Clark v. Alabama Department of Corrections

Filing 61

ORDER denying 60 Motion to Alter Judgment. Petitioner's request for a COA, construed as a motion to reconsider the Courts previous denial of such relief, is granted with respect to his ineffective assistance physical restraints claim and is denied in all other respects. Signed by District Judge William H. Steele on 03/11/2019. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES GREGORY CLARK,
Petitioner,
v.
JEFFERSON S. DUNN, etc.,
Respondent.

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) CIVIL ACTION 16-0454-WS-C
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ORDER

This matter is before the Court on the petitioner’s Rule 59(e) motion to
alter or amend the Court’s order, (Doc. 58), and judgment, (Doc. 59), denying the
amended petition in its entirety and denying any certificate of appealability
(“COA”). (Doc. 60). While the amended petition identifies a dozen claims, (Doc.
58 at 8-9), the instant motion addresses only five of them. Familiarity with the
record, previous briefing, and the Court’s order is assumed.
I. Ring Violation.
The petition claims that Alabama’s capital sentencing scheme violates Ring
v. Arizona, 636 U.S. 584 (2002), because, regardless of what the jury finds or
recommends, a sentence of death depends on the trial judge independently finding
one or more aggravating circumstances and determining that they outweigh any
mitigating circumstances she finds. (Doc. 13 at 103-06). The Court rejected the
claim as based on a misreading of Ring. (Doc. 58 at 82-84). The petitioner now
argues that the Court is in error because it did not consider the impact of Hurst v.
Florida, 136 S. Ct. 616 (2016). (Doc. 60 at 6-8).
“[T]he Sixth Amendment does not permit a defendant to be ‘expose[d] …
to a penalty exceeding the maximum he would receive if punished according to

the facts reflected in the jury verdict alone.” Ring, 636 U.S. at 588-89 (quoting
Apprendi v. New Jersey, 530 U.S. 466, 483 (2000)) (emphasis omitted). Ring
expanded this holding to capital defendants. Id. at 589 (“Capital defendants, no
less than noncapital defendants, we conclude, are entitled to a jury determination
of any fact on which the legislature conditions an increase in their maximum
punishment.”). The Ring Court identified the fact conditioning an increase in an
Arizona murderer’s maximum punishment from life to death as the existence of a
statutory aggravating factor. 636 U.S. at 597, 604. “Because Arizona’s
enumerated aggravating factors operate as ‘the functional equivalent of an element
of a greater offense,’ … the Sixth Amendment requires that they be found by a
jury.” Id. at 609 (quoting Apprendi, 530 U.S. at 494 n.19). The Arizona scheme
was unconstitutional because it required the trial court, exclusive of the jury, to
make the triggering finding that a statutory aggravating factor was present. Id. at
597.
As the Court has explained: the maximum penalty for murder during a
first-degree robbery under Alabama law is life imprisonment; the fact that
“conditions an increase in [the] maximum punishment” for this crime from life to
death is the existence of a statutory aggravating factor; one such factor is that the
murder was committed while the defendant was committing, or fleeing from, a
robbery; and the jury by its verdict necessarily found this aggravating
circumstance unanimously and beyond a reasonable doubt, thereby satisfying
Ring. (Doc. 58 at 82).
Ring does not purport to require more than this. As the Court noted, (Doc.
58 at 82-83), the Eleventh Circuit has expressly ruled that Ring demands only that
the jury find an aggravating circumstance that increases the maximum punishment
to death; Ring does not preclude the finding being embedded in the verdict, nor
does it preclude the trial judge from weighing aggravating circumstances against

2

mitigating circumstances. Lee v. Commissioner, Alabama Department of
Corrections, 726 F.3d 1172, 1197-98 (11th Cir. 2013).1
Because the Court of Criminal Appeals (“CCA”) reached this claim and
ruled on the merits that the jury’s guilty verdict satisfied Ring, the only question
before the Court was whether the CCA’s ruling was contrary to, or an
unreasonable application of, Ring. Especially in light of Lee, it plainly was
neither. (Doc. 58 at 84).
According to the petitioner’s instant motion, Hurst “clarified” Ring by
holding that the jury must find all aggravating and mitigating circumstances and
must find which outweighs the other. In light of Hurst, he concludes, the CCA
unreasonably applied Ring. (Doc. 60 at 7-8).
Hurst was handed down in January 2016. The original petition in this case
was filed in August 2016, with the amended petition following in November 2016
and the petitioner’s reply brief in March 2017. In none of these documents does
the petitioner reference Hurst, and a post-judgment motion under Rule 59(e) is too
late to inject Hurst into the case. “Rule 59(e) … may not be used to relitigate old
matters, or to raise arguments or present evidence that could have been raised prior
to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5
(2008) (internal quotes omitted). This limitation on the usage of Rule 59(e) fully
applies in habeas proceedings under Section 2254. E.g., Hamilton v. Secretary,
Department of Corrections, 793 F.3d 1261, 1266-67 (11th Cir. 2015).
Even if the petitioner had timely raised Hurst, he has overstated its reach.
The Supreme Court did rule that Florida’s sentencing scheme “violates the Sixth
Amendment in light of Ring,” id. at 621, but it made plain that the constitutional
deficiency was the same one identified in Ring – that a judge rather than the jury
was required to make the critical finding of an aggravating circumstance, the
1

The Ring Court expressly noted that the petitioner “makes no Sixth Amendment
claim with respect to mitigating circumstances” or that the jury must ultimately decide
whether the death penalty is imposed. 636 U.S. at 597 n.4.
3

existence of which increased the defendant’s potential punishment from life to
death.
The Hurst Court identified the constitutional problem in Ring as that “a
judge could sentence Ring to death only after independently finding at least one
aggravating circumstance,” which finding “exposed Ring to a greater punishment
than that authorized by the jury’s guilty verdict,” and it concluded that “[t]he
analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to
Florida’s.” 136 S. Ct. at 621-22 (emphasis added). Thus, “Florida’s sentencing
scheme, which required the judge alone to find the existence of an aggravating
circumstance, is therefore unconstitutional,” and prior cases “are overruled to the
extent they allow a sentencing judge to find an aggravating circumstance,
independent of a jury’s factfinding, that is necessary for imposition of the death
penalty.” Id. at 624 (emphasis added).
The petitioner ignores all this language, instead seizing on Hurst’s few
references to mitigating circumstances. This is a red herring. Hurst first
referenced mitigating circumstances simply to set forth the Florida scheme. 136 S.
Ct. at 620. The Court next mentioned mitigating circumstances in two quotes
from judicial opinions, offered to show that a Florida jury makes no specific
factual findings regarding aggravating (or mitigating) circumstances. Id. at 622.
Finally, the Court quoted the Florida statute, again to show that the trial judge
alone finds the facts regarding aggravating (and mitigating) circumstances. Id.
The statutory quote underscores the limited reach of Hurst. Under Florida
law as it stood at the time, a judge imposing a death sentence was required to issue
written findings “(a) [t]hat sufficient aggravating circumstances exist … and (b)
[t]hat there are insufficient mitigating circumstances to outweigh the aggravating
circumstances.” Fla. Stat. § 921.141(3) (quoted in Miller v. State, 42 So. 3d 204,
215 (Fla. 2010)). The Hurst Court expressly identified the constitutional infirmity
as that “Florida law required the judge to hold a separate hearing and determine
whether sufficient aggravating circumstances existed to justify imposing the death
4

penalty.” 136 S. Ct. at 619. That is, the infirmity lay with the finding of
aggravating circumstances (subsection (a)) and not with the weighing of
mitigating versus aggravating circumstances (subsection (b)).2
The Court has traveled this road before, and what it said then stands now.
In Taylor v. Dunn, 2018 WL 575670 (S.D. Ala. 2018), the Court rejected the same
construction of Hurst the petitioner proposes here as “unsupported by the clear
language of the opinion.” Id. at *70. Moreover, under the Alabama sentencing
scheme, unlike Florida’s, “a defendant is not death-eligible unless a jury
unanimously finds beyond a reasonable doubt the existence of an aggravating
circumstance.” Id.
In Waldrop v. Commissioner, Department of Corrections, 711 Fed. App.
900 (11th Cir. 2017), the Eleventh Circuit concluded that the Alabama Supreme
Court’s ruling – that the jury’s guilty verdict on a charge of murder during a firstdegree robbery (the same verdict as the petitioner received) made the defendant
eligible for the death penalty and thus satisfied the Sixth Amendment – was not
contrary to or an unreasonable application of Ring or Hurst. Id. at 920-24. The
petitioner does not acknowledge Waldrop, but he can fare no better.
The petitioner requests a COA regarding his Ring claim. (Doc. 60 at 8-9).
A COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As to claims rejected on
the merits, “[t]he petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims rejected on procedural
grounds, “a COA should issue when the prisoner shows, at least, that jurists of
2

At the risk of belaboring the point, the Hurst Court rejected the respondent’s
argument that the defendant had “admitted in various contexts that an aggravating
circumstance existed” by questioning whether such an admission could constitute a
waiver of his right to jury trial and by denying that such an admission had been made.
136 S. Ct. at 622-23. The Court did not say that such an admission would be immaterial
because the petitioner had made no comparable admission regarding the existence or
weight of mitigating circumstances.
5

reason would find it debatable whether the petitioner states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. The Court
concludes that jurists of reason would not find debatable either the Court’s
procedural ruling (that the petitioner may not raise Hurst on a Rule 59(e) motion)
or its assessment of the constitutional claim, with or without consideration of
Hurst.
In summary, the petitioner’s motion to alter or amend as to this claim is due
to be denied, and his request for a COA as to this claim is also due to be denied.
II. Ineffective Assistance – Physical Restraints.
Habeas counsel interviewed jurors from the petitioner’s trial and discovered
that two of them had seen the petitioner in a “leg brace” or “shackles.” (Doc. 55 at
33; Doc. 13 at 122, 126). The petition claims that, because the trial judge
permitted this arrangement without making any case-specific determination of its
necessity, and because prejudice is presumed, a due process violation is
established under Holbrook v. Flynn, 475 U.S. 560 (1986), and Deck v. Missouri,
544 U.S. 622 (2005). (Doc. 13 at 75-78). The Court rejected this claim as
procedurally defaulted, (Doc. 58 at 56-58), and the petitioner does not challenge
that ruling on his instant motion.
The petition also claims that trial counsel was ineffective for failing to
object to the use of physical restraints at trial and for failing to develop the record
regarding same. (Doc. 13 at 78-79). The petitioner admitted this claim was not
presented to the state courts at any level of his Rule 32 proceedings, but he argued
that his procedural default was excused under Martinez v. Ryan, 566 U.S. 1
(2012), due to the ineffective assistance of his Rule 32 counsel. (Doc. 55 at 3536). The Court disagreed, ruling that, while Martinez might provide cause for the
petitioner’s procedural default at the Rule 32 trial level, it did not provide cause

6

for his procedural default at the Rule 32 appellate level. (Doc. 58 at 58-59). The
petitioner challenges this ruling on his instant motion.
“Inadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Martinez, 566 U.S. at 9. “Initial-review collateral
proceedings” are those “which provide the first occasion to raise a claim of
ineffective assistance at trial.” Id. at 8. In Alabama, initial-review collateral
proceedings are Rule 32 proceedings at the trial level. Martinez made explicitly
clear that initial-review collateral proceedings do not include appeals from initialreview collateral proceedings, since those appeals are not the petitioner’s first
opportunity to raise an ineffective assistance claim. “The holding in this case does
not concern attorney errors in … appeals from initial-review collateral proceedings
….” Id. at 16.3 By its terms, then, Martinez does not operate to save a petitioner
from a procedural default occurring at the Rule 32 appellate level. Such a
procedural default occurred in this case.
“An application for a writ of habeas corpus … shall not be granted unless it
appears that … the applicant has exhausted the remedies available in the courts of
the State ….” 28 U.S.C. § 2254(b)(1). “[T]he exhaustion doctrine is designed to
give the state courts a full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal courts ….” O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999). Therefore, “state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process.” Id. An
3

This limitation in the scope of Martinez is plain from its terms but underscored
by its discussion of Coleman v. Thompson, 501 U.S. 722 (1991). The Martinez Court
cited Coleman for the proposition that “the initial-review collateral proceeding”
constitutes a petitioner’s “‘one and only appeal’ as to an ineffective-assistance claim.”
566 U.S. at 8 (quoting Coleman, 501 U.S. at 756). The Coleman Court expressly
distinguished such a proceeding from an “appeal from that determination.” 501 U.S. at
756 (emphasis in original).

7

Alabama petitioner that does not raise a claim at the Rule 32 appellate levels4 has
not exhausted that claim. And since no opportunity is necessarily not a full or fair
opportunity, a petitioner that “simply never raised a claim in state court” has not
exhausted that claim. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999).5
When a claim is unexhausted and it is too late for the petitioner to exhaust
the claim, that claim is procedurally defaulted. O’Sullivan, 526 U.S. at 848;
Bailey, 172 F.3d at 1303. The petitioner does not contend he could return to state
court now, years after the fact, to exhaust his ineffective assistance claim.
Therefore, the claim is procedurally defaulted due to his failure ever to present the
claim to the state courts.
The petitioner argues that the Court’s analysis must be wrong because, even
though the petitioner in Martinez did not raise an ineffective assistance claim on
appeal from dismissal of his initial-review collateral proceeding, the Supreme
Court ignored that failure and did not declare it to be fatal to the petitioner’s claim.
(Doc. 60 at 30-31). The petitioner’s argument overlooks several important points.
First, procedural default is an affirmative defense; the state is “obligated to
raise procedural default as a defense, or lose the right to assert the defense
thereafter.” Gray v. Netherland, 518 U.S. 152, 165-66 (1996). The petitioner
4

That is, both before the Court of Criminal Appeals and by petition for writ of
certiorari to the Alabama Supreme Court. See O’Sullivan, 526 U.S. at 845 (exhaustion of
a claim requires its presentation to the state supreme court even when its review is
discretionary); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) (“Alabama’s
discretionary direct review procedures bring Alabama prisoner habeas petitions within
the scope of the Boerckel rule.”) (internal quotes omitted).
5

“An applicant shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, if he has the right under the law
of the State to raise, by any available procedure, the question presented.” 28 U.S.C. §
2254(c). A petitioner has a “right … to raise” a claim on appeal even if he has no right to
have the claim “review[ed].” O’Sullivan, 526 U.S. at 845 (emphasis omitted). Thus, the
petitioner had the right to raise his ineffective assistance claim before the Court of
Criminal Appeals even if that court could have elected not to consider the claim due to
the petitioner’s failure to raise it at the trial level.

8

identifies no indication that the State in Martinez asserted a procedural default
based on a failure to raise the ineffective assistance claim on collateral appeal.
Without such an assertion, the Supreme Court could not properly have addressed
the ramifications of such a failure, and its silence in this regard thus denotes
nothing regarding those ramifications.6
Second, there are two types of procedural default. The first arises “where
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, 172 F.3d
at 1302. The second arises “if the petitioner simply never raised a claim in state
court, and it is obvious that the unexhausted claim would now be procedurally
barred due to a state-law procedural default.” Id. at 1303.7 This case involves the
latter type of procedural default, while Martinez involved, and acknowledged that
it involved, only the former. 566 U.S. at 9. There is thus no reason to believe the
Martinez Court understood it was addressing, much less establishing a rule
governing, the latter kind of procedural default.
Third, O’Sullivan was established law when Martinez was decided, and
O’Sullivan plainly holds that, in order to satisfy the exhaustion prerequisite to
habeas relief, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” 526 U.S. at 844. If the petitioner’s view of
6

Collateral counsel initiated post-conviction proceedings by filing a notice to that
effect but then filed something akin to an Anders brief, declaring she could identify no
colorable claims. The trial court dismissed the action, and the petitioner (who claimed
ignorance of the proceedings) did not appeal. He did, however, file a second notice
raising various claims of ineffective assistance. The Arizona courts denied relief under
this second notice pursuant to a state rule precluding relief based on claims that should
have been asserted in a prior notice. This ruling created the only procedural default that
was the subject of the Supreme Court’s analysis. 566 U.S. at 6-7.
7

As O’Sullivan reflects, this type of procedural default also arises when the
petitioner asserts the federal claim at some point in the state process but does not pursue
the claim at all levels of that process. 526 U.S. at 848.

9

Martinez were correct, it would result in a sub silentio partial overruling of
O’Sullivan and the requirement of exhaustion generally; even though exhaustion
requires a petitioner to “fairly presen[t] his claims to the state courts,” id. at 848,
the petitioner would have it that he need not present his claim to the state courts at
all. Especially since there is no indication the issue was before Martinez, it would
take an extraordinary leap to conclude that the Supreme Court nevertheless
decided the issue, that it did so with no discussion whatsoever,8 and that it did so
by overruling other precedents that it neglected even to mention.
Fourth, the petitioner’s rule would advantage prisoners with ineffective
initial-review collateral counsel over prisoners with effective initial-review
collateral counsel. The first class of prisoner would get a free pass to federal court
on claims of ineffective assistance of trial counsel, while the second class would
risk not just an adverse state ruling on such claims but also a subsequent failure to
exhaust, and resulting procedural default, by appellate review collateral counsel.
The petitioner offers no reasoned explanation for such a topsy-turvy scheme.
For the foregoing reasons, the Court rejects the petitioner’s effort to read
Martinez as eliminating the exhaustion requirement, and its consequences, for
claims of ineffective assistance by trial counsel whenever initial-review collateral
counsel omits the claim due to his own ineffective assistance.
The petitioner asks the Court to grant him a COA on this claim because
reasonable jurists could disagree regarding the Court’s procedural ruling that the
claim is unexhausted and procedurally defaulted. (Doc. 60 at 31). The Court
concludes that reasonable jurists could find it debatable whether Martinez is as
limited as the Court concludes it is. Slack, 529 U.S. at 484. To obtain a COA,
however, the petitioner must also show that reasonable jurists would find it
debatable both whether he satisfies Martinez (a procedural issue) and whether the
petition states a valid claim of the denial of a constitutional right to effective
8

Neither “exhaustion” nor any of its cognates appear in the Martinez opinion.

10

assistance of trial counsel (a merits issue). Id. Because the analysis of these
questions is intertwined, the Court addresses them together.
To excuse a procedural default under Martinez, the petitioner must show
three things. First, that initial-review collateral counsel, by failing to raise a claim
of ineffective assistance of trial counsel, “was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 … (1984),” i.e., that he “perform[ed]
below constitutional standards.” 566 U.S. at 14, 16. Second, that “the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,” which means
“that the claim has some merit.” Id. at 14. These two items, combined, establish
cause for the procedural default. Id. Third, “prejudice from a violation of federal
law.” Id. at 10, 17, 18. “A petitioner establishes prejudice [in the context of the
cause-and-prejudice escape route from a procedural default] by showing that there
is a reasonable probability that the result of the proceeding would have been
different.” Butts v. GDCP Warden, 850 F.3d 1201, 1211 (11th Cir. 2017).
To establish a claim of ineffective assistance of trial counsel, the petitioner
“must show both deficient performance by counsel and prejudice.” Premo v.
Moore, 562 U.S. 115, 121 (2011) (internal quotes omitted). “To establish
deficient performance, a person challenging a conviction must show that counsel’s
representation fell below an objective standard of reasonableness,” and “[a] court
considering a claim of ineffective assistance must apply a strong presumption that
counsel’s representation was within the wide range of reasonable professional
assistance.” Id. (internal quotes omitted). “The question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or common custom.” Harrington v.
Richter, 562 U.S. 86, 105 (2011) (internal quotes omitted). To establish prejudice
for purposes of Strickland, the petitioner must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” 466 U.S. at 694.
11

A due process violation under Deck constitutes one of the most
straightforward paths to relief from an adverse criminal verdict. The Constitution
“prohibit[s] the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state
interest specific to a particular trial.” 544 U.S. at 629. Relevant state interests
include “special security needs or escape risks,” id. at 633, but they must be
interests “related to the defendant on trial,” id., not mere generalizations. In all but
“exceptional case[s] where the record itself makes clear that there are indisputably
good reasons for shackling,” the trial judge must make “formal or informal
findings” supporting her decision, which must address not only why shackles are
appropriate but also why shackles visible to the jury (many if not most are not) are
appropriate. Id. at 634-35. If the petitioner can show that: (1) he was shackled;
(2) the shackles were visible to the jury; and (3) the trial judge failed to make the
necessary findings, he “need not demonstrate actual prejudice to make out a due
process violation”; instead, the state bears the burden of proving beyond a
reasonable doubt that the shackling error did not contribute to the trial result. Id.
at 635. The same rules apply to the sentencing phase of a capital trial. Id. at 63233.
The petitioner has presented evidence that at least two jurors saw him
shackled during trial, and he appears to be correct in his assertion that the trial
judge did not attempt on the record to justify the practice in his case. Because trial
counsel was of course present during trial, he presumably was aware his client was
shackled, that jurors could see him in this state, that the trial judge had not
justified the procedure, and that no unstated grounds, specific to the petitioner and
his case, indisputably supported visibly shackling him. Given that scenario and
the near impossibility of proving a negative (especially beyond a reasonable
doubt), it is difficult to understand why trial counsel did not object.

12

One possibility is that the petitioner did not appear in shackles during the
guilt-innocence phase of the trial but only during the sentencing phase.9 The
petitioner was tried in 1999, and Deck was not decided until 2005. Deck’s
extension of shackling principles to the sentencing phase of a capital trial
“establishe[d] a new rule,” and the Eleventh Circuit has “held many times that
reasonably effective representation cannot and does not include a requirement to
make arguments based on predictions of how the law may develop.” Marquard v.
Secretary, Department of Corrections, 429 F.3d 1278, 1313 (11th Cir. 2005)
(internal quotes omitted).10 Thus, counsel for a petitioner who was shackled
during capital sentencing proceedings in 1992 or 1993 “was not ineffective in
failing to contemplate Deck.” Id.
Marquard indicates that, to the extent the petitioner asserts he was shackled
only during the penalty phase, his trial counsel was not ineffective in failing to
object to the practice, and his collateral counsel thus was not ineffective in failing
to raise a claim that trial counsel was ineffective in that regard. In another preDeck case, however, the Eleventh Circuit required that a state sentence of death be
set aside and a new sentencing occur due to a shackling error at sentencing.
Elledge v. Dugger, 823 F.2d 1439, 1450-52 (11th Cir.), withdrawn in unrelated
part, 833 F.2d 250 (11th Cir. 1987). Elledge indicates that shackling at sentencing
could have formed the basis of a valid objection in 1999. See also Gates v. Zant,
863 F.2d 1492, 1501 (11th Cir. 1989) (“This court recently has extended the
general prohibition against shackling at trial to the sentencing phase of a death
penalty case.”).
9

The petitioner’s evidence is phrased broadly enough to indicate he was shackled
during either or both phases. (Doc. 13 at 122, 126).
10

Accord Rambaran v. Secretary, Department of Corrections, 821 F.3d 1325,
1334 (11th Cir. 2016) (“No holding of the Supreme Court clearly establishes that in order
to perform within the wide range of reasonable professional assistance, … counsel must
accurately predict how the law will turn out or hedge every bet in the hope of a favorable
development.”).
13

An objection to shackling at the guilt-innocence phase clearly was available
in 1999. While the Supreme Court in Deck first expressly held that the
Constitution forbids shackling visible to the jury without an appropriate,
articulated and supported judicial explanation, the Court had previously
“suggested that a version of this rule forms part of the Fifth and Fourteenth
Amendments’ due process guarantee,” and “those statements identif[ied] a basic
element of the ‘due process of law’ protected by the Federal Constitution.” 544
U.S. at 627, 629 (explaining Holbrook v. Flynn, 475 U.S. 560 (1986), and Illinois
v. Allen, 397 U.S. 337 (1970)). The Eleventh Circuit long ago “fully adopted the
broad concerns reflected in the[se] Supreme Court opinions.” Elledge, 823 F.2d
1451. Elledge and the cases it cites reflect that the Eleventh Circuit has framed the
inquiry largely as did the Supreme Court in Deck. See 823 F.2d at 1452 (“The
second problem with the shackling decision is that the State at no time made any
showing that the shackling was necessary to further an essential state interest.”);
Allen v. Montgomery, 728 F.2d 1413-14 (11th Cir. 1984) (“We agree that seldom
will the use of handcuffs be justified as a courtroom security measure,” as “[s]uch
restraints … tend to erode a defendant’s constitutionally guaranteed presumption
of innocence,” but they were permissible where the judge and a witness had
received death threats and two other persons had been kidnapped and offered as
ransom for the release of a co-defendant); Zygadio v. Wainwright, 720 F.2d 1221,
1223 (11th Cir. 1983) (because a defendant’s “right to be tried free of restraints
may be outweighed by these considerations [of escape, physical safety and
disruption], the trial judge [has] reasonable discretion to decide whether to shackle
or otherwise restrain the defendant.”).
A potential difference between the rule as set forth in Deck and the
Eleventh Circuit’s pre-Deck precedents is the treatment of prejudice. Deck
explicitly holds that a defendant required to be visibly shackled before the jury
without adequate justification “need not demonstrate actual prejudice to make out
a due process violation.” 544 U.S. at 635. The Allen Court, in contrast, noted that
14

the defendant was not entitled to relief because he had “shown no prejudice
resulting from his having been brought into the courtroom in handcuffs.” 728
F.2d at 1414.
Despite Allen, it does not appear that the Eleventh Circuit, pre-Deck,
required a defendant shackled throughout trial to show actual prejudice. The
defendant in Allen was not in handcuffs during trial, as they “were removed as
soon as he was brought into the courtroom.” 728 F.2d at 1413. Moreover,
because the Allen Court ruled that the security precautions were reasonable and
necessary in view of the death threats and kidnappings, its statement regarding
prejudice was arguably dicta. In any event, Elledge expressly acknowledged the
Supreme Court’s description of shackling as an “‘inherently prejudicial practice.’”
823 F.2d at 1451 (quoting Holbrook, 475 U.S. at 568). Deck, in turn, identified
the same excerpt from Holbrook as the basis of its holding that the defendant need
not show actual prejudice. 544 U.S. at 635.
It thus appears that trial counsel was presented with a strong case for a valid
objection to his client’s appearance before the jury with visible shackles. Counsel
was presumably aware of all the pertinent facts and should have been aware of the
pertinent law, and no countervailing considerations that might have counseled
against raising a due process objection have been suggested. Because the Court
has denied relief based on procedural default, it need not definitively resolve
whether trial counsel’s performance was constitutionally deficient. For purposes
of considering the petitioner’s request for a COA, it is sufficient to conclude that
reasonable jurists could so view the case, and the Court so concludes.
To prevail on a claim of ineffective assistance, a petitioner must establish
prejudice from counsel’s deficient performance. In the context of an omitted
objection to visible shackling, the petitioner must show “a reasonable probability”
that, but for the visible shackling, the jury either would not have convicted him of
a capital offense or would not have recommended the death penalty. Jones v.

15

Secretary, Department of Corrections, 834 F.3d 1299, 1321 (11th Cir. 2016);
Marquard, 429 F.3d at 1313.11
Neither Jones nor Marquard demonstrated a reasonable probability of a
different result at trial. The Marquard Court, which addressed only sentencing,
based this conclusion on: the brutality of the murder; the defendant’s
premeditation; the unanimous jury recommendation; and the existence of four
aggravating circumstances versus zero statutory mitigating circumstances. 429
F.3d at 1314. The Jones Court based this conclusion regarding the guilt-innocence
stage on the overwhelming evidence of the defendant’s guilt. 834 F.3d at 132122. The Court based this conclusion regarding sentencing on: the gruesomeness
of the murder and the victim’s horrific suffering; the lack of provocation for the
crime; the defendant’s extensive violent criminal history; the jury’s brief (under
1.5 hours) deliberation; the brief period the defendant was visibly shackled (one
day out of five); the proceedings during which he was shackled (jury selection
only); and the vote in favor of death (10-2). Id. at 1322-23.
Some of the factors the Eleventh Circuit relied on in Jones and Marquard
are present here, but others are either absent or arguably less compelling. For
example, there was no jury finding of premeditation, and even the state’s expert
did not believe the petitioner entered the store with the intent to kill Ewing. While
two of the aggravating circumstances in Marquard were present in this case, two
others were not. Unlike in Jones, the petitioner had no violent criminal history,
and it appears he was shackled during trial itself, for several days. The petitioner’s

11

As discussed in the Court’s previous order, the reasonable probability analysis
addresses the jury’s recommendation rather than the trial judge’s decision. (Doc. 58 at
50-51).
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jury deliberated for over 3.5 hours,12 and its vote was not unanimous as in
Marquard or as far above the minimum legal threshold as in Jones.13
The Court also takes note of the Supreme Court’s observations regarding
shackling. According to Holbrook, to say a practice is inherently prejudicial (as is
shackling) is to say that “an unacceptable risk is presented of impermissible
factors coming into play.” 475 U.S. at 570 (internal quotes omitted). According
to Deck, “almost inevitably,” shackling negatively impacts a jury’s perception of
the defendant’s character and implies to the jury that the court considers the
defendant dangerous – items that are nearly always relevant factors in a jury’s
decisionmaking, whether emphasized by the state or not. Because the sentencing
process requires juries to accurately weigh relevant but “unquantifiable and
elusive” considerations, the inherently prejudicial impact of visible shackling can
be a “thumb on death’s side of the scale.” 544 U.S. at 633 (internal quotes
omitted). The high inherent danger of prejudice from visible shackling – so high it
obviates proof in support of a due process claim – suggests that courts should not
easily dismiss its impact on a verdict or, especially, a recommendation of death.
As with deficient performance, it is not necessary for the Court to resolve
whether the petitioner suffered actual prejudice as a result of trial counsel’s failure
to object to the visible shackling of his client. For present purposes, it is sufficient
to conclude that reasonable jurists would find the issue debatable. The Court
concludes that they would.
For the reasons stated above, the Court concludes that reasonable jurists
would find it debatable whether the petition states a valid claim of the denial of a
12

(Doc. 25-6 at 3; Doc. 25-7 at 2).

13

The vote in this case was 11-1 in favor of death; the minimum vote required to
return such a recommendation is 10-2. Ala. Code § 13a-5-46(f). The vote in Jones was
10-2 in favor of death, but in Florida at the time the minimum vote required to support
such a recommendation was 7-5. Hardwick v. Crosby, 320 F.3d 1127, 1191 n.218 (11th
Cir. 2003). The closer the initial vote is to the statutory minimum, the more reasonable
the probability that the jury would not have recommended death but for counsel’s
ineffective assistance. Id.
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constitutional right to effective assistance of trial counsel (the merits issue). For
similar reasons, the Court concludes that reasonable jurists would find it debatable
whether the petitioner satisfies Martinez (the procedural issue).
As reflected in his Rule 32 petition and supporting brief, initial-review
collateral counsel was aware in 2005 both that the petitioner had worn potentially
visible shackles at trial and that the trial judge had not performed the necessary
balancing to determine whether this practice was appropriate under the
circumstances. (Doc. 38-2 at 55-72). Counsel, however, was unaware if any
jurors actually saw the shackles, (id. at 60), and there is evidence he did not
contact the jurors to find out, even though habeas counsel some ten years later
located two jurors that recalled the petitioner’s leg brace – one of whom still lived
at the same address as at the time of the 1999 trial. (Doc. 13 at 113-26; Doc. 55 at
33). Presumably because he had no evidence that the jury saw his client in
shackles (since no other good reason to abandon an otherwise sound claim
appears), collateral counsel dropped his claims at the commencement of the Rule
32 hearing. (Doc. 44-2 at 4). On this record, it is at least fairly debatable that
collateral counsel performed below constitutional standards. As discussed above,
it is at least fairly debatable that the underlying ineffective-assistance-of-counsel
claim is substantial in the sense of having some merit. And as also discussed
above, it is at least fairly debatable that, but for collateral counsel’s ineffective
performance, there is a reasonable probability the result would have been
different.14
In summary, the petitioner’s motion to alter or amend as to this claim is due
to be denied, and his request for a COA as to this claim is due to be granted.
14

The success of the petitioner’s position depends on the affidavits of two jurors
reflecting they saw the petitioner shackled during trial. The respondent argues that
Section 2254(e)(2) precludes the petitioner from relying on this evidence because he did
not present it to the state courts in his Rule 32 proceedings. (Doc. 52 at 68-69). But if, as
the petitioner argues, Martinez excuses his failure to raise the claim at any level of the
Rule 32 process, it would appear to be at least fairly debatable that his failure to present
evidence in support of the claim in those Rule 32 proceedings is likewise excused.
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III. Remaining Claims.
The petitioner also revisits his claims: that trial counsel was ineffective in
pressing unsupportable defenses while ignoring the supportable defense that the
petitioner lacked the specific intent to kill; that trial counsel was ineffective in
declining a charge on heat-of-passion manslaughter and failing to argue it as a
lesser-included offense; and that the petitioner’s due process rights were violated
by the trial court’s failure to charge the jury on heat-of-passion manslaughter. The
petitioner’s presentation is a rehash of arguments made previously, sprinkled with
misstatements regarding the law and the opinions of the Alabama courts and this
Court. These thin materials do not furnish grist for a successful Rule 59(e)
motion, and no good purpose would be served by addressing the petitioner’s errors
in detail. Nor has the petitioner shown that a COA should be granted as to any of
these claims.
CONCLUSION
For the reasons set forth above, the petitioner’s motion to alter or amend is
denied. His request for a COA, construed as a motion to reconsider the Court’s
previous denial of such relief, is granted with respect to his ineffective assistance
– physical restraints claim and is denied in all other respects.
DONE and ORDERED this 11th day of March, 2019.
s/WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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