Hall v. Alabama Department of Corrections et al

Filing 35

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS, it is ORDERED that Hall's petition (Doc. 1 ) for writ of habeas corpus shall be CONDITIONALLY GRANTED. The 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 9/30/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN WAYNE HALL, JR.,

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Petitioner
v.
KIM THOMAS, Commissioner,
Alabama Department of Corrections,
Respondent.

Case No. 1:07-cv-00731-CG-C

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Steven Wayne Hall, Jr., (hereinafter referred to as “Hall” or
“Petitioner”) initiated this action on October 10, 2007, by filing a Petition for Writ of
Habeas Corpus (the “Petition”) (Doc. 1) pursuant to 28 U.S.C. § 2254. Hall
challenges a 1993 state court judgment of conviction for one count of capital murder
committed during a burglary in violation of Ala. Code § 13A-4-40(a)(4) (1975),
entered in the Circuit Court of Monroe County, Alabama, for which he was
sentenced to death. Id. This matter is before the court on Hall’s Petition (Doc. 1),
the respondent, Kim Thomas’ (hereinafter referred to as “Thomas” or “Respondent”)
response (Doc. 13), and Hall’s reply brief (Doc. 33). Upon consideration of all
matters presented, and for the reasons stated below, this court finds that Hall’s
Petition is due to be GRANTED.

1

I.
A.

FACTUAL AND PROCEDURAL BACKGROUND

TRIAL

Upon an extensive review of the record, the court finds that the underlying
facts were succinctly stated upon Hall’s direct appeal by the Alabama Court of
Criminal Appeals in Hall v. State, 820 So.2d 113 (Ala.Crim.App. 1999):
The appellant, Steven Wayne Hall, Jr., was indicted by a Conecuh
County grand jury for murder made capital because the murder was
committed during the course of a burglary. See § 13A–5–40(a)(4), Ala.Code
1975. After Hall's codefendant, Wayne Holleman Travis, was tried and
convicted of capital murder in Conecuh County, Hall moved for a change of
venue based on what he says was the excessive publicity surrounding
Travis's trial. The motion was granted and Hall's case was transferred to
Monroe County. Hall was tried and convicted [on August 13, 1993] by a
Monroe County jury for the offense charged in the indictment. The jury, by a
vote of 10–2, recommended that Hall be sentenced to death. The trial court
accepted the jury's recommendation and [on September 9, 1993] sentenced
Hall to death by electrocution.
The State's evidence tended to show that on December 15, 1991,
Conecuh County sheriff deputies discovered the body of 69–year–old Clarene
Haskew on the kitchen floor of her home in McKenzie. Haskew had been
shot twice in the back of the head, severely beaten, and strangled. A
neighbor telephoned Haskew's son after she went to Haskew's home and
discovered that the telephone line had been cut and that the glass on the
entry door had been broken. Dr. Gregory Price Wanger, a forensic
pathologist employed by the Alabama Department of Forensic Sciences,
testified that Haskew was alive when she was shot and when the blunt force
injuries were inflicted; thus, it was impossible for him to conclude which
injuries occurred first.
When her body was discovered, Haskew's home was in total disarray
and a pentagram had been spray-painted on the kitchen cabinets. The words
“Thunder Struck” were also spray-painted on the kitchen floor near Haskew's
body. Silverware and an address book had been taken from the scene and
Haskew's gray 1982 Ford LTD automobile was missing. A be-on-the-lookout
(“BOLO”) was issued for the car.
On the day of the murder, Nellie Schad's home, which was about onefourth mile from Haskew's home, was burglarized. A .38 caliber Rossi
revolver and a .410 gauge shotgun were taken in the burglary. Forensic
analysis matched one bullet removed from Haskew's body with the .38 caliber
gun stolen from Schad's home on the day of the murder.
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As a result of the BOLO, police received information that the stolen
automobile was parked outside Paula Shiver's house in Uriah. Paula Shiver
was Hall's girlfriend. When deputies arrived at Shiver's residence they saw a
Ford automobile matching the description of Haskew's stolen vehicle in
Shiver's yard. One of the deputies approached the vehicle to verify from the
license plate that the vehicle was Haskew's vehicle. After they verified that
it was Haskew's car, the deputies knocked on Shiver's door. Paula Shiver
answered the door and told the deputies that Hall and Travis were in the
house. While Shiver talked with the deputies, Hall and Travis fled on foot.
The dog warden from Fountain Prison was called to assist in
apprehending Hall and Travis. Dogs tracked the two to the Rocky Hill
community. When they found Hall and Travis, deputies attempted to get
them to surrender. After deputies fired gunshots into the air, both suspects
used profanity; one of the two suspects yelled, “if it's going to be a shoot out, a
shoot out it will be.” Deputies then shot in the direction of the suspects,
wounding both Hall and Travis. Hall was shot in the upper thigh. While
waiting for an ambulance, deputies searched Hall and recovered seven
rounds of .38 caliber ammunition in Hall's front vest pockets. These bullets
fit one of the guns stolen from Schad's house—the gun that was identified as
the murder weapon. The deputies’ search of Travis revealed that Travis had
the keys to the stolen Ford in his possession. Also, numerous items stolen
from Haskew's and Schad's houses were discovered in the Ford. The murder
weapon was [also] discovered in the Ford.
Hall conceded at trial and at oral argument before [the Court of
Criminal Appeals] that he participated in the burglary of Haskew's house.
His defense was that he did not know that Travis intended to kill Haskew.
B.

DIRECT APPEAL

Hall pursued a direct appeal to the Alabama Court of Criminal Appeals. In
his direct appeal, Hall raised 19 issues (and multiple sub-issues) which included a
Batson claim arguing that the prosecutor’s race-neutral reasons for striking black
members of the venire were not valid.1 (Direct Appeal Record, Vol. 49, Tab R-40,
pp. 1-22). The Alabama Court of Criminal Appeals affirmed Hall’s conviction in an
opinion issued on October 1, 1999. Hall v. State, 820 So.2d 113 (Ala.Crim.App.
1

Petitioner Hall is white. Hall’s co-defendant, Wayne Travis, is also white. Their
victim, Clarene Haskew, was also white.

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1999). In its opinion, the court examined the prosecutor’s race-neutral reasons, i.e.,
that he struck black jurors because of their views on the death penalty, and found
that “[t]here is no evidence that the reasons advanced by the prosecutor were a
sham, nor is there evidence of disparate treatment between prospective black jurors
and prospective white jurors.” Hall, 820 So.2d at 131. The Court of Criminal
Appeals denied Hall’s application for rehearing on November 12, 1999. Id. at 113.
The Supreme Court of Alabama thereafter affirmed the conviction on June 1, 2001,
finding that the Court of Criminal Appeals thoroughly addressed and properly
decided many of the issues Hall raised in his petition for certiorari. Hall v. State,
820 So.2d 152, 157 (Ala. 2001). The Alabama Supreme Court also found that 16
issues in Hall’s petition for certiorari were not raised in the trial court or in the
Court of Criminal Appeals, and applied a plain error standard of review to those 16
claims before finding that none of them had merit. Id. at 153. The United States
Supreme Court denied Hall’s petition for a writ of certiorari on May 20, 2002, in
Hall v. Alabama, 535 U.S. 1080 (2002).
C.

RULE 32 PETITION/COLLATERAL APPEAL

Hall next filed a petition for post-conviction relief pursuant to Alabama Rule
of Criminal Procedure 32 (the “Rule 32 petition”) with the Circuit Court of Monroe
County on April 1, 2003, and subsequently filed an amended Rule 32 petition on
May 28, 2004. In his amended Rule 32 petition, Hall again raised a Batson claim,
arguing specifically that “the prosecution’s elimination of qualified jurors on the
basis of race denied Mr. Hall a fair trial.” (Collateral Appeal Record, Vol. 54, Tab R-

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62, p. 67). After holding an evidentiary hearing on August 15, 2005, the Circuit
Court denied Hall’s amended Rule 32 petition on November 4, 2005. In regards to
Hall’s Batson claim, the Circuit Court found that “the claim that the prosecution’s
alleged elimination of qualified venire members on the basis of race violated
petitioner Hall’s right to a fair trial” was procedurally barred from review under
Rule 32.2(a)(2) of the Alabama Rules of Criminal Procedure because they were
raised or addressed at trial. Steven Wayne Hall, Jr. v. State of Alabama, No. CC93-87.60, slip op. at pp. 9-10 (Monroe County Circuit Court, Nov. 4, 2005). The
judge also ruled that Hall’s Batson claim was procedurally defaulted under Rule
32.2(a)(4) of the Alabama Rules of Criminal Procedure because it was “raised or
addressed on [direct] appeal.” Id.
Hall appealed the denial of his Rule 32 petition to the Alabama Court of
Criminal Appeals, which affirmed the decision of the Circuit Court on March 23,
2007. See Hall v. State, 979 So.2d 125 (Ala.Crim.App. 2007). The Court of
Criminal Appeals agreed with the Circuit Court that Hall’s Batson claim was
procedurally barred, and determined that it “need not address the propriety of the
circuit court’s finding that the claims were precluded …” Hall v. State, 979 So.2d at
177.
Following the decision of the Court of Criminal Appeals, Hall filed a petition
for a writ of certiorari with the Alabama Supreme Court, which was denied without
rationale on August 24, 2007. Ex parte Hall, 979 So.2d 125, certiorari denied (Ala.
Aug. 24, 2007).

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D.

§2254 FEDERAL HABEAS PETITION

Hall then filed a 28 U.S.C. § 2254 federal habeas petition in this federal
district court for the Southern District of Alabama on October 10, 2007. (Doc. 1).
The respondent filed a response on February 4, 2008 (Doc. 13), to which Hall filed a
reply brief on May 26, 2009 (Doc. 33). On September 22, 2011, respondent filed a
motion for timely ruling (Doc. 34).
II.
A.

STATEMENT OF THE LAW

THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT
OF 1996

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 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 AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Pub.L 104-132, § 104,
110 Stat. 1214, 1218-1219. “Under AEDPA the role of the federal courts … 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
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
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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.
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 “without the deference AEDPA otherwise
requires.” Panetti v. Quarterman, 551 U.S. 930, 932 (2007); see also Jones, 496
F.3d at 1228.

(1)

§ 2254(d)(1)

The United States Supreme Court (“U.S. Supreme Court”) explained the
framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000). Justice
O’Connor maintained that “§ 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 habeas
corpus with respect to claims adjudicated on the merits in state court.” In other
words, “[u]nder § 2254(d)(1), the writ may issue only if one of the following two
conditions is satisfied – the state-court adjudication resulted in a decision that (1)

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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 412-13 (O’Connor, concurring). First, “[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, “[u]nder the ‘reasonable application’ clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413 (internal citations omitted);
see also Ramdass v. Angelone, 530 U.S. 156, 165-166 (2000) (“A state determination
may be set aside under this standard if, under clearly established federal law, the
state court was unreasonable in refusing to extend the governing legal principle to a
context in which the principle should have controlled.”)
In applying this test, the U.S. 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 “clearly established Federal law,” namely, “the governing legal
principle or principles set forth by the U.S. Supreme Court at the time the state
court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); (citing
Williams, 529 U.S. at 412). The law is “clearly established” if U.S. Supreme Court

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precedent at the time “would 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 U.S. Supreme Court case law,
either because “ ‘the state court applies a rule that contradicts the governing law set
forth in [the U.S. Supreme Court’s] cases’ or if ‘the state court confronts a set of
facts that are materially indistinguishable from a decision of [the U.S. Supreme
Court] and nevertheless arrives at a result different from [U.S. Supreme Court]
precedent.’ ” Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405-06). The
U.S. Supreme Court later clarified that “[a]voiding these pitfalls does not require
citation of our cases – 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. Parker, 537 U.S. 3, 8 (2002). “If 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
“unreasonably applied” the governing legal principles set forth in the Supreme

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Court’s cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable
application inquiry is “whether 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 “must be
assessed in light of the record the court had before it.” Holland v. Jackson, 542 U.S.
649, 652 (2004) (per curiam) (citations omitted); c.f. Bell v. Cone, 535 U.S. 685, 697
n.4 (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 “identifies the correct legal rule from the Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably
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 “[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 – a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); see also Williams, 529 U.S. at 412 (“an
unreasonable application of federal law is different from an incorrect or erroneous
application of federal law.”).
(2)

§ 2254(d)(2)

Besides obtaining relief under § 2254(d)(1), a petitioner may also receive
federal habeas relief from a claim adjudicated on the merits in state court where

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that adjudication “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)(2); see also Harrington v. Richter, --- U.S. ---, 131
S. Ct. 770, 785 (2011). In regards to this subsection, the Supreme Court has
provided that “a 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 (“Miller-El I”), 537 U.S. 322, 348 (2003).
When performing a review under § 2254(d)(2), a federal court presumes the
state court’s factual finding to be sound unless the petitioner rebuts the
“presumption 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,
“conclude the decision was unreasonable or that the factual premise was incorrect
by clear and convincing evidence.”); Jones, 496 F.2d at 1226-1227 (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.”).
B.

PROCEDURAL DEFAULT

As stated above, only if this court finds that Hall satisfied the AEDPA and §
2254(d), does this court take the final step of conducting an independent review of

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the merits of petitioner’s claims. See Panetti, 127 S. Ct. at 2858-2859; Jones, 469
F.3d at 1228. Also of critical importance to the § 2254 analysis are notions of
procedural default and exhaustion. “A state court’s rejection of a petitioner’s
[federal] constitutional claim on state procedural grounds will generally preclude
any subsequent federal habeas review of that claim.” Borden v. Allen, 646 F.3d 785,
808 (11th Cir. 2011) (citation omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11th
Cir. 2011) (“[u]nder the doctrine of procedural default, a federal habeas court will
not review a claim rejected by a state court if the decision of [the state] court rests
on a state law ground that that is independent of the federal question and adequate
to support the judgment”)(quotation marks and citation omitted). “[A] habeas
petitioner may overcome a procedural default if he can show adequate cause and
actual prejudice, or, alternatively, if the failure to consider the merits of his claim
would result in a fundamental miscarriage of justice.” Borden, 646 F.3d at 808
n.26; see also Conner, 645 at 1287 (to overcome procedural default, petitioner must
“show cause for the failure to properly present the claim and actual prejudice, or
that the failure to consider the claim would result in a fundamental miscarriage of
justice.”).
Section 2254 also generally requires petitioners to exhaust all available statelaw remedies. In that regard, “[a] petitioner must alert state courts to any federal
claims to allow the state courts an opportunity to review and correct the claimed
violations of his federal rights … Thus, to exhaust state remedies fully the
petitioner must make the state court aware that the claims asserted present federal

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constitutional issues.” Lamarca v. Secretary, Dep’t of Corrections, 568 F.3d 929,
936 (11th Cir. 2009) (citations omitted). For exhaustion purposes, it is not sufficient
“that a somewhat similar state-law claim was made.” Kelley v. Secretary, Dep’t of
Corrections, 377 F.3d 1317, 1344-45 (11th Cir. 2004). What is necessary is that “the
petitioner must fairly present every issue raised in his federal petition to the state’s
highest court, either on direct appeal or on collateral review.” Powell v. Allen, 602
F.3d 1263, 1269 (11th Cir. 2010) (citation and internal marks omitted).
Before a federal court considers a habeas petition presented by a state
prisoner, the court must first determine whether the petitioner has properly
presented the issues to the state courts. A state prisoner “must give the state
courts an opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
See also 28 U.S.C. § 2254(b)(1) (a prisoner in state custody shall not be granted a
writ of habeas corpus unless the prisoner “has exhausted the remedies available in
the courts of the State.”). The exhaustion doctrine requires that a petitioner “give
the state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process.” O'Sullivan,
526 U.S. at 845. In Alabama, the established appellate review process includes an
appeal to the Alabama Court of Criminal Appeals, an application for rehearing to
the Alabama Court of Criminal Appeals, and an application for discretionary review
by the Alabama Supreme Court. See Ala.R.App. P. 4, 39–40.

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A state prisoner's failure to present his claims to the state courts in the
proper manner results in a procedural default of those claims. O'Sullivan, 526 U.S.
at 848. The doctrine of procedural default, as it relates to petitions filed under 28
U.S.C. § 2254, arises from principles of comity and federalism. Francis v.
Henderson, 425 U.S. 536, 541 (1976). A federal court “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.” Harris v. Reed, 489 U.S. 255, 260
(1989). A violation of a state procedural rule is adequate to foreclose federal review
if the rule is “firmly established and regularly followed.” Lee v. Kemna, 534 U.S.
362, 376 (2002). A state court's decision is independent unless the resolution of the
state law issue depends on a federal constitutional ruling. Stewart v. Smith, 536
U.S. 856, 860 (2002).
Procedural default can arise in two ways. First, procedural default can occur
when a petitioner raises his federal claims in state court, and “the state court
correctly applies a procedural default principle of state law to arrive at the
conclusion that the petitioner's federal claims are barred.” Bailey v. Nagle, 172
F.3d 1299, 1302–03 (11th Cir. 1999). Second, procedural default can occur when a
petitioner fails to raise his federal claims in state court, rendering the claims
unexhausted, and the time to do so has lapsed. Id. See also O'Sullivan, 526 U.S. at
843–45. Although unexhausted claims generally must be returned to the state
court for consideration on the merits, if the federal court determines that the state

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procedural rules now preclude review of the claim on the merits and, thus,
exhaustion would be futile, the doctrine of procedural default applies even though
the state court never invoked the state procedural rule. Snowden v. Singletary, 135
F.3d 732, 736 (11th Cir. 1998).
Once a federal claim is procedurally defaulted in state court, a state habeas
petitioner “is procedurally barred from pursuing the same claim in federal court
absent a showing of cause for and actual prejudice from the default.” Bailey, 172
F.3d at 1302 (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). “[C]ause for a
procedural default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule” or that the procedural default was the result of
ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Prejudice, in this context, means a reasonable probability that the outcome would
have been different. Jenkins v. Bullard, 210 Fed. Appx. 895, 898–901 (11th Cir.
2006) (per curiam). A petitioner must show “not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). In the
absence of a showing of cause and prejudice, the court may yet consider a
procedurally defaulted claim if a “fundamental miscarriage of justice” has “probably
resulted in the conviction of one who is actually innocent ...” Smith v. Murray, 477
U.S. 527, 537–38 (1986). Absent one of these exceptions, however, procedurally

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defaulted claims cannot be raised in federal habeas corpus petitions. Kelley, 377
F.3d at 1343–45 (11th Cir. 2004).
III.
A.

ISSUES RAISED IN THE PETITION FOR HABEAS CORPUS
REVIEW OF PETITIONER’S CLAIMS ON THE MERITS

CLAIM #1: HALL’S BATSON CLAIM BASED ON EVIDENCE AVAILABLE
AT TRIAL AND DIRECT APPEAL
In his habeas corpus petition, Hall first raises a claim for relief based on
Batson v. Kentucky, 476 U.S. 79 (1986). Hall argues that the State exercised its
peremptory strikes to remove blacks from the jury venire in a racially
discriminatory manner, and advanced pretextual reasons which were not supported
by the record. (Doc. 1, p. 10). Hall points out that the prosecutor used nine out of
14 peremptory strikes against black members of the venire. Id. at 12.

(1)

SUMMARY OF STATE COURT DECISIONS AT TRIAL

At the close of voir dire, Hall filed a Batson motion, arguing that the
prosecution had engaged in unlawful racial discrimination in the use of its
peremptory strikes of black jurors. (Trial Transcript, Vol. 42, p. 7214). The trial
court found that Hall made a prima facie showing pursuant to Ex Parte Branch, 526
So. 2d 609 (Ala. 1987), (id. at 7220), and accordingly, the prosecutor articulated his
reasons for each of his peremptory strikes on the record. (Id. at 7221-37).
Specifically, the prosecutor explained that he struck five black venire members
because of their opposition to the death penalty, which is a race-neutral reason.

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(Id.) The prosecutor also cited race-neutral concerns regarding a sixth black venire
member who was struck because he indicated that he did not want to serve due to
his poor health.2 (Id. at 7236).
Hall challenged the prosecutor’s reasons with regard to black venire persons
Minnie Lett and Mary Cunningham, both of whom the prosecution asserted it
struck because they were opposed to the death penalty.3 (Id.) Defense counsel
argued that Lett’s juror questionnaire clearly indicated that she was in favor of the
death penalty, and argued further that in her voir dire testimony “she was not
unequivocal in her ability to carry out her duties as a juror in this case.”4 (Trial
Transcript Vol. 42, p. 7239). The trial court nevertheless denied the motion, finding
that the reasons advanced by the prosecutor were not pretextual and did not violate
Batson. (Id. at 7241). The trial court offered no explanation for its decision. (Id.)
2

The above discussion totals only six peremptory strikes. This is because,
although Hall repeatedly made passing references to nine of 14 black venire members being
struck from the jury in his appeals briefs, he only argued pretext as to six of the prosecutor’s nine
peremptory strikes in his direct appeal, Rule 32 appeal, and habeas corpus petition (Doc. 1).
Accordingly, Hall cannot be said to have exhausted the remedies available in the state courts
with regard to these three remaining peremptory strikes, as required by § 2254(b)(1)(A).
3

The Court of Criminal Appeals found that Hall only challenged the prosecutor’s reasons
for striking Lett in his Batson motion before the trial court. See Hall v. State, 820 So.2d 113, 129
(Ala.Crim.App. 1999). However, upon review of the trial transcript, it appears that defense
counsel also challenged the prosecutor’s stated reason for striking Cunningham (See Trial
Transcript Vol. 42, p. 7238). Therefore, the plain-error standard of review was not the
appropriate standard of review for Hall’s argument regarding Cunningham.
4

Although defense counsel used the phrase “not unequivocal,” (Trial Transcript Vol. 42,
p. 7239), it is nevertheless clear to this court from the nature of the arguments being made that
the crux of defense counsel’s argument to the trial court was that Lett’s answer was
unambiguous, and that he misspoke by saying “she was not unequivocal.” Defense counsel
presumably intended to say either “she was not equivocal” or “she was unequivocal” about her
ability to carry out her duties as a juror.
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(2)

SUMMARY OF STATE COURT DECISIONS ON DIRECT APPEAL

On direct appeal, the Alabama Court of Criminal Appeals considered and
rejected each of six arguments posited by Hall, one for each black veniremember
struck.

Hall repeated his charge that the prosecutor’s proffered reason for striking

Lett – that she had reservations about imposing the death penalty – was pretextual
because Lett indicated on her juror questionnaire that she was in favor of the death
penalty, thus “flatly contradict[ing]” the prosecutor’s proffered reason. (Hall’s Direct
Appeal Brief, Vol. 49, Tab R-40, p. 9). Hall also pointed to the fact that Lett stated
at voir dire that she could listen to all the evidence and base her decision on that
evidence. (Id. , citing Trial Transcript, Vol. 33, pp. 5414-5415).
The Court of Criminal Appeals reviewed Lett’s juror questionnaire and noted
that it did indeed indicate that she marked “strongly agree” with the statement,
“any person who kills another should get the death penalty.” Hall, 820 So.2d at
129. However, the court determined from the voir dire exchange between the
prosecutor and Lett that the record supported the notion that Lett had mixed
feelings about the death penalty, and therefore no Batson violation existed. (Id. at
130).
The Court of Criminal Appeals then addressed Hall’s Batson claim regarding
the remaining four venirepersons, but applied a “plain error” standard of review
because Hall did not object at trial to the prosecutor’s reasons for striking them.
Hall, 820 So.2d at 129-130. Hall claimed that black venirepersons Rosa Shoemack,
Jaqueline Mobley, David Williams, and Mary Cunningham each gave responses

18

during voir dire that clearly reflected that they could and would impose the death
penalty in some cases, while the prosecutor claimed to have struck them from the
jury because they had strong reservations about the death penalty, or did not
indicate a willingness to impose the death penalty. (Hall Direct Appeal Brief, Vol.
49, Tab R-40, p. 12-22).
After reviewing the voir dire transcript, the court noted that veniremembers
Shoemack, Mobley, Williams, and Cunningham had clearly indicated their
opposition to, or strong reservations regarding, the death penalty, and were struck
for that reason. Hall, 820 So.2d at 130-131. For example, as to Shoemack, the
Alabama Court of Criminal Appeals noted that when asked at voir dire by the
prosecutor “…could you ever vote for the death penalty, you think?” Shoemack
replied “I don’t think so.” (Id. at 130). As to Mobley, the court of appeals noted her
statements at voir dire to the effect that “I have a very open mind, I have to think –
But, I do oppose it [the death penalty], Your Honor.” (Id. at 131). The appeals court
also noted that Mobley confirmed that her opposition to the death penalty was
based upon religious conviction. (Id. at 131). As to Williams, the court of appeals
noted that he appeared to confirm a preference stated in his questionnaire for
imposing a sentence of life in prison without parole rather than imposing the death
penalty. (Id. at 131). As to Cunningham, the Court of Criminal Appeals noted that
when asked whether she would refuse to impose the death penalty “regardless” of
the case, Cunningham answered “I just don’t agree with killing, I mean, the death
penalty. Everybody should be punished some kind of way, but, I don’t go with

19

taking another life.” (Id. at 130). And finally, as to Lewis, the court of appeals
noted that Lewis told the court at voir dire that he had been sick for some time with
hypertension and heart disease and would like to be excused from service, rendering
the prosecutor’s strike permissible under Batson. (Id. at 131).
Hall also argued that the prosecutor questioned black venire members
differently than he did white venire members, focusing to a greater degree on
questions regarding the death penalty. (Hall Direct Appeal Brief, Vol. 49, Tab R-40,
p. 4). Hall asserted that the prosecutor’s questions were “intended solely to elicit
information which could later be used to validate the pretextual removal [of] blacks
from the venire.” (Id.) Hall pointed to the voir dire of panels two and eleven, where
he accused the prosecutor of questioning only the black venire members about their
views on the death penalty. (Id.) Ultimately, however, the Alabama Court of
Criminal Appeals found no evidence of disparate treatment between prospective
black jurors and prospective white jurors. Hall, 820 So.2d at 132.
For all of these reasons, the Alabama Court of Criminal Appeals denied
Hall’s argument on direct appeal and affirmed his conviction and sentence.
(3)

FEDERAL REVIEW OF THE STATE COURT DECISIONS ON
DIRECT APPEAL

“The 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, “a Batson claim at habeas
is often analyzed under AEDPA § 2254(d)(2), and is only granted ‘if it was
20

unreasonable to credit the prosecutor’s race-neutral explanations.’ ” Id. (quoting
Rice v. Collins, 546 U.S. 333, 338 (2006)). However, “[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 “if one of the following two conditions is
satisfied – 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).
(a)
Step 1:

ANALYSIS UNDER § 2254(d)(1)
Clearly Established Supreme Court Case Law

In 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 has
been an adjudication on the merits in a formal state court proceeding, is that the
federal court should first ascertain “the 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. As stated above, the law is “clearly established” if
Supreme Court precedent at the time “would have compelled a particular result in
the case.” Neelley, 138 F.3d at 923.
The governing legal principles at the time of the direct appeal were Batson v.
Kentucky, 476 U.S. 79 (1986), and Powers v. Ohio, 499 U.S. 400 (1991). In Batson,

21

the Supreme Court held that it was unconstitutional for the prosecution to
challenge potential jurors based solely upon their race or on the assumption that
because of their race, they should be unable to consider the case impartially.
Batson, 476 U.S. at 89. In Powers, the Supreme Court held that “a defendant in a
criminal case can raise the third-party equal protection claims of jurors excluded by
the prosecution because of their race.” Powers at 415. Furthermore, the Powers
Court held that “[t]o bar petitioner’s claim because his race differs from that of the
excluded jurors would be to condone the arbitrary exclusion of citizens from the
duty, honor, and privilege of jury service,” and “… to say that the race of the
defendant may be relevant to discerning bias in some cases does not mean that it
will be a factor in others …” Id. at 416. Therefore, a defendant may raise the
necessary inference of “purposeful discrimination in selection of the petit jury”
based “solely on evidence concerning the prosecutor’s exercise of peremptory
challenges “ during the trial. Batson at 96.
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. Id. at 97, 98 n.20.
Finally, the court must determine whether the defendant has established
purposeful discrimination. Id. at 98. “The 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)). “The credibility of the prosecution’s explanation

22

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 (1991)). “Questions 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, “[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 at 1255 (quoting McNair, 416 F.3d at 1310).
Step 2: Whether the State Court’s Adjudication Is Contrary to Clearly
Established Supreme Court Case Law
Having determined that Batson and Powers were the governing legal
principles at the time of trial and direct appeal, this court must next determine
whether the state court adjudication was contrary to that clearly established
Supreme Court case law, either because “ ‘the state court applie[d] a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases’ or ‘the state
court confront[ed] a set of facts that [were] materially indistinguishable from a
decision of th[e] [Supreme] Court and nevertheless arrive[d] at a result different
from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73 (quoting Williams, 529
U.S. at 405-406). The trial court found that Hall established a prima facie case of
23

discriminatory jury selection. See Hall, 820 So.2d at 128; and Trial Transcript Vol.
42, p. 7220. The prosecutor was then asked by the trial court to provide his raceneutral reasons for striking the black jurors. (Trial Transcript Vol. 42, p. 7220).
When the prosecutor provided his reasons, the trial court allowed defense counsel to
rebut those reasons, which he did with respect to venirepersons Minnie Lett and
Mary Cunningham. (Id. at 7238). The trial court then found that “[the]
Prosecution’s reasons for striking jurors were not a pretext and that the dictates of
Ex parte Branch and Batson have not been violated in this case …” (Id. at 7241).
On direct appeal, the appellate court analyzed the reasons given by the prosecutor
under both Batson and state law as it stood at that time and concluded that “[t]here
is no evidence that the reasons advanced by the prosecutor were a sham, nor is
there evidence of disparate treatment between prospective black jurors and
prospective white jurors.” Hall, 820 So.2d at 131.
Therefore, this court finds that the state courts’ adjudications at trial and 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.
Step 3: Whether the State Court “Unreasonably Applied” Batson
Since the state court applied the correct Supreme Court precedent, and the
pertinent facts of Supreme Court cases and the petitioner’s case are not materially
distinguishable, this court must go to the third step and determine whether the
state court “unreasonably applied” the governing legal principles set forth in the

24

Supreme Court’s cases. See 28 U.S.C. § 2254(d)(1). The standard for an
unreasonable application inquiry is “whether 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 “must be assessed in light of the record the court had before it.”
Holland, 542 U.S. at 652.
This court finds that the state 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 found that Hall had shown a prima
facie case of discriminatory motive and the prosecutor had provided race-neutral
reasons for striking the black venire members. The Alabama Court of Criminal
Appeals appeared to hedge somewhat on this question, noting that “… the trial
court could have lawfully found that no prima facie case of discrimination had been
proven if Hall made no further argument on his Batson objection.” Hall, 820 So.2d
at 128. Nevertheless, Hall did make further argument on his Batson objection, and
the Court of Criminal Appeals did evaluate the prosecutor’s reasons to determine if
there was a Batson violation. Id. That adjudication by the Court of Criminal
Appeals failed to follow clearly established law when it did not consider “all relevant
circumstances” in its analysis of the trial court’s ruling. Batson is quite clear that
“[i]n deciding whether the defendant has made the requisite showing, the trial court

25

should consider all relevant circumstances.” Batson, 476 U.S. at 96. (emphasis
added).
The failure to consider all relevant circumstances is as follows: in its
adjudication, the Alabama Court of Criminal Appeals analyzed each of the State’s
explanations for striking black potential jurors and found that each reason was a
legally acceptable race-neutral reason for exercising a peremptory strike. The court
ultimately found that “[t]here [was] no evidence that the reasons advanced by the
prosecutor were a sham, nor [was] there evidence of disparate treatment between
prospective black jurors and prospective white jurors.” Hall, 820 So.2d at 131.
However, neither the trial judge nor the Court of Criminal Appeals addressed
a crucial argument raised by Hall, namely, that the prosecutor’s stated reasons for
striking Minnie Lett were at odds with the record evidence. The prosecutor stated
that he struck Lett because “[s]he, in questioning, direct questioning, had strong
reservations about the death penalty …” and because Lett’s questionnaire
“indicated that [she] had a strong resistance to the death penalty.” (Trial
Transcript Vol. 42, pp. 7232-7233). But defense counsel argued to the trial court
that “… I would simply ask the Court to look at the questionnaires,” pointing out
that in Lett’s juror questionnaire, “[she] stated that she strongly agreed that any
person who intentionally kills another should get the death penalty; since they took
a life.” (Id. at 7238-7239). Hall also pointed out that Lett unambiguously stated in
voir dire that she could carry out her duties as a juror in the case. (Id.)

26

In fact, in her juror questionnaire, Lett summarized her feelings on the death
penalty as “it depends, maybe it’s the right thing.” (Trial Transcript Vol. 62, pp.
261-262). She also stated that the death penalty should be imposed in cases which
involved “taking another life on purpose,” and indicated that she “strongly agree[d]”
with the statement “[a]ny person who intentionally kills another should get the
death penalty,” adding, in her own words, “they took a life, willing to give up their
own [sic].” Id. at 262). Lett also stated that she had never given the death penalty
much thought until being included in the jury pool. Id. at 265. At voir dire, Lett
stated the following:
Q:

I see that you said you have mixed feelings about the
death penalty as well, is that right?

Lett: Yes, sir.
Q:

What is that based on, please, ma’am?

Lett: Well, if you convince me on the evidence –
Q:

Would you base your decision on the evidence?

Lett: Yes, sir.
Q:

Are there cases in which you could vote for the death
penalty under certain kinds of facts, certain kinds of
cases?

Lett: Well, I think the death penalty, to me, I couldn’t really
say, but, if it be a threat to the public –
Q:

You’re saying you could listen to the evidence and base
your decision on that issue on the evidence and on each
case as it comes to you?
27

Lett: Yes, sir.
(Trial Transcript Vol. 33, pp. 5414-15) (Prosecutor Chapman, questioning).
In sum, one of the state’s proffered reasons for striking a black potential juror
is unsupported by the record, a fact which should have been included in the trial
court’s analysis of the third step of Batson, where all relevant circumstances must
be examined to determine whether the State struck any jurors based on their race.
Instead, the trial judge simply ruled that the prosecutor’s reasons for striking jurors
were not a pretext and did not violate Batson, without explanation or further
investigation, and with two opposing versions before him of Lett’s voir dire
testimony and questionnaire content. (Trial Transcript Vol. 42, p. 7241).
The state courts’ failure to address the contradiction between the voir dire
record and the State’s proffered reasons for striking a black venire member is an
unreasonable application of Batson to the facts of this case. This finding is
supported by the Supreme Court’s decision in Miller-El v. Dretke (“Miller-El”), 545
U.S. 231 (2005). In Miller-El, the Supreme Court ultimately held that “[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 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 “he 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
“unequivocally stated that he could impose the death penalty regardless of the
28

possibility of rehabilitation.” Id. at 244. The Court concluded that the prosecutor
had either misunderstood or had an ulterior motive for keeping Mr. Fields off the
jury. Regardless, the Court ruled that the appeals court’s judgment on the Fields
strike was “unsupportable” because it failed to note that Fields had affirmed that he
could give the death penalty if the law and evidence called for it. Id. at 246.
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 contradiction between Lett’s voir dire
testimony and questionnaire on the one hand, and the prosecutor’s proffered
reasons for striking her from the jury, on the other hand.
Therefore, because the Alabama Court of Criminal Appeals omitted the above
highly relevant fact from its Batson analysis, the court did not undertake a review
of “all 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.
(b)

ANALYSIS UNDER § 2254(d)(2)

Even if this court did not find an unreasonable application of Batson under §
2254(d)(1), it would still find an unreasonable determination of the facts under §
2254(d)(2), for the following reasons.
Under AEDPA, a federal habeas court must find the state-court conclusion
“an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding” before it can grant relief pursuant to § 2254(d)(2). Thus,

29

this court can only grant Hall’s petition if it finds that it was unreasonable to credit
the prosecutor's race-neutral explanations for the Batson challenge. State-court
factual findings, moreover, are presumed correct; the petitioner has the burden of
rebutting the presumption by “clear and convincing evidence.” § 2254(e)(1). See
also Miller-El, 545 U.S. at 240. This standard “is demanding but not insatiable.”
Id.
As stated above and repeated here for illustrative purposes, Hall objected to
the prosecutor’s explanation for striking venireperson Minnie Lett as pretextual.
(Trial Transcript Vol. 42, p. 7238). In her juror questionnaire, Lett summarized her
feelings on the death penalty as “it depends, maybe it’s the right thing.” (Trial
Transcript Vol. 62, pp. 261-262). She also stated that the death penalty should be
imposed in cases which involved “taking another life on purpose,” and indicated
that she “strongly agree[d]” with the statement “Any person who intentionally kills
another should get the death penalty,” adding, in her own words, “they took a life,
willing to give up their own [sic].” (Id. at 262). Lett also stated that she had never
given the death penalty much thought until being included in the jury pool. (Id. at
265). At voir dire, Lett stated the following:
Q:

I see that you said you have mixed feelings about the death
penalty as well, is that right?

Lett: Yes, sir.
Q:

What is that based on, please, ma’am?

Lett: Well, if you convince me on the evidence –

30

Q:

Would you base your decision on the evidence?

Lett: Yes, sir.
Q:

Are there cases in which you could vote for the death penalty
under certain kinds of facts, certain kinds of cases?

Lett: Well, I think the death penalty, to me, I couldn’t really say, but,
if it be a threat to the public –
Q:

You’re saying you could listen to the evidence and base your
decision on that issue on the evidence and on each case as it
comes to you?

Lett: Yes, sir.
(Trial Transcript Vol. 33, pp. 5414-15) (Prosecutor, Chapman, questioning).
The prosecutor then peremptorily struck Lett from the venire, and
subsequently offered a race-neutral reason for doing so when confronted with Hall’s
Batson challenge:
Mrs. Lett was in one of the first panels that we brought in
here. She, in questioning, direct questioning, had strong
reservations about the death penalty. Said she’d never
given it much thought. She said that she would have great
reservation in doing that. She said that her choices would
be life without parole, generally. And we struck her for
that reason. We made notes of all these questionnaires,
my associates did, during the questioning, by the way,
Your Honor. And our notes indicated that Mrs. Lett had a
strong resistance to the death penalty. We struck her for
that reason.
(Trial Transcript Vol. 42, pp. 7232-33). Thus, the prosecutor simply
mischaracterized Lett’s testimony and the content of her juror questionnaire. He

31

represented that Lett had strong reservations about the death penalty, and that the
prosecution team had notes of her questionnaire which supported that assertion,
despite the fact that Lett’s questionnaire actually showed that she strongly agreed
with the statement that “Any person who intentionally kills another should get the
death penalty,” and despite the fact that Lett wrote on her questionnaire that “they
took a life, willing to give up their own [sic].” See Trial Transcript Vol. 62, pp. 261262. The prosecutor also stated that Lett’s voir dire testimony revealed “strong
reservations about the death penalty,” despite her unambiguous affirmation that
she could listen to the evidence and base [her] decision on the evidence presented at
trial; and despite the total absence of any statement that could be construed as
indicative of strong reservations about capital punishment. See Trial Transcript
Vol. 33, pp. 5414-15.
By contrast, the prosecutor did not strike several white members of the
venire whose voir dire testimony revealed either close similarities to Lett’s
statements about the death penalty, or expressed strong reservations about the
death penalty. A side-by-side comparison of Lett and these white venirepersons,
both of whom ultimately served on the jury that convicted Hall, tends to undercut
the prosecutor’s race-neutral explanation, as discussed below. “If a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwisesimilar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.” Miller-El at 241.

32

Flora Hutto, a 51 year-old white woman who ultimately was selected to serve
as a juror, stated in her questionnaire that she “hadn’t really thought about” the
death penalty, and stated that she had no opinion about it or about the purposes
that capital punishment serves, nor the types of cases or offenses where the death
penalty should be imposed. (Trial Transcript, Vol. 61, pp. 69-72). Hutto did,
however, indicate that she “agre[ed] somewhat” with the statement “Any person
who intentionally kills another should get the death penalty.” Id. at 70. Under
questioning at voir dire, Hutto stated the following:
Q:

Would you describe yourself as being in – in favor
of the death penalty for the intentional killing of a
person?

Hutto:

I’ve never really had to say what I’d really do, but, I
feel like it’s according to the crime …

Q:

If the State proved that it was a murder and
burglary –

Hutto:

Yes.

Q:

-- and you were sure of that, you were sure of that
to the extent that you voted to convict him and the
other eleven jurors were also equally convinced,
strong evidence, would, in that situation, would you
vote for the death penalty for Mr. Hall?

Hutto:

No.

Q:

You would not?

Hutto:

No.

33

Q:

Okay. What – what further evidence would you be
looking for?

PROSECUTOR:

Your Honor, I’m going to object to that
question in that form …

Q:

… Do you think – do you feel that life without
parole is an appropriate punishment for someone
who intentionally killed another person?

Hutto:

Intentionally killed?

Q:

Another person?

Hutto:

It’s possible.

Q:

Ma’am?

Hutto:

It’s possible.

Q:

It’s possible?

Hutto:

Life without parole would be more appropriate
than the death penalty.

(Trial Transcript Vol. 34, p. 5681-93) (Questioning by defense counsel).
As noted above, Hutto stated in her questionnaire that she “hadn’t really
thought about” her position on the death penalty, like Minnie Lett had done. (Trial
Transcript, Vol. 61, p. 69). Yet this was one of the prosecutor’s race-neutral reasons
for peremptorily striking Lett from the venire, while Hutto went on to serve on the
jury, despite making the same statement. See Trial Transcript Vol. 42, p. 7232.
Furthermore, Hutto expressed greater reservations and doubts about the death
penalty in her voir dire testimony than Lett did, telling the prosecutor that she
34

believed a sentence of life in prison without parole was possibly a more appropriate
punishment for capital murder than the death penalty. See Trial Transcript Vol.
34, p. 5693. The prosecutor did not deem such reservations to be an impediment to
Hutto’s ability to serve on the jury, yet apparently believed that Lett’s statements
merited a peremptory strike, despite the fact that they were far more supportive of
the death penalty.
Another white venireperson, Ann Chandler, a 45 year-old woman who also
went on to serve as a juror, stated in her juror questionnaire that she had “mixed
feelings” about the death penalty, and “disagree[d] somewhat” with the statement
“Any person who intentionally kills another should get the death penalty.” (Trial
Transcript Vol. 61, pp. 121-122). However, Chandler’s reservations about capital
punishment were tempered by other statements contained in her questionnaire,
including her opinion that “someone who intentionally plans a murder should not
have the privilege of living.” (Id. at 124). At voir dire, Ann Chandler stated the
following:
Q:

… now you answered in your questionnaire that you have
mixed feelings about the death penalty and it depends on
the magnitude of the crime, is that right? Is that still your
opinion? ...

A.C.: Yes, sir …
Q:

… Just because this Defendant or a defendant might have
been found guilty of capital murder, murder during the
course of a burglary, murder during the course of a
robbery, or whatever it might be, would you
automatically, in every case, vote for the death penalty?
35

A.C. Not necessarily, not unless you heard everything –
Q:

Well, when I say – when you heard everything, could you
listen and consider the Defendant’s background and his
family history and his age and his mental capabilities and
all that before you made that decision about whether or
not the death penalty or life without parole came into
being?

A.C.: Make my decision before I heard all that?
Q:

Yes.

A.C.: No, I wouldn’t.
Q:

You would listen to that first?

A.C.: Uh-huh …
Q:

… if you found a person guilty of capital murder would
you automatically vote for the death penalty?

A.C.: Not unless you – not unless I had, you know, all the
circumstances around it.
(Trial Transcript Vol. 33, pp. 5530-35) (Prosecutor, Chapman, questioning).
The voir dire testimony of Minnie Lett and Ann Chandler is similar in that
they both admitted to the prosecutor that they had mixed feelings about the death
penalty, and both stated that they would listen to the evidence in reaching a
decision on what penalty to vote for. Chandler and Lett each wrote similar
statements on their questionnaire that were supportive of capital punishment
(Chandler’s statement that “someone who intentionally plans a murder should not
have the privilege of living” and Lett’s statement that “they took a life, willing to
36

give up their own [sic].”). That Chandler, a white woman, would be selected to
serve on the jury while Lett, a black woman, would be peremptorily struck by the
prosecutor after they both expressed substantially similar views on the death
penalty makes the prosecutor’s race neutral reason unlikely.
The Alabama Court of Criminal Appeals concluded that there was no
evidence of disparate treatment between prospective black jurors and prospective
white jurors, and noted that the prosecutor also listed five white venirepersons who
were struck due to their views on the death penalty, citing Travis v. State, 776
So.2d 819, 839 (Ala.Crim.App. 1997), for the notion that “[t]he fact that the
prosecutor’s strike against a white venire member was based on the same reason as
that for striking the black venire member indicates that the reason was properly
race-neutral.” Hall, 820 So.2d at 131-132. However, this court notes that in Travis,
unlike this case, there was no argument or suggestion of a contradiction between
the voir dire record, on the one hand, and the State’s proffered race-neutral reasons
for striking a black venire member, on the other hand.
In sum, the Lett’s voir dire testimony and questionnaire cast the prosecutor’s
reasons for striking Lett in an implausible light. Comparing her strike with the
treatment of white venire members who expressed similar views, or views openly
skeptical of the death penalty, heaps even more doubt upon the prosecutor’s
explanations. Therefore, this court finds that the state court’s affirmation of Hall’s
conviction in light of such contradictions constitutes “an unreasonable

37

determination of the facts in light of the evidence presented in the State court
proceeding” pursuant to 28 U.S.C. § 2254(d)(2).
(c)

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 and an
unreasonable determination of the facts in light of the evidence presented in the
state court proceeding, this court is now “unconstrained 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. Alen-Brown, 243 F.3d 1293, 1297 (11th Cir.
2001). First the objecting party must make a prima facie showing that the objectedto peremptory challenge was based on race. Here, there is no question that Hall
has established a prima facie case of racial discrimination, for the trial court found
that Hall made such a showing pursuant to Ex Parte Branch. (Trial Transcript,
Vol. 42, p. 7220). 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.
See id. at 7221-37. Third, Batson requires this court to review “the State’s proffer of
specific explanations after the trial to see whether its explanations overcome the
very strong prima facie case of discrimination.” McGahee, 560 F.3d at 1267. In this
analysis, this court shall “review all relevant circumstances. ” (Id. at 1266)

38

(quotation marks omitted). “[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.”
Miller-El II, 545 U.S. at 251-52. The objecting party may carry its burden by
showing that the striking party’s race-neutral reason is mere pretext for
discrimination. Id. at 247-49 (analyzing for pretext the prosecution’s reasons for
striking a prospective juror).
“[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 338-39 (internal quotation marks and
citations omitted). “If a prosecutor’s proffered reason for striking a black panelist
applies just as well to an otherwise-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.
While Hall has challenged many of the specific explanations in his petition,
this court need 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, “under 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

39

States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986); see also Snyder v. Louisiana,
552 U.S. 472, 478 (2008) (“Because we find that the trial court committed clear
error in overruling 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 Hall claims the prosecution
engaged in purposeful discrimination, that of Minnie Lett. Because this court finds
that the State’s explanations for striking Lett are implausible and therefore
pretextual, this court harbors no doubt in holding that the State violated Hall’s and
Lett’s Equal Protection rights as defined by Batson and as further clarified by
Powers.
As described in detail, supra, and summarized here for completeness’ sake, in
her juror questionnaire, Lett summarized her feelings on the death penalty as “it
depends, maybe it’s the right thing.” (Trial Transcript Vol. 62, pp. 261-262). She
also stated that the death penalty should be imposed in cases which involved
“taking another life on purpose,” and indicated that she “strongly agree[d]” with the
statement “any person who intentionally kills another should get the death
penalty,” adding, in her own words, “they took a life, willing to give up their own
[sic].” (Id. at 262). Lett also stated that she had never given the death penalty
much thought until being included in the jury pool. (Id. at 265). At voir dire, Lett
admitted that she had “mixed feelings” about the death penalty, but also testified
that she would listen to and base her decision upon the evidence. (Trial Transcript
Vol. 33, p. 5414-15) (Prosecutor Chapman, questioning).

40

Upon the trial court’s finding of a prima facie case of racial discrimination,
the prosecutor offered his allegedly race-neutral reasons for striking Lett from the
jury, and proceeded to mischaracterize Lett’s testimony and the content of her juror
questionnaire. He represented that Lett had strong reservations about the death
penalty, and that the prosecution team had notes of her questionnaire which
supported that assertion, despite the fact that Lett’s questionnaire actually showed
that she strongly agreed with the statement that “any person who intentionally
kills another should get the death penalty,” and despite the fact that Lett wrote on
her questionnaire that “they took a life, willing to give up their own [sic].” See Trial
Transcript Vol. 62, pp. 261-62. The prosecutor also stated that Lett’s voir dire
testimony revealed “strong reservations about the death penalty,” despite her
unambiguous affirmation that she could listen to the evidence and base her decision
on the evidence presented at trial; and despite the total absence of any statement
that could be construed as indicative of strong reservations about capital
punishment. See Trial Transcript Vol. 33, pp. 5414-15.
By contrast, the prosecutor did not strike two white members of the venire
whose voir dire testimony revealed either similarities to Lett’s statements about the
death penalty, or expressed strong reservations about the death penalty. A side-byside comparison of Lett and these white venirepersons, both of whom ultimately
served on the jury that convicted Hall, tends to undercut the prosecutor’s raceneutral explanation, as discussed below. “If a prosecutor’s proffered reason for
striking a black panelist applies just as well to an otherwise-similar nonblack who

41

is permitted to serve, that is evidence tending to prove purposeful discrimination to
be considered at Batson’s third step.” Miller-El at 241.
The first white juror was Flora Hutto, a 51 year-old white woman who stated
in her questionnaire that she “hadn’t really thought about” her position on the
death penalty. (Trial Transcript, Vol. 61, p. 69). Yet this statement was one of the
prosecutor’s race-neutral reasons for peremptorily striking Lett from the venire,
while Hutto went on to serve on the jury, despite making the same statement. See
Trial Transcript Vol. 42, p. 7232. Furthermore, Hutto expressed greater
reservations and doubts about the death penalty in her voir dire testimony than
Lett did, telling the prosecutor that she believed a sentence of life in prison without
parole was possibly a more appropriate punishment for capital murder than the
death penalty. See Trial Transcript Vol. 34, p. 5693. The prosecutor did not deem
such reservations to be an impediment to Hutto’s ability to serve on the jury, yet
apparently believed that Lett’s statements merited a peremptory strike, despite the
fact that they were far more supportive of the death penalty.
Another white venireperson, Anne Chandler, a 45 year-old woman who also
went on to serve as a juror, stated in her juror questionnaire that she had “mixed
feelings” about the death penalty, and “disagreed somewhat” with the statement
“any person who intentionally kills another should get the death penalty.” (Trial
Transcript Vol. 61, pp. 121-122). This is reveals a greater degree of reservation
about the death penalty than Lett’s questionnaire, which indicated that she
“strongly agre[ed]” with the same statement. (Trial Transcript Vol. 62, pp. 261-62).

42

Chandler’s reservations about capital punishment were tempered by other
statements contained in her questionnaire, including her opinion that “someone
who intentionally plans a murder should not have the privilege of living.” (Id. at
124). This remark is not substantially different from Lett’s remark that “they took
a life, willing to give up their own [sic].” (Trial Transcript Vol. 62, p. 262).
Thus, the voir dire testimony of Anne Chandler and Minnie Lett is similar in
that they both admitted to the prosecutor that they had mixed feelings about the
death penalty, and both stated that they would listen to the evidence in reaching a
decision on what penalty to vote for. Chandler and Lett each wrote similar
statements on their questionnaire that were supportive of capital punishment
(Chandler’s statement that “someone who intentionally plans a murder should not
have the privilege of living” and Lett’s statement that “they took a life, willing to
give up their own [sic].”).
That Flora Hutto and Anne Chandler, both white women, would be selected
to serve on the jury while Minnie Lett, a black woman, would be peremptorily
struck by the prosecutor due to her alleged reservations about the death penalty -after each one of the three women expressed substantially similar views on capital
punishment -- makes the prosecutor’s race neutral reason unconvincing and
implausible and suffices for the determination that there was a Batson error. See
Snyder 552 U.S. at 478.
In reviewing “all relevant circumstances” in this record, this court finds that
it “blinks reality” to deny that the State struck Minnie Lett because she was

43

African-American. Miller-El II, 545 U.S. at 266. The record in this case compels a
finding that the State’s use of a peremptory strike in this case to dismiss Lett from
the jury venire constituted intentional discrimination and violated Hall’s rights
under the Equal Protection Clause and the clearly established law as determined by
the Supreme Court in Batson. The court is cognizant of the fact that Hall and Lett
do not share the same racial identity (i.e., Hall is white and Lett is black).
Nevertheless, “[t]o bar petitioner’s claim because his race differs from that of the
excluded jurors would be to condone the arbitrary exclusion of citizens from the
duty, honor, and privilege of jury service.” Powers, 499 U.S. at 415.
This issue alone is sufficient for the court to conditionally grant Hall’s
petition for a writ of habeas corpus. However, the court will proceed to review the
remaining issues raised by Hall in his petition.
CLAIM #2: HALL’S CLAIM THAT THE CHANGE OF VENUE TO MONROE
COUNTY VIOLATED HIS RIGHT TO A FAIR TRAIL AND AN IMPARTIAL
JURY
Hall argues that the trial court’s change of venue to Monroe County from
Conecuh County deprived him of an impartial jury and a fair trial because Monroe
County was allegedly even more “saturated” by prejudicial pretrial media reports
than was Conecuh County. (Doc. 1, pp. 33-37).
On direct appeal, the Alabama Court of Criminal Appeals examined the
venue issue on the merits, and addressed both actual and presumed prejudice
standards. See, e.g., Coleman v. Zant, 708 F.2d 541, 544 (11th Cir. 1983) (in
analyzing whether a defendant’s trial was deprived of fundamental fairness by
44

pretrial publicity or an inflamed community atmosphere, courts consider both an
“actual prejudice” standard and a “presumed prejudice” standard).
Actual prejudice requires that a defendant show both (i) “that one or more
jurors who decided the case entertained an opinion, before hearing the evidence
adduced at trial, that the defendant was guilty” and (ii) that such jurors “could not
have laid aside these preformed opinions and rendered a verdict based on the
evidence presented in court.” Coleman, 708 F.2d at 544 (citations and internal
marks omitted); see also Mills v. Singletary, 63 F.3d 999, 1009 (11th Cir. 1995)
(similar). Presumed prejudice, on the other hand, may arise from pretrial publicity
when (i) “pretrial publicity is sufficiently prejudicial and inflammatory,” and (ii)
“the prejudicial pretrial publicity saturated the community.” Coleman, 708 F.2d at
541; see also Mills, 63 F.3d at 1010 (similar). “[T]he principle of presumed prejudice
is rarely applicable and reserved for extreme situations.” Mills, 63 F.3d at 1010
(citations and internal quotation marks omitted). More generally, “the burden
placed upon the defendant to show that pretrial publicity deprived him of his right
to a fair trial before an impartial jury is an extremely heavy one.” United States v.
Campa, 459 F.3d 1121, 1143 (11th Cir. 2006) (citation and internal marks omitted).
In applying these federal constitutional standards to Hall’s circumstances, as
to presumed prejudice, the Alabama Court of Criminal Appeals noted that Hall had
attached just one newspaper article to his motion, which appeared in the Monroe
Journal several days before Hall’s trial was scheduled to begin. Hall, 820 So.2d at
123. Hall argued that 25 of the 88 jurors who composed the jury venire, or 28%,

45

stated that they had seen or read the article. Id. The majority of these
veniremembers who read the article were stricken for cause, and the remaining
members stated that the article would not affect their ability to be impartial. Id. at
123-24. The Alabama Court of Criminal Appeals found that “[t]here was absolutely
nothing that suggested that the article ‘saturated’ the community with prejudicial
publicity,” and held that Hall failed to show presumed prejudice. Hall, 820 So.2d at
124.
As to actual prejudice, the Alabama court likewise found that the defense had
not met its burden because Hall did not argue that any of the jurors who read the
Monroe Journal and remained on the panel were not impartial. Id. Because Hall
had not shown that jurors were either presumptively or actually prejudiced, the
Alabama Court of Criminal Appeals concluded that the trial court did not err in
denying the defense’s request for change of venue. Id.
Nothing about the state court’s treatment of the venue issue was contrary to,
or involved an unreasonable application of, clearly established federal law as
required by § 2254(d)(1). For one thing, Hall’s petition does not identify whether he
takes issue with the state court’s conclusions under the actual prejudice or the
presumed prejudice standards. Instead, he lists two factors that he claims entitle
him to relief: (i) the newspaper article in the Monroe Journal which described the
acts with which Hall was charged, and gave a complete list of all the people called
for jury service in Hall’s trial; and (ii) the fact that more than half the venire
admitted exposure to pretrial publicity. (Doc. 1, at 33-35.)

46

These factors simply do not satisfy petitioner’s burden under either prong of
the “presumed prejudice” standard, inasmuch as they do not show that the nature
of the publicity was inflammatory at all (as opposed to merely factual), or that the
community was saturated by the pretrial publicity, or that this case fits within the
narrow band of “extreme situation[s]” where prejudice may be presumed. See
generally Gaskin v. Secretary, Dep’t of Corrections, 494 F.3d 997, 1005 (11th Cir.
2007) (no habeas error in denial of petitioner’s motion for change of venue, even
though articles published in local paper “may have been somewhat prejudicial or
inflammatory” and “92% of potential jurors and 11 of the 12 jurors at trial had read
newspaper accounts of the crime”); Campa, 459 F.3d at 1144 (explaining that
prejudice cannot be presumed absent a trial atmosphere “utterly corrupted by press
coverage”); Baldwin v. Johnson, 152 F.3d 1304, 1314 (11th Cir. 1998) (“The fact that
a case generates widespread publicity does not, in and of itself, warrant a change of
venue.”); see also Murphy v. Florida, 421 U.S. 794, 800 n.4 (1975) (distinguishing
“largely factual publicity from that which is invidious or inflammatory,” and noting
that “[t]o ignore the real differences in the potential for prejudice would not advance
the cause of fundamental fairness, but only make impossible the timely prosecution
of persons who are well known in the community”).
Hall’s invocation of the landmark Supreme Court cases involving prejudicial
pretrial publicity also falls short of the mark because the facts of his case, as he
alleges them, do not rise to the “carnival atmosphere” discussed in Sheppard v.
Maxwell, 384 U.S. 333, 354 (1966) (“For months the virulent publicity about

47

Sheppard and the murder had made the case notorious. Charges and
countercharges were aired in the news media besides those for which Sheppard was
called to trial. In addition, only three months before trial, Sheppard was examined
for more than five hours without counsel during a three-day inquest which ended in
a public brawl. The inquest was televised live from a high school gymnasium
seating hundreds of people.”); Rideau v. State of Louisiana, 373 U.S. 723, 725 (1963)
(Describing as a “spectacle” the fact that “[w]hat the people of Calcasieu Parish saw
on their television sets was Rideau [the defendant], in jail, flanked by the sheriff
and two state troopers, admitting in detail the commission of the robbery,
kidnapping, and murder, in response to leading questions by the sheriff.”); or Irvin
v. Dowd, 366 U.S. 717, 727 (1961) (“An examination of the 2,783-page voir dire
record shows that 370 prospective jurors or almost 90% of those examined on point
… entertained some opinion as to guilt – ranging in intensity from mere suspicion
to absolute certainty …of the voir dire examination of a majority of the jurors finally
placed in the jury box[,] [e]ight out of the 12 thought petitioner was guilty.”).
Accordingly, this ground for relief is without merit because Hall has failed to
demonstrate how the state court’s treatment of the change of venue issue is
redressable in habeas proceeding pursuant to § 2254(d). Hall has identified no U.S.
Supreme Court precedent which is materially indistinguishable or contrary to the
state courts’ disposition of this issue. Furthermore, fair-minded jurists could agree
with the state court’s adjudication of this issue in light of the evidence presented
there; thus, habeas relief is unavailable with regard to Claim #2.

48

CLAIM #3: HALL’S CLAIM THAT THE TRIAL COURT PREVENTED HIM
FROM PRESENTING A DEFENSE
Hall argues that the trial court denied him a fair trial by prohibiting him
from introducing evidence tending to show that Hall’s co-defendant, Wayne Travis,
murdered Mrs. Haskew pursuant to a pattern or plan, without Hall’s knowledge.
(Doc. 1, p. 37). This evidence was summarized by the Alabama Court of Criminal
Appeals as “evidence that his codefendant Travis was from the McKenzie area
where the victim lived, had had a troubled childhood, had been convicted of several
offenses such as burglary, and on one prior occasion had been arrested for stealing
from the victim. Also, Hall wanted to present evidence that Travis had said that he
was going to kill a former teacher when he was released from prison.”5 Hall, 820
So.2d at 134-35. Hall asserts that “[b]y demonstrating Travis’ pattern of escalating
crimes against people in his hometown, as well as his premeditation to kill, defense
counsel sought to prove that Travis killed Mrs. Haskew and that Mr. Hall did not
participate intentionally in her death.” (Doc. 1, pp. 41).
The Alabama Court of Criminal Appeals denied this claim, ruling that the
evidence which Hall sought to introduce was correctly excluded because it was not
relevant to Hall’s innocence and did not tend to exonerate him. Hall, 820 So.2d at
135. The appeals court also pointed out that there was ample evidence that both
Travis and Hall were active participants in the burglary-murder, and that both
were seen around the Schad residence around the time it was burgled. Id.
5

Haskew was a retired schoolteacher.

49

Although Hall does not explicitly allege a basis upon which this court can
grant a writ of habeas corpus under either § 2254(d)(1) (i.e., contrary to and/or an
unreasonable application of federal law as set forth by the Supreme Court) or §
2254(d)(2) (i.e., resulting in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding), he does cite a number of Supreme Court precedents which could be
construed as a claim under § 2254(d)(1): Washington v. Texas, 388 U.S. 14 (1967);
Chambers v. Mississippi, 410 U.S. 284 (1973); Green v. Georgia, 442 U.S. 95 (1979);
Beck v. Alabama, 447 U.S. 625 (1980); Crane v. Kentucky, 476 U.S. 683 (1986);
Holmes v. South Carolina, 547 U.S. 319 (2006); United States v. Scheffer, 523 U.S.
303, 308 (1998); and Rock v. Arkansas, 484 U.S. 44, 61 (1987). Unfortunately for
Hall, these cases are materially distinguishable from his case, and furthermore
cannot support an argument that Alabama courts unreasonably applied Supreme
Court precedent.
For example, unlike in Hall’s case, the excluded testimony in Washington
tended to exonerate the defendant. Washington, 388 U.S. 14, 16 (1967) (“The record
indicates that [defense witness] would have testified that petitioner pulled at him
and tried to persuade him to leave, and that petitioner ran before Fuller fired the
fatal shot.”). The same is true of Chambers, where the U.S. Supreme Court’s
holding revolved around the fact that “The State’s proof at trial excluded the theory
that more than one person participated in the shooting of [the victim]. To the

50

extent that [a different suspect’s] confession tended to incriminate him, it tended
also to exculpate [the defendant].” Chambers, 410 U.S. at 297.
In Green, the defendant was seeking to prove that he was not even present
when the victim was murdered – a fact which clearly is not at issue in Hall’s case.
Green, 442 U.S. at 96. Beck is also distinguishable because, unlike this issue, it
involved the question of whether a state-law prohibition on giving lesser included
offense instructions in capital cases violated the Eighth Amendment by
substantially increasing the risk of error in the fact-finding process. Beck, 447 U.S.
at 632. Similarly, the facts at issue in Crane are materially distinguishable because
there, the question of admissibility centered upon “proffered testimony about the
circumstances of petitioner’s confession.” Crane, 476 U.S. at 690. Here, Hall did
not seek to introduce any evidence concerning a confession.
In Holmes, the Supreme Court vacated the petitioner’s death sentence
because the state rule that excluded defense evidence of a third-party’s guilt did so
not by focusing on the probative value or potential adverse effects of admitting the
defense evidence, but instead by inquiring as to the strength of the prosecution’s
case. Holmes, 547 U.S. at 327. That is not at issue here. In U.S. v. Scheffer, the
U.S. Supreme Court upheld a military court’s decision to exclude the results of a
polygraph test which the defendant sought to admit, ruling that the evidentiary
rule relied upon by the trial court served various legitimate governmental interests.
Scheffer, 523 U.S. at 309-13. Thus, Scheffer bears no factual similarity to Hall’s
case whatsoever, and clearly cannot form the basis of a grant of habeas relief under

51

§ 2254(d)(1). Finally, in Rock, the Supreme Court reversed a state courts’ exclusion
of the defendant’s “hypnotically refreshed” testimony as impermissibly restricting
her right to testify in her own defense. Rock, 483 U.S. at 49-50. Here, Hall was not
prevented from testifying on his own behalf, nor from introducing prior statements
which might comprise such testimony. Therefore, like the other U.S. Supreme
Court precedent Hall cited on this issue, Rock is materially distinguishable from
Hall’s case.
Furthermore, this issue does not turn on a finding of fact by the trial court
that is susceptible to a charge that it was objectively unreasonable. The trial court’s
exclusion of evidence was a legal ruling rather than a factual one, and in any event,
Hall has not offered any evidence to rebut the presumption of correctness that the
trial court enjoys. Accordingly, habeas relief on this issue is denied pursuant both
to § 2254(d)(1) and § 2254(d)(2).
CLAIM #4: HALL’S CLAIM THAT THE TRIAL COURT VIOLATED HIS
RIGHTS BY FAILING TO INSTRUCT THE JURY ON THE LESSER
INCLUDED OFFENSE OF FELONY-MURDER
Hall argues that the trial court failed to instruct the jury on the lesser
included offense of felony-murder, thus violating his rights to a fair trial and
Fourteenth Amendment due process rights under the U.S. Constitution. (Doc. 1, p.
45). However, the record does not reflect that Hall requested a felony murder
instruction. The record does clearly show, on the other hand, that the trial judge
provided instructions to the jury on the lesser included offenses of intentional
murder and first-degree burglary. (Trial Transcript Vol. 45, p. 7885).

52

On this record, the fact that the trial judge did not instruct the jury on felony
murder as a lesser offense to capital murder appears entirely valid and proper. The
Alabama Court of Criminal Appeals’ conclusion that the evidence did not support
such charges, see Hall, 820 So.2d at 139, was not unreasonable and, indeed, was not
erroneous at all. Even if the failure to provide such instructions was error,
however, Hall’s attempt to parlay that error into a constitutional deprivation is
misguided. Petitioner relies for this argument on Beck v. Alabama, 447 U.S. 625,
(1980), in which the Supreme Court declared that “when the evidence
unquestionably establishes that the defendant is guilty of a serious, violent offense
– but leaves some doubt with respect to an element that would justify conviction of
a capital offense – the failure to give the jury the ‘third option’ of convicting on a
lesser included offense would seem inevitably to enhance the risk of an
unwarranted conviction.” Id. at 637.
In arguing a violation of Beck, however, Hall ignores both Supreme Court
and Eleventh Circuit precedent making clear that Beck does not apply where, as
here, a capital defendant does receive charges on certain lesser included offenses,
just not on every single lesser included offense that the evidence might support, or
that the defendant might desire. See, e.g., Schad v. Arizona, 501 U.S. 624, 646-47
(1991) (“Our fundamental concern in Beck was that a jury convinced that the
defendant had committed some violent crime but not convinced that he was guilty of
a capital crime might nonetheless vote for a capital conviction if the only alternative
was to set the defendant free with no punishment at all. … This central concern of

53

Beck simply is not implicated in the present case, for petitioner’s jury was not faced
with an all-or-nothing choice between the offense of conviction (capital murder) and
innocence.”); Powell v. Allen, 602 F.3d 1263, 1271 (11th Cir. 2010) (determining that
Beck did not entitle capital defendant to jury instruction on felony murder, where
charge included capital murder, intentional murder and manslaughter, such that
“the jury was not faced with the ‘all-or-nothing choice’ Beck is concerned with”).
In light of these principles, this court cannot find that the Alabama Court of
Criminal Appeals’ conclusion was contrary to or an unreasonable application of
Beck, under § 2254(d)(1), nor was it an objectively unreasonable determination of
the facts under § 2254(d)(2).
CLAIM #5: HALL’S CLAIM THAT THE TRIAL COURT’S OVERREACHING
DURING VOIR DIRE DEPRIVED HALL OF A JURY THAT WAS
SELECTED FROM A GROUP OF HIS PEERS
Hall claims next that the trial court impermissibly rehabilitated potential
jurors who indicated that they would automatically vote for the death penalty.
(Doc. 1, p. 49). In so doing, Hall alleges that the trial court “overreached the bounds
of propriety” and forced him to exercise peremptory challenges in order to exclude
unqualified jurors who should have been stricken for cause. Id.
The Alabama Court of Criminal Appeals stated on direct appeal that it could
“find no place in the voir dire where Hall challenged the way in which the trial court
conducted voir dire examination. Therefore, our review of this issue is limited to
review under the plain-error doctrine.” Hall, 820 So.2d at 124. However, as Hall

54

points out in his petition, defense counsel did raise objections on this point, stating
that:
… before we bring the panel in, I’d like to follow up with that
last panel and voice an objection to the manner and procedure
which the Court employed in the rehabilitation of the jurors … I
think that was totally unnecessary for the Court to try and
rehabilitate those witnesses in the manner and fashion in which
the Court did.
Trial Transcript Vol. 34, pp. 5609-10;
Judge, we’d like to interpose an objection to the Court, Your
Honor, going beyond your original charge … in my opinion,
trying to rehabilitate jurors that have expressed their – their
death penalty views …
Trial Transcript Vol. 38 and 39, pp. 6599-6604;
I object … to the statements of the Court in qualifying the venire
which deviated from the original qualifications that you
originally used with the original panel to and include the
definitional aspects, the – the interrogations of Theresa
Richardson, Martha Montgomery, and, especially, as to Danny
Jordan. Danny Jordan had equivocally stated that he would
impose the death penalty and now you have, in my opinion,
rehabilitated [him] …
Trial Transcript Vol. 39, pp. 6649-50.
In response to defense counsel’s objections, the trial judge responded:
“For the record, your characterization of trying to rehabilitate is
incorrect. The Court was faced with a situation where the Court
was getting mutually contradictory responses from the jurors
indicating they did not understand the question. The Court was
merely trying to find out what their true feelings were … when I
get mutually contradictory responses my responsibility is to find
out what they feel. It was obvious to me they were confused and
a lot of work had to be done to figure out what their true feelings
were.”
Trial Transcript Vol. 34, pp. 5612-13.
55

Despite not finding the defense objections in the record, the Alabama Court of
Criminal Appeals nevertheless held that the trial court’s questioning of prospective
jurors was neither error nor plain error because “the conduct of voir dire
examination is discretionary with the trial court.” Hall, 820 So.2d at 124. The
Court of Criminal Appeals also cited the Florida Supreme Court for the proposition
that having the trial court rehabilitate jurors is a practice favored by reviewing
courts. Id. at 125 (citing Bryant v. State, 601 So.2d 529, 532 (Fla. 1992)).
In his habeas petition, Hall cites Morgan v. Illinois, 504 U.S. 719 (1992), in
which the U.S. Supreme Court reversed a death sentence because the trial court
refused to ask potential jurors whether they would automatically vote to impose the
death penalty. Morgan, 504 U.S. at 723. Instead, the trial court inquired only as to
whether potential jurors’ would automatically vote against the death penalty. The
Supreme Court held that this was constitutionally insufficient, and that a court
must allow an inquiry into prospective jurors’ views on capital punishment to
determine whether the juror would vote automatically for a death sentence at the
penalty phase. Id. at 729. Since such an inquiry did not happen at voir dire in
Morgan, the Supreme Court held that it violated the Due Process Clause of the
Fourteenth Amendment. Id.
In this case, on the other hand, such an inquiry did take place. The trial
court did ask prospective jurors whether they would automatically vote for the
death penalty upon returning a guilty verdict. Secondly, the question posed by
Hall’s petition – whether and when a trial court has impermissibly rehabilitated

56

jurors who the defendant believes should be struck for cause -- was not addressed in
Morgan.
Hall also cites the U.S. Supreme Court’s opinion in Swain v. Alabama, 380
U.S. 202, 219 (1965) overruled by Batson, 476 U.S. 79, to support his argument that
the trial court’s alleged rehabilitation of jurors unconstitutionally infringed upon
the exercise of his peremptory challenges. (Doc. 1, p. 55). In Swain, the U.S.
Supreme Court held that “[t]he denial or impairment of the right [to a peremptory
challenge] is reversible error without a showing of prejudice …” Id. Yet this cited
portion of Swain does not address the rehabilitation question raised in Hall’s
petition. See Swain 380 U.S. at 219. Instead, this part of Swain (which was later
overruled by Batson) addressed the state’s use of peremptory strikes to remove
black citizens from the jury pool. Id. at 220-21. On this basis, the court finds that
Swain is materially distinguishable from Hall’s case.
Having considered Hall’s argument in light of Morgan and Swain, this court
finds that the Alabama Court of Criminal Appeals did not decide the case
differently than the U.S. Supreme Court on a set of materially indistinguishable
facts, nor can it be said that it unreasonably applied a governing principle of either
Morgan or Swain to Hall’s case, therefore, relief pursuant to § 2254(d)(1) is denied
with regard to this issue. Furthermore, in light of the trial court’s explanation of its
sua sponte questioning of potential jurors, this court finds that the decision of the
Alabama Court of Criminal Appeals did not result in an unreasonable

57

determination of the facts in light of the evidence presented in the state court.
Thus, relief pursuant to §2254(d)(2) is also inappropriate.
CLAIM #6: HALL’S CLAIM THAT THE TRIAL COURT’S FAILURE TO
REMOVE JURORS FOR CAUSE WHO WERE UNQUALIFIED TO SERVE
DENIED HALL A FAIR TRIAL AND VIOLATED HIS RIGHTS UNDER THE
FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND
ALABAMA LAW
Hall argues that the trial court violated his constitutional rights at voir dire
when it denied his challenges of certain jurors for cause, allegedly depriving him of
a fair trial and an impartial jury, and infringing upon his exercise of peremptory
strikes. (Doc. 1, p. 58). Hall asserts that the jurors he sought to strike for cause
were those who expressed views on the death penalty that “were so strong that they
could not be impartial if they served on the jury,” and who would not be able to
consider mitigating circumstances at the penalty phase as required by Alabama
law. Id. at 58-59. Hall’s habeas petition includes the names of eight jurors whom
he claims should have been struck for cause. These venire members include:
Elizabeth McKinley, Leroy Rogers, Ann Chandler, Donald Spencer, Keely “Tootie”
Waters, Diane Harrison, Norman Barnett, and Bennie Norris. (Id. at 58-62).
(1)

Hall’s Objections To Individual Jurors
(a)

Juror Elizabeth McKinley

Hall claims that the first juror discussed in his petition, Elizabeth McKinley,
demonstrated through her questionnaire and voir dire responses that she would
automatically vote for the death penalty, “without regard to the mitigating
circumstances.” (Doc. 1, pp. 60-61). McKinley, along with all the other members of

58

her voir dire panel, initially raised her hand when the trial court asked who would
always impose the death penalty if it were shown that the defendant intentionally
murdered the victim. (Trial Transcript Vol. 33, p. 5512). In her juror
questionnaire, McKinley indicated that she “strongly agreed” with the statements
that “any person who intentionally kills another should get the death penalty,” and
“any person who helps someone who intentionally kills another should be eligible
for the death penalty.” (Trial Transcript Vol. 62, pp. 367-68). Additionally, Hall
argues that when questioned by counsel at voir dire, McKinley “did not retreat from
her first statement that she would vote for the death penalty if the defendant was
found guilty ‘regardless of the evidence produced.’” (Doc. 1, p. 60).
The voir dire transcript does not support Hall’s argument. Although the
record does indicate that all six members of McKinley’s panel raised their hands
when asked who would always vote for the death penalty, the transcript also shows
that jurors raised their hands when asked if they could follow Alabama law and
weigh the aggravating and mitigating circumstances. (Id. at 5513-16). The trial
judge even expressed frustration at these “mutually contradictory” answers, and felt
it necessary to explain that jurors could not answer “yes” to both questions (i.e.,
either the jurors would automatically vote for the death penalty, or they would
weigh the aggravating and mitigating circumstances). (Id. at 5516). Once the court
permitted the prosecutor to explain what Alabama law was regarding aggravating
and mitigating circumstances, the members of McKinley’s jury panel began to
clarify their positions upon individual questioning by counsel and the court. (Id. at

59

5519-5602). Thus, when McKinley was questioned by counsel, she gave more
detailed and nuanced answers, none of which indicated that she would always vote
for the death penalty, regardless of the evidence.
Hall points to the following remarks that McKinley made during her
individual voir dire testimony:
I think if someone takes someone else’s life, without
cause, and just wanted to personally rob or kill, I – I
really – I really do think that they deserve the death
penalty ... I believe if someone goes in someone’s home,
breaks in on them and kills them for no reason, I mean,
the lady wasn’t bothering anyone or anyone else wasn’t
bothering someone, I would say – could say, give the
death penalty, yes.
(Trial Transcript Vol. 33, p. 5554-55). Defense counsel then asked McKinley,
COUNSEL: … In that situation, in the situation that
you’re talking about, someone was charged with
intentional killing of someone, a resident in their home,
during a burglary, you
are saying that you would
impose the death penalty, is that correct?
McKINLEY: Yes.
(Id. at 5555). Hall then claims that McKinley “further added that although she
would listen to both sides, her view of the death penalty would not be changed.”
(Doc. 1, p. 60). However, this is not an entirely accurate characterization. When
defense counsel asked McKinley whether she would “take [her strong views on the
death penalty] into the jury box,” she answered that,
I wouldn’t say that I’d have the feeling with me. I’d have
to hear everything before – you know, you’ve got to hear
all the sides of anything because I don’t know the story. I
mean, I’d have to hear it.

60

(Trial Transcript Vol. 33, p. 5557).

These answers do not establish that McKinley

would always vote for the death penalty, automatically and regardless of evidence of
mitigating circumstances. Rather, these answers reveal a potential juror who
strongly supported the death penalty but who indicated that she wanted to hear
“everything” before voting on the appropriate penalty. See id.
Reinforcing this view are additional portions of McKinely’s voir dire
testimony that Hall did not cite in his petition. When asked by the prosecutor
whether she would “automatically, in every case, vote for the death penalty,”
McKinley stated, “No, not unless I could hear, you know, both sides of everything
…” (Trial Transcript Vol. 33, p. 5539). When the prosecutor asked her whether she
could consider both the aggravating factors and mitigating factors and weigh them
before making a decision, McKinley stated, “I think so.” (Id.)

(b)

Leroy Rogers

The second juror discussed in Hall’s petition was Leroy Rogers, who Hall
asserts “stated that he would always impose the death penalty for intentional
murder regardless of the evidence.” (Doc. 1, p. 61). However, the court found no
such statement from Rogers in the record. Presumably, Hall imputes such a
“statement” to Rogers based on the fact that all the jurors on Rogers’ panel raised
their hands when the trial judge asked who would always vote to impose the death
penalty. (Trial Transcript Vol. 33, p. 5512). However, as explained above, the
transcript also shows that jurors raised their hands when asked if they could follow

61

Alabama law and weigh the aggravating and mitigating circumstances. (Id. at
5513-16). This led the trial court to explain to the panel that they could not answer
“yes” to both questions. (Id. at 5516). Rogers was later questioned by the
prosecutor on individual voir dire and affirmed that he would not automatically vote
for the death penalty and that he would consider other mitigating factors such as
the defendant’s age or mental capacity before making a decision. (Id. at 5529-30).
(c)

Juror Ann Chandler

The third juror discussed in Hall’s petition was Ann Chandler, who Hall
asserts “stated that she would always impose the death penalty for intentional
murder regardless of the evidence.” (Doc. 1, p. 61). However, as with Leroy Rogers,
supra, the court found no such statement from Chandler in the record. Presumably,
Hall imputes such a “statement” to Chandler based on the fact that all the jurors on
Chandler’s panel raised their hands when the trial judge asked who would always
vote to impose the death penalty. (Trial Transcript Vol. 33, p. 5512). As explained
above, the transcript also shows that jurors also raised their hands when asked if
they could follow Alabama law and weigh the aggravating and mitigating
circumstances. (Id. at 5513-16). This led the trial court to explain to the panel that
they could not answer “yes” to both questions. (Id. at 5516).
Furthermore, at individual voir dire, Chandler admitted to having mixed
feelings about the death penalty. (Id. at 5530-31). When the prosecutor asked her
whether she would automatically vote for the death penalty upon a guilty verdict,
she answered “[n]ot unless you – not unless I had, you know, all the circumstances

62

around it.” (Id. at 5532). Chandler also indicated that she could listen and consider
Hall’s background, family history, age, and mental capacity before making a
decision about whether to vote for the death penalty, (id.), and would not
automatically vote for a death sentence. (Id. at 5535).
(d)

Juror Donald Spencer

The fourth juror discussed in Hall’s petition was Donald Spencer, who Hall
also asserts “stated that he would always impose the death penalty for intentional
murder regardless of the evidence.” (Doc. 1, p. 61). However, the court found no
such statement from Spencer in the record. As with Leroy Rogers and Ann
Chandler, supra, Hall presumably imputes such a “statement” to Spencer based on
the fact that all the jurors on Spencer’s panel raised their hands when the trial
judge asked who would always vote to impose the death penalty. (Trial Transcript
Vol. 33, p. 5512). However, as explained above, the transcript also shows that
jurors raised their hands when asked if they could follow Alabama law and weigh
the aggravating and mitigating circumstances. (Id. at 5513-16). This led the trial
court to explain to the panel that they could not answer “yes” to both questions. (Id.
at 5516). In fact, at individual voir dire, Spencer stated that “I’m here to do the best
job that I can do as a juror. Evidence, mitigating circumstances, would be all the
factors that I would consider in imposing [the death penalty].” (Id. at p. 5546).
(e)

Juror Keely “Tootie” Waters

The fifth juror discussed in Hall’s petition was Keely “Tootie” Waters. When
questioned by the court at voir dire, Waters denied that she had a fixed opinion in

63

favor of capital punishment such that she would always impose the death penalty,
regardless of the evidence produced. (Trial Transcript Vol. 39, pp. 6725-26).
Waters also affirmed that she could follow the law of Alabama and weigh the
aggravating and mitigating circumstances before determining whether to
recommend death or a life imprisonment without parole. (Id.) Hall nevertheless
asserts that Waters’ testimony shows that she could not have considered mitigating
circumstances and that she would always vote for the death penalty if the victim
was elderly. (Doc. 1, p. 61).
The court’s review of the record as cited by Hall does not support his claim.
To be sure, Waters was a supporter of capital punishment. When presented with a
hypothetical question from defense counsel regarding whether it was “highly likely”
that she would be inclined to vote for the death penalty for a person convicted of
murdering an elderly person, Waters responded, “Yes, I would consider it.” (Trial
Transcript Vol. 39, pp. 6769). Waters also stated that it would be extremely
difficult for her to be fair in the consideration of mitigating evidence once she had
determined that the defendant was guilty of the murder of an elderly person. (Id. at
6771). When defense counsel asked Waters if “in [her] heart of hearts” she felt that
someone who murdered an elderly person should get the death penalty, Waters
replied, “I think so.” (Id. at 6772). However, none of these answers negate Waters’
testimony that she could apply the law of Alabama and weigh the mitigating and
aggravating factors at the penalty phase of trial. Waters’ testimony may reflect
that she would find this task difficult, but finding consideration of aggravating and

64

mitigating factors to be difficult does not equal outright refusal to consider them,
and it does not establish that Waters would always vote for the death penalty, as
alleged by Hall. See Doc. 1, p. 61.
(f)

Juror Diane Harrison

The sixth juror discussed in Hall’s petition was Diane Harrison. Hall asserts
that Harrison “stated that she could not consider statutory mitigating
circumstances, that Mr. Hall would have to take the stand and prove he was
innocent and that she would impose the death penalty automatically for the killing
of the elderly.” (Doc. 1, p. 61).
The trial transcript is not as clear-cut as Hall implies in his petition. Defense
counsel asked Harrison if she would expect Hall to take the stand at a potential
penalty phase of trial, to which she answered, “I sure would.” (Trial Transcript Vol.
39, p. 6792). However, in discussing whether she would require a defendant to
present evidence, Harrison answered, “I wouldn’t require him to, but, if he’s got
some defense, I’d love to hear it.” (Trial Transcript Vol. 39, p. 6787-88). Then,
when asked whether she would consider imposing the death penalty upon a
defendant who did not testify in his own defense, Harrison stated that she was “not
sure.” (Id. at 6788). Finally, when the court asked Harrison whether she would
“hold it against” the defendant if he did not testify, Harrison affirmed that she
would be able to consider other evidence. (Id. at 6795).
Although Harrison’s voir dire responses were ambivalent, they do not
establish that she would refuse to consider aggravating and mitigating

65

circumstances, nor that Harrison would automatically vote for the death penalty.
The trial court denied Hall’s motion to strike Harrison for cause, and explained that
the court felt defense counsel’s explanations of the statutory mitigating factors to
Harrison were “misleading or incomplete.” (Trial Transcript Vol. 40, p. 6842). In
other words, the trial court found that defense counsel had posed his questions to
Harrison in such a way as to elicit pro-death penalty responses. The trial court also
found that “she stated she would consider … all other types of mitigation.” Id.
(g)

Juror Norman Barnett

The seventh juror discussed in Hall’s petition is Norman Barnett. Hall
asserts that Barnett “knew a great deal about the case” and stated that “he would
always vote for the death penalty for the murder of an elderly person.” (Doc. 1, pp.
61-62).
The portions of the trial transcript cited by Hall do not support his
assertions, nor can this court can find any statement elsewhere in the record where
Barnett indicated that he would always vote for the death penalty for the murder of
an elderly person. To the contrary, when defense counsel asked Barnett whether he
would listen to mitigating evidence, Barnett replied unequivocally that, “I don’t
think I should be on the jury if I don’t – if I don’t listen to all the evidence.” (Trial
Transcript Vol. 40, p. 6923). And while Barnett admitted that he recalled reading
about the Haskew murder in the local newspaper, he characterized his knowledge of
the case as “general” and claimed not to recall the details of the case. (Id. at 693234). Barnett also denied that he had formed an opinion as to Hall’s guilt or

66

innocence. (Id. at 6938-39). In short, nothing in the record suggests that Barnett
was unable or unwilling to follow Alabama state law and consider aggravating and
mitigating circumstances at the penalty phase of trial, nor does it contain any hint
that Barnett would automatically vote for the death penalty.
(h)

Juror Bennie Norris

The eighth and final juror discussed in Hall’s petition was Bennie Norris.
Hall asserts that Norris stated that “he would find Mr. Hall guilty if he did not
testify and that he [Norris] believes life imprisonment without parole is ‘a joke.’”
(Doc. 1, p. 62). However, Hall omits from his petition the fact that, after the trial
court explained to Norris’ jury panel what the legal burden of proof was in a
criminal trial, as well as the Alabama law regarding aggravating and mitigating
circumstances, Norris stated that he could follow Alabama law. (Trial Transcript
Vol. 41, p. 7087.). Hall also fails to mention in his petition the fact that Norris
stated, despite his strong belief in the utility of the death penalty, that after hearing
the court explain the law regarding aggravating and mitigating circumstances, he
“believed in” capital punishment and life imprisonment. (Id. at 7093.)
(2)

§ 2254 Review

Hall made the same argument on direct appeal to the Alabama Court of
Criminal Appeals as he makes in his petition – namely, that the trial court erred to
reversal in denying his challenges for cause of the eight jurors discussed, supra.
See Hall, 820 So.2d at 126. The Court of Criminal Appeals reviewed the voir dire
examination transcript and found no error, stating that the trial court “made every

67

attempt to ensure that each juror understood the questions before he or she gave an
answer,” and that “[e]ach of the challenged jurors unequivocally stated that he or
she could follow the law as stated by the judge and could evaluate the case on the
evidence presented at trial.” Id. at 127.
In his habeas petition, Hall claims that the trial court’s refusal to grant his
strikes for cause violated Morgan, 504 U.S. at 729, in which the Supreme Court
held that “a juror who will automatically vote for the death penalty in every case
will fail in good faith to consider the evidence of aggravating and mitigating
circumstances as the instructions require him to do,” thus violating the Due Process
Clause of the Fourteenth Amendment. Id. Hall also cites Eddings v. Oklahoma,
455 U.S. 104, 114 (1982) for the proposition that “[j]ust as the State may not by
statute preclude the sentencer from considering any mitigating factor, neither may
the sentencer refuse to consider, as a matter of law, any relevant mitigating
evidence.” (emphasis in the original). Yet the portions of the record cited by Hall do
not establish or tend to prove that the challenged jurors would refuse to consider
relevant mitigating evidence, nor that any of the challenged jurors would
automatically vote for the death penalty. Thus, Hall has not shown that the trial
court or the Alabama Court of Criminal Appeals decided the case in a manner
contrary to or involving an unreasonable application of Morgan, Eddings, or any
other U.S. Supreme Court determination of clearly established Federal law on
point. Consequently, relief under §2254(d)(1) is inappropriate with regard to this
claim. Furthermore, this court does not find that the state courts’ decisions were

68

based upon an unreasonable determinations of the facts in light of the evidence
presented in the trial court, making relief pursuant to §2254(d)(2) similarly
inappropriate.
CLAIM #7: HALL’S CLAIM THAT THE TRIAL COURT FAILED TO
SUBMIT A VERDICT FORM THAT WOULD HAVE ALLOWED THE JURY
TO VOTE FOR LIFE IMPRISONMENT, THEREBY DEPRIVING HALL OF A
RELIABLE SENTENCE.
Hall next argues that the trial court erred by not submitting a verdict form to
the jury that would have allowed them to vote for life imprisonment if they
determined that the State had failed to prove any aggravating circumstance. (Doc.
1, p. 62). Hall claims that this failure violated the U.S. Supreme Court’s precedent
contained in Mills v. Maryland, 486 U.S. 367 (1988), and Lockett v. Ohio, 438 U.S.
586, 605 (1978).
However, Mills and Lockett are not applicable to Hall’s claim. The critical
circumstance in Mills centered around the possibility that jurors may have thought
that unanimity was required in order to consider mitigating evidence. Mills, 486
U.S. at 384. Here, Hall does not argue that jurors were precluded from considering
mitigating factors.6 Instead, Hall is focused on the jury’s consideration of
aggravating factors.
Similarly, Lockett stands for the proposition that states may not preclude
“the sentencer, in all but the rarest kind of capital case … from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the
6

Hall does make such an argument in Claim #14, which the court addresses, infra.

69

circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” Lockett, 438 U.S. at 605 (emphasis in the original). Again, Hall
has not argued in this claim that the jury was precluded from considering
mitigating evidence or circumstances – his argument is that the verdict form
required the jury to accept that at least one aggravating circumstance had been
proven.7 See Doc. 1, p. 67. Furthermore, as the Alabama Court of Criminal
Appeals pointed out, “ … by virtue of the fact that the jury found Hall guilty of
burglary-murder, an aggravating circumstance was already found to exist as a
matter of law, i.e., that the murder was committed during the course of a burglary,
§13A-5-49(4).” Hall, 820 So.2d at 147. Therefore, the verdict form appears to have
been correct.
Accordingly, this court finds that Hall has failed to show that the state court
decision on this issue was contrary to or involved an unreasonable application of
clearly established federal law, as determined by the U.S. Supreme Court. This
court also finds that Hall has failed to show that the state court adjudication of this
claim resulted in a decision that was based upon an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding. See
§2254(d)(1) and (2).
CLAIM #8: HALL’S CLAIM THAT THE TRIAL COURT VIOLATED HIS
CONSTITUTIONAL RIGHTS BY FAILING TO SUPPRESS EVIDENCE

7

Also not applicable to this claim are the cases listed in Hall’s string citation of Supreme
Court precedent cited on page 66 of the petition. None of those cases discusses the particulars of
the verdict form used, and none is on point regarding this specific issue.

70

OBTAINED PURSUANT TO A SEARCH WHICH VIOLATED THE FOURTH
AND FOURTEENTH AMENDMENTS AND ALABAMA LAW.
Hall also claims that the trial court erred when it denied his motion to
suppress evidence obtained as a result of what he asserts to be an illegal search of
the curtilage of Paula Shiver’s house. (Doc. 1, p. 68). Specifically, Hall argues that
the murder weapon and certain items taken from Mrs. Haskew’s home, which were
discovered in Haskew’s stolen car parked behind a camper on Shiver’s property,
should have been suppressed because police did not have a search warrant to enter
the curtilage of Shiver’s property to check the license plate number of the car. (Id.
at 69-70). Hall also argues that the trial court should have suppressed evidence
seized from Hall and Wayne Travis after their arrest, for the same reasons. (Id. at
73).
The trial court denied Hall’s motion to suppress, ruling that the search of the
Shiver property was lawful. (Trial Transcript Vol. 43, p. 7544). Hall pressed the
issue on direct appeal before the Alabama Court of Criminal Appeals, which ruled
that Hall had no reasonable expectation of privacy in a stolen automobile and
therefore had no standing to contest the constitutionality of the search. Hall, 820
So.2d at 133. The Alabama Supreme Court affirmed Hall’s conviction without
reference to this specific claim, but nevertheless found no reversible error in either
the guilt or penalty phase of the trial. Hall, 820 So.2d 152.
Hall’s claim must fail, for as the State has correctly pointed out, where a
state prisoner has been provided an opportunity for full and fair litigation of a
Fourth Amendment claim, he may not be granted federal habeas corpus relief on
71

the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial. Stone v. Powell, 428 U.S. 465, 494-95 (1976). The Supreme
Court has ruled that in the context of federal habeas corpus review, “the
contribution of the exclusionary rule, if any, to the effectuation of the Fourth
Amendment is minimal, and the substantial societal costs of application of the rule
persist with special force.” Id.
Hall argues in his reply brief that the Alabama Court of Criminal Appeals, by
citing and quoting extensively from Ellison v. United States, 206 F.2d 476 (D.C. Cir.
1953), ignored the fact that the officers who found Mrs. Haskew’s car “were not
legally situated when they observed the facts necessary to determine the car was
the fruit of a crime.” (Doc. 33, p. 35). He asserts that the court’s reliance upon
Ellison was “so erroneous that it is evident the courts did little more than rubber
stamp the search,” and that therefore, he was not provided a full and fair
opportunity to litigate the matter and that federal review is not precluded by Stone,
after all. (Id. at 34).
This argument holds no water. Hall has not argued that he had any
legitimate expectation of privacy in the Shiver residence, nor has he proven that he
had “an unrestricted right of occupancy or custody and control of the premises” that
would create such a legitimate expectation of privacy in the area of the house where
Mrs. Haskew’s car was discovered. See United States v. Baron-Mantilla, 743 F.2d
868, 870 (11th Cir. 1984). Thus, there is no basis for Hall’s argument that he was
not provided a full and fair opportunity to litigate this issue, per Stone.

72

CLAIM # 9: HALL’S CLAIM THAT THE PROSECUTOR MADE IMPROPER
AND PREJUDICIAL STATEMENTS TO THE MEDIA
Hall next argues that habeas corpus relief is warranted because of
“misleading and highly prejudicial comments” made by the prosecutor regarding
Mrs. Haskew’s murder and Hall’s guilt. (Doc. 1, p. 74). Specifically, Hall claims
that the local district attorney, Tommy Chapman, announced to the press within
days of the murder that he believed Hall and co-defendant Travis were guilty and
deserved to be executed. Id. Chapman also allegedly told the press that both Hall
and Travis had criminal records, had mutilated the victim’s body, and were devil
worshipers. Id. By exposing the jury pool to his comments, Hall asserts, Chapman
allegedly deprived Hall of his rights to due process, a fair trial, and an impartial
jury . Id.
For legal support, Hall points to the U.S. Supreme Court’s opinions in Estes
v. Texas, 381 U.S. 532, 540 (1965) and Sheppard v. Maxwell, 384 U.S. 333 (1966).
Hall cites both cases for the proposition that he need not prove actual prejudice
because, “at times a procedure employed by the State involves such a probability
that prejudice will result that it is deemed inherently lacking in due process.”
Estes, 381 U.S. at 542-43.
Unlike this case, though (and as noted, supra), the pretrial publicity at issue
in Sheppard constituted a bona fide “carnival atmosphere,” in which “newspapers
and radio stations apparently interviewed prospective witnesses at will, and in
many instances disclosed their testimony.” Sheppard, 384 U.S. at 359. This
“virulent publicity” of the Sheppard case included a three-day public inquest that
73

took place three months before trial, at which the defendant was subjected to
questioning “for more than five hours without counsel … [and which] was televised
live from a high school gymnasium seating hundreds of people,” after which the
inquest ended in a public brawl. Id. at 354.
Similarly, in Estes, the pretrial hearings “were carried live by both radio and
television, and news photography was permitted throughout.” Estes, 381 U.S. at
536. The Supreme Court found that “the picture presented was not one of that
judicial serenity and calm to which petitioner was entitled.” Id.
“At least 12 cameramen were engaged in the courtroom
throughout the hearing taking motion and still pictures and
televising the proceedings. Cables and wires were snaked across
the courtroom floor, three microphones were on the judge's
bench and others were beamed at the jury box and the counsel
table. It is conceded that the activities of the television crews
and news photographers led to considerable disruption of the
hearings. Moreover, veniremen had been summoned and were
present in the courtroom during the entire hearing but were
later released after petitioner's motion for continuance had been
granted. The court also had the names of the witnesses called;
some answered but the absence of others led to a continuance of
the case …”
Id.
By contrast, Hall’s trial saw nowhere near the same intensity of media
coverage, despite his unsupported characterization of the Haskew murder as
attended by a “community uproar and … onslaught of media attention unsurpassed
in the history of Conecuh County.” (Doc. 1, p. 74). Nor has Hall pointed to disputed
claims made by the prosecutor in either Sheppard or Estes.

74

Hall also makes several assertions which upon closer inspection do not really
amount to violations of his constitutional rights. For example, Hall claims that the
jury pool in his case was exposed to what he describes as “prejudicial pretrial
information,” (Doc. 1, p. 75); he claims that 49 of the 89 prospective jurors reported
knowing about the case prior to trial, id.; he asserts that more than 25 prospective
jurors knew that they had been called specifically for his trial after seeing their
name on a list of jurors accompanying a detailed article about the case, id; and
finally, Hall points out that the trial court denied many of his requests to strike
jurors for cause. Id.
Yet Hall fails to allege, and the record does not reflect, that any prospective
jurors admitted at voir dire to having formed an opinion about Hall’s guilt or
innocence or acknowledged any familiarity with the material facts and
circumstances of the case. Furthermore, of the six motions to strike jurors for cause
which Hall cited in his petition, none had anything to do with pre-trial publicity or
prosecutor Chapman’s comments to the news media. See id.
Thus, keeping in mind the limited nature of federal habeas corpus review,
this court cannot say that the facts of Hall’s case are materially indistinguishable
from the facts of Sheppard or Estes, nor that the state courts’ adjudication of this
issue was contrary to these two cases, or otherwise an unreasonable application of
the principles set forth by the Supreme Court in either case. This court also finds
that the state court’s decision was not an unreasonable determination of the facts.

75

Therefore, habeas relief pursuant to § 2254(d)(1) and § 2254(d)(2) is denied with
regard to this issue.
CLAIM #10: HALL’S CLAIM THAT THE TRIAL COURT VIOLATED HALL’S
RIGHT TO BE PRESENT DURING HIS TRIAL WHEN THE COURT
CONDUCTED AN OFF-THE-RECORD HEARING OUTSIDE OF HIS
PRESENCE.
Hall claims that his Fifth Amendment Due Process rights and his rights
under the Confrontation Clause of the Sixth Amendment were violated when the
trial judge allegedly concluded the oral argument for Hall’s motion to dismiss the
indictment in-chambers, outside of Hall’s presence. (Doc. 1, p. 78). Hall further
alleges that the trial judge returned from the in-chambers hearing and “summarily
denied his motions without explanation.” Id.
This court notes at the outset that Hall’s characterization of the trial judge’s
in-chambers hearing is at odds with the record. See Trial Transcript Vol. 44, pp.
7796-7800 and Trial Transcript Vol. 45, pp. 7801-7803. The record reflects clearly
that defense counsel argued his motions before the trial judge in open court before
the judge adjourned to his chambers with defense counsel and the prosecutor to
listen to the taped testimony of the medical examiner. (Trial Transcript Vol. 45, p.
7801). Upon returning from the short recess, the trial judge made a point of stating
that “[l]et me note for the record that during the argument, the Court adjourned to
chambers to listen to the tape of Dr. Gregory Wanger, made no rulings or took no
action while in chambers. Counsel for the State and Defense did accompany me and
were able to listen to the tape at the same time the Court did.” Id. at 7801-02. The
trial judge then asked defense counsel if he wished to make any further argument
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before denying Hall’s motion to dismiss and for judgment of acquittal. Id. at 7802.
Nothing in the record suggests that the hearing on Hall’s motions was concluded in
the trial judge’s chambers, as Hall claims.
Setting aside the fact that the record does not support Hall’s
characterization, the U.S. Supreme Court precedent cited by Hall does not support
his position. The question considered by the Supreme Court in Kentucky v. Stincer,
482 U.S. 730 (1987) was whether the defendant’s due process rights were violated
by his exclusion from a competency hearing where no substantive testimony was
elicited. Stincer, 482 U.S. at 745. The court reasoned that the defendant’s rights
were not violated because the defendant gave no indication that his presence at the
hearing “would have been useful in ensuring a more reliable determination as to
whether the witnesses [were] competent to testify.” Id. at 747. Stated differently,
the defendant “presented no evidence that his relationship with the [witnesses], or
his knowledge of facts regarding their background, could have assisted either his
counsel or the judge in asking questions that would have resulted in a more assured
determination of competency.” Id. Here, Hall has also not presented evidence
suggesting that his presence in the trial judge’s chambers would have resulted “in a
more assured determination” of his motions. So, even if the record supported Hall’s
claim, there is nothing in Stincer that runs contrary to the state courts’ adjudication
of his motion to dismiss the indictment and for judgment of acquittal.
Similarly inapposite is the Supreme Court’s ruling in Illinois v. Allen, 397
U.S. 337, 338 (1970). The question presented in Allen was “whether an accused can

77

claim the benefit of this constitutional right to remain in the courtroom while at the
same time he engages in speech and conduct which is so noisy, disorderly, and
disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.”
Allen, 397 U.S. at 338. The Court answered this question in the negative, holding
that “a defendant can lose his right to be present at trial if, after he has been
warned by the judge that he will be removed if he continues his disruptive behavior,
he nevertheless insists on conducting himself in a manner so disorderly, disruptive,
and disrespectful of the court that his trial cannot be carried on with him in the
courtroom.” Id. at 343. Nevertheless, as there was no indication that Hall was
disruptive or disrespectful of the court at trial, nor that he was removed from the
courtroom, Allen is of no utility.
Finally, Hall’s citation of Johnson v. Zerbst, 304 U.S. 458, 464 (1938), does
not further his argument because Johnson dealt with whether the defendant had
waived his Sixth Amendment right to counsel, and tells this court nothing about a
defendant’s rights under the Sixth Amendment’s Confrontation Clause. Id. at 46465.
Accordingly, relief pursuant to §2254 is not appropriate with respect to this
claim.
CLAIMS #11 THROUGH 13:
CLAIM #11:

PROSECUTORIAL MISCONDUCT

PROSECUTOR’S CALL TO “SEND A MESSAGE”

Hall argues that, at closing arguments, the prosecutor improperly urged the
jury to find Hall guilty in order to “send a message out to Monroe County.” (Doc. 1,
p. 78) (quoting Trial Transcript Vol. 45, p. 7866). Defense counsel immediately
78

objected to the prosecutor’s statement, and the trial court gave the jury a curative
instruction, telling the jurors that “your function in this case is to do justice, to
resolve the issues in the case, not to send any messages.” (Trial Transcript Vol. 45,
pp. 7866-67). Continuing with his closing argument, the prosecutor said:
Each and every one of us have a right to be safe in our
homes. To be safe. It is said somewhere that a home is
your castle. And you have a right to be safe therein. If
elderly women, whose husbands have passed away and
whose children have moved away, do not have a right to
be safe in our home, against this kind of intrusion, then
we don’t have a safe world to live in.
To not convict this man of capital murder would be saying
to him it’s okay. It’s okay. He deserves to be convicted of
capital murder because the evidence in this case says that
he’s guilty. And he deserves to be convicted of capital
murder because I intend to come back here, after you do
that, and ask you to give him the death penalty.
(Trial Transcript Vol. 45, pp. 7867-68). Immediately after the prosecutor concluded
his closing argument, the court told the jury, sua sponte, that “punishment has no
part in your decision here. We’re here in this part of the trial to decide the issues of
guilt or innocence.” Id. at 7868.
Hall now argues that the prosecutor’s comments require reversal of his
conviction because “they were calculated to distract and inflame the jury in
violation of state and federal law.” (Doc. 1, p. 79). This is an unreasonable stretch.
The trial court promptly sustained defense counsel’s objections to the comments in
question, gave one curative instruction to the jury immediately upon defense
counsel’s request, and gave a second curative instruction on its own initiative.

79

(Trial Transcript Vol. 45, pp. 7866-7868). Although Hall cites In re Winship, 397
U.S. 358, 364 (1970), for support, the facts of that case bear no resemblance to the
facts of Hall’s case. The cited portion of Winship merely recites the importance of
the reasonable-doubt standard in American criminal jurisprudence, and Hall makes
no attempt to tie the facts of that case to his own. See Doc. 1, p. 78. Hall’s citation
of Francis v. Franklin, 471 U.S. 307, 313 (1985), is similarly unhelpful because the
Court in that case was focused on the nature of certain presumptions contained in
jury instructions, and not the content of the State’s closing argument. See id.
In other words, there is nothing to this claim that was contrary to, or an
unreasonable application of, clearly established federal law as determined by the
U.S. Supreme Court. Likewise, this court does not find that the state courts’
decisions resulted in an unreasonable determination of the facts in light of the
evidence presented. Accordingly, this claim cannot be the basis of a writ of habeas
corpus under § 2254(d)(1) or § 2254(d)(2).
CLAIM #12:

DISPARAGING REMARKS ABOUT HALL’S
ATTORNEYS AND DEFENSE.

Hall objects to a different part of the state’s closing argument wherein the
prosecutor discussed Hall’s defense that he was in McKenzie, Alabama, because the
father of co-defendant Wayne Travis had asked Hall to help Travis overcome his
addiction to sniffing gasoline. (Trial Transcript Vol. 45, pp. 7860-61). The
prosecutor argued that this defense was a “smoke screen” with no evidentiary basis
which the jury should contrast with the State’s case, saying “[t]hese things that I’m
talking to you about are evidence in this case.” Id. Hall did not object at trial to the
80

prosecutor’s statement, but now argues that these comments constitute
prosecutorial misconduct that “so infected Mr. Hall’s trial with unfairness as to
render his trial fundamentally unfair and result in denial of due process.” (Doc. 1,
p. 81). Hall goes so far as to say that “[t]he prosecutor’s comments punished Mr.
Hall for having the audacity to retain counsel and for challenging the State’s
evidence …” Id. at 83.
There is no doubt that “assertions calculated to mislead or inflame the jury’s
passions are forbidden in the presentation of closing arguments.” United States v.
Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009). But the particular comments made
here are not the stuff of a federal constitutional violation. None of the U.S.
Supreme Court cases cited by Hall supports his argument on this point. In fact,
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974) weighs against Hall’s argument
insofar as the Supreme Court ruled that the prosecutor’s remark was “but one
moment in an extended trial,” and finding that “the process of constitutional line
drawing in this regard is necessarily imprecise ...”
Likewise, Berger v. United States, 295 U.S. 78 (1935), does not support Hall’s
argument because of the stark contrast between the facts of the two cases. The
Berger court determined that the prosecutor made “improper insinuations and
assertions calculated to mislead the jury.” Id. at 88. In this case, there is no
suggestion that the prosecutor’s “smokescreen” comments were similarly calculated
to mislead.

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Finally, the Supreme Court in Darden v. Wainwright, 477 U.S. 168, 181-82
(1986), held that the prosecutor’s improper closing argument did not deprive the
defendant of a fair trial because the comments in question “did not manipulate or
misstate the evidence, nor did it implicate other specific rights of the accused such
as the right to counsel or the right to remain silent.” The same can be said for the
prosecutor’s “smokescreen” comment, which, while somewhat argumentative,
simply does not rise to the level of a deprivation of due process rights as defined by
the United States Supreme Court. The Alabama Court of Criminal Appeals framed
the issue concisely and appropriately when it cited its opinion in Thomas v. State,
393 So.2d 504 (Ala.Cr.App. 1981), “ ‘(A) trial is a legal battle, a combat in a sense,
and not a parlor social affair.’ ” (quoting Arant v. State, 232 Ala. 275 (1936)).
Accordingly, this court finds that the Alabama Court of Criminal Appeals did
not unreasonably apply any principle of federal law on direct appeal in rejecting
this aspect of Hall’s claim of prosecutorial misconduct. Nor does the court find that
the state court decision resulted in an unreasonable determination of the facts in
light of the evidence presented.
CLAIM #13(A):

ALLEGED CREATION OF FACTS TO “PLUG
HOLES” IN THE STATE’S CASE AND
EXAGGERATE THE BRUTALITY OF THE
CRIME.

Next, Hall claims that “some facts in the record” suggested that he lacked an
intent to kill Mrs. Haskew, and, in an effort to overcome these facts (which Hall
never identifies in his petition), the prosecutor “created facts to suggest that the
murder was premeditated.” (Doc. 1, pp. 84-85).
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Specifically, Hall points to the following: at closing argument, the prosecutor
summarized the testimony of Mrs. Haskew’s neighbor, Nellie Schad, regarding the
murder weapon. According to the prosecutor, Schad had identified the gun as hers,
and testified that it had been stolen in a burglary on the same night that Mrs.
Haskew was killed. (Trial Transcript Vol. 45, Tab R-24, p. 7856). In fact, what
Schad actually stated in court was that the murder weapon “looks very much like
the gun that was in my house.” (Trial Transcript Vol. 42, p. 7323). Nellie Schad’s
ex-husband, Ed Schad, later testified that the murder weapon was the same make
and caliber as the gun stolen from Nellie’s house. (Id. at 7327). However, when Ed
Schad read the serial number from the bill of sale for the gun into evidence, one
number was different from the serial number on the stock of the murder weapon.
(Id. at 7330). Hall concludes that “contrary to the prosecutor’s argument, the
weapon used to kill Mrs. Haskew did not match the gun removed from Ms. Schad’s
home.” (Doc. 1, p. 85). Hall also asserts that “[t]he prosecutor … created facts to
make the crime appear more abhorrent than it actually was” by stating to the jury
that Mrs. Haskew’s jaw had been broken. (Id.) In fact, the medical examiner did
not testify (and the autopsy report did not state) that Mrs. Haskew’s jaw,
specifically, had been broken. (Trial Transcript Vol. 43, pp. 7452-7468 and Trial
Transcript Vol. 4, pp. 666-69).
Hall cites three cases from the Eleventh Circuit, but only one U.S. Supreme
Court case, Berger v. U.S., 295 U.S. at 84-89, for the proposition that “arguing facts
outside of the record is strictly forbidden because it misleads the jury, ... thereby

83

lessening the burden of proof.” (Doc. 1, p. 86). Yet the facts in Berger are
materially distinguishable from this case, because the prosecutorial misconduct at
issue in Berger is not comparable to the claims Hall makes here. The Berger court
described the prosecutor’s misdeeds in that case as being “undignified and
intemperate, containing improper insinuations and assertions calculated to mislead
the jury.” Berger, 295 U.S. at 85. By comparison, prosecutor Chapman’s comment
at closing arguments cannot reasonably be said to have been calculated to mislead
the jury, for even without the serial number from the murder weapon and without a
definitive identification of the gun by Ms. Schad, the evidence already tended to
show that the gun recovered from Mrs. Haskew’s stolen car was the same gun
stolen from the Schads’ house because it was discovered with other items taken
from their home.8 Hall, 820 So.2d at 141.
With regard to the prosecutor’s allegedly exaggerating the brutality of the
crime, this court agrees with the Alabama Court of Criminal Appeals insofar as it
“[fails] to see how any prosecutor could exaggerate the brutality of this murder.”
Despite the prosecutor’s erroneous statement that Mrs. Haskew’s jaw had been
broken, the jury nevertheless heard testimony and saw photographic and video
evidence of the horrific injuries resulting from the beating that she suffered at the
hands of Travis and Hall, including “[a] blue contusion … along the angle of the
right jaw.” (Trial Transcript Vol. 4, p. 666). This constituted graphic evidence of
8

It is also worth noting that defense counsel initially objected to the introduction of the
murder weapon’s serial number into evidence, stating that “[t]here’s no evidence as to the
uniqueness of serial numbers.” (Trial Transcript Vol. 42, p. 7329).

84

the brutality of the crime, to say nothing of the multiple gunshot wounds to the
head.
In short, there is nothing in Hall’s claim which suggests that the trial court
or state courts of appeal decided his case differently than the United States
Supreme Court on a set of materially indistinguishable facts, nor that the state
courts unreasonably applied the correct governing principle to the facts of Hall’s
case, pursuant to § 2254(d)(1). Nor is there anything in Hall’s claim to suggest that
the state court decisions resulted in an unreasonable determination of the facts in
light of the evidence presented, pursuant to § 2254(d)(2).
CLAIM #13(B):

ALLEGED MISSTATEMENT OF LAW
REGARDING THE STATE’S BURDEN OF
PROVING HALL’S GUILT BEYOND A
REASONABLE DOUBT

Hall next claims that the prosecutor misstated the law when he told the jury
that a reasonable doubt was “a doubt for which you can give a particular reason
after considering all of the evidence.” (Trial Transcript Vol. 45, p. 7835-36). Hall
argues that such a definition was flawed because “it required the jury to be capable
of articulating a ‘particular reason’ before voting for acquittal.” (Doc. 1, p. 87). Hall
further claims that the prosecutor’s statement violated his rights pursuant to the
U.S. Supreme Court holdings in In re Winship, 397 U.S. 358 (1970) and Victor v.
Nebraska, 511 U.S. 1, 6 (1994), because the statement “improperly suggested that
even if the State’s proof had not persuaded a juror, the resulting doubt would not be
regarded as ‘reasonable’ unless the juror could also articulate the reason for having
it.” (Doc. 1, p. 87).
85

Hall’s claim must fail because, as the Alabama Court of Criminal Appeals
noted, the trial court appropriately instructed the jury on the concept of reasonable
doubt. Hall, 820 So.2d at 142. The definition of reasonable doubt that the trial
court gave to the jury was as follows:
The phrase reasonable doubt is self-explanatory. Efforts
to define it do not always clarify the term. But, it may
help to know that it is not a mere possible doubt.
Everything relating to human affairs is open to some
possible or imaginary doubt. A reasonable doubt is a
doubt of a fair-minded juror, honestly seeking the truth
after careful and impartial consideration of all the
evidence in the case. It’s a doubt based upon reason and
common sense. It does not mean a vague or arbitrary
notion, but, is an actual doubt based upon the evidence, a
part of the evidence, a lack of evidence, a conflict in the
evidence or a combination of those factors. It is a doubt
that remains after going over, in your minds, the entire
case and giving consideration to all the testimony. It’s
distinguished from mere possibility, from bare
imagination or from fanciful conjecture.
(Trial Transcript Vol. 45, pp. 7888-7890). The trial court also instructed the jury
that “no statements or arguments of the attorneys constitute proof. The proof is in
the testimony of witnesses and exhibits which have been admitted in the case.” Id.
at 7896.
In light of the trial court’s detailed instructions to the jury regarding
reasonable doubt and the non-evidentiary value of statements from the attorneys,
the court cannot say that Hall’s case violates or unreasonably applies the U.S.
Supreme Court’s rule in In re Winship, 397 U.S. at 364, which merely states the
indispensability of the reasonable doubt standard. Nor was the prosecutor’s
comment indistinguishable from the offending jury instruction on reasonable doubt
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at issue in Victor v. Nebraska, 511 U.S. 1, 6 (1994). To the contrary, the
prosecutor’s comment about reasonable doubt did not “so infect the trial with
unfairness” as to warrant relief under § 2254(d)(1) or § 2254(d)(2). See Darden, 477
U.S. at 181.
CLAIM #13 (C):
(a)

ALLEGED PENALTY PHASE MISCONDUCT

ALLEGATION THAT THE PROSECUTOR TOLD THE
JURY TO PRESUME THAT THE DEATH PENALTY WAS
THE APPROPRIATE PENALTY.

On two separate occasions during voir dire, the prosecutor was asked by
members of the jury panel to explain the concept of mitigating circumstances.
(Trial Transcript Vol. 38, pp. 6415-16 and Trial Transcript Vol. 41, pp. 7181-7183).
The prosecutor explained that, in pertinent part, “[m]itigating is something that
would tend to make a juror not vote for the death penalty,” id. at 6416, and
“[m]itigating circumstances are … those things why you shouldn’t give the death
penalty, why you should consider and weigh this out and decide on maybe a life
without parole.” Id. at 7182-83.
Later, at closing arguments, the prosecutor told the jury that, “the law has a
way of dealing with people who are evil, who are cruel, who will take a defenseless,
pitiful, harmless, sixty-nine year-old woman and beat her and drag her… And that’s
the death penalty.” (Trial Transcript Vol. 47, pp. 8270-71).
Hall objects both to the prosecutor’s definition of mitigating circumstances
and his statement at closing argument as implying to the jury that “a presumption
favoring the death penalty exists which must be rebutted by the defendant.” (Doc.

87

1, p. 88). Hall further alleges that such an implication by the prosecutor denied him
the individualized sentencing guaranteed under the Constitution and as discussed
by the U.S. Supreme Court in Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987),
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), and Lockett v. Ohio, 438 U.S. 586,
605 (1978).
This court fails to see how the prosecutor’s statements at voir dire and during
closing arguments imply a presumption in favor of the death penalty. The
definition offered by the prosecutor is not substantively different from that which
the trial court gave to the jury when it instructed them before the penalty phase
deliberations, which was “any circumstance that indicates or tends to indicate that
the Defendant should be sentenced to life imprisonment without parole instead of
death.” (Trial Transcript Vol. 47, p. 8276).
Furthermore, none of the cases cited by Hall support his argument on this
point. In Hitchcock, the issue surrounding mitigating circumstances was whether
the jury had been instructed to limit consideration of mitigating factors to those
enumerated in the statute (as opposed to non-statutory mitigating factors).
Hitchcock, 481 U.S. at 398-99. In this case, Hall has not cited any comments made
by the prosecutor regarding statutory versus non-statutory mitigating factors.
There is also nothing to support Hall’s claim contained in Lockett or Eddings,
because both cases merely reaffirmed that a sentencer in capital cases “must be
permitted to consider any relevant mitigating factor,” recognizing that “justice …
requires … that there be taken into account the circumstances of the offense

88

together with the character and propensities of the offender.” Eddings, 455 U.S. at
112 (quoting Pennsylvania v. Ashe, 302 U.S. 55, 55 (1937)). Hall’s claim does not
allege that the prosecutor or the trial court made any statement or gave any
instruction which directed the jury to refrain from considering mitigating factors.
This court therefore finds that no grounds exist for granting Hall’s petition on
this claim under § 2254(d)(1) or § 2254(d)(2).
(b)

ALLEGATION THAT THE PROSECUTOR URGED THE
JURY TO VOTE FO THE DEATH PENALTY UPON NONSTATUTORY AGGRAVATING CIRCUMSTANCES

Hall next argues that the prosecutor at Hall’s trial improperly argued in
favor of the death penalty based upon non-statutory aggravating factors when he
said, “What kind of break did [Hall and co-defendant Travis] give Clarene Haskew.
What kinds of break did they give this sixty-nine year old woman who had fought
two brain tumors, who, on her birthday, only wanted to be with her family, to retire
that night peacefully in her country home.” (Trial Transcript Vol. 47, p. 8265). In
remarking upon Mrs. Haskew’s age and health, Hall contends, the prosecutor
“directly encouraged the jury to consider these facts in aggravation of the crime …”
(Doc. 1, p. 91).
The sole U.S. Supreme Court authority that Hall cites, Sochor v. Florida, 504
U.S. 527 (1992), cannot be the basis for granting habeas relief because the
petitioner’s claim in Sochor centered around a jury instruction delivered by the trial
court, whereas Hall disputes a statement made by the prosecutor at closing
argument. Thus, it cannot reasonably be said that the Alabama Court of Criminal

89

Appeals decided Hall’s case differently than the U.S. Supreme Court on a set of
materially indistinguishable facts, precluding relief pursuant to § 2254(d)(1).
This court also finds that the trial court adequately instructed the jury on the
statutory aggravating factors under Alabama law. (Trial Transcript Vol. 47, pp.
8277-8284). Therefore, this court finds that the decision of the Alabama Court of
Criminal Appeals in denying Hall’s direct appeal did not result in an objectively
unreasonable factual determination, precluding relief pursuant to § 2254(d)(2).
CLAIM #14: HALL’S CLAIM THAT THE TRIAL COURT DEPRIVED HALL
OF A RELIABLE SENTENCING HEARING WHEN IT FAILED TO
INSTRUCT THE JURY THAT UNANIMITY IS NOT REQUIRED TO FIND
THE EXISTENCE OF A MITIGATING CIRCUMSTANCE.
Hall claims that the trial court failed to instruct the jury that it need not be
unanimous to find the existence of a mitigating circumstance, and then implied that
such unanimity was required “by repeatedly referring to the jury collectively (i.e.,
‘the jury,’ ‘you,’ ‘your’). (Doc. 1, p. 92). This alleged failure, Hall argues, led to the
“substantial possibility” that the jury believed unanimity was necessary, thus
requiring reversal of Hall’s conviction and sentence pursuant to the U.S. Supreme
Court’s opinion in Mills v. Maryland, 486 U.S. 367, 383 (1988). Id.
The court notes at the outset that the jury instructions of which Hall
complains in this claim pertained only to the sentencing phase of trial. (Doc. 1, p.
92). So, even if this Claim #14 had merit, which it does not, it would implicate only
Hall’s death sentence and not his first-degree murder conviction. That being said,
Hall’s claim fails because the trial court’s instructions did not say or imply that the
jury must determine the existence of each individual mitigating factor unanimously.
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(Trial Transcript Vol. 47, pp. 8289-8295). Neither the instructions nor the verdict
forms said anything about how—or even whether—the jury should make individual
determinations that each particular mitigating circumstance existed -- rather, they
focused only on the overall balancing question.
Also weighing against Hall’s argument is the fact that the trial court
instructed the jury repeatedly that they must unanimously determine the existence
of each aggravating factor. Id. at 8295, 8300, 8314. The fact that the trial judge
specified a unanimity requirement with regard to aggravating circumstances, but
not with regard to mitigating circumstances, suggests that the jurors did not
mistakenly think that they were required to unanimously find a mitigating
circumstance.
Thus, the instructions and verdict forms did not clearly bring about, either
through what they said or what they implied, the circumstance that Mills found
critical, namely,
a substantial probability that reasonable jurors, upon
receiving the judge's instructions in this case, and in
attempting to complete the verdict form as instructed,
well may have thought they were precluded from
considering any mitigating evidence unless all 12 jurors
agreed on the existence of a particular such circumstance.
486 U.S. at 384. It also bears noting that the Supreme Court has held that a state
court's decision to uphold such forms and instructions is not “contrary to, or ... an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” in Mills. Smith v. Spisak, 130 S. Ct. 676, 684
(2010) (quoting 28 U.S.C. § 2254(d)(1)).
91

Thus, for these reasons, habeas relief is not appropriate upon this claim
under § 2254(d)(1), nor under § 2254(d)(2).
CLAIM #15: HALL’S CLAIM THAT THE TRIAL COURT’S INSTRUCTION
ON THE AGGRAVATING CIRCUMSTANCE THAT THE CAPITAL
OFFENSE WAS ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL
VIOLATED HALL’S CONSTITUTIONAL RIGHTS.
Hall alleges in his next claim that the trial court’s jury instruction on the
“heinous, atrocious, or cruel” aggravating circumstance was constitutionally flawed
because the trial court defined the aggravating circumstance disjunctively (i.e.,
“heinous, atrocious, or cruel” rather than “heinous, atrocious, and cruel), which may
have led the jury to believe that the aggravating circumstance existed “even if it
found that the crime was only heinous, only atrocious, or only cruel.” (Doc. 1, p. 94).
Hall also argues that the trial court’s instruction failed to inform the jury that it
was required to unanimously agree upon all three elements of the aggravating
circumstance, id., and claims that the instruction was vague because the terms
“heinous” and “atrocious” are redundant. Id.
For support, Hall cites the U.S. Supreme Court case of Maynard v.
Cartwright, 486 U.S. 356 (1988), where the Court found the nearly-identical
Oklahoma statutory aggravating circumstance to be unconstitutionally vague under
the Eighth Amendment. Due to the similarity of the Alabama statute to the one at
issue in Maynard, Hall argues that the same standard applies to his case and
warrants habeas corpus relief.
Hall’s case is distinguishable from Maynard, however, because in Maynard,
the jury (which was the sentencing authority in Oklahoma) was instructed solely in
92

the words of the statute, without any instructions as to what these words meant in
the context of a capital crime or what facts would justify a finding of the
aggravating circumstance. Maynard, 486 U.S. at 360. This led the U.S. Supreme
Court to hold that the words of the aggravating circumstance themselves give little
guidance as to what facts are applicable and that, when the jury is given no limiting
instructions and the appellate court does not declare any standard by which it is
reviewing the finding, the aggravating circumstance as applied in that case is
unconstitutional. Id. at 363-64. The U.S. Supreme Court indicated that it was not
prescribing any particular construction of the aggravating circumstance; it only
required that it be limited in some meaningful way. Id. at 365-66.
Maynard is, in effect, a restatement of the holding in Godfrey v. Georgia, 446
U.S. 420 (1980), which the U.S. Supreme Court found controlling in Maynard, and
which Hall also cites in support of his argument on this point. In Godfrey, the
Court dealt with a somewhat similar aggravating circumstance, i.e., that the offense
“was outrageously or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim.” Godfrey, 446 U.S. at 422.
As was the case in Maynard, the jury was merely read the statutory language with
no explanatory instructions. Godfrey, 446 U.S. at 426. The Georgia Supreme Court
affirmed the finding of the aggravating circumstance without discussing any
standard for its review. Id. at 426-27. The U.S. Supreme Court reversed, holding
that a capital sentence scheme must channel the sentencer's discretion by clear and
objective standards and must provide a meaningful basis for distinguishing cases in

93

which the death penalty should be imposed from those in which it should not. Id. at
427-29. The Godfrey court held that the failure to instruct the jury beyond the
words of the statute was not cured by the review of the Georgia Supreme Court
because, like the state appellate court in Maynard, the Georgia Supreme Court
pronounced no standard for judging the existence of this aggravating circumstance.
Id. at 429.
In Hall’s case however, unlike Maynard and Godfrey, the jury was instructed
on the meaning of the words contained in the aggravating circumstance. (Trial
Transcript Vol. 47, pp. 8281-83). These instructions correctly followed the
previously recognized limiting construction of the aggravating circumstance
established by the Alabama Supreme Court in Ex parte Kyzer, 399 So.2d 330, 334
(Ala. 1981), wherein the court stated, “[t]he aggravating circumstance listed in s 1311-6(8) [now § 13A-5-49(8) ] was intended to apply to only those conscienceless or
pitiless homicides which are unnecessarily torturous to the victim.” In defining the
circumstances under which the aggravating circumstance could be applied, the
Alabama Supreme Court expressly followed Godfrey. Id., see also Ex parte
Deardorff, 6 So.3d 1235, 1240 (Ala. 2008).
Therefore, the “heinous, atrocious, or cruel” aggravating circumstance
articulated to the jury by the trial court in the instant case was not
unconstitutionally vague under the Eighth Amendment. Because Hall has not
identified any other U.S. Supreme Court precedent to support this claim, habeas

94

corpus relief is not warranted on this particular claim under either § 2254(d)(1) or §
2254(d)(2).
CLAIM #16: HALL’S CLAIM THAT THE PROSECUTOR FAILED TO
PROVE THE AGGRAVATING CIRCUMSTANCE THAT THE CRIME WAS
HEINOUS, ATROCIOUS, OR CRUEL WHEN COMPARED TO OTHER
CAPITAL OFFENSES.
Hall next claims that his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights under the U.S. Constitution were violated because the state did not introduce
any evidence of comparative crimes at the sentencing phase of trial, despite the fact
that one of the aggravating circumstances found to exist was that “[t]he capital
offense was especially heinous, atrocious, or cruel compared to other capital
offenses.” (Doc. 1, p. 96) (quoting ALA. CODE § 13A-5-49) (emphasis added). Hall
argues that without evidence of comparative crimes, the jury had no basis for
finding this aggravating circumstance. (Id.)
This claim is a nullity from a habeas corpus point of view. The court notes
that Hall failed to cited any U.S. Supreme Court precedent whatsoever in his
petition, and therefore, this court cannot say that the state found differently than
the Supreme Court on a set of materially indistinguishable facts or otherwise
unreasonably applied a governing principle from such precedent to the instant case.
Although Hall later cited Oregon v. Ice, 555 U.S. 160, in his reply brief (see Doc. 33,
p. 45), that case is vastly distinguishable from Hall’s. For one thing, Ice is not a
death penalty case. Secondly, the Ice court held that the Sixth Amendment does
not inhibit states from assigning to judges, rather than juries, the task of finding
facts necessary to impose consecutive sentences for multiple offenses (rather than
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concurrent sentences). Id. at 164. This holding does not further Hall’s argument in
the least.
Similarly unavailing is Hall’s reply brief citation of In re Winship, 397 U.S.
358 (1970).9 Winship, which is also not a death penalty case, stands for the
proposition that juveniles are constitutionally entitled to the reasonable doubt
standard when they are charged with a violation of criminal law, and does not
establish that § 2254(d)(1) relief is appropriate in this case.
Hall also failed to cite any fact or authority which would support even an
implicit argument that the state court adjudication resulted in an unreasonable
decision in light of the evidence produced. Therefore, habeas corpus relief is not
appropriate under § 2254(d)(2).
CLAIM #17: HALL’S CLAIM THAT THE TRIAL COURT ERRED IN
ALLOWING EVIDENCE OF A PRIOR CRIME THAT WAS NOT CHARGED
IN THE INDICTMENT TO BE ADMITTED DURING HIS TRIAL
Hall next claims that the trial court erred when it admitted evidence
suggesting that Hall and his co-defendant, Wayne Travis, burglarized Nellie
Schad’s home on the night of Mrs. Haskew’s murder. (Doc. 1, p. 97). Hall argues
that evidence of this burglary was inadmissible because it pertained to an extrinsic
crime not specifically charged in the indictment. Id.
The court notes that, as with claim #16 above, Hall did not cite any U.S.
Supreme Court precedent in his petition, nor otherwise alleged or showed that the
state court adjudication was unreasonable in light of the evidence presented.
9

The court notes that Hall did not cite any specific page or portion of Winship.

96

Therefore, habeas corpus relief is not appropriate under either §2254(d)(1) or §
2254(d)(2).
CLAIM #18: HALL’S CLAIM THAT THE TRIAL COURT VIOLATED HIS
RIGHT TO A RELIABLE SENTENCE WHEN IT DENIED HIM THE
BENEFIT OF A STATUTORY MITIGATING CIRCUMSTANCE BASED
UPON ITS ERRONEOUS CALCULATION OF HIS AGE AT THE TIME OF
THE CRIME.
Hall next argues that the trial court miscalculated his age when it imposed a
death sentence, finding that Hall was twenty-two years old when in fact he was
twenty-one years old at the time of Mrs. Haskew’s murder. (Doc. 1, p. 99). Thus,
Hall contends that the court erred when it concluded that Hall’s age at the time of
the crime was not a mitigating circumstance. (Id.) Hall cites Eddings, 455 U.S. at
110, and Lockett, 438 U.S. at 606-07, for support.
However, there is nothing to support Hall’s claim in either Lockett or
Eddings, because those cases merely require that a sentencer in capital cases be
permitted to consider any relevant mitigating factor. Eddings, 455 U.S. at 110.
Here, there is no indication that the trial court was prevented from considering or
refused to consider Hall’s age as a mitigating factor. Instead, the record reflects
that during the sentencing hearing, the trial judge misstated Hall’s age as twentytwo instead of twenty-one years old. (Trial Transcript Vol. 48, p, 8528). The
Alabama Supreme Court noted that Hall’s correct date of birth was stated in his
presentence report, Hall, 820 So.2d at 150, which although not conclusive, does tend
to suggest that the trial court considered Hall’s correct age when determining his
sentence.

97

In any event, the defendant in Eddings was sixteen when he committed the
crime for which he was sentenced to death, making him a minor, unlike Hall, who
was an adult. See Eddings, 455 U.S. at 105. The defendant in Lockett, on the other
hand, was twenty-one when she committed the crime for which she was sentenced
to death; however, the U.S. Supreme Court reversed her death sentence on the basis
that the Ohio statute under which she was sentenced did not permit the judge to
take her age or other potentially mitigating factors into account. There is no
suggestion that the Alabama statute limited the trial judge in this way. Therefore,
both Eddings and Lockett, present materially distinguishable facts from Hall’s case,
and there is nothing to suggest that the Alabama state courts unreasonably applied
a governing principle from either Eddings or Lockett, or arrived at an unreasonable
determination of the facts in light of the evidence presented. Accordingly, habeas
corpus relief pursuant to §2254(d)(1) and §2254(d)(2) is inappropriate for this claim.
CLAIM #19: HALL’S CLAIM THAT THE TRIAL COURT REFUSED TO
SUPPLEMENT ALLEGEDLY CRITICAL PORTIONS OF THE RECORD
Hall also claims that the trial court “adversely affected” Hall’s Fifth, Sixth,
Eighth, and Fourteenth Amendment rights when it refused to supplement the
record with audiotapes of the voir dire examination and a trial transcript that
included off-the-record side bar discussions between the trial judge and trial
counsel. (Doc. 1, p. 101).
Regarding audiotapes of the voir dire examination, Hall’s claim is moot
insofar as this court conducted an in-depth review of the voir dire transcript when it
considered Claim 1, supra, and ruled in Hall’s favor based upon the written record.
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Secondly, nothing in the two U.S. Supreme Court cases that Hall cited, Gardner v.
Florida, 430 U.S. 349, 360-61 (1977), and Gregg v. Georgia, 428 U.S. 153, 167
(1976), requires the inclusion of audio recordings of voir dire proceedings (or any
other proceedings, for that matter) in the appeal record. Hall has not cited any
other U.S. Supreme Court authority to support his assertion that the audio tapes
were necessary.
Hall’s argument must also fail with regard to including side-bar discussions
in the transcript because Hall has identified no U.S. Supreme Court authority
which requires that such “side bars” be part of the appeal record. The one case that
Hall did cite, Dobbs v. Zant, 506 U.S. 357 (1993) does not say anything about side
bar discussions and holds simply that the Circuit Court of Appeals erred in refusing
to even consider a trial transcript which was thought to be non-existent when the
court reviewed the defendant’s appeal, but a copy of which was located after the
appeals court’s initial ruling. Id. at 358.
Thus, habeas corpus relief on this issue is not appropriate under either §
2254(d)(1) or § 2254(d)(2).
CLAIM #20: INEFFECTIVE ASSISTANCE OF COUNSEL
(1)

REVIEWED AS MULTIPLE CLAIMS

Hall’s ineffective assistance of counsel claim spans 44 pages and 18 separate
subsections and sub-subsections. See Doc. 1, pp. 102-146. Hall argues in his reply
brief that this court should consider cumulatively the claims contained in these
sections. (Doc. 33, p. 48). Setting aside the fact that Hall’s cumulativeness

99

argument is unsupported and raised for the first time in a reply brief, the court
notes that whether each subsection amounts to a separate claim, or whether Claim
#20 is one claim containing several examples of ineffective assistance of counsel to
be evaluated cumulatively, is a question that was addressed by the Eleventh Circuit
in Kelley v. Secretary for the Department of Corrections, 377 F.3d 1317, 1344 (11th
Cir. 2004). In Kelley, the Eleventh Circuit described the petitioner's obligation to
raise the factual bases for his claims and the consequences for failing to do so:
the prohibition against raising non-exhausted claims in federal
court extends not only to broad legal theories of relief, but also
to the specific assertions of fact that might support relief. For
example, habeas petitioners may not present particular factual
instances of ineffective assistance of counsel in their federal
petitions that were not first presented to the state courts.
Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992). As
we explained,
allowing a habeas petitioner to allege a single
instance of ineffective assistance in his state post
conviction proceedings and then proceed to federal
court to allege additional instances would be
contrary to the state's “full and fair opportunity to
address the claim on the merits.” The state would
never have the benefit of evaluating the claim
using a fully developed set of facts. This would not
be the “serious and meaningful” exhaustion of
claims that Congress intended.
Id. .... Furthermore, habeas petitioners cannot preserve
otherwise unexhausted, specific claims of ineffective assistance
merely by arguing that their lawyers were ineffective in a
general and unspecified way. See Weeks, 26 F.3d at 1044–46
(rejecting petitioner's argument that “the general claim of
ineffective assistance in state court preserves for federal review
all alleged instances of ineffectiveness, regardless of whether
evidence of a particular act was presented to the state court”). In
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sum, to preserve a claim of ineffective assistance of counsel for
federal review, the habeas petitioner must assert this theory of
relief and transparently present the state courts with the
specific acts or omissions of his lawyers that resulted in
prejudice.
Kelley, 377 F.3d at 1344.
Because the State has challenged some of Hall’s ineffective assistance claims
as being procedurally defaulted, and argued against others on the merits, the court
will address each section and subsection as a separate claim, in accordance with the
rule set forth in Kelley. In doing so, the court will examine whether Hall asserted
each theory of relief before the state courts. If a given act or omission never came
before the state courts for review, then this court will not consider it properly
preserved for federal review and will not consider it when discussing the merits of
Hall’s ineffective assistance claim.
(2)

STRICKLAND STANDARD FOR REVIEW OF INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS

Hall’s ineffective assistance of counsel claims will also be evaluated through
the familiar standard promulgated by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). To establish an ineffective assistance claim under
the Sixth Amendment, “[a] petitioner must show that counsel’s performance was
deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539
U.S. 510, 521 (2003). “Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.” Halliburton v. Secretary for Dep’t of
Corrections, 342 F.3d 1233, 1243 (11th Cir. 2003).
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To satisfy Strickland’s “deficient performance” prong, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.”
Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010) (citation omitted). “This
requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.”
Halliburton, 342 F.3d at 1243. Given the “strong presumption in favor of
competence,” a petitioner bears the heavy burden of showing “that no competent
counsel would have taken the action that his counsel did take.” Williams, 598 F.3d
at 790 (citation and internal quotation marks omitted). “The question is whether an
attorney’s representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.”
Harrington v. Richter, --- U.S. ----, 131 S.Ct. 770, 788 (2011) (citation and internal
quotation marks omitted).
As for Strickland’s “prejudice” prong, “the petitioner is required to prove that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Williams, 598 F.3d at 789
(citation and internal quotation marks omitted). “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Halliburton, 342 F.3d at 1243. “The likelihood of a
different result must be substantial, not just conceivable.” Harrington, 131 S.Ct. at
792.

102

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371, (2010); see also Harrington, 131 S.Ct. at 788
(cautioning that “the Strickland standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve”). However, it is even more daunting in the
habeas context where, as here, the state courts have adjudicated the ineffective
assistance claims on the merits in post-conviction proceedings, thereby triggering
the § 2254(d) limitations. “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131
S.Ct. at 788. “Thus, [Hall] not only has to satisfy the elements of the Strickland
standard, but he must also show that the State court applied Strickland to the facts
of his case in an objectively unreasonable manner.” Williams, 598 F.3d at 789
(citations and internal quotation marks omitted). “The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.” Harrington, 131 S.Ct. at 788 (citation and internal
quotation marks omitted); see also Bell v. Cone, 535 U.S. 685, 698-99 (2002) (“For
respondent to succeed, however, he must do more than show that he would have
satisfied Strickland’s test if his claim were being analyzed in the first instance,
because under § 2254(d)(1), it is not enough to convince a federal habeas court that,
in its independent judgment, the state-court decision applied Strickland
incorrectly.”).

103

These burdens rest squarely on petitioner’s shoulders. After all, “[t]o give
trial counsel proper deference, this circuit presumes that trial counsel provided
effective assistance. … And it is the petitioner’s burden to persuade us otherwise.”
Harvey v. Warden, Union Correctional Institution, 629 F.3d 1228, 1245 (11th Cir.
2011) (citations and internal quotation marks omitted).
CLAIM 20 A:

GROSSLY INADEQUATE COMPENSATION.

Hall argues that state funding and compensation for his defense attorneys
was “grossly insufficient,” and induced errors by defense counsel that prejudiced
Hall in violation of Strickland, 466 U.S. at 686. Hall presented this same argument
in his Amended Rule 32 Petition before the Monroe County Circuit Court (State
Court Appeal Record Vol. 54, p. 305) and his Rule 32 Petition before the Alabama
Court of Criminal Appeals (State Court Appeal Record Vol. 58, p. 56).
The Alabama Court of Criminal Appeals ruled that Hall’s assertion was
procedurally barred pursuant to Rule 32.2(a) of the Alabama Rules of Criminal
Procedure, to the extent that he was challenging the statutory limit on attorneys
fees in capital cases. Hall, 979 So.2d 125, 175-76 (Ala.Crim.App. 2007). The Court
of Criminal Appeals also ruled that, to the extent that Hall was raising an
ineffective assistance of counsel claim, he failed to allege “a single act or omission
on the part of his trial attorneys that he believes was the result of his counsel’s
compensation or that he believes constituted deficient performance. Therefore, he
has not satisfied his burden of pleading and proof pursuant to Rules 32.3 and
32.6(b), Ala.R.Crim.P.” Id. at 176. Accordingly, the state argues that this issue is

104

procedurally defaulted because it was dismissed by the Alabama Court of Criminal
Appeals under an independent and adequate state procedural rule. (Doc. 13, p.
110).
This discussion, though it invokes state pleading rules, goes directly to the
merits of Hall’s claim; more precisely, it plainly states that the claim is
nonmeritorious, as Hall failed to state his claim with the specificity required by
Alabama's fact-pleading10 post-conviction scheme, and failed to meet his burden of
proof. Therefore, based on Eleventh Circuit precedent and on this court’s reading of
the Alabama Court of Criminal Appeals holding in this case, the court finds that the
inadequate compensation component of Hall’s ineffective assistance of counsel claim
was adjudicated “on the merits” and the Court of Criminal Appeals’ disposition of
the claim did not rest on an adequate and independent state law ground. See
Frazier v. Bouchard, 661 F.3d 519, 526-27. Thus, this court may address the claim,
subject to review under the standards of the AEDPA, which limits this court’s
review to the allegations in Hall’s Amended Rule 32 petition and whether they
sufficiently state a claim for ineffective assistance of counsel. Powell v. Allen, 602
F.3d 1263, 1273 (11th Cir. 2010).
Nevertheless, this court finds that Hall’s argument, as stated in his Amended
Rule 32 petition, fails on the merits. See Trial Transcript Vol. 54, pp. 305-308.
10

Federal habeas petitioners are also required to fact plead their claims. See McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Habeas corpus petitions must meet heightened pleading
requirements ...” (citing 28 U.S.C. § 2254 Rule 2(c))); see also Borden v. Allen, 646 F.3d 785,
808–13 (11th Cir. 2011) (comparing Alabama's post-conviction scheme to the federal rules
governing habeas proceedings).

105

Federal courts have previously rejected ineffective assistance challenges to
convictions grounded on the assertion that inadequate compensation to counsel
causes ineffectiveness. See Hallford v. Culliver, 379 F.Supp.2d 1232, 1279 (M.D.
Ala. 2004); McNair v. Haley, 97 F.Supp.2d 1270, 1275 (M.D. Ala. 2000). Rather,
inadequate funding of counsel appointed to represent capital defendants must
contribute to actual errors or shortcomings, as was stated by the Strickland court:
A convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.
In making that determination, the court should keep in mind
that counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing process
work in the particular case.
Id. at 690 (emphasis added).
Thus, Hall’s allegation that compensation caps hindered the ability of defense
counsel to represent him has meaning only by reference to specific errors or
shortcomings purportedly caused by inadequate defense funding. Only by
examining specific errors or shortcomings can the court determine, first, whether it
was an error outside the broad scope of competence expected of counsel, and second,
whether the error caused real prejudice to the defendant. Consequently, as a claim
of ineffectiveness divorced from analysis of particular errors or omissions, the
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.
106

CLAIM 20 B:

FAILURE TO ADEQUATELY INVESTIGATE THE
STATE’S CASE.

Hall next argues that his attorneys failed adequately to investigate and
prepare his defense, Doc. 1, p. 106, an argument which he also made in his Rule 32
Petition before the Alabama Court of Criminal Appeals (State Court Appeal Record,
Vol. 58, p. 55-56). The Court of Criminal Appeals found that he failed to satisfy the
burdens of proof and specificity under Rules 32.3 and 32.6(b) of the Alabama Rules
of Criminal Procedure, as well as under the two Strickland prongs. Accordingly, the
state argues that this issue is procedurally defaulted because it was dismissed by
the Court of Criminal Appeals under an independent and adequate state procedural
rule. (Doc. 13, p. 113).
However, as with Claim #20 A, above, the state appeals court’s discussion
goes directly to the merits of Hall’s claim despite the fact that it invokes state
pleading rules. It plainly states that the claim is nonmeritorious because Hall both
failed to meet the burden of proof and failed to state his claim with the specificity
required by Alabama's fact-pleading post-conviction scheme. Therefore, this court
finds that Claim #20 B, alleging inadequate investigation by Hall’s counsel, was
adjudicated “on the merits” and the Court of Criminal Appeals’ disposition of the
claim did not rest on an adequate and independent state law ground. See Frazier,
661 F.3d at 526-27. Thus, this court may address the claim, subject to review under
the standards of the AEDPA, which limits this court’s review to the allegations
stated in Hall’s Amended Rule 32 Petition. Powell, 602 F.3d at 1273.

107

After reviewing Hall’s claim on the merits, however, this court finds Hall’s
argument is entirely conclusory, offering no evidence from the extensive trial
record11, and thus failing to satisfy either of Strickland’s two prongs. See Trial
Transcript Vol. 54, pp. 308-309. With regard to the “deficient performance” prong,
Hall points to nothing which suggests that his trial counsels’ representation fell
below an objective standard of reasonableness, nor that either counsel made errors
so serious that they ceased to function as counsel guaranteed by the Sixth
Amendment. See Williams, 598 F.3d 788; Halliburton, 342 F.3d at 1243. With
regard to Strickland’s “prejudice” prong, Hall similarly failed to point to anything in
the record that indicated a reasonable probability that, but for counsels’
unprofessional errors, the result of the proceeding would have been different.
Williams, 598 F.3d at 789.
Additionally, although Hall cited several U.S. Supreme Court cases for
support, including Strickland, Wiggins v. Smith, 539 U.S. 510, 524 (2003), and
Rompilla v. Beard, 545 U.S. 374, 387 (2005), he made no argument about how those
cases are similar to his own case, or how the precedent applies here. (Doc. 1 at 10506). At the habeas corpus stage of review, where the petitioner has the burden of
rebutting by clear and convincing evidence the presumption of correctness enjoyed
by the state court judgment, it does not suffice for Hall simply to cite a number of

11

The court notes that Claim #20 B does not contain even one reference or citation to the
48 volume record in this case.

108

U.S. Supreme Court cases and then juxtapose them with his argument, without also
connecting the two. See § 2254(e)(1).
CLAIM 20 C:

INEFFECTIVE ASSISTANCE AT GUILT PHASE

CLAIM 20 C(1):

FAILURE TO ENSURE THAT HALL WAS
PRESENT THROUGHOUT ALL PHASES OF
TRIAL

The infirmities in this contention have already been explored in some detail
in the section discussing Claim #10, supra. No constructive purpose would be
served by reiterating them in full here. It shall suffice to state that, as with Claim
#10, the record does not support Hall’s contention that the trial court concluded the
oral argument for his motion to dismiss the indictment in-chambers. See Trial
Transcript Vol. 44, pp. 7796-7800. Rather, the record clearly reflects that defense
counsel argued his motions before the trial judge in open court before the judge
adjourned to his chambers with defense counsel and the prosecutor to listen to the
medical examiner’s taped testimony. See Trial Transcript Vol. 45, p. 7801. Upon
returning from this short recess, the trial judge made a point of stating that it
“made no rulings or took no action while in chambers,” id. at 7801-02, and gave
defense counsel an opportunity to make any further argument he wished. Id.
This court also found that Hall’s citation of Stincer, 482 U.S. 730, did not
support his position. See Claim #10, supra. The Stincer court reasoned that the
defendant’s rights were not violated by his exclusion from a competency hearing
where the defendant presented no evidence that his presence would have resulted
“in a more assured determination of competency.” Stincer, 482 U.S. at 747.

109

Similarly, Hall presented no evidence that his presence would have resulted “in a
more assured determination” of his motions.
In support of his ineffective assistance of counsel claim, Hall also cites Snyder
v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled on other grounds by Malloy
v. Hogan, 378 U.S. 1, 17 (1964), for the proposition that a defendant has the right to
attend any trial proceeding in which his presence “has a relation, reasonably
substantial, to the fullness of his opportunity to defend against the charge,” and
argues that he had the right to be present in the trial judge’s chambers to review
the testimony of the medical examiner, in order to “assist in his own defense.” (Doc.
1, p. 108). However, Hall offers no evidence whatsoever that he could have assisted
in his own defense or that his presence in the trial judge’s chambers had any
relation, substantial or otherwise, to “the fullness of his opportunity to defend
against” the charge of capital murder, especially where the record reflects that the
judge simply listened to a tape of the medical examiner’s testimony before returning
to the courtroom. See Trial Transcript Vol. 45, p. 7801-02.
Hall also cites United States v. Gagnon, 470 U.S. 522 (1985). (Doc. 1 at 107).
Gagnon is as unhelpful to him as Synder, however, because the absence of the
defendant in that case at an in-chambers discussion hinged on Rule 43 the Federal
Rules of Criminal Procedure, which are not at issue here. Id. at 525. Also at issue
in Gagnon was the judge’s discussion with a single juror outside the presence of the
defendant, which constitutes a clear factual distinction from Hall’s case. Id.
Moreover, the Gagnon court ultimately held that “respondents’ rights under the

110

Fifth Amendment Due Process Clause were not violated by the in camera discussion
with the juror,” and cautioned that “the exclusion of a defendant from a trial
proceeding should be considered in light of the whole record.” Id. at 526-27 (citing
Snyder, 291 U.S. at 115).
What is more noteworthy for purposes of examining Hall’s ineffective
assistance of counsel claim, however, is the fact that Hall merely concluded that his
attorneys rendered ineffective assistance, without citing any case law whatsoever.
With no authority supporting this claim, Hall has not shown that his lawyers’
performance was per se deficient.12 And, with no evidence from the record, Hall
cannot possibly satisfy either prong of the Strickland standard.
CLAIM 20 C(2):

FAILURE TO REQUEST A FELONY-MURDER
INSTRUCTION

As discussed in some detail in Claim #8, above, the record does not reflect
that Hall requested a felony murder instruction. He now asserts that this
constituted ineffective assistance from his trial counsel. (Doc. 1, p. 109). Yet, as the
Alabama Court of Criminal Appeals noted on direct appeal, “[t]he evidence showed
that Haskew was shot twice in the head, beaten repeatedly, and strangled. There
was absolutely no evidence presented that would bring the murder into the
definition of felony murder.” Hall, 820 So.2d at 139. Hall did not identify any such
evidence in his habeas petition. Without such evidence, Hall cannot show that

12

Hall’s argument on this point in his reply brief is similarly conclusory and
unconvincing. See Doc. 33, p. 52-53.

111

defense counsel’s representation fell below an objective standard of reasonableness,
as Strickland requires. See 466 U.S. at 687. Accordingly, this court finds that Hall
has failed to establish the deficient performance prong of Strickland.
CLAIM 20 C(3):

FAILURE TO ARGUE SECOND MOTION FOR
CHANGE OF VENUE AT THE END OF VOIR
DIRE

Hall next cites the U.S. Supreme Court’s opinions in Rideau v. State of
Louisiana, 373 U.S. 723, 725 (1963) and Irvin v. Dowd, 366 U.S. 717, 727 (1961) to
support his argument that his defense counsel were ineffective for failing to renew a
second motion to change venue at the end of the voir dire examination. (Doc. 1, p.
111). Unfortunately, the citations of Rideau and Irvin are dropped into Hall’s
habeas petition with no attempt to connect their precedential value to the
Strickland analysis that is part and parcel of an ineffective assistance of counsel
claim. Hall makes no argument (to say nothing of affirmatively proving) that the
failure to argue the second motion for change of venue constituted either deficient
performance by defense counsel or that it prejudiced his defense. See Doc. 1, p. 11112. Nor is this alleged failure the type of allegation which gives rise to a
presumption of prejudice. See Strickland, 466 U.S. at 692. Accordingly, habeas
relief pursuant to Strickland is denied with regard to this claim.
CLAIM 20 C(4):

FAILURE TO REMOVE JURORS FOR CAUSE
WHO SHOULD HAVE BEEN EXCLUDED
UNDER MORGAN v. ILLINOIS

Hall asserts that his trial counsel rendered ineffective assistance by not
requesting that venireperson Elizabeth McKinley be struck for cause due to her

112

allegedly strong feelings in support of the death penalty. (Doc. 1, pp. 113-14). Hall
maintains that McKinley indicated during voir dire that she had a fixed opinion in
favor of capital punishment so that she would always vote to impose the death
penalty, as evidenced by the fact that she and other jurors on her panel raised their
hands when queried by the trial court on this point. See Trial Transcript Vol. 33, p.
5512). Hall also claims that McKinley “further stated that her view of the death
penalty would not be changed.” (Doc. 1, p. 113).13
This court has already discussed the shortcomings in Hall’s argument in
Claim #6, supra, and will not repeat its reasoning here. It shall suffice to say that
this court determined that the issue had no merit, in no small part because Hall’s
characterization of McKinley’s voir dire testimony was not entirely accurate. Hall
omitted more circumspect answers given by McKinley which tended to detract from
a picture of her as one who would always vote to impose the death penalty. For
example, when defense counsel asked McKinley whether she would “take [her
strong views on the death penalty] into the jury box,” she answered that,
I wouldn’t say that I’d have the feeling with me. I’d have to hear
everything before – you know, you’ve got to hear all the sides of
anything because I don’t know the story. I mean, I’d have to
hear it.
(Trial Transcript Vol. 33, p. 5557). Reinforcing this view were additional portions of
McKinely’s voir dire testimony that Hall did not cite in his petition. When asked by
the prosecutor whether she would “automatically, in every case, vote for the death
13

The court notes that Hall’s citation to the record on this point (Trial Transcript Vol. 33,
p. 5556) does not reflect this alleged statement by venireperson McKinley.

113

penalty,” McKinley stated, “No, not unless I could hear, you know, both sides of
everything …” (Trial Transcript Vol. 33, p. 5539). When the prosecutor asked her
whether she could consider both the aggravating factors and mitigating factors and
weigh them before making a decision, McKinley stated, “I think so.” Id.
Rather than someone who would always vote for the death penalty,
automatically and regardless of evidence of mitigating circumstances, McKinley’s
answers revealed a potential juror who supported the death penalty but who
indicated that she wanted to hear “everything” before voting on the appropriate
penalty. Id.
Because the record does not support Hall’s view of McKinley as a
venireperson who would automatically vote in favor of the death penalty regardless
of the evidence, Hall has not shown that his trial counsel’s representation fell below
an objective level of reasonableness, as required by Strickland. 466 U.S. at 688.
“Counsel cannot be labeled ineffective for failing to raise issues which have no
merit.” Cave v. Secretary for Dep’t of Corrections, 638 F.3d 739, 755 (11th Cir.
2011) (citation and internal quotation marks omitted). Instead, Hall simply
concludes that defense counsels’ “performance was ineffective and, since it cost trial
counsel a peremptory strike, it could never be considered part of trial strategy.”
(Doc. 1, p. 114). This establishes neither deficient performance nor actual prejudice
and therefore, Hall’s claim on this issue is denied.
CLAIM 20 C(5):

FAILURE TO LITIGATE A BATSON
CHALLENGE PROPERLY

114

In light of the court’s findings with regard to Claim #1, supra, Hall’s
ineffective assistance of counsel claim for failure to litigate a Batson claim properly
is moot.
CLAIM 20 D:

PENALTY AND SENTENCING PHASE

CLAIM 20 D(1):

FAILURE TO REQUEST THAT THE TRIAL
JUDGE INSTRUCT JURORS THAT THEY
MUST VOTE FOR LIFE WITHOUT PAROLE
IF THE AGGRAVATING AND MITIGATING
CIRCUMSTANCES WERE EQUALLY
BALANCED

Hall argues next that his attorneys did not request a jury instruction
specifying that if aggravating circumstances were equally balanced with mitigating
circumstances, then the jury must vote for life in prison without the possibility of
parole. (Doc. 1, pp. 124-25). By not requesting such an instruction, Hall maintains
that defense counsel “abdicated their responsibility to ensure that Mr. Hall received
a fair trial.”
Hall included a general citation to Strickland, specifying no page number,
which presumably was intended to signify that his attorneys’ performance was
deficient enough to meet Strickland’s deficient performance and that such
performance satisfied the actual prejudice prongs. See Strickland, 466 U.S. at 689,
692. However, it does not suffice on federal habeas review for Hall to simply insert
a citation to Strickland at the end of a conclusory statement in his petition and then
expect the court to find in his favor. The burden is upon Hall to explain how or why
defense counsels’ alleged shortcomings satisfied the Strickland prongs, either
because counsel’s representation fell below an objective standard of reasonableness,
115

or because the result of the proceeding would have been different but for counsel’s
shortcomings. Williams, 598 F.3d at 789.
Nor is Hall’s claim advanced by his citation of Blystone v. Pennsylvania, 494
U.S. 299 (1990). Hall’s argument is that the trial court in his case should have
instructed the jury to recommend a sentence of life imprisonment if they found the
aggravating circumstances to be equally balanced by the mitigating circumstances.
(Doc. 1, p. 124). The Blystone court, however, upheld Pennsylvania’s death penalty
statute after finding that it was imposed “only after a determination that the
aggravating circumstances outweigh the mitigating ones present in the particular
crime committed by the particular defendant, or that there are no such mitigating
circumstances.” Blystone, 494 U.S. at 305. There is no mention of an equal balance
between aggravating and mitigating circumstances. Moreover, the trial court in
Hall’s case gave precisely the instruction that Blystone would require, telling the
jury that
[if] you are convinced that the aggravating circumstance
outweighs the mitigating circumstance, then your verdict
would be, “We, the jury, having found by unanimous vote
of all twelve jurors that at least one aggravating
circumstance has been proved by the State and after
weighing the aggravating and mitigating circumstances,
do recommend that the Defendant, Steven Wayne Hall, be
punished by death.”
(Trial Transcript Vol. 47, p. 8314).
Thus, the court finds that Hall has shown neither deficient performance nor
actual prejudice with regard to this legal defense. Accordingly, his claim of
ineffective assistance of counsel on this issue is denied.
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CLAIM 20 D(2):

FAILURE TO MOVE FOR RECESS DURING
THE SENTENCING PHASE AND
DELIBERATIONS.

Hall also claims that his attorneys rendered ineffective assistance by not
moving for a recess during the sentencing phase and before jury deliberations, and
for not asking the trial court to move deliberations to the following Monday. (Doc.
1, p. 128-29). The Court of Criminal Appeals upheld the Circuit Court’s finding on
collateral appeal that Hall had failed to satisfy the burdens of proof and specificity
under Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure, as well
as the two Strickland prongs. Accordingly, the state argues that this issue is
procedurally defaulted because it was dismissed by the Court of Criminal Appeals
under an independent and adequate state procedural rule. (Doc. 13, p. 156).
However, as with claims #20 A and #20 B, above, the state appeals court’s
discussion goes directly to the merits of Hall’s claim despite the fact that it invokes
state pleading rules. It plainly states that the claim is nonmeritorious because Hall
both failed to meet the burden of proof and failed to state his claim with the
specificity required by Alabama's fact-pleading post-conviction scheme. Hall, 979
So.2d at 151. Therefore, this court finds that this claim #20 D(2) was adjudicated
“on the merits” and the Court of Criminal Appeals' disposition of the claim did not
rest on an adequate and independent state law ground. See Frazier, 661 F.3d at
526-27. Thus, this court may address the claim, subject to review under the
standards of AEDPA, which limits this court’s review to the allegations stated in
Hall’s Amended Rule 32 Petition. Powell, 602 F.3d at 1273.

117

Turning to the merits of Hall’s claim on this point, the court notes that Hall
has peppered this subsection with conclusory statements that are unsupported by
any citation to the record or to case law, such as Hall’s assertions that “[t]hose
[jurors] who were for death got angry at those who were holding out for life,” id. at
129; “[a]t least one juror was very concerned about concluding deliberations in time
for church that morning. Under pressure and due to extreme fatigue, two of the
four hold-out jurors decided to switch to vote for death,” id.; “[w]ithout extreme
fatigue and the pressure to conclude deliberations in time for church, it is likely
that the jury would not have had enough votes for a death sentence.” Id. 14
Weighing these conclusory statements against the “highly deferential”
judicial scrutiny of counsels’ performance that Strickland requires, 466 U.S. at 689,
this court finds that Hall has not established that his trial counsels’ failure to
request a recess during penalty phase deliberations amounted to deficient
performance. Additionally, given the amount and degree of speculation in Hall’s
brief, the court also finds that he has failed to affirmatively prove prejudice, as
required by Strickland. Accordingly, habeas relief is denied with respect to this
issue.

14

Hall quotes the Alabama Court of Criminal Appeals Rule 32 order as saying “[t]he
deliberations continued long into the night because four of the jurors were holding out for life.
They were also receiving heavy pressure from the others to change their minds, so that they
could all get rest. Those who were for death got angry at those who were holding out for life.”
Hall 2007 WL 866652 at *22. This court points out that the quoted language was itself quoted
from Hall’s appeal brief by the state court. In other words, Hall has simply quoted his own
allegations, but done so in such a way as to give the impression that the Alabama Court of
Criminal Appeals was making the statement.

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CLAIM 20 D(3):

FAILURE TO PUT ON SEVERAL
MITIGATION WITNESSES, INCLUDING
HALL’S FAMILY

Hall’s next claim alleges that defense counsel failed to call “relatives and
friends” as penalty phase witnesses who would have “testified about Mr. Hall’s acts
of kindness and loyalty to family and friends, as well as troubling signs of mental
and emotional disabilities, exhibited at an early age.” (Doc. 1, p. 130). The
“relatives and friends” that Hall identified are his parents, grandmother, and aunt
and uncle, id. at pp. 132-34, each of whom testified before the trial judge at Hall’s
sentencing hearing, but not before the jury at the penalty phase of trial.
Hall states that this alleged failure meets the deficient performance and
prejudice prongs of Strickland, amounting to ineffective assistance of counsel which
“deprived Mr. Hall of his constitutionally guaranteed right to put relevant evidence
before the sentencing body during a capital proceeding.” Id. at 135. Although Hall
cites multiple U.S. Supreme Court cases for support, these cited cases either fail to
support his case as claimed, or are not analogous enough to the facts of Hall’s case
to merit granting habeas relief, as explained below.
First, Hall’s invocation of Lockett v. Ohio, 438 U.S. at 604-05, is misplaced
because ineffective assistance of counsel and the quality of the mitigation
investigation were not issues in that case, as Hall alleges they are in his case.
Rather, Lockett concerned a state statute which unconstitutionally precluded the
sentencing judge from considering certain mitigating factors such as the defendant’s
character, prior record, age, lack of specific intent to cause death, and her relatively

119

minor role in the crime. Lockett at 597. Similarly, ineffective assistance of counsel
was not an issue in Woodson v. North Carolina, 428 U.S. 280, 305 (1976), or in
Gregg v. Georgia, 428 U.S. 153, 206 (1976). Instead, in Woodson, the court
addressed the unconstitutionality of North Carolina’s mandatory death sentence for
first-degree murder, making that case materially distinguishable from Hall’s case,
as well. Id. at 292-93. And in Gregg, the court addressed Georgia’s capital
sentencing scheme, which it found to “[serve] as a check against the random or
arbitrary imposition of the death penalty.” Id. at 206.
Hall also cites Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Williams v.
Taylor, 529 U.S. 362 (2000), but to no avail. In Wiggins, the U.S. Supreme Court
found that petitioner’s counsel had failed to conduct a reasonable mitigation
investigation when he relied solely on municipal social services records and a presentence investigation report, and further found that defense counsel’s failure to
investigate “thoroughly stemmed from inattention, not strategic judgment.”
Wiggins, 539 U.S. at 512. In Williams, the Court ruled that petitioner’s counsel fell
below the range of competence demanded of lawyers in criminal cases because he
failed to introduce evidence of the petitioner’s background, including a history of
childhood abuse; did not call as witnesses correctional officers who were willing to
testify that Williams would not pose a danger while incarcerated; did not call
several character witnesses; and did not introduce evidence that Williams was
borderline mentally retarded. Williams, 529 at 372-73.

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The poor performance sanctioned by the U.S. Supreme Court in Wiggins and
Woodson was not displayed by Hall’s attorneys, who, by contrast, hired a mitigation
investigator to conduct a far more sweeping investigation than that in Wiggins, and
who testified during the penalty phase at great length and in great detail, unlike in
Williams. See Trial Transcript Vol. 2, p. 231-33; Trial Transcript Vol. 46, pp. 80178105. Specifically, the mitigation investigator testified that she interviewed Hall’s
mother, sister, grandmother, aunt, uncle, cousins, a former school teacher, and
Hall’s former stepfather. (Trial Transcript Vol. 46, p. 8019-26). She testified
extensively about the results of her investigation into Hall’s childhood, including
detailed testimony regarding his mother’s multiple marriages, her frequent moves
and lack of a stable home environment, an incident in which an abusive stepfather
killed Hall’s childhood dog, and various behavioral problems Hall exhibited in his
teenage years, which culminated in a suicide attempt and incarceration at a
juvenile detention center. Id. at 8025-56.
Also testifying at the penalty phase of Hall’s trial were Hall’s former
schoolteacher, Mario Garcia; his former stepfather, Fritz Wiese; and a social
worker, Barry Snyder, who specialized in working with children and adolescents.
Id. at 8107-37. Additionally, Hall’s attorneys hired a clinical psychologist and
neuropsychologist named Dr. John Goff, who testified at length about his mental
health examination of Hall. Id. at 8162-8236.
In short, the investigation performed by Hall’s defense team and the
mitigation evidence presented to the jury during the penalty phase of trial was not

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even remotely as limited as that in Wiggins or Williams. The two cases are not
“materially indistinguishable” from Hall’s case, and therefore, habeas relief is not
warranted pursuant to § 2254(d)(1). Moreover, this court is also mindful that it
must indulge in a “strong presumption” that defense counsels’ conduct “falls within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
The Strickland court held in no uncertain terms that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. Upon this record, with its extensive
mitigation investigation and the fact that Hall’s defense team located five witnesses
who were willing and able to testify on his behalf at the trial’s penalty phase, this
court cannot say that defense counsel’s challenged conduct was deficient or
prejudicial to Hall.
CLAIM 20 D(4):

FAILURE TO INTRODUCE MITIGATION
EVIDENCE.

Hall next claims that his attorneys failed to “put on” mitigation evidence by
not fully investigating his background and preparing for the penalty phase of his
trial. (Doc. 1, p. 137). The state argues that this claim is procedurally defaulted
because the Rule 32 circuit court held that Hall failed to comply with specificity and
full factual pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of
Criminal Procedure. (Doc. 13, p. 180).
This court has already discussed the Eleventh Circuit’s ruling in Borden, 646
F.3d 816, supra, which holds that claims dismissed by a state court pursuant to
Rule 32.6(b) of the Alabama Rules of Criminal Procedure have in fact been
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considered on the merits. See Claim # 20 A, Claim # 20 B(2), and Claim #20 D(2),
supra. For the same reasons as discussed above, this court finds that it is not
precluded from considering Hall’s claim on the merits, subject to the standards of
AEDPA. See Powell, 602 F.3d at 1273.
Unfortunately for Hall, a review on the merits reveals that this claim is not
due to be granted under Strickland or pursuant to § 2254(d)(1) or § 2254(d)(2).
Although Hall again cites Rompilla, 545 U.S. at 374, Wiggins, 539 U.S. at 510, and
Williams, 529 U.S. at 362, none of these cases can reasonably be considered as
materially indistinguishable from his case. Once more, Hall simply cites U.S.
Supreme Court precedent dealing with the subject matter of the relevant claim but
fails to identify or explain the similarities between the cited case and his own. The
record evidence in Hall’s case contains multiple examples of the extensive
background investigation conducted by the defense team’s mitigation investigator,
whose efforts are discussed in Claim 20 D(3), above. Rompilla, Wiggins, and
Williams, on the other hand, each featured mitigation investigations that were far,
far less extensive and saw mitigation evidence that was not offered. In Rompilla,
the petitioner’s trial counsel failed to present “significant mitigating evidence about
Rompilla’s childhood, mental capacity and health, and alcoholism.” Rompilla, 545
U.S. at 378. In Williams, defense counsel failed to introduce evidence of the
petitioner’s history of childhood abuse; did not call as witnesses correctional officers
who were willing to testify that the petitioner would not pose a danger while
incarcerated; did not call several character witnesses; and did not introduce

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evidence that the petitioner was borderline mentally retarded. Williams, 529 at
372-73. And in Wiggins, defense counsel relied solely on municipal social services
records and a pre-sentence investigation report, and conducted no further
mitigation investigation. Wiggins, 539 U.S. at 512. These cases cannot be
analogized to Hall’s case, where the defense team presented detailed testimony
regarding his troubled childhood, including testimony by the defense mitigation
investigator, a former schoolteacher of Hall’s, a former social worker, a
neuropsychologist, and one of Hall’s former stepfathers. Their testimony detailed
Hall’s lack of a stable home environment during childhood and his “chaotic” preteen years (Trial Transcript Vol. 46, p. 8049), his mother’s multiple marriages and
divorces (id.), the physical and emotional abuse which Hall suffered at the hands of
an abusive stepfather (id. at 8044), Hall’s tendency to internalize anger and erupt
into fits of rage (id. at 8124-29), an incident in which Hall burned down his
mother’s house when he was fourteen years old (id. at 8054), Hall’s improving
behavior at school and at home upon being shown affection by adults (id. at 811011), and various behavioral problems Hall exhibited in his teenage years, which
culminated in a suicide attempt and incarceration at a juvenile detention center (id.
at 8025-56).
To the extent that Hall would now criticize his defense counsel for relying on
an investigator rather than personally conducting the mitigation investigation, this
court agrees with the Alabama Court of Criminal Appeals, which accurately pointed
out that the U.S. Supreme Court did not expressly or impliedly hold that counsel

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must perform the investigation personally in any of its decisions in Rompilla,
Wiggins, or Williams. 15
Moreover, as stated with regard to Claim #20 D(3), above, this court is also
mindful that it must indulge in a “strong presumption” that defense counsels’
conduct “falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. In attempting to rebut this presumption, Hall alleges,
with no citation to the record, that his trial counsel “failed to investigate, obtain and
present evidence from any records, and [failed to] properly put on evidence that the
Judge and jury could have considered mitigating.” (Doc. 1, p. 138). The trial record
paints an entirely different picture of the defense team’s investigation and
presentation to the jury of mitigating evidence, summarized, supra. Thus, this
court finds that Hall has not shown that his counsels’ representation fell below an
objective standard of reasonableness, thereby failing to satisfy the first prong of
Strickland. For this reason, Hall’s claim on this issue is denied.
CLAIM 20 D(5):

(a)

FAILURE TO OBJECT TO IMPROPER
ARGUMENTS MADE BY THE PROSECUTOR
DURING CLOSING ARGUMENTS.

Prosecutor’s Alleged Misstatement of the
Definition of Reasonable Doubt.

Hall next argues that his trial counsel rendered ineffective assistance by
failing to object to the prosecutor’s alleged misstatement of the definition of

15

The court has previously discussed that Lockett, Woodson, and Gregg (which are cited
in Hall’s reply brief) did not deal with the issue of ineffective assistance of counsel, and
therefore are materially distinguishable from Hall’s case with regard to this claim.

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reasonable doubt under Alabama law.16 (Doc. 1, p. 141). Hall’s claim on this point
must fail because he cannot satisfy either prong of Strickland.
With regard to the deficient performance prong, the Alabama Court of
Appeals noted on direct appeal that the prosecutor’s definition was not an incorrect
statement of law. Hall, 820 So.2d at 141-42. Indeed, “Alabama courts have been
sympathetic to attempts to define a reasonable doubt as a doubt for which a reason
can be given.” Alabama Evidence 3d, § 3:34 (updated June 2011) (citing Hall v.
State, 54 Ala. App. 198, 202 (Ala.Crim.App. 1974), Baker v. State, 477 So.2d 496,
502-03 (Ala.Crim.App. 1985)(overruled on other grounds by Ex parte Frazier, 562
So.2d 560 (Ala. 1989)). Therefore, failure to make what would have amounted to a
baseless objection cannot be ineffective assistance of counsel, as a matter of law.
See, e.g., Cave v. Secretary for Dep’t of Corrections, 638 F.3d 739, 755 (11th Cir.
2011) (“[c]ounsel cannot be labeled ineffective for failing to raise issues which have
no merit”) (citation omitted).
As to the prejudice prong of Strickland, and as noted in Claim # 13(B), above,
the trial court appropriately instructed the jury on the concept of reasonable doubt.
Hall, 820 So.2d at 142. The definition of reasonable doubt that the trial court gave
to the jury was as follows:
The phrase reasonable doubt is self-explanatory. Efforts
to define it do not always clarify the term. But, it may
help to know that it is not a mere possible doubt.
Everything relating to human affairs is open to some
16

The prosecutor defined reasonable doubt as “…a doubt for which you can give a
particular reason.” (Trial Transcript Vol. 45, pp. 7835-36).

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possible or imaginary doubt. A reasonable doubt is a
doubt of a fair-minded juror, honestly seeking the truth
after careful and impartial consideration of all the
evidence in the case. It’s a doubt based upon reason and
common sense. It does not mean a vague or arbitrary
notion, but, is an actual doubt based upon the evidence, a
part of the evidence, a lack of evidence, a conflict in the
evidence or a combination of those factors. It is a doubt
that remains after going over, in your minds, the entire
case and giving consideration to all the testimony. It’s
distinguished from mere possibility, from bare
imagination or from fanciful conjecture.
(Trial Transcript Vol. 45, pp. 7888-7890). The trial court also instructed the jury
that “no statements or arguments of the attorneys constitute proof. The proof is in
the testimony of witnesses and exhibits which have been admitted in the case.” Id.
at 7896.
Accordingly, habeas relief on this issue is inappropriate.
(b)

Prosecutor’s Alleged Prejudicial NameCalling.

Hall next alleges that that defense counsel were ineffective for failing to
object to the prosecutor’s allegedly prejudicial statements at closing arguments –
namely, the prosecutor’s assertion that the jury could consider profanities that Hall
had yelled at authorities shortly before his arrest. (Doc. 1, p. 142). The state
contends that this issue is procedurally defaulted because Hall did not raise it when
he appealed the circuit court’s denial of his amended Rule 32 petition, and
therefore, the claim was not fully exhausted. (Doc. 13, p. 186). A review of Hall’s
collateral appeal brief confirms that Hall did not raise this claim before the
Alabama Court of Criminal Appeals. See Trial Transcript Vol. 58, Tab R-68.

127

Therefore, the state courts have not had a full and fair opportunity to decide this
claim and Hall 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”).
(c)

Allegation That The Prosecutor Improperly Told
the Jury That The Only Sentence For This Case
Was Death

Hall next alleges that his attorneys were ineffective for failing to object to the
prosecutor’s statement that “Steve Hall is bad. And the law has a way of dealing
with people like that.” (Trial Transcript Vol. 47, p. 8270). This statement,
according to Hall, was inconsistent with Alabama law in that it made the jurors feel
as if a vote for a life sentence without parole would be a violation of the law. (Doc.
1, p. 143).
Hall cites Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds
by Atkins v. Virginia, 536 U.S. 304 (2002), and Eddings, 455 U.S. 104, for the
proposition that “[t]he Eighth Amendment to the United States Constitution
requires that a capital sentencing jury not be precluded from considering any
mitigating evidence weighing against a death sentence.” (Doc. 1, p. 143). However,
Perry and Eddings addressed, respectively, jury instructions from the court and a
state statute on mitigating evidence, and not statements made by a prosecutor. See
Perry, 492 U.S. at 311; Eddings, 455 U.S. at 114-15. Furthermore, any concerns

128

that the jury may have felt unable to assign weight to the mitigating circumstances
is belied by the fact that the trial court instructed the jury as follows:
“if after a full and fair consideration of all the evidence in this
case you determine that the mitigating circumstances outweigh
any aggravating circumstance that does exist, or you’re not
convinced, beyond a reasonable doubt, that at least one
aggravating circumstance does exist, your verdict would be to
recommend punishment of life without parole …”
(Trial Transcript Vol. 47, p. 8315). Therefore, Hall has not shown that he was
prejudiced by the prosecutor’s remark, and cannot satisfy the requirements of
Strickland, 466 U.S. at 691.
Accordingly, this court finds that habeas relief is inappropriate with regard to
this claim.

(d)

Allegation That The Prosecutor Improperly Implied
Satanism in Order to Inflame and Prejudice the
Jury

Hall’s next allegation of ineffective assistance of counsel is that his attorneys
failed to object to what he describes as the prosecutor’s attempts to “enrage the
jury” by making allusions to Satanism during closing argument. (Doc. 1, p. 144).
The statement in question was the following: “The evidence is that Mr. Hall
stands here before you a convicted, cold-blooded murderer. A murderer of a crime
that has the most evil, most despicable facts and evidence you can think about. A
night of horror. A night of absolute hell for Clarene Haskew.” (Trial Transcript Vol.
47, p. 8267). It is Hall’s burden to affirmatively prove that these words prejudiced
him, Strickland at 693; yet he has cited no authority whatsoever which would
129

establish that such a statement is prejudicial or in any way improper, or that
objecting to such a statement would have led to a substantial likelihood of a
different result. Without such authority, Hall’s argument is conclusory and cannot
form the basis for habeas relief.
CLAIM #20 D(6): FAILURE TO OBJECT TO THE PENALTYPHASE JURY INSTRUCTION REGARDING
UNANIMITY ON MITIGATION
Hall asserts that his trial counsel were ineffective because they did not object
to the trial court’s penalty-phase jury instructions regarding mitigating
circumstances. (Doc. 1, p. 145). The trial court’s instructions to the jury did not
include an instruction that unanimity with regard to finding a mitigating
circumstance was unnecessary. See Trial Transcript Vol. 47, pp. 8289-95. The
court addressed this underlying issue in Claim #14, supra, finding that it does not
warrant habeas relief because neither the instructions nor the verdict forms said
anything about how—or even whether—the jury should make individual
determinations whether a particular mitigating circumstance existed -- rather, the
jury instructions focused only on the overall balancing question. Id. This court also
ruled that Hall’s argument was unconvincing because the trial court instructed the
jury repeatedly that they must unanimously determine the existence of each
aggravating factor. Id. at 8295, 8300, 8314. The fact that the trial judge specified a
unanimity requirement with regard to aggravating circumstances, but not with
regard to mitigating circumstances, suggests that the jurors did not mistakenly
think that they were required to unanimously find a mitigating circumstance.

130

Accordingly, with the underlying claim having been rejected, this court finds
that Hall has failed to establish deficient performance on the part of his defense
counsel, for failure to make what would have amounted to a baseless objection
cannot be ineffective assistance of counsel, as a matter of law. See, Cave, 638 F.3d
at 755. Therefore, habeas relief due to ineffective assistance of counsel is not
appropriate with regard to this issue.
CLAIM #20 D(7): FAILURE TO OBJECT TO THE TRIAL
COURT’S FINDING OF HALL’S AGE AT THE
TIME OF THE VICTIM’S DEATH
Finally, Hall claims that his attorneys were ineffective for failing to object to
the trial court’s finding regarding his age. (Doc. 1, p. 146). Despite the fact that
Hall was twenty-one years old when he murdered Mrs. Haskew, at sentencing, the
trial court stated Hall’s age as “twenty-two years of age at the time he committed
the crime.” (Trial Transcript Vol. 48, p. 8528). Hall now contends that his
attorneys should have objected to this miscalculation because “Hall was entitled to
the trial court’s full recognition and consideration of any and all factors mitigating
in favor of life imprisonment without parole, including his age.” (Doc. 1, p. 146.)
Hall then states that his counsels’ failure to object was “ineffective and prejudicial
to [him].” Id. at 147.
This court disposed of the underlying issue in Claim #18, above, finding that
habeas relief was not warranted under § 2254(d)(1) or § 2254(d)(2). See Claim #18,
supra. Any objection on this issue made by Hall’s trial counsel would have been

131

baseless. Accordingly, Hall has not met his burden under Strickland of proving
deficient performance and this court declines to grant habeas relief on this claim.
CLAIM #28: ALLEGATION THAT TRIAL COUNSELS’ FAILURE TO
OBJECT TO ERRORS AT TRIAL AND AT HIS FIRST APPELLATE
REVIEW PREJUDICED HALL BY SUBJECTING HIS CLAIMS TO A
HIGHER STANDARD OF REVIEW ON APPEAL
Hall argues that defense counsels’ performance was deficient for failing to
raise all of Hall’s claims in a timely manner so that they could be reviewed as
reversible error rather than under the plain error standard. (Doc. 1, p. 167).
Specifically, Hall asserts that seven issues were reviewed by the Alabama Court of
Criminal Appeals under a plain error standard because Hall’s counsel did not object
at trial, while another sixteen issues were reviewed under a plain error standard by
the Alabama Supreme Court because they were not raised in Hall’s direct appeal
brief to the Court of Criminal Appeals. Id. at 170-71. According to Hall, trial
counsels’ failure to object at trial and, later, to raise the subject questions on direct
appeal, subjected him to a more onerous standard of review on appeal, thereby
prejudicing his ability to obtain appellate relief. Id. at 168-69.
The state contends that this claim is procedurally defaulted because the Rule
32 circuit court dismissed it for failure to comply with the specificity and full factual
pleading requirements of Rule 32.3 and 32.6(b) of the Alabama Rules of Criminal
Procedure. (Doc. 13, p. 223). The Alabama Court of Criminal Appeals subsequently
affirmed the Rule 32 circuit court’s ruling on this point. Hall, 2007 WL 866652,
*44-45 (Ala.Crim.App. 2007).

132

This court has already discussed the Eleventh Circuit’s ruling in Borden, 646
F.3d 816, supra, which holds that claims dismissed by a state court pursuant to
Rule 32.6(b) of the Alabama Rules of Criminal Procedure have in fact been
considered on the merits. See Claim # 20 A, Claim # 20 B(2), and Claim #20 D(2),
supra. Thus, this court is not precluded from considering Hall’s claim on the merits,
subject to the standards of AEDPA. See Powell, 602 F.3d at 1273.
Although Hall discusses the plain error standard generally in his habeas
claim, when it comes to the specifics of his own case, Hall merely lists the issues
which the state courts reviewed for plain error. See Doc. 1, pp. 167-73. Hall does
not discuss the reasonableness or unreasonableness of his trial counsels’ decisions
in not objecting and not raising certain issues on direct appeal – reasonableness
being the key factor that a reviewing court must judge when considering the
deficient performance prong of a claim of ineffective assistance of counsel.
Strickland, 466 U.S. at 688 (“ …the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland
requires that the defendant affirmatively prove prejudice by showing that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 693. Hall has failed to meet this
requirement, for the reasons noted by the Rule 32 circuit court:
[Hall] does not explain how the outcome of his case would have
been affected if those claims had been reviewed under a different
standard. In addition, he does not explain how the outcome of his
case would have been affected if those claims had been reviewed
under a less onerous standard of review on appeal, as is required
by Strickland v. Washington, 466 U.S. 668 (1984).
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Hall, 979 So.2d at 175 (quoting Trial Transcript Vol. 56, pp. 645-47).
Accordingly, this court finds that Hall has failed to make the requisite
Strickland showing. Therefore, his habeas petition is denied with regard to this
issue.
B.

PROCEDURALLY DEFAULTED CLAIMS
(1)

CLAIMS NOT RAISED ON DIRECT APPEAL (#21, #22,
#24, #25, #26, #27, #29, #30, #31, #32, #33, #34, #35, #36, #37,
#38, #39, #40)

In Claim #21, Hall asserts that the trial court permitted the prosecutor to
make inconsistent arguments at the respective trials of Hall and his co-defendant,
Wayne Travis, and cites Green v. Georgia, 442 U.S. 95 (1979), for the proposition
that a court must allow the introduction of evidence that supports a theory that the
capital defendant was a lesser participant in the crime. (Doc. 1, p. 147).
In Claim #22, Hall argues that the Alabama death penalty statute “is
constitutionally defective because it does not state what weight the trial court must
give the jury’s recommendation.” (Doc. 1, p. 147). Hall also argues in Claim #22
that the jury’s death sentence recommendation in the case violated the Eighth
Amendment prohibition against the arbitrary infliction of capital punishment
because it failed to specify whether the jury found one or more of the statutory
aggravating circumstances that were a prerequisite to the imposition of a death
sentence. Id. at 148.
In Claim #24, Hall argues that his ability to obtain a fair trial was affected by
the publication of the jury veniremembers’ names in the local newspaper on the
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same day that the newspaper published an article about Mrs. Haskew’s murder.
(Doc. 1, pp. 154-55). In Claim #25, Hall contends that the trial judge violated Hall’s
constitutional rights and the canons of judicial ethics by failing to recuse himself
“after it became patently obvious that he harbored an extraordinary bias against
Mr. Hall’s counsel.” (Doc. 1, p. 157).
In Claim #26, Hall claims that the Alabama capital sentencing scheme
“violates longstanding principles of rights to a jury trial and Due Process” because
the jury’s sentencing recommendation is not binding upon the judge, who may find
statutory aggravating facts supporting a death sentence. (Doc. 1, p. 162-66). In
Claim #27, Hall asserts that the trial court failed to instruct the jury that it must
vote for a sentence of life in prison without parole if they found the aggravating and
mitigating circumstances to be equally balanced. (Doc. 1, p. 166).
In Claim #29, Hall maintains that the trial court erred by admitting evidence
of Hall’s flight from arrest.17 (Doc. 1, pp. 173-74). In Claim #30, Hall argues that
the state failed to carry its burden of proof on the element of intent, and alleges that
17

Although Claim #29 is procedurally defaulted, it bears noting that Hall’s recitation of
the law on this point is totally incorrect. Hall asserts that “[c]ourts have long recognized that
evidence of flight or related conduct has doubtful probative value as to the issue of guilt or
innocence.” (Doc. 1, p. 173). The case that he cites for support, U.S. v. Borders, 693 F.2d 1318,
1324 (11th Cir. 1982) states the exact opposite thing: “Courts have long rejected the argument
that evidence of flight is inherently unreliable. Over three quarters of a century ago, the Supreme
Court announced that ‘the law is entirely well settled that the flight of the accused is competent
evidence against him as having a tendency to establish his guilt.’ Allen v. United States, 164
U.S. 492, 499 (1896). We have on numerous occasions affirmed the validity of our statement in
United States v. Ballard, 423 F.2d 127, 133 (5th Cir. 1970) (quoting Wigmore) that: ‘[I]t is today
universally conceded that the fact of an accused’s flight, escape from custody, resistance to
arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence
of consciousness of guilt, and thus of guilt itself.’ ” (string citation omitted).

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the state presented no direct evidence linking him to the murder of Mrs. Haskew.
(Doc. 1, p. 174). In Claim #32, Hall asserts that the trial court erred by denying his
motions to conduct individual, sequestered voir dire. (Doc. 1, pp. 176-77). In Claim
#33, Hall asserts that African-American people, young adults, and women were
systematically underrepresented in the grand and petit jury pools, and that the
trial court erred in denying his motion to quash the indictment, which argued this
point. (Doc. 1, pp. 177).
In Claim #34, Hall contends that the trial court erroneously denied his
motion to visit and examine the crime scene, “to properly explain the situation to
his attorneys …” thus violating his constitutional rights. (Doc. 1, p. 178-79). In
Claim #35, Hall asserts that the trial court erred by permitting what Hall describes
as “victim impact testimony” during the guilt phase of trial, which he claims was
“simply an attempt by the State to insert an emotional component into an endeavor
which requires the utmost emotional detachment.” Id. at 180-81. In Claim #36,
Hall argues that the trial judge referred to the jury’s penalty-phase verdict as a
“recommendation” at least ten times during his charge to the jury, which had the
effect of downplaying and minimizing the jury’s role in the sentencing process. Id.
at 182. Hall claims that this violates Caldwell v. Mississippi, 472 U.S. 320, 341
(1985), in which the U.S. Supreme Court held that it violates the U.S. Constitution
to “rest a death sentence on a determination made by a sentencer who has been led
to believe that the responsibility for the appropriateness of the defendant’s death
rests elsewhere.”

136

In Claim #37, Hall contends that the trial court improperly granted several of
the state’s challenges of jurors for cause when prospective jurors expressed general
objections to the death penalty. (Doc. 1, p. 183). In Claim #38, Hall argues that the
admission of crime scene photographs and a video that included images of Mrs.
Haskew after her death was prejudicial, cumulative, and had no probative value.
Id. at 186.
In Claim #39, Hall argues that the trial court erred when it did not find
certain statutory mitigating factors to exist, including (i) the mitigating
circumstance that “defendant was an accomplice in the capital offense committed by
another person and his participation was relatively minor,” pursuant to ALA.
CODE §13A-5-51(4); the mitigating circumstance that “defendant acted under
extreme duress or under the substantial domination of another person,” pursuant to
ALA. CODE §13A-5-51(5); and the mitigating circumstance that “[t]he capacity of
the defendant to appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law was substantially impaired.” pursuant to ALA.
CODE §13A-5-51(6). (Doc. 1, pp. 188-91). Hall also claims in Claim #39 that the
trial court erred by finding the existence of the aggravating circumstance that the
crime was heinous, atrocious, or cruel. Id. at 192.
Finally, in Claim #40, Hall claims that the cumulative effect of the asserted
errors put forth in his petition violated his constitutional rights to due process and a
fair trial under the United States Constitution. Id. at 193.

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The state contends that these issues are procedurally defaulted because Hall
did not raise them on direct appeal, and therefore, the claims were not fully
exhausted. (Doc. 13, p. 202-62). A review of Hall’s direct appeal brief confirms that
Hall did not raise these claims before the Alabama Court of Criminal Appeals. See
Trial Transcript Vol. 49, Tab R-40. Therefore, the state courts have not had a full
and fair opportunity to decide the claims and Hall 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”).

C.

CLAIMS NOT COGNIZABLE IN A HABEAS CORPUS PETITION

CLAIM #31:

LETHAL INJECTION CONSTITUTES CRUEL
AND UNUSUAL PUNISHMENT

In Claim #31, Hall claims that lethal injection, which is the manner of
execution used by the State of Alabama, constitutes cruel and unusual punishment
in violation of the Eighth Amendment. (Doc. 1, p. 175). The State argues that this
claim is procedurally defaulted because Hall did not raise this claim at trial, upon
direct appeal, or in his Rule 32 petition. (Doc. 13, p. 235).
Both sides overlook the fact that this claim for relief is not cognizable in a
habeas petition, but instead must be pursued in the context of a § 1983 civil rights
cause of action. The Eleventh Circuit has expressly stated that “[a] § 1983 lawsuit,
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not a habeas proceeding, is the proper way to challenge lethal injection procedures.”
Tompkins v. Secretary, Dep’t of Corrections, 557 F.3d 1257, 1261 (11th Cir. 2009).18
Additionally, there exists a considerable body of law that has developed in Eleventh
Circuit in recent years concerning the interplay between § 2254 petitions and
§ 1983 complaints. The law of this Circuit leaves no doubt that a § 2254 petition for
habeas corpus and a § 1983 complaint “are mutually exclusive: if a claim can be
raised in a federal habeas petition, the same claim cannot be raised in a separate
§ 1983 civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006)
(citation omitted); see also Miller v. Nix, 2009 WL 2959684, *1 (11th Cir. Sept. 17,
2009) (“Because habeas and civil rights actions are mutually exclusive, … the
district court did not err by determining that Miller’s claims cannot be brought in a
petition for a writ of habeas corpus.”). The Eleventh Circuit routinely recognizes
method-of-execution claims as being proper in the § 1983 context. See, e.g.,
DeYoung v. Owens, 646 F.3d 1319, 1325-27 (11th Cir. 2011) (considering on the
merits death row inmate’s Eighth Amendment challenge under § 1983 to the
method of execution). If § 2254 and § 1983 are “mutually exclusive” remedies, and if

18

See also Rachal v. Quarterman, 2008 WL 410696, *4 (5th Cir. Feb. 14, 2008)
(“Claims challenging the method of execution cannot be raised in a habeas proceeding because
they do not concern the fact or duration of a sentence. … This challenge sounds in civil rights,
not habeas.”); Lucas v. Upton, 2011 WL 4526754, *5 (M.D. Ga. Sept. 28, 2011) (“A habeas
action is not the appropriate vehicle for attacking Georgia’s lethal injection procedures; rather,
that challenge must be brought in a 42 U.S.C. § 1983 action.”); Rhodes v. Secretary, Dep’t of
Corrections, 2010 WL 3819358, *57 (M.D. Fla. Sept. 30, 2010) (Eighth Amendment challenge
to method of execution “properly can be brought only under 42 U.S.C. § 1983 and the Prison
Litigation Reform Act, not in this habeas proceeding”) (citation omitted); Hertz v. McNeil, 2009
WL 3161813, *35 (N.D. Fla. Sept. 25, 2009) (similar).

139

method-of-execution challenges are properly raised in § 1983 actions, then logic
dictates that they cannot be presented in the form of a § 2254 Petition, as Hall has
done here.
More generally, Hall’s argument both in his petition and in his reply brief
overlooks the overarching principle that “[f]ederal habeas corpus law exists to
provide a prisoner an avenue to attack the fact or duration of physical
imprisonment and to obtain immediate or speedier release.” Valle v. Secretary,
Florida Dep’t of Corrections, 654 F.3d 1266, 1267 (11th Cir. 2011). By contrast,
“[w]hen an inmate challenges the circumstances of his confinement but not the
validity of his conviction and/or sentence, then the claim is properly raised in a civil
rights action under § 1983.” Hutcherson, 468 F.3d at 754. In challenging
Alabama’s method of execution (and arguing that such a method bears an
unreasonable risk of causing him severe pain), Hall is not attacking the fact or
duration of his physical imprisonment by the State of Alabama, and is not
requesting immediate or speedier release. Rather, he is challenging the means by
which the State means to execute him, which is plainly a circumstance of his
confinement. As such, under both Tompkins and the Hutcherson line of authorities,
Hall may bring his Eighth Amendment challenge to Alabama’s method of execution
only in a § 1983 complaint. Because a habeas corpus petition is an improper vehicle
for pursuing such a claim, this ground for relief is denied.

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D.

MOOT CLAIMS

CLAIM #23: PROSECUTION’S ELIMINATION OF QUALIFIED JURY
MEMBERS ON THE BASIS OF RACE
In light of the court’s findings with regard to Claim #1, supra, Hall’s
allegation that the prosecution engaged in racial discrimination of AfricanAmerican venire members is moot.
IV.

CONCLUSION

As a result, it is hereby ORDERED that Hall’s petition (Doc. 1) 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. See Stephens v. Haley, 2011 WL 4701769, *20 (S.D. Ala. 2011)
(allowing the State of Alabama to commence further proceedings within 240 days).
DONE and ORDERED this 30th day of September, 2013.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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