initially
considered statistical evidence when considering whether the prosecution used its
peremptory strikes in a discriminatory manner. See Miller-El I, 537 U.S. at 342,
123 S.Ct. 1029; Miller-El II, 545 U.S. at 240-241, 125 S.Ct. 2317. In Miller-El I,
37

prosecutors used 10 of their 14 peremptory strikes against black venire members,
thereby excluding 91 percent of the eligible black venire members. Miller-El I, 537
U.S. at 342. The Court concluded that A[h]appenstance is unlikely to produce this
disparity.@ Id. In the instant case, before the parties began the peremptory strike
process, the remaining venire consisted of 26 black and 38 white potential jurors.
(Tr. 401). The State used 21 of its 23 total peremptory strikes against these
remaining black venire members. As a result, the State used its peremptory strikes
to exclude 81 percent of remaining eligible black venire members. This court finds
that this fact is unlikely to be the product of happenstance and is, at the least,
indicative of discriminatory intent. However, this court needs not rely entirely on
these bare statistics since the other evidence concerning the State=s explanations for
striking the black potential jurors contains such a clear indication that race was, in
fact, a basis for their strikes.
While Stephens has challenged many of the specific explanations in his
appeal to this court, this court needs not decide whether every peremptory strike of
a black potential juror in this case was racially motivated. As the Court of Appeals
for the Eleventh Circuit has stated, Aunder Batson, the striking of one black juror
for a racial reason violates the Equal Protection Clause, even where other black
jurors are seated, and even when valid reasons for the striking of some black jurors
are shown.@ United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986); see also
Snyder v. Louisiana, 552 U.S. 472, 478,128 S.Ct. 1203,1208, 170 L.Ed.2d 175
(2008)(ABecause we find that the trial court committed clear error in overruling
38

petitioner=s Batson objection with respect to [one juror], we have no need to consider
petitioner=s claim regarding [a second juror].@). This court focuses, therefore, on one
strike in particular in which Stephens claims the prosecution explicitly relied on
racial reasons. Because this court finds that the State=s explanations for striking
Ms. S. Harris contain such a clear indication that race was, in fact, a basis for their
strikes, this court harbors no doubt in holding that the State violated Stephens=
equal protection rights as defined by Batson.
The State used its twenty-first peremptory strike on Ms. S. Harris. The
State proffered its race-neutral reason for striking Ms. S. Harris by stating that
A[t]he information reported was that she had kinspeople who had been in criminal
trouble and though we had otherwise felt that she was all right, that information
caused us to remove her.@ (Tr. 394-395). At the time the State proffered this
reason, there was no evidentiary basis for such Ainformation.@ In voir dire, Mr.
Greene asked the potential jurors Aif you had any of the following experiences: have
you personally, ...a member of your immediate family... or a close personal friend,
ever been charged with a criminal offense other than traffic offenses?@ Ms. S.
Harris did not respond to that question. (Tr. 154-155). Thus, the State=s off-therecord information concerning Ms. S. Harris= Akinspeople@ was contradicted by her
response in group voir dire. Perhaps the prosecutor misunderstood Ms. S. Harris=
non-response in group voir dire, but unless he had an ulterior reason for keeping
Ms. S. Harris off the jury, this court would expect that the prosecutor would have
cleared up any misunderstanding by asking further questions in individual
39

voir dire before getting to the point of exercising a strike. A[T]he State=s failure to
engage in any meaningful voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explanation is a sham and a pretext
for discrimination.@ Ex parte Travis, 776 So.2d at 881(cited with approval by
Miller-El II, 545 U.S. at 246).
Ms. S. Harris= testimony at the Rule 32 hearing on July 18, 1997, further
suggests that the State=s race-neutral reason is a pretext for discrimination. At
that hearing, Ms. S. Harris was asked on direct examination A[i]f someone said that
S[] Harris >has kinspeople who had been in criminal trouble,= was that true in
December of 1987?@ Ms. S. Harris replied, ANo.@ (HR 34-35).15 On crossexamination, Ms. S. Harris was again asked Ayou had no relatives in trouble with
the law?@ to which Ms. S. Harris responded AI didn=t have no relatives, no, to my
knowledge. I didn=t have any that I know of.@ Ms. S. Harris was then asked
whether she had a son involved in any criminal trouble to which she responded,
ANo.@ (HR 35).
Additionally, before Ms. S. Harris was struck, the State had two regular
strikes (its twenty-first and twenty-second strike) and one alternate strike (its
twenty-third strike). At that time, three white potential jurors remained in the
venire with on-the-record information of familial criminal involvement.16 Despite

The Rule 32 Hearing Record is submitted as an exhibit to Document 18
and is cited hereafter only as AHR ___@.
15

16

Ms. Barnette and Mr. Wyatt responded to group voir dire questions about family
40

this on-the-record information, the State first struck Ms. S. Harris, a black female,
based on off-the-record information of family criminal involvement, even though she
would have admittedly been a good juror for the prosecution.17 After striking Ms. S.
Harris, the State then removed one of the white jurors with familial criminal
history with its last regular strike and a second with its alternate strike, but the
State failed to strike the third white potential juror who unequivocally stated onthe-record that she has family criminal involvement. (See Tr. 396). AIf a
prosecutor=s proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at Batson=s third step.@ Miller-El
II, 545 U.S. at 241.
Lastly, the State=s own notes indicate that its reason for striking Ms. S.
Harris was a pretext for discrimination. Before and during trial, each of the four
attorneys working for the State had multi-page lists of typed juror names. With
each name, the list provided blanks for addresses, work, spouse, and spouse=s work
and also provided check lists for date of birth, race, marital status, employment
status and whether they were Ayoung@, Amid@, or Aold.@ Each attorney was also given

criminal involvement, and Mr. M. Harris approached the bench about his brother=s criminal
history. (Tr. 155-156 & 192).
17

The State found out from the group voir dire that Ms. S. Harris had a cousin who was a
State Trooper. (Tr. 196-197). The State admitted at the Rule 32 hearing that a venire member=s
familial law enforcement connections are generally a Aplus@ for the State. (HR 127-128). Even
one of the State=s strike sheet noted that Ms. S. Harris was Aok@. (Vol. 14, p. 2).
41

space to make notes about each juror. Two of the attorneys noted Ms. S. Harris was
Aok@, three noted that she had a relative who was a State Trooper, all noted that she
had no criminal history and that she had an association with the health
department. None of the attorneys made a notation that she had Akinspeople@ who
had criminal trouble. (See Vol. 13 & 14).
In sum, the State=s explanation for striking Ms. S. Harris is by itself
unconvincing and suffices for the determination that there was a Batson error. See
Snyder, 552 U.S. at 478. However, the case for discrimination goes beyond Ms. S.
Harris and includes broader patterns of practice during the jury selection. First,
the State used information that was not in the trial record to strike 6 other black
potential jurors with alleged familial criminal history besides Ms. S. Harris despite
the fact this information was contradicted by those jurors= voir dire responses.
Furthermore, like with Ms. S. Harris, the State did not ask any of these jurors to
clarify the contradiction between their off-the-record information and their
responses in group voir dire.18 By comparison, the State received information in the
trial record that the two white jurors who were struck by the State had family
criminal involvement (see Tr. 155-156 & 192), and upon receiving that information,
the State asked further questions to clarify that family criminal involvement.

The State struck Ms. Lewis, Ms. Spence, Ms. Hood, Ms. Hollifield, Ms. C.
Harris, and Ms. Wilson based on information that was not on the trial record and
was contradicted by those jurors= responses in group voir dire. The prosecution
performed no individual voir dire to resolve these contradictions. (See Tr. 155, 208210, 293-294, 389-390, 393).
18

42

Second, the deposition of Mr. Greene and his personal strike sheet reveal a
pretext of discrimination in the State=s strikes of black potential jurors. Mr. Greene
was the State=s Batson spokesperson who proffered the State=s purported reasons
for striking all 21 black potential jurors. (Tr. 387-401). As stated above, each of the
four attorneys working for the State had multi-page Astrike sheets@ that contained a
typed list of the all the potential jurors names and also provided space for each
attorney to make notes. Mr. Greene recognized his own handwriting and identified
in a deposition his personal strike sheet which was Exhibit 14 of the deposition.
(Vol. 13, Greene Dep., p. 32 & 41). On that strike sheet, Mr. Greene marked an AS@
next to the name of 13 of the total 21 black potential jurors which the State
ultimately struck. (See end of Vol. 13 and beginning of Vol. 14). When asked in his
deposition what the AS@ mark meant, he responded Athat=s somebody that I don=t
think much of.@ (Vol. 13, Greene Dep., pp. 37-38). Mr. Greene did not write an AS@
next to any white potential juror names.
In reviewing Aall relevant circumstances@ in this record, this court finds that
it Ablinks reality@ to deny that the State struck Ms. S. Harris, and perhaps several
other of the black potential jurors, because they were African-American. Miller-El
II, 545 U.S. at 266, 125 S.Ct. at 2340. The record in this case compels a finding that
the State=s use of a peremptory strike in this case to dismiss Ms. S. Harris
constituted intentional discrimination and violated Stephens= rights under the
Equal Protection Clause and the clearly established law as determined by the
Supreme Court in Baston.
43

CONCLUSION
After due consideration of all matters presented and for the reasons set forth
herein, it is ORDERED that the petitioner=s motion for partial summary judgment
(Doc. 37) is GRANTED.
As a result, it is further ORDERED that the petitioner=s amended petition
(Doc. 34) for a writ of habeas corpus shall be CONDITIONALLY GRANTED.
This conditional writ shall become unconditional and permanent unless the State of
Alabama commences further proceedings within 240 days of the date of this order to
afford the petitioner a new trial.19
DONE and ORDERED this 6th day of October, 2011.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

See McGahee v. Campbell, Civil Action 05-042, Doc. 54 (S.D.Ala. June 4,
2009)(Dubose, J.)(allowing the State of Alabama to commence further proceedings
within 240 days).
19

44