Tarver v. Allen

Filing 30

Order, Tarver's 1 Petition for Writ of Habeas Corpus is GRANTED w/respect to the Atkins claim, & his death penalty is VACATED as set out. Tarver's petition is otherwise DENIED as set out. Signed by Judge Callie V. S. Granade on 9/24/2012. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BOBBY TARVER,

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Petitioner,
vs.
KIM T. THOMAS,1 Commissioner,
Alabama Department of Corrections,
Respondent.

Civil Action No. 07-00294-CG-B

ORDER
The Petitioner, Bobby Tarver, was convicted of capital murder by an Alabama
jury and sentenced to death. Before the Court is Tarver’s amended petition for a
writ of habeas corpus challenging the constitutionality of his conviction and
sentence.
I.

FACTS
On December 1, 1981, two friends picked up Tarver, then twenty-one years

old, at his home. The three men drove to an acquaintance’s house to retrieve a
12-gauge shotgun. Tarver’s friends then dropped him off at a convenience store
near downtown Mobile, Alabama. Tarver intended to rob the store but changed his
mind after realizing the store was crowded.
parked outside of the convenience store.

Instead, he approached a taxicab

The cab’s driver, Percy Gibson, was seated

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court has substituted Kim T.
Thomas, the current Commissioner of the Alabama Department of Corrections, for Richard Allen,
who formerly served in that capacity.
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in the vehicle.

Shotgun in hand, Tarver demanded Gibson’s money.

responded that he only had forty cents, which he offered to Tarver.

Gibson

Tarver ordered

Gibson out of the car, escorted him to the side of the store, and shot him in the side.
At trial, Tarver maintained that he dropped the gun, causing it to discharge
accidentally. However, an autopsy and testimony at trial indicated that the muzzle
of the gun was placed against Gibson’s skin or clothing when it discharged. Gibson
died after being transported to a hospital.
Tarver fled the scene. Later that night, he called police to report that he had
witnessed the murder and implicated a man by the name of “Arthur Patterson.”
After further investigation, Tarver was arrested for murder of Gibson.
II.

PROCEDURAL HISTORY
In 1982, a jury convicted Tarver in the Circuit Court of Mobile County,

Alabama, for murder during a robbery in the first degree, a capital offense under
state law. See Ala. Code § 13A-5-40(a)(2). On direct appeal, the Alabama Court of
Criminal Appeals reversed Tarver’s conviction on the basis of prosecutorial
misconduct and remanded for a new trial.

Tarver v. State, 492 So. 2d 328 (Ala.

Crim. App. 1986). Tarver was retried and again convicted. The jury returned an
advisory verdict recommending life without parole.

The trial judge held a

sentencing hearing and, overriding the jury’s recommendation, sentenced Tarver to
death. On direct appeal, the Alabama Court of Criminal Appeals affirmed, Tarver
v. State, 553 So. 2d 631 (Ala. Crim. App. 1989), as did the Alabama Supreme Court,
Ex parte Tarver, 553 So. 2d 633 (Ala. 1989). The United States Supreme Court

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denied certiorari on April 16, 1990, Tarver v. Alabama, 494 U.S. 1090 (1990), and
denied rehearing on June 11, 1990, Tarver v. Alabama, 496 U.S. 932 (1990).
On May 20, 1991, Tarver filed a petition under Alabama Rule of Criminal
Procedure 32 in the Circuit Court of Mobile County, Alabama. He amended the
petition in 1997.

On June 13, 2001, the circuit court denied the petition in a

54-page order. Tarver v. State, No. 82-231.01 (Ala. Cir. Ct. June 13, 2001) (SR.
23-66).2

The Alabama Court of Criminal Appeals remanded with instructions for

the trial court to make more detailed findings on the issue of whether Tarver was
mentally retarded. Tarver v. State, 940 So. 2d 312 (Ala. Crim. App. 2004). On
remand, the circuit court held an evidentiary hearing on this issue (SR. 18-49), and
concluded, in a 47-page final order, that Tarver was not mentally retarded. Tarver
v. State, No. 82-231.60 (Ala. Cir. Ct. May 2, 2005) (SR. 23-68). The Alabama Court
of Criminal Appeals affirmed in a 60-page memorandum opinion. Tarver v. State,
No. 00-2267 (Ala. Crim. App. Nov. 23, 2005) (SR. 23-69). On April 21, 2006, the
Alabama Supreme Court denied Tarver’s petition for a writ of certiorari. Ex parte
Tarver, No. 05-0526 (Ala. Apr. 21, 2006) (SR. 23-70).
Tarver filed a 28 U.S.C. § 2254 petition in this Court on April 20, 2007 that he
amended on April 30.

In it, he raises eleven primary arguments, along with

numerous sub-arguments.

The response of the Commissioner of the Alabama

Department of Corrections takes two forms. First, the Commissioner argues that
some of Tarver’s claims have been considered and rejected on the merits in state
Citation to the state court record (“SR. #-# at #”) indicates the volume number, tab number (if
any), and page number.
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court proceedings, and therefore, this Court is statutorily barred from reviewing
them. Second, he argues that Alabama courts have found that Tarver procedurally
defaulted the remaining claims by either failing to meet his burden of proof or failing
to raise them at trial, in a motion for a new trial, or on direct appeal.
III.

DISCUSSION
This section is organized according to the state courts’ disposition of Tarver’s

claims. Some of the claims are discussed in Part A, “Claims Rejected by Alabama
Courts on the Merits,” and the remainder is discussed in Part B, “Claims Found
Procedurally Defaulted by Alabama Courts.”
A.

Claims Rejected by Alabama Courts on the Merits

Several of Tarver’s claims have been considered and rejected on the merits in
state court proceedings. The first claim is that Tarver is mentally retarded, and
therefore, his execution is constitutionally barred by the Eighth Amendment, as
explained in Atkins v. Virginia, 536 U.S. 304 (2002). The remaining claims rejected
on the merits consist of various allegations that he received ineffective assistance of
trial and appellate counsel. (The ineffective assistance of counsel discussion here
addresses all but one of the ineffective assistance claims raised by Tarver; the
remaining claim is discussed in Part III.B.)
Section 2254(a) of Title 28 of the United States Code provides that “a district
court shall entertain an application for a writ of habeas corpus [o]n 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.

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§ 2254(a) (2006). Because Tarver’s habeas petition was filed after April 24, 1996, it
is subject to the more deferential standard for review of state court decisions under §
2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”). See Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. “Under
AEDPA the role of the federal court . . . is strictly limited.”

Jones v. Walker, 496

F.3d 1216, 1226 (11th Cir. 2007). This Court no longer has “plenary authority to
grant habeas relief” but rather, this Court’s “authority to grant relief is now
conditioned on giving deference to the states.”

Id. Specifically, § 2254(d) provides:

(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 claim –
(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 facts in light of the evidence presented in the State
court proceeding.
§ 2254(d).
Tarver does not dispute that his Atkins and ineffective assistance claims have
been “adjudicated on the merits in State court proceedings.”

Instead, he maintains

that the courts wrongly decided these claims against him. Accordingly, Tarver’s
petition may be granted only if one of the two enumerated AEDPA exceptions
applies. In deciding whether either exception applies, “a determination of a factual
issue made by a State court shall be presumed to be correct,” unless the petitioner

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“rebut[s] the presumption of correctness by clear and convincing evidence.”

Id. §

2254(e)(1); see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (explaining that a
federal court can disagree with a state court’s factual finding, and when guided by
AEDPA, “conclude the decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”); Jones v. Walker, 496 F.3d 1216,
1226-27 (11th Cir. 2007) (holding that § 2254(d)(2)’s “unreasonable determination”
standard “must be met by clear and convincing evidence,” and concluding that the
standard was satisfied where prisoner showed “clearly and convincingly” that the
state court’s decision “contain[ed] an ‘unreasonable determination’ of fact”).
(1)

Atkins

Tarver argues that the Rule 32 court’s (or “circuit court’s”) adjudication of his
Atkins claim, and the Court of Criminal Appeals affirmance of it, was unreasonable
in light of the evidence presented.

For Tarver to be entitled to relief under the

“unreasonable application” clause, the state court’s application of clearly established
federal law must have been “objectively unreasonable,” but not necessarily
“incorrect.”

Bell v. Cone, 535 U.S. 685, 694 (2002); see also Schriro v. Landrigan,

550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.”). This Court
agrees with Tarver that the circuit court’s conclusion that he is not mentally
retarded is unreasonable.

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In its order remanding to the circuit court for factual findings on the issue of
mental retardation, the Court of Criminal Appeals observed that the Rule 32 record
and the records from Tarver’s first and second trials contain “substantial evidence
indicating that Tarver is mentally retarded.”

Tarver, 940 So. 2d at 319. It also

noted that the presentence investigation reports prepared for both trials reflected
that Tarver was diagnosed with mental retardation as a child and placed in special
education classes in school. Id.
After an evidentiary hearing, the circuit court issued a 47-page order finding
that Tarver was not mentally retarded.

On return from remand, the Court of

Criminal Appeals, adopting the circuit court’s opinion, upheld that finding, saying
that the evidence adduced on remand “did not dispel the conflict that existed
regarding Tarver’s alleged mental retardation; the evidence remains conflicting as to
both Tarver’s level of intellectual functioning and his adaptive reasoning.”
23-69 at 9.)

(SR.

In dissent, Judge Cobb wrote that the circuit court abused its

discretion with respect to numerous findings on its way to rendering a decision that
conflicted with the evidence (SR. 23-69 at 6, Cobb, J., concurring in part, dissenting
in part), and prophesied, “[I]f this death sentence is not overturned by an Alabama
Court, I am convinced that the Alabama Supreme Court or a federal court will do so
during the proceedings that will inevitably follow.”

(Id. at 28).

The starting point for this federal habeas court is Atkins v. Virginia. In
Atkins, the Supreme Court held that execution of a defendant with mental
retardation constitutes cruel and unusual punishment and therefore is barred by the

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Eighth Amendment. 536 U.S. at 321. The Court refused to adopt a definition of
mental retardation for purposes of the death penalty, leaving to the states “the task
of developing appropriate ways to enforce the constitutional restriction upon its
execution of sentences.”

Id. at 317.

Alabama applies the “broadest” definition of mental retardation, which is
composed of the following factors, all of which must be present: “(1) significantly
subaverage intellectual functioning (i.e., an IQ of 70 or below); (2) significant or
substantial deficits in adaptive behavior; and (3) the manifestation of these problems
during the defendant’s developmental period (i.e., before the defendant reached age
18).”

Smith v. State, 2007 WL 1519869 (Ala. May 25, 2007) (not yet released for

publication) (citing Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002)). Applying the
evidence offered in the state proceedings to Alabama’s definition of mental
retardation, the Court concludes that the circuit court’s application of Atkins was
unreasonable and, upon a de novo review of the record, that Tarver is entitled to §
2254 relief.
The circuit court unreasonably concluded that Tarver failed to establish that
he satisfied the first Perkins factor: subaverage intellectual functioning. When he
was fourteen years old, Tarver scored a 61 on the Wechsler Intelligence Scale for
Children (WISC) and was deemed to have the mental capacity of an eight-year-old.
As a result, he was placed in a school program for mentally retarded students.
(SR. 14, Pet’r Ex. 13 at 339.)

Two years later, at the age of sixteen, he scored a 72

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on the Wechsler Adult Intelligence Scale (WAIS), and his reading level was
determined to be below a second-grade level.3 (Id. at 340.)
In 1995, Dr. Henry Dee administered the Wechsler Adult Intelligence
Scale-Revised (WAIS-R). Although Tarver scored a 76, Dr. Dee testified on remand
that Tarver has mental retardation because his “adaptive skills are very poor” and
his IQ score was only one point above the range of mental retardation. (SR. 18-49
at 119); see Atkins, 536 U.S. at 309 n.5 (“It is estimated that between 1 and 3
percent of the population has an IQ between 70 and 75 or lower, which is typically
considered the cutoff IQ score for the intellectual function prong of the mental
retardation definition.” (citing 2 Kaplan & Sadock’s Comprehensive Textbook of
Psychiatry 2952 (B. Sadock & V. Sadock eds., 7th ed. 2000)) (emphasis added)).
Tarver was given the same test by the State’s psychologist, Dr. Harry McClaren.
This time, Tarver scored a 74.

Dr. McClaren reviewed Tarver’s previous

evaluations and IQ scores and testified that “going back to age fourteen, . . . I have
no doubt that he is of limited intellect, probably best classified as mildly mentally
retarded.”

(SR. 13 at 146-47.)

In 2004, in advance of the remand hearing, Tarver was evaluated by a
State-retained expert, Dr. Glen King.

Dr. King administered the WAIS-III to

Tarver, who posted a 59. Because of the disparity between this score and Tarver’s
previous, higher scores, Dr. King administered the WAIS-III again. Tarver scored a

According to one of the presentence investigation reports, because of Tarver’s low intelligence, ten
points should have been subtracted from his score of 72, thereby placing Tarver, with an adjusted
score of 62, in the moderately retarded range. (SR. 6-24, Court’s Ex. 1 at 6.)
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61. More important to Dr. King than the similarity in IQ scores was the fact that
Tarver returned internally consistent scores on the WAIS-III sub-tests. Dr. King
concluded that Tarver “is, in fact, mentally retarded.”

(SR. 18-49 at 36, 45.)

It is on these facts that the circuit court concluded, “There is no doubt that
Tarver’s IQ lies in the mid-70’s and is best classified as borderline intellectual
functioning.”

The court reached this conclusion, in part, because it refused to

consider Tarver’s three lowest scores—two 61’s and a 59. The court specifically
refused to consider the two low scores from Dr. King’s tests because they differed so
dramatically from Tarver’s higher scores. According to the circuit court, “Dr. King’s
findings cannot be reconciled with the results reached by Dr. Dee and Dr.
McClaren,” and “the only logical conclusion for such a precipitous drop in intellectual
functioning is that Tarver was malingering on Dr. King’s tests.”

The court also

refused to credit Dr. King’s testimony because Tarver’s responses to the WAIS-III
were inconsistent with his responses on the WAIS-R administered by Dr. Dee and
Dr. McClaren.
This Court is concerned about the circuit court’s disregard for a substantial
amount of evidence undermining its conclusion. The circuit court stated that the
“only logical conclusion” for the drop in IQ score is that Tarver was malingering.
However, no expert testified to this conclusion, and Dr. King offered a logical
explanation for the difference in scores: a person taking the WAIS-III, because it is a
modernized version of the WAIS, should be expected to score seven points lower than

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on the WAIS.4 In addition, after Tarver posted low IQ scores, Dr. King evaluated
him for the specific purpose of determining whether he was malingering. Dr. King
testified that, based on the results of the tests and the fact that Tarver performed
consistently on different tests administered at different times, Tarver had put forth
his best effort on the IQ tests and was not malingering. (SR. 18-49 at 30-32.) Dr.
Dee (SR. 13 at 71-73) and Dr. McClaren (SR. 19 at 191-92) testified that, based on
their evaluations of him, they did not believe Tarver was malingering on their tests,
nor could they say whether Tarver was malingering on Dr. King’s tests.
Any concern that Tarver was malingering in hopes of creating a post hoc
justification for revoking his death sentence is further belied by the fact that Tarver
was diagnosed with mental retardation before he was eighteen years old, placed in
special education classes, and determined to have a second-grade reading level at
the age of sixteen.

And, as the circuit court confirmed through questioning on

remand, a person’s IQ—and therefore intellectual capacity—is determined by the
time he is eight or ten years old. (SR. 18-49 at 47.)

The circuit court’s malingering

justification for ignoring Dr. King’s findings is at odds with Dr. Dee’s testimony that
“the WAIS-III [on which Tarver scored 59 and 61] would be an accurate reflection of
his current level of mental functioning.”

(SR. 18-49 at 94.)

In fact, Dr. Dee

testified that “if anything, Dr. King’s results seem to bolster [the conclusion that
Tarver is mentally retarded] since he’s using . . . a better test than I was using back
Dr. Dee offered a similar explanation: the difference in scores can be attributed to the
re-standardization of the WAIS over the years, especially since “the WAIS-R was . . . found to be
insensitive at the lower end. In other words, it didn’t identify an adequate number of people that’s
functioning at a low level.” (SR. 18-49 at 91.)
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in ’94 or ’95, in other words, [it] seemed to have more validity.”

(Id. at 105.)

For

the circuit court to discount Dr. King’s testimony based on a reason not supported by
any evidence in the record and contradicted by expert testimony is unreasonable.
The evidence of Tarver’s mental retardation is overwhelming. First, all of
the experts at some point testified that Tarver was mentally retarded. See SR. 18
at 27, 31 (Dr. King); SR. 13 at 147 (Dr. McClaren); SR. 19 at 118 (Dr. Dee). Dr.
McClaren initially testified to this conclusion, but changed his testimony at the
remand hearing, saying that “because of the experiences of doing assessments on
people after the Atkins decision, I think I have a better understanding of the
diagnosis of mental retardation than I did in 1997.” (SR. 19 at 198.)

Dr. McClaren’s

change in opinion is peculiar since Atkins did not dictate how to determine whether
a defendant is mentally retarded. See Atkins, 536 U.S. at 317 (observing that “[t]o
the extent there is serious disagreement about the execution of mentally retarded
offenders, it is in determining which offenders are in fact retarded,” and leaving to
the states the responsibility of doing so). Second, the average of Tarver’s IQ test
scores—derived from the six IQ tests he has taken since the age of fourteen—is 67,
which is indisputably within the range of mental retardation.

See Thomas v. Allen,

607 F.3d 749, 757 (11th Cir. 2010) (district court did not clearly err in finding
significantly sub-average intellectual functioning during developmental period
where the mean of petitioner’s scores was significantly below 70); Holladay v. Allen,
555 F.3d 1346, 1357 (11th Cir. 2009) (average of adult IQ test scores was less than
70). Third, the presentence report prepared by the Alabama Board of Pardons and

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Paroles explained that Tarver’s 1977 score of 72, once adjusted for his low intellect,
more accurately approached 62.

The report noted that Tarver had “perceptual

problems, and is impulsive and immature,” and that his “educational abilities are
very limited.” (SR. 6-24, Court’s Ex. 1 at 6.)

Fourth, the Alabama Department of

Corrections observed in 1987 that Tarver “appears to be functioning with limited
intelligence” and showed “[e]vidence of mental retardation.” (SR. 14, Pet’r Ex. 16 at
363.)

Finally, at sentencing after retrial, the trial court found as a non-statutory

mitigating factor that Tarver “is moderately retarded.”

(SR. 6-23 at 12.).

The circuit court’s decision was unreasonable for two additional reasons.
First, the court refused to consider Tarver’s score of 61 that he posted at the age of
fourteen.

No one has suggested that this score was an unreliable measure of

Tarver’s intellect.

Yet the circuit court disregarded it without explanation.

Second, contrary to the circuit court’s finding, not all of Tarver’s responses on the
WAIS-III were inconsistent with his responses on the WAIS-R.

For example,

Tarver defined a “penny” for Dr. McClaren (administering the WAIS-R) as “money,”
but defined “penny” for Dr. King (administering the WAIS-III) as “a little round
object.” (SR. 23-68 at 13.)

Not only are both descriptions correct, but also on

re-testing by Dr. King, Tarver answered “money.”

(SR. 23-69 at 19 n.8.)

In summary, enough evidence was presented below to prove Tarver satisfied
the first Perkins factor; that is, he suffers from subaverage intellectual functioning.
The circuit court’s decision to the contrary was unreasonable.

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The circuit court also unreasonably concluded that Tarver possessed adequate
adaptive functioning skills, the second Perkins factor.

The generally accepted

adaptive functioning skill areas include communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.

American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. text
rev. 2000).

The circuit court essentially disregarded all expert testimony that,

while he could function in society and could perform in some of these skill areas,
Tarver’s overall deficient level of adaptive skills rendered him mentally retarded.
In the 1997 Rule 32 proceeding, Dr. Dee explained:
If you look at what determines retardation practically speaking, it
really isn’t IQ. It’s practical social skills, like can you communicate in
a written form, can you hold a job, can you independently exist from
other people. In other words, can you maintain an apartment, know
how to pay telephone bills and so forth, and all those are assessed, as
well as intellectual functioning. As a practical matter, Mr. Tarver is
retarded. Whether you want to call that mildly or moderately is a
matter of taste, I think, and definition. That isn’t really determined
by the IQ per se, but these other areas of adaptive functioning. He is
functionally illiterate. He’s never lived independently, never had a job
for any sustained period of time. Under the criteria for the American
Association of Mental Retardation, that constitutes mental retardation,
especially when taken in conjunction with a low IQ, which he has.
(SR. 13 at 66-67.)
In the same proceeding, Dr. McClaren expressed similar sentiment, saying, “I
think all things considered, given his poor coping demands of independent living at
the time he was free, makes me think that he’s mildly retarded.”
He elaborated:

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(SR. 13 at 148.).

I have no doubt that he is of limited intellect, probably best described
as mildly mentally retarded. I think there’s little doubt that he
suffers from a degree of brain dysfunction. . . . [B]ottom line is this is a
man of limited intellect, probably best classified as mildly retarded,
who has a degree of brain dysfunction, who can read and write, do
arithmetic at only the first or second grade level.
(Id. at 147.)

Dr. King arrived at the same conclusion after evaluating Tarver in

preparation for the hearing on remand. He tested Tarver on two different adaptive
behavior scales, both of which showed substantial deficits.

Discussing Tarver’s

results on a test designed to gauge independent living skills, Dr. King testified that
[Tarver] scored low across the board, and he did a little bit better in
social adjustment, meaning that he has – and that simply is going to
measure things like do you have some friendships in prison. If he does
that, he’s not totally withdrawn. But he did extremely poorly in
memory and orientation, managing money, health and safety issues,
and his full scale standard score was at 55 with an average being a
hundred. So he was well below average. In fact, it was off bottom of
the chart.
(SR. 18-49 at 30.)
Despite this testimony, the circuit court found that Tarver possessed
sufficient adaptive functioning skills to take him out of the range of mental
retardation. For example, the court found that Tarver “was able to hold a few jobs
for various lengths of time.”

(SR. 23-69 at 26.)

The court found that Tarver was

literate because a jail official, Captain Kraft, testified that he saw Tarver “reading”
the sports page and because Tarver could compose clear and legible notes requesting
medical care and items from the canteen. (Id. at 23.)

The court also found that

Tarver did not have substantial deficits in adaptive functioning because he reasoned
against robbing the convenience store when it was crowded and attempted to cover

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up the murder.

(Id. at 27.)

Finally, the court found that Tarver’s use of the

unemployment office after being laid off demonstrated his ability to utilize
community resources. (Id. at 28.)
The problem with the circuit court’s analysis is that it ignores all of the expert
testimony that possession of some social and adaptive skills is not inconsistent with
a finding of mental retardation. As evidence that Tarver had adaptive functioning,
the circuit court relied on Tarver’s jobs as grocery store stock boy, warehouse worker,
and metal separator.

(SR. 18 at 82.)

However, Dr. Dee discounted this work

experience because it involved manual labor and because Tarver had never been
employed for a substantial period of time in a particular area. That, along with the
fact that Tarver lived at home his entire life, did not take care of his bills and
finances, and never lived independently, all support Dr. Dee’s finding that Tarver
suffered from deficits in his adaptive functioning.
The circuit court also placed too much weight on Tarver’s alleged “reading” of
the sports page while in prison. It is possible that Tarver was not actually reading
the paper. Dr. McClaren testified that Tarver was illiterate and functioned only at
a first- or second-grade level in reading recognition, spelling, and math. (SR. 18-49
at 184.)

Dr. Dee also testified that Tarver was functionally illiterate (SR. 13 at 66),

and was unsurprised that a person like Tarver may mimic reading the sports page,
or even be simply looking at the pictures. Yet, even if Tarver was reading the
paper, his ability to do so does not foreclose a finding of mental retardation. Dr.
King testified that “being mentally retarded depending on the level . . . doesn’t

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prevent you from becoming literate.” (SR. 18-49 at 82.)

And, all three experts

testified that even though Tarver could read at a first- or second-grade level, it is his
inability to read at an adult level that renders him functionally illiterate. The
circuit court apparently refused to credit this testimony because Dr. Dee and Dr.
King failed to conduct “independent testing of adaptive behavior.” (SR. 23-68 at 18.)
To the contrary, as noted above, Dr. King administered two tests of adaptive
functioning, both of which showed significant deficits in adaptive behavior. The
evidence overwhelmingly shows that Tarver suffers from deficient adaptive
functioning.
Turning to the third Perkins factor—which the circuit court did not
reach—the evidence reveals that Tarver’s intellectual and adaptive functioning
problems developed before the age of eighteen. Tarver scored a 61 on the WISC
when he was fourteen years old, and, as a result, was placed in a school program for
mentally retarded students. Two years later, at the age of sixteen, he scored a 72
on the WAIS, and his reading level was determined to be below a second-grade level.
“There is no Alabama case law stating that a single IQ raw score . . . above 70
automatically defeats an Atkins claim when the totality of the evidence (scores)
indicates that a capital offender suffers subaverage intellectual functioning.”
Thomas, 607 F.3d at 757.

The mean of Tarver’s developmental scores is 66.5,

clearly within Alabama’s range of mental retardation, and the presentence
investigation report indicated that Tarver’s score of 72 should have been adjusted

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downward by 10 points, placing him with an adjusted score of 62.

Therefore,

Tarver satisfies the third Perkins factor.
The circuit court’s conclusion that Tarver is not mentally retarded is
unreasonable in light of the evidence presented. The court disregarded substantial
evidence showing that Tarver was mentally retarded on a basis that finds no support
in the record and was flatly rebuked by testing and expert testimony. The circuit
court also unreasonably found that Tarver possessed adequate adaptive functioning
abilities. Tarver’s thoroughly documented history of mental retardation forecloses
his execution under the Eighth Amendment and Atkins.

Therefore, this Court

grants in part Tarver’s petition for a writ of habeas corpus and orders that his death
sentence be vacated.
(2)

Ineffective Assistance of Counsel

Tarver’s remaining claim that the state courts considered and rejected on the
merits is that he received ineffective assistance of trial and appellate counsel.
Again, this Court may grant Tarver relief only if “the adjudication of the claim (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).

“To prevail on a claim of ineffective assistance, a habeas petitioner must show:
(1) that ‘counsel’s performance was deficient’ because it ‘fell below an objective

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standard of reasonableness,’ and (2) that ‘the deficient performance prejudiced the
defense.’” Fugate v. Head, 261 F.3d 1206, 1216 (11th Cir. 2001) (quoting Strickland
v. Washington, 466 U.S. 668, 687-88 (1984)) (internal citations omitted).
Deficient performance requires a showing that counsel’s performance was
“objectively unreasonable and falls below the wide range of competence demanded of
attorneys in criminal cases.” Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.
1990); see also Gallo-Chamorro v. United States, 233 F.3d 1298, 1303 (11th Cir.
2000) (petitioner “must prove deficient performance by a preponderance of
competent evidence, and the standard is reasonableness under prevailing
professional norms”). In this Circuit, courts will presume that counsel’s
performance was reasonable and adequate, and habeas petitioners bear the
“heavy—but not insurmountable—burden of persuading the court that no competent
counsel would have taken the action that his counsel did take.”

Haliburton v. Sec’y

for Dep’t of Corr., 342 F.3d 1233, 1243 (11th Cir. 2003) (internal quotation marks
and citation omitted). The test for reasonableness of performance “is not whether
counsel could have done something more or different”; instead, courts consider
whether counsel’s performance “fell within the broad range of reasonable assistance
at trial.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007).
Failure to raise nonmeritorious issues does not constitute ineffective assistance of
counsel. Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994).
With respect to the prejudice prong, “a petitioner must establish that a
reasonable probability exists that the outcome of the case would have been different

19

if his lawyer had given adequate assistance.” Van Poyck v. Fla. Dep’t of Corr., 290
F.3d 1318, 1323 (11th Cir. 2002). A petitioner must show that his attorney’s errors
“worked to his actual and substantial disadvantage.” Cross, 893 F.2d at 1292
(quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Because the petitioner bears the burden of satisfying both prongs of the
Strickland test, the Court need not “address both components of the inquiry if the
[petitioner] makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
Courts are free to dispose of ineffectiveness claims on either of Strickland’s two
grounds. Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998).
Tarver argues his trial counsel was ineffective in several respects:
1. Counsel failed to investigate Tarver’s troubled background and present
evidence of his alcohol dependency;
2. Counsel failed to adequately challenge the waiver of Tarver’s Miranda
rights;
3. Counsel failed to object to the cruel and unusual nature of executing a
defendant with mental retardation;
4. Counsel failed to cite relevant case law regarding suppression of Tarver’s
custodial statements;
5. Counsel failed to challenge a prospective juror for cause;
6. Counsel failed to secure the testimony of an independent ballistics
examiner in support of his theory that the shotgun accidentally
discharged;
7. Counsel failed to object to the prosecutor’s improper arguments during
direct examination, cross-examination, and closing arguments;5
8. Counsel failed to object to the trial court’s prejudicial jury instructions;

5

This claim is discussed infra in Part III.B.1.

20

9. Counsel failed to move for a change of venue;
10. Counsel failed to challenge admission of the presentence report; and
11. Counsel failed to challenge Alabama’s faulty capital compensation scheme.
Tarver also alleges that his appellate counsel was ineffective for not raising
numerous issues on appeal.

As discussed in greater detail below, these claims are

due to be dismissed.
The circuit court and the Court of Criminal Appeals found that the majority of
the ineffective counsel claims were procedurally barred under Ala. R. Crim. P.
32.6(b).6

However, this court may deny relief on the basis of procedural bar only if

the last court to address the claim based disposition of the claim on an independent
and adequate procedural bar. The Eleventh Circuit has repeatedly confirmed that
Rule 32.6(b) is not an independent and adequate state procedural bar. Rather, such
claims disposed of pursuant to Rule 32.6(b), even summarily, have in fact been
considered on the merits. Frazier v. Bouchard, 661 F.3d 519, 526-27 (11th Cir.
2011); see also Borden v. Allen, 646 F.3d 785, 815-16 (11th Cir. 2011) (an Alabama
court’s consideration of the sufficiency of the pleadings under Rule 32.6(b)
necessarily entails a determination on the merits of the underlying claim). 7
Accordingly, the Court shall treat those ineffective assistance of counsel claims
6 Sub-claim 2 (that counsel failed to adequately challenge the waiver of Tarver’s Miranda rights)
was dismissed on the merits. (SR. 23-69 at 43-44.) Sub-claim 7 (that counsel failed to object to the
prosecutor’s improper arguments) was dismissed under Ala. R. Crim. P. 32.3. (Id. at 52-55.)
7 In Borden, 646 F.3d at 808 n. 27, the Eleventh Circuit declined to follow the reasoning in Jenkins
v. Bullard, 210 F. App’x 895, 900-01 (11th Cir. 2006), in which the court concluded that Rule 32.6(b)
was an independent and adequate state ground, because the issue had already been addressed in a
published opinion. See, e.g., Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010).

21

which the state courts disposed of under Rule 32.6(b)as dismissed on the merits, and
not as denied because of procedural bar. Powell v. Allen, 602 F.3d 1263, 1272-73
(11th Cir. 2010) (summary dismissal of federal constitutional claims under Rule
32.6(b) should be reviewed as a holding on the merits).
(a) Failure to investigate and present mitigating evidence
Tarver argues that evidence of his alcohol dependency and certain childhood
problems should have been presented at the guilt phase, as well as the sentencing
phase, to show that he could not form the specific intent to kill Gibson. The Court
of Criminal Appeals found that Tarver insufficiently pleaded this ineffective
assistance claim. (SR. 23-69 at 39-43.)

However, Tarver’s theory of defense at

trial was that the shotgun accidentally discharged. Thus, Tarver could not have
been prejudiced by his counsel’s failure to prove that he lacked the capability to form
the requisite intent to kill.
Additionally, the record does not support Tarver’s argument that trial
counsel’s failure to present mitigating evidence was not strategic. (Doc. 2 at 34.)
Trial counsel admitted that he did not think Tarver’s struggles with alcohol would
have impressed the jury. “Counsel will not be deemed unconstitutionally deficient
because of tactical decisions.”
1984).

McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.

Because Tarver has failed to meet both the prejudice and deficiency prongs

of Strickland, this claim is due to be denied.
(b) Failure to adequately challenge the waiver of Miranda rights
Petitioner argues that counsel was ineffective for failing to object to the
admission of Tarver’s custodial statements on the grounds that they were
22

involuntary. At trial, Tarver’s counsel filed a motion to suppress the statements.
This was effective assistance.
denied.

It matters not that the motion was ultimately

See Boyd v. State, 746 So. 2d 364, 402 (Ala. Crim. App. 1999) (“Trial

counsel is not ineffective for having an objection overruled or a motion denied.”).
Furthermore, as the circuit court explained, Tarver failed to present any evidence at
the Rule 32 evidentiary hearing related to his ability to waive his rights or to
support his assertion that the police improperly elicited the statements. (SR. 23-69
at 43-44.) Thus, according to the trial court, Tarver failed to show either deficient
performance or prejudice. (SR. 23-66 at 19.) The trial court’s decision was not
unreasonable, and therefore, this claim is denied.
(c) Failure to object to the cruel and unusual nature of executing
a defendant with mental retardation
Tarver’s third sub-claim is that trial counsel was ineffective for failing to
challenge as cruel and unusual punishment the imposition of the death penalty on a
defendant with mental retardation. The circuit court found that this claim was
moot because Tarver was not mentally retarded. (SR. 23-69 at 44.)

In light of this

Court’s abrogation of that holding, the Court must consider whether counsel’s failure
to object to the death penalty on Eighth Amendment grounds constitutes ineffective
assistance.

The Court concludes it is not.

Tarver cannot satisfy the prejudice

element because, even had his lawyer objected to the imposition of the death
penalty, the trial court, having already decided Tarver was not mentally retarded,
would certainly have overruled the objection.

Thus, there is no reasonable

probability that had trial counsel objected, the outcome of his trial would have been
23

different. See Strickland v. Washington, 466 U.S. at 694 (To prove prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”).
(d) Filing identical pretrial motions without providing new facts
or additional support
Tarver alleges that at his second trial, his counsel was ineffective for refiling
the same pretrial motions that had been filed before his first trial without providing
new facts or additional support for the motions.

(SR. 23-69 at 45-46.) However,

Tarver has failed to allege any additional facts that, if offered, would have changed
the trial court’s ruling on the suppression issue.

He did not even offer any evidence

in support of this claim at the evidentiary hearing, and therefore, has failed to
demonstrate deficient performance.

He also has failed to demonstrate how the

outcome of the trial would have been different if counsel had acted differently.
(e) Failure to challenge a prospective juror for cause
Tarver argues that his counsel failed to challenge for cause prospective juror
“K.B.” on the ground that K.B.’s former husband was an officer in the Mobile Police
Department and the partner of one of the State’s witnesses.

To exclude a

prospective juror for cause, a party must demonstrate through questioning that the
juror lacks impartiality.

Wainwright v. Witt, 469 U.S. 412, 423 (1985). The party

“must demonstrate that the juror in question exhibited actual bias by showing either
an express admission of bias or facts demonstrating such a close connection to the
present case that bias must be presumed.”

United States v. Chandler, 996 F.2d

1073, 1102 (11th Cir. 1993). Actual bias exists if a juror is not “capable and willing

24

to decide the case solely on the facts before him.”

Rogers v. McMullen, 673 F.2d

1185, 1190 (11th Cir. 1982).
Without more, the fact that K.B.’s former husband was an officer in the
Mobile Police Department and was the partner of one of the state’s witnesses is
insufficient to show a reasonable probability that counsel’s failure to object to juror
K.B. for cause would have led to a different result. Petitioner has failed to offer any
evidence of juror bias, and Tarver has failed to convince the Court that K.B. would
have been stricken for cause. Although Tarver offers reasons for why K.B. should
have been stricken, he offers no legal support that those reasons would, in fact, have
warranted a strike for cause. Absent this showing, Tarver cannot show that he was
prejudiced by counsel’s default, and therefore, this claim merits no relief.
(f) Failure to secure the testimony of an independent ballistics
examiner
Tarver’s claim that his lawyer rendered deficient performance by failing to
obtain the testimony of an independent ballistics examiner in support of his theory
that the shotgun accidentally discharged is without merit. In affirming denial of
this claim, the Court of Criminal Appeals adopted the circuit court’s finding that
Tarver failed to show that his counsel rendered deficient performance or prejudice
resulting therefrom.

(SR. 23-69 at 49).

Reviewing the merits of the state court’s finding, this Court concludes that the
circuit court did not unreasonably hold that Tarver failed to establish an ineffective
assistance claim arising from his counsel’s failure to obtain an independent ballistics
examiner. The testimony of the state’s witness that Tarver would have endeavored

25

to rebut was in fact helpful to Tarver, because the expert testified that the gun
“accidentally” fired approximately 50% of the time. Additionally,

Tarver failed to

prove at the evidentiary hearing that he could have offered an expert that would
offer testimony different from (or more helpful than) the state’s expert.

Therefore,

Tarver cannot prove that he was prejudiced by his lawyer’s decision not to call an
independent ballistics expert.
(g) Failure to object to the trial court’s jury instruction
Tarver’s lawyer did not render ineffective assistance by failing to object to the
court’s jury instruction on reasonable doubt on the ground that the instruction
included phrases outlawed by the Supreme Court in Cage v. Louisiana, 498 U.S. 39
(1990), overruled in part by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). Cage
was decided three years after Tarver was retried, and “counsel’s performance cannot
be deficient for failing to forecast changes in the law.” Hallford v. State, 629 So. 2d 6,
11 (Ala. Crim. App. 1992), overruled on other grounds, Ex parte Woods, 957 So.2d
533 (Ala. 2006).

Moreover, the Court finds that Tarver has not established a

reasonable probability that the outcome of his trial would have been different with
another instruction.
(h) Failure to move for a change of venue
Tarver’s change of venue allegation warrants no relief. Tarver failed to plead
any facts showing “actual prejudice against the defendant or that the community
was saturated with prejudicial publicity.”

Ex parte Grayson, 479 So. 2d 76, 80 (Ala.

1985). Moreover, the few jurors who indicated they were aware of the case were
removed for cause.

(SR. 23-69 at 57.)
26

Thus Tarver has not demonstrated

prejudice under Strickland, and the state court’s denial of this claim was not
unreasonable.
(i) Failure to challenge admission of the presentence report
Next, Tarver argues that his counsel failed to object to the presentence report,
which did not meet the requirements for reliability and neutrality as guaranteed by
the Supreme Court in Gardner v. Florida, 430 U.S. 349 (1977) and Proffitt v.
Wainwright, 685 F.2d 1227 (11th Cir. 1982), modified on rehearing, 706 F.2d 311
(11th Cir. 1983). (SR. 23-69 at 48.) Gardner held that a death sentence may not
be imposed on the basis of a presentence investigation report that contains
information not disclosed to defense counsel which the defendant has had no
opportunity to explain or deny. 430 U.S. at 362.

But there is no evidence before

the Court now, nor was there any evidence before the state court, to suggest that
Tarver was not given access to all of the information contained within the report.
Instead, Tarver’s complaint is that the report contained “prejudicial hearsay” and
“an extremely prejudicial assessment of Mr. Tarver’s reputation in the community.”
SR. 23-69 at 55-56. Without more, the Court agrees that this claim is insufficiently
pled, and that Tarver’s reliance on Gardner is misplaced.
Similarly, Proffitt offers no help. In Proffitt, two psychiatrists examined the
defendant’s competence and mental state prior to sentencing.

One of the

psychiatrists was unable to attend the defendant’s sentencing hearing so his opinion
was submitted in a written report. The defendant requested, but did not receive, an
opportunity to cross-examine the psychiatrist concerning the report.
F.2d at 1250-51 & n.36a.
27

Proffitt, 685

The instant case is fundamentally different from Proffitt.

Here, Tarver was

permitted to fully cross-examine all of the State’s witnesses during the guilt phase
of the trial.

Neither the State nor Tarver presented additional witnesses at the

sentencing hearing before Judge McRae.

(SR. 6-22 at RR-6.)

Thus, unlike the

defendant in Proffitt, Tarver was not denied the cross-examination of a single
witness, much less one as critical as the one in Proffitt.
(j) Failure to challenge Alabama’s faulty capital compensation
scheme
Tarver argues that his counsel was deficient due to inadequate compensation.
Other capital defendants in this state have advanced similar claims based on
Alabama’s statutory scheme, and federal courts have found those arguments
meritless. See, e.g., Hallford v. Culliver, 379 F. Supp. 2d 1232, 1279 (M.D. Ala.
2004) (“The essence of [Petitioner]’s argument becomes simply that the court ought
to presume counsel could not provide constitutionally adequate representation
because of the inadequate compensation.”), aff’d, 459 F.3d 1193 (11th Cir. 2006);
Williams v. Alabama, 2012 WL 1339905, at *22 (N.D. Ala. Apr. 12, 2012) (“[T]he
assertion that the State of Alabama provides inadequate compensation for capital
defense counsel and experts fails to state a basis for habeas relief, and it is due to be
denied.”); see also McNair v. Haley, 97 F. Supp. 2d 1270, 1275 (M.D. Ala. 2000).
The Court does not find that counsel’s performance was deficient, and concludes that
no habeas relief is due on this claim.

28

(k) Appellate counsel was ineffective
The Court also concludes that the state courts’ finding that Tarver’s appellate
counsel rendered effective assistance was not unreasonable.

At his Rule 32

hearing, Tarver offered no evidence or any testimony in support of this claim.
(SR. 23-69 at 60.) Consequently, he did not carry his burden of proving ineffective
assistance and prejudice.
For the above stated reasons, the Court finds that neither the trial court nor
the Court of Criminal Appeals unreasonably decided that Tarver received effective
assistance of trial and appellate counsel, at least with respect to the ineffective
assistance claims considered and rejected on the merits.

B.

Claims Found Procedurally Defaulted by Alabama Courts

The remainder of Tarver’s § 2254 petition is comprised of claims that the
Alabama state courts have deemed procedurally defaulted.
The concept of procedural default is derived from the “adequate and
independent” state-law ground doctrine originally applied to cases on direct review
of state court decisions in the federal courts. See Harris v. Reed, 489 U.S. 255, 260
(1989) (“[The Supreme Court] has long held that it will not consider an issue of
federal law on direct review from a judgment of a state court if that judgment rests
on a state-law ground that is both ‘independent’ of the merits of the federal claim
and an ‘adequate’ basis for the court’s decision.”). In Wainwright v. Sykes, 433 U.S.
72, 81, 87 (1977), the Supreme Court clarified that this doctrine also applies to cases
on federal habeas under § 2254. “Under Sykes and its progeny, an adequate and
29

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.’” Harris, 489 U.S. at 262
(citations omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011). In order
for a federal claimant’s procedural default to preclude federal review, the last state
court rendering a judgment in the case must rest its judgment on the procedural
default. Id. Furthermore, “the procedural bar must be firmly established and a
regularly followed state practice.”

Cochran v. Herring, 43 F.3d 1404, 1408 (11th

Cir. 1995).
The Alabama Court of Criminal Appeals found that Tarver has procedurally
defaulted several claims pursuant to various subsections of Rule 32.2(a). (SR. 23-69
at 4-7.) These claims are: (1) that he received ineffective assistance of counsel for
failing to object to prosecutorial misconduct; (2) that a juror engaged in misconduct;
(3) that Tarver did not voluntarily waive his Miranda rights; (4) that the trial court
did not consider statutory mitigating factors; (5) that the trial court’s standardless
override of the jury’s advisory verdict violates the Eighth Amendment and the Due
Process clause of the Fourteenth Amendment; (6) that the indictment was
insufficient and defective; (7) that he was entitled to an individually sequestered
jury voir dire; (8) that the evidence was insufficient to sustain his conviction; (9) that
the prosecutor engaged in misconduct; and (10) that the trial court’s jury
instructions were flawed.

30

“In capital cases—as in all criminal cases—Alabama law effectively requires a
petitioner to preserve any federal constitutional error by objection at trial, and to
pursue that assertion of error on direct appeal, if the error is capable of being raised
at those times.”

Kennedy v. Hopper, 156 F.3d 1143, 1145 (11th Cir. 1998).

Alabama preclude[s] appellate review of issues that could have been raised at trial
or on direct appeal. See Magwood v. Smith, 791 F.2d 1438, 1444 (11th Cir. 1986).
The Eleventh Circuit is clear that Rule 32.2(a) is an independent and adequate state
ground. Mason v. Allen, 605 F.3d 1114, 1121 (11th Cir. 2010); Brownlee v. Haley,
306 F.3d 1043, 1065-66 (11th Cir. 2002); Kennedy, 156 F.3d at 1147. Therefore,
these ten claims are procedurally defaulted and will not proceed unless Tarver can
demonstrate 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. See Harris, 489 U.S. at 262.
(1)

Ineffective Assistance
Misconduct

of

Counsel

due

to

Prosecutorial

Tarver argues that he received ineffective assistance of trial counsel because
his lawyer failed to object to several instances of prosecutorial misconduct.

Tarver

attributes the cause of the procedural default to ineffective assistance of counsel, a
recognized and sufficient cause of procedural default. See Murray v. Carrier, 477
U.S. 478, 488 (1986).

However, even assuming Tarver received ineffective

assistance, Tarver cannot show prejudice attributable to receiving ineffective
assistance of counsel. Tarver presented no evidence at the evidentiary hearing in
support of this allegation. In fact, Tarver did not even question his lawyer about

31

the allegation.

(SR. 23-66 at 40.)

Nor does Tarver allege that a fundamental

miscarriage of justice will result if the Court does not now consider this claim.
(2)

Juror Engaged in Misconduct

Tarver argues that he was denied a fair trial due to juror misconduct during
deliberations. Specifically, he contends that a juror dropped the shotgun on the
floor several times to test Tarver’s theory that the shotgun accidentally fired.
Tarver’s direct appeal brief did not raise this claim, and, as the circuit court pointed
out in its opinion, there is no explanation given for Tarver’s failure to present this
claim to the state courts.

(SR. 23-69 at 31-32.)

This claim is, therefore,

procedurally barred from federal review.
(3)

Waiver of Miranda Rights

Tarver argues that, given the totality of the circumstances, he did not
voluntary, knowingly, or intelligently waive his rights under Miranda v. Arizona,
384 U.S. 436 (1966), to remain silent or have counsel present during custodial
interrogations. Therefore, he argues, the confession he made to law enforcement
was improperly admitted by the trial court.

The Court of Criminal Appeals

affirmed the trial court’s denial of this claim as procedurally barred under Rule
32.2(a)(3) and (5) for failure to raise it at trial or on direct appeal. (SR. 23-69 at
4-5.)
The Court finds that the Court of Criminal Appeals did rely on a procedural
bar, and concludes that Tarver has not shown cause and prejudice, nor that a
fundamental miscarriage of justice will result. In his federal petition, Tarver fails

32

to offer an explanation as to why he did not make this argument at trial or on direct
appeal. Moreover, Tarver simply alleges that the “introduction of his statement
was prejudicial and in violation of Mr. Tarver’s rights” (SR. 1-1 at 56), without
explaining how introduction of the statement was prejudicial. Finally, Tarver does
not explain what fundamental miscarriage of justice will result if the Court refuses
to entertain this claim.

For example, Tarver does not allege that absent the

confession, there would be no evidence remaining upon which his conviction could be
based, and therefore, he must have been convicted solely on an unconstitutionally
admitted piece of evidence.
(4)

Aggravating and Mitigating Factors

Tarver argues that the trial court erred in failing to find two statutory
mitigating factors: (1) that the capital offense occurred while Tarver was under the
influence of extreme mental or emotional disturbance, and (2) that the capacity of
Tarver to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired. He also argues that the trial court
erred in concluding that the aggravating factors outweighed the mitigating factors.
The Court of Criminal Appeals affirmed denial of this claim on the basis that it was
procedurally barred under Rule 32.2(a)(3) and (5) for failure to raise it at trial or on
direct appeal.
In his federal petition, Tarver offers no explanation why this claim was not
raised at trial or on direct appeal, nor does he explain why, had the court found the
statutory mitigating factors, the balance would have tilted from a sentence of death

33

in favor of a sentence of life without parole. Therefore, this claim is procedurally
barred from federal review.
(5)

Jury Verdict Override

Tarver argues that Alabama’s system of permitting the trial court to impose
the death penalty over the jury’s verdict of life without parole violates the federal
constitution and the Alabama constitution. He acknowledges that the trial court
denied this claim on the basis that it was not raised at trial, but maintains that
because “the question of override is one that continues to evolve in Alabama’s capital
law, . . . if the punishment no longer comports with the requirements of the Alabama
Constitution, it should not matter if this claim was not raised at trial.”
58.)

(SR. 1-1 at

He argues that the practice of override “does not require any standard or

guided discretion [and] cannot be considered appropriate under the Eighth
Amendment or under Article I, § 15 of the Alabama Constitution.”

(Id. at 59.)

The trial court did find, and the Court of Criminal Appeals agreed (SR. 23-69
at 5), that this claim was procedurally barred because Tarver did not raise it at trial
or on direct appeal as required by Rule 32.2(a)(3) and (4).

Tarver readily admits

that he did not raise this issue at trial, and so he cannot meet the “cause and
prejudice” justification for the Court’s consideration of it now. Moreover, because
current Supreme Court jurisprudence upholds Alabama’s sentence override scheme,
Harris v. Alabama, 513 U.S. 504, 515 (1995); see also Maples v. Thomas, 132 S. Ct.
912, 917 (2012); Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1336 (11th

34

Cir. 2012), Tarver cannot show that a fundamental miscarriage of justice will result
if the Court does not entertain this claim.
(6)

Insufficient and Defective Indictment

Tarver argues that the indictment was defective because it contained two
counts of capital murder: murder during a robbery under Ala. Code § 13A-5-40(a)(2)
and murder during a burglary under Ala. Code § 13A-5-40(a)(4). He argues that
the State never offered evidence to support the murder during a burglary count, and
that the inclusion of an inapplicable capital count rendered the indictment
prejudicial, thereby disqualifying it for use as the basis of a conviction. The Court
of Criminal Appeals affirmed denial of the defective indictment claim on the ground
that Tarver did not raise it at trial as required by Rule 32.2(a)(3). (SR. 23-69 at 5.)
Although the Court of Criminal Appeals included a footnote explaining that this
claim was meritless because the indictment did not charge Tarver with murder
during a burglary (id. at 5 n.4), it principally relied on a procedural bar as its basis
for denying the claim.

“[W]here a state court has ruled in the alternative,

addressing both the independent state procedural ground and the merits of the
federal claim, the federal court should apply the state procedural bar and decline to
reach the merits of the claim.”

See Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.

1994). Therefore, this claim is foreclosed from review by precedent.
Tarver also argues that the jury was impermissibly allowed to consider a
“flight” theory of liability, which was not included in the indictment. The Court of
Criminal Appeals also affirmed denial of relief on the “flight” claim because Tarver

35

did not raise it at trial or on direct appeal. (Id. at 7.) Tarver has failed to allege a
cause as to why he procedurally defaulted this sub-claim and certainly has made no
showing of prejudice resulting from his default.

As such, this sub-claim is

procedurally barred from federal review.
(7)

Voir Dire

Tarver argues that the trial court erred in denying his motion for individually
sequestered voir dire. He argues that such voir dire was necessary because of the
pre-trial publicity and to effectively question jurors regarding their attitudes and
prejudices concerning race. He also argues that individually sequestered voir dire
was necessary to adequately question jurors about their knowledge of the crime
without educating or prejudicing other venire members. The Court of Criminal
Appeals affirmed denial of this claim because Tarver failed to raised it at trial or on
direct appeal. (SR. 23-69 at 7.)
Tarver fails to explain in his federal petition why he procedurally defaulted
this claim and fails to explain what prejudice results from the default. In fact,
Tarver does not allege one specific fact that he was somehow prejudiced by the
circuit court’s failure to grant individually sequestered voir dire. Nor does Tarver
allege that a fundamental miscarriage of justice will result if the Court does not now
consider this claim.
(8)

As such, this claim is due to be denied.
Sufficiency of the Evidence

Tarver argues that the evidence presented at his second trial was insufficient
to sustain the conviction by jury. He argues that the State did not prove beyond a

36

reasonable doubt that the killing of Gibson was intentional rather than accidental.
The Court of Criminal Appeals affirmed denial of this claim because Tarver did not
raise it at trial or on direct appeal. (SR.23-69 at 7.) Again, Tarver has failed to
make the required showing of “cause and prejudice” or explain how a fundamental
miscarriage of justice will result if the Court does not consider the claim.
(9)

Prosecutorial Misconduct

Tarver argues that the prosecutor engaged in misconduct during the guilt and
penalty phases. Specifically, he argues that the prosecutor: (1) improperly alluded
to the fact that Tarver had been previously tried for murder; (2) expressed his
personal opinion as to Tarver’s guilt; (3) and exhorted the jury to convict Tarver on
the basis of passion and prejudice. The Court of Criminal Appeals affirmed denial
of this claim because Tarver failed to raise it on direct appeal. (SR. 23-69 at 52.)
Tarver has not argued that there is any cause or prejudice to excuse his
procedural default.

In fact, all of the alleged instances of procedural misconduct

were known at the time he filed his direct appeal.

Nor does Tarver explain what

fundamental miscarriage of justice will result if the Court does not entertain this
claim. Because the state courts have not had a full and fair opportunity to decide
these claims, Tarver is procedurally barred by exhaustion principles from pursuing
them here. See, e.g., Mancill v. Hall, 545 F.3d 935, 939 (11th Cir. 2008) (explaining
that the habeas exhaustion requirement “is not satisfied if the petitioner fails to
present his claims to the state’s highest court,” and that “[s]uch a failure to exhaust
can result in a procedural default that bars a federal court from hearing that claim”).

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(10)

Jury Instructions

Tarver challenges two of the trial court’s instructions to the jury. First, he
argues that the sentencing instruction, in which the court explained that the
sentence verdict was only a “recommendation,” relieved jurors of their sentencing
responsibility because they were not “confronted with the truly awesome
responsibility of decreeing death for a fellow human.”

Second, Tarver challenges as

unconstitutional the instruction on reasonable doubt, wherein the court instructed
the jury that in order to acquit it had to find “actual and substantial doubt,” and
possess “an abiding conviction [as] to a moral certainty of the guilt of the defendant.”
(SR. 6 at 313-14.)
The Court of Criminal Appeals denied this claim with respect to both
instructions because Tarver did not raise the claim on direct appeal. (SR. 23-69 at 7.)
The Court finds that Tarver did not offer a cause for procedural default with respect
to the sentencing instruction, nor has Tarver demonstrated a miscarriage of justice
in the Court’s refusal to entertain this claim.
With respect to the reasonable doubt instruction, Tarver argues that the claim
was not raised on direct appeal due to ineffective assistance of counsel.

As

discussed above in Part III.A.2.g, Tarver’s counsel did not render ineffective
assistance by failing to object to a jury instruction that included phrases describing
reasonable doubt, which had not yet been struck down by the Supreme Court in
Cage. See Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972) (“Clairvoyance

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is not a required attribute of effective representation.”). Therefore, Tarver has not
demonstrated valid cause for the procedural default.

IV.

CONCLUSION
Tarver’s petition for a writ of habeas corpus is GRANTED with respect to the

Atkins claim, and his death sentence is VACATED. Tarver is mentally retarded
and cannot constitutionally be executed. Tarver’s petition is otherwise DENIED.
DONE and ORDERED this 24th day of September, 2012.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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