Ray v. Alabama Department of Corrections et al

Filing 42

ORDER denying 41 Motion to Alter Judgment. Signed by Chief Judge William H. Steele on 11/12/2013. (adk) Modified on 11/12/2013 (adk).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
DOMINEQUE RAY,
Petitioner,
v.
KIM THOMAS, Commissioner,
Alabama Department of Corrections, et al.,
Respondents.

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CIVIL ACTION 11-0543-WS-N

ORDER
This death-penalty habeas corpus action comes before the Court on petitioner’s Motion to
Alter or Amend Judgment (doc. 41).
I.

Background.
Petitioner, Domineque Ray, was convicted and sentenced to death in the Circuit Court of

Dallas County, Alabama, for the July 1995 murder of 15-year old Tiffany Harville, whose
skeletal remains were discovered in a cotton field outside of Selma. Alabama state courts found
no merit to Ray’s direct appeal (as to which relief was denied on all eight asserted grounds by the
Alabama Court of Criminal Appeals in January 2001) and his Rule 32 petition (as to which all 13
assignments of error were rejected by the trial judge in a 107-page opinion in August 2007 after
a three-day evidentiary hearing, and by the Alabama Court of Criminal Appeals in a lengthy
written order entered in February 2011).
On September 19, 2011, Ray timely filed in this District Court a § 2254 Petition for Writ
of Habeas Corpus by Prisoner in State Custody under Death Sentence, in which he invoked eight
grounds for federal habeas corpus relief, plus dozens of embedded sub-grounds and sub-issues.
All of these asserted grounds for relief were briefed extensively, via Ray’s 141-page amended §
2254 petition, the State’s 106-page answer, Ray’s 60-page merits brief, and the State’s 25-page
merits brief. After careful review of all of these materials, as well as the 30-volume state-court
record, the undersigned entered a 113-page Order (doc. 37) on September 26, 2013, denying the

§ 2254 petition and denying a Certificate of Appealability because Ray failed to make a
substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2).
On October 24, 2013 (the 28th calendar day after entry of the September 26 Order and
Judgment), Ray filed a Motion to Alter or Amend Judgment under Rule 59(e), Fed.R.Civ.P. In
that Motion, petitioner requests that the Court reexamine the following issues: (i) whether
petitioner is entitled to habeas relief on his Brady claim; (ii) whether petitioner is entitled to
habeas relief on his claim that trial counsel rendered ineffective assistance as to the penalty phase
of his trial; and (iii) whether petitioner is entitled to an evidentiary hearing on his claim of
ineffective assistance relating to the “steroid abuse” defense. The Court addresses each of these
matters in turn.
II.

Legal Standard for Motions to Reconsider.
Petitioner’s Motion to Alter or Amend makes passing reference to Rule 59(e),

Fed.R.Civ.P., but does not otherwise acknowledge or address the stringent standard for relief
governing his Motion. A dissatisfied federal litigant is not entitled to reconsideration of anything
and everything, merely because he disagrees with a court’s decision. To the contrary, “[t]he only
grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law
or fact.” United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (citation and internal
marks omitted); see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (similar). To
prevail on a Rule 59(e) motion, “[t]he losing party must do more than show that a grant of the
motion might have been warranted; he must demonstrate a justification for relief so compelling
that the district court was required to grant the motion.” Maradiaga v. United States, 679 F.3d
1286, 1291 (11th Cir. 2012) (citations and internal marks omitted).
Authority is legion for the proposition that motions to reconsider “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, 485 n.5, 128 S.Ct. 2605,
171 L.Ed.2d 570 (2008) (citation omitted).1 Rule 59(e) motions do not afford an unsuccessful

1

See also Smith v. Ocwen Financial, 2012 WL 3758378, *2 (11th Cir. Aug. 30,
2012) (“A motion for reconsideration cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (similar); Kight v. IPD Printing &
Distributing, Inc., 2011 WL 2015055, *1 (11th Cir. May 24, 2011) (motion for reconsideration
(Continued)
-2-

litigant “two bites at the apple.” American Home Assur. Co. v. Glenn Estess & Associates, Inc.,
763 F.2d 1237, 1239 (11th Cir. 1985). Nor are such motions properly filed “as a kneejerk
reaction by a dissatisfied federal court loser.” Lee v. Thomas, 2012 WL 3137901, *2 (S.D. Ala.
Aug. 1, 2012); see also Hughes v. Stryker Sales Corp., 2010 WL 2608957, *2 (S.D. Ala. June
28, 2010) (rejecting notion that motions to reconsider “are appropriate whenever the losing party
thinks the District Court got it wrong”). “They are neither appeal substitutes nor a ‘dry run’ to
test arguments in anticipation of a forthcoming appeal.” Lee, 2012 WL 3137901, at *2.
Notwithstanding petitioner’s failure to address them, these principles inform the
undersigned’s analysis of Ray’s Motion to Alter or Amend Judgment.
III.

Petitioner’s Specific Grounds for Rule 59(e) Relief.
A.

Brady Claim.
1.

Treatment of Claim in the September 26 Order.

In his Amended § 2254 Petition, Ray asserted that the State failed to provide him with
three categories of exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). Those categories of purported Brady materials were as
follows: (i) witness statements from four persons implicating Rod Suttle in the Harville murder,
and a fifth statement from a person named Dolly Jackson; (ii) an August 23, 1995 letter from the
Dallas County Sheriff’s Office to the New York State Police stating the DCSO’s belief that the
murder had occurred somewhere other than where the remains were discovered; and (iii)
evidence that petitioner contends casts doubt on his guilt in the murders of Reinhard and Ernest
Mabins, of which Ray was convicted in February 1999.
The September 26 Order denied Ray’s Brady claim on two alternative grounds. First, the
Court found that federal habeas review of this claim on the merits was barred because Alabama
properly denied where movant “merely attempted to relitigate old matters and presented
evidence that could have been raised prior to the entry of judgment”); Morton v. Astrue, 2010
WL 2130613, *3 (11th Cir. May 27, 2010) (“In his motion to alter or amend judgment, …
Morton merely attempted to reargue factual issues previously decided by the district court. The
district court therefore did not abuse its discretion in denying the motion.”); Dyas v. City of
Fairhope, 2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (“Motions to reconsider serve a
valuable but limited function. They do not exist to permit losing parties to prop up arguments
previously made or to inject new ones, nor to provide evidence or authority previously
omitted.”).

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courts had rejected it on adequate and independent state procedural grounds. See, e.g., Conner v.
Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (“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 is
independent of the federal question and adequate to support the judgment”). In particular, the
Court found that (i) the state courts rejected Ray’s Brady claim pursuant to Rules 32.2(a)(3) and
32.2(a)(5) of the Alabama Rules of Criminal Procedure because he failed to plead facts in his
Rule 32 petition showing that he could not have raised this claim at trial or on direct appeal; and
(ii) the state courts rejected Ray’s Brady claim relating to the DCSO letter and the Mabins
murders because it was not raised in his Rule 32 petition. Second, the Court found that even if
Ray’s Brady claim were not procedurally barred, it would fail on the merits.
2.

The Procedural Bar.

With regard to the procedural aspect of this Court’s ruling on the Brady claim, Ray
devotes nearly half of his Rule 59 Motion to this issue, muddying the analytical waters and
largely re-plowing procedural ground that has previously been covered. (Doc. 41, at 2-12.) He
again insists that the state court’s procedural ruling hinged on Rule 32.1(e), Ala.R.Crim.P., even
though the September 26 Order set forth in detail why the Court construed the state-court ruling
as resting on Rules 32.2(a)(3) and 32.2(a)(5). (See doc. 37, at 19-20 & n.24.)2 He criticizes the
September 26 Order for not discussing Ex parte Pierce, 851 So.2d 606, 613 (Ala. 2000), a case
about whether a Rule 32.1(a) claimant must prove the elements of Rule 32.1(e) (which is not at
issue here), rather than what a petition must plead to satisfy Rules 32.2(a)(3) and 32.2(a)(5)
(which is at issue here).3 He identifies for the first time a July 2013 Alabama Supreme Court
2

Once again, Ray chooses to ignore the Alabama Court of Criminal Appeals’
holding that, because of pleading defects in his Rule 32 petition, “these allegations are
procedurally barred because they could have been but were not raised at trial and because they
could have been but were not raised on appeal.” Ray v. State of Alabama, 80 So.3d 965, 973
(Ala.Crim.App. 2011) (“Ray II”). This language tracks Rules 32.2(a)(3) and 32.2(a)(5), and the
Court thus remains of the view that a reasonable reading of Ray II is that the Alabama appellate
court deemed petitioner’s Brady claims procedurally barred because he failed to plead facts
showing compliance with Rules 32.2(a)(3) and 32.2(a)(5). In arguing otherwise, petitioner
seizes on the Alabama appellate court’s unnecessary citation of Rule 32.1(e) and its reference to
“newly discovered evidence,” while disregarding that court’s underlying rationale.
3

In that regard, Ray suggests that this Court incorrectly perceived that a petitioner
must prove that his claims were based on “newly discovered material facts” pursuant to Rule
(Continued)
-4-

case, Ex parte Beckworth, --- So.3d ----, 2013 WL 3336983 (Ala. July 3, 2013), without
explaining why he failed to bring it to the Court’s attention immediately via notice of
supplemental authority (which he could have done well before issuance of the September 26
Order) or offering any argument as to whether the rule in Beckworth is retroactively applicable to
Ray, whose Rule 32 petition was finally adjudicated in state court more than two years before the
Beckworth decision.4
Petitioner also challenges the September 26 Order’s conclusion that certain aspects of
Ray’s Brady claim are procedurally defaulted for another reason. In particular, the state courts
deemed portions of the claim predicated on the DCSO letter and the Mabins investigation to be
barred because Ray did not raise them in his Rule 32 petition. The September 26 Order observed
that petitioner “does not suggest that he ever attempted to amend his Rule 32 petition” in that
fashion, “nor does he identify any principle of law or Alabama procedure that would have
precluded him from doing so once he became aware of this allegedly suppressed evidence.”

32.1(e). Not so. The September 26 Order expressly cited Alabama authority for the proposition
that a Rule 32 petitioner “does not have to prove that his Brady claim is based on ‘newly
discovered material facts’ as defined under Rule 32.1(e)(1)-(5).” (Doc. 37, at 20 (quoting
Yeomans v. State, --- So.3d ----, 2013 WL 1284361, *26 (Ala.Crim.App. Mar. 29, 2013)). There
was no misunderstanding by the Court on this point.
4

As the September 26 Order explained, a long, consistent line of Alabama
appellate authorities had held that a Rule 32 petitioner must plead facts showing that his claim
could not have been raised at trial or on direct appeal, in order to satisfy Rules 32.2(a)(3) and (5).
See, e.g., Yeomans, 2013 WL 1284361, at *26-27 (Rule 32 petitioner bringing a new Brady
claim “must still plead facts indicating that his claim could not have been raised at trial or on
direct appeal to avoid being procedurally barred under Rule 32.2(a)(3) and Rule 32.[2](a)(5)”).
Petitioner identifies no pre-Beckworth authorities in which Alabama appellate courts interpreted
Rules 32.2(a)(3) and (a)(5) differently with respect to the pleading requirement. Beckworth
appears to have altered the Alabama landscape by holding that a “Rule 32 petition should not
have been dismissed on the ground that his claim for relief under Rule 32.1(a) lacked allegations
negating the preclusive bars of Rule 32.2(a)(3) and (5).” Beckworth, 2013 WL 3336983, at *5;
see Mashburn v. State, --- So.3d ----, 2013 WL 3589300, *13 n.3 (Ala.Crim.App. July 12, 2013)
(recognizing that Beckworth invalidated prior precedents holding “that a Rule 32 petitioner must
plead facts in his or her petition to overcome the procedural bars contained in … Rules
32.2(a)(3) and (a)(5)”) (citation and internal quotation marks omitted).

-5-

(Doc. 37, at 21 n.27.)5 Now, Ray contests this Court’s determination that “Ray sought to inject
new Brady claims into his collateral appeal that he never presented to the Rule 32 trial court,”
but that “[t]he Alabama Court of Criminal Appeals rebuffed that effort pursuant to an adequate
and independent state law procedural rule.” (Doc. 37, at 22.) Those determinations were not
manifestly erroneous.6
One could probably devote dozens of pages to an exhaustive discussion of Ray’s
procedural-bar challenges. Supplemental briefing could be ordered on newly-raised questions
such as the impact of Beckworth. The Court could slog through the minutiae of Alabama
procedures as they related to the state courts’ procedural grounds for rejecting Ray’s Brady
claim. However, the undersigned declines to do so because, for the reasons already set forth
supra and in the September 26 Order, petitioner has not shown that the Court’s application of the
procedural bar doctrine to Ray’s Brady claim was a “manifest error of law” that might warrant
Rule 59(e) relief. Furthermore (and more importantly), this exercise is academic. Even if
5

With no citations to authority, petitioner argues that he should not have been
required to amend his Rule 32 petition to identify the Brady claims once he discovered them
because (i) Pierce (which concerned Rule 32.1(e), not the relevant Alabama rule that “[a]n
appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not
raised in the Rule 32 petition,” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App. 1997)) did
not require it; (ii) “Ray’s lead postconviction counsel are from Indiana;” and (iii) “it isn’t clear
that” a motion to amend would have been granted. (Doc. 41, at 12 & n.5.) Such contentions are
not persuasive and do not expose a manifest error of law or fact in the September 26 Order.
6

Specifically, Ray says that the September 26 Order failed to identify the “new
Brady claims” or showed where the Alabama Court of Criminal Appeals “rebuffed that effort.”
(Doc. 41, at 10.) Petitioner is being coy. The entirety of § III.C.2. of the September 26 Order
(from which he lifts the quoted language and professes inability to discern what the Court could
be talking about) is focused on “Ray’s Brady claims concerning the New York police letter and
evidence about the Mabins investigation.” (Doc. 37, at 21.) Subsection III.C.2. explains the
Court’s reasoning for why those claims were “new” and identifies a pinpoint citation for the
Alabama Court of Criminal Appeals’ rejection of those claims on an independent and adequate
state procedural ground. Petitioner also insists that “the trial court was well aware of Ray’s
Brady claims in his entirety” (doc. 41, at 10), but offers nothing more than his own supposition
that the trial court connected the dots in this manner, without citing anything in the record (either
hearing transcripts or written filings) showing that he expressly notified the trial court that he
was asserting Brady claims based on the DCSO letter or the Mabins investigation. And of
course, he never sought to amend his Rule 32 petition to identify those claims and clarify that he
intended to raise additional Brady claims outside the scope of the particular categories identified
in that petition.

-6-

petitioner were correct that his Brady claim is not procedurally defaulted and that the Alabama
courts misapplied their own precedents, rules and procedures, his Brady claim would still fail on
the merits, his § 2254 petition would still properly be denied, and Rule 59 relief would still be
unavailable.
3.

The Merits Ruling as to Witness Statements.

With regard to the witness statements implicating Rod Suttles in the Harville murder, the
September 26 Order concluded as follows: “The trial court’s factual determination that Ray’s
counsel had the information in the subject statements before trial is not clearly erroneous and
will not be disturbed on federal habeas review under AEDPA. That finding compels the legal
conclusion that no Brady violation occurred with respect to these statements.” (Doc. 37, at 26.)
In his Motion to Alter or Amend Judgment, petitioner takes this Court to task for accepting the
trial court’s finding of fact.7
Petitioner’s argument is unavailing under Rule 59(e) for three reasons. First, he
minimizes the extraordinarily deferential AEDPA standard of review. See, e.g., Kearse v.
Secretary, Florida Dep’t of Corrections, 669 F.3d 1197, 1198 (11th Cir. 2011) (“AEDPA further
requires federal courts to defer to a state court’s determination of a factual issue, though it
permits a petitioner to rebut those determinations by clear and convincing evidence.”); Consalvo
v. Secretary for Dep’t of Corrections, 664 F.3d 842, 845 (11th Cir. 2011) (“Federal habeas courts
have no license to redetermine credibility of witnesses whose demeanor has been observed by
the state trial court, but not by them.”) (citation and internal quotation marks omitted). “This
deference requires that a federal habeas court more than simply disagree with the state court
before rejecting its factual determinations. Instead, it must conclude that the state court’s
findings lacked even fair support in the record.” Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir.
2011) (citations omitted). Here, the trial court made a specific factual finding after an
evidentiary hearing at which it observed Attorney Whatley’s demeanor and credibility, rather

7

In multiple places in his Motion, petitioner makes inaccurate statements about the
scope of the trial court’s factual finding. In particular, he repeatedly insinuates that the trial court
made factual determinations that the DCSO letter, the Dolly Jackson materials, or the Mabins
materials had been disclosed to the defense before trial. (Doc. 41, at 11 n.4, 13-14 n.6, & 16
n.9.) That is not the case. (See doc. 37, at 16-17; Ray II, 80 So.3d at 973-75.)

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than being confined to a cold record. Petitioner has not rebutted that factual finding by the
requisite clear and convincing evidence.
Second, petitioner inaccurately suggests that this Court “did not consider what minimally
competent counsel would have done with the evidence,” asserts that no lawyer who had this
evidence would have failed to use it at trial, and says that the undersigned “did not even consider
this aspect of its factual conclusions.” (Doc. 41, at 16.) The September 26 Order examined
transcript excerpts showing that Attorney Whatley did, in fact, use the subject witness statements
(and facts gleaned from them) at trial in a very specific manner in cross-examination of Lt.
Freine. (Doc. 37, at 24-25.) With regard to questions defense counsel posed that drew on
information contained in those witness statements, the September 26 Order observed, “Petitioner
does not explain where and how Whatley would have obtained this information if not from the
subject witness statements.” (Id. at 25.) It is not clear what petitioner thinks Attorney Whatley
should have “done with” these statements at trial beyond using them as the bedrock of his crossexamination of Lt. Freine concerning the possibility that Suttles (and not Ray) had murdered
Harville, much less that Attorney Whatley could have done anything more than he did.8
Third, even if petitioner were correct (and he is not) that it was a manifest error for this
Court to accept the state court’s factual finding that the subject witness statements had not been
suppressed, his Brady claim predicated on those statements would fail. A defendant cannot
prevail on a Brady claim without a showing of prejudice or materiality, which in turn requires “a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Allen v. Secretary, Florida Dep’t of Corrections, 611
8

If petitioner’s theory is that defense counsel could have introduced the written
witness statements into evidence, he has not explained how such evidence would have been
admissible at trial. Those statements were brimming with double- or triple-hearsay; after all,
their contents consisted of what the police wrote down that the declarant had told the police that
someone else had told the declarant. By all appearances, Rule 802 of the Alabama Rules of
Evidence would have posed a formidable obstacle to any attempt by defense counsel to introduce
these hearsay-riddled statements. See generally Ex parte Walker, 623 So.2d 281, 284 (Ala.
1992) (although accused may offer evidence that someone else committed the crime, such
evidence “must meet several requirements, one of which is that the evidence would have to be
admissible if the third party was on trial”). Petitioner offers no basis for his assumption that
these witness statements would have been presented to the jury, despite the glaring admissibility
problems, had his trial counsel had them.

-8-

F.3d 740, 746 (11th Cir. 2010) (citations and internal quotation marks omitted). “A reasonable
probability of a different result is possible only if the suppressed information is itself admissible
evidence or would have led to admissible evidence.” Spaziano v. Singletary, 36 F.3d 1028, 1044
(11th Cir. 1994); Delap v. Dugger, 890 F.2d 285, 299 (11th Cir. 1989) (ruling that habeas
petitioner’s “Brady claim must fail” where “it is highly questionable whether the evidence would
have been admissible under Florida law”). Petitioner does not explain how these witness
statements were admissible evidence (despite being stuffed with hearsay stacked atop hearsay) or
would have led to admissible evidence. Moreover, the jury heard about the contents of many of
those statements via Lt. Freine’s cross-examination at trial, and otherwise heard substantial
evidence tending to support the defense theory that Suttles was the killer. Any information
contained in those witness statements that the jury did not hear was cumulative of what it did
hear;9 therefore, there is no reasonable probability of a different result, and no Brady violation
even if the statements had been wrongfully suppressed.
4.

The Merits Ruling as to Other Items.

Petitioner’s Rule 59(e) challenge to the merits ruling rejecting his Brady claim insofar as
it concerns the DCSO letter and the Mabins investigation may be dispatched quickly.
With respect to the letter, petitioner argues that if the State had disclosed it, counsel
would have inquired “why did local authorities believe Tiffany Harville had been murdered
elsewhere?” (Doc. 41, at 15.) The trouble is that, as the September 26 Order explained, nothing
in the subject letter (which was written shortly after Harville’s remains were recovered)
suggested that DCSO investigators had any evidence, facts or particular reason to support that
“belief.” Law enforcement officers testified at trial that following the discovery of Harville’s
remains, there were “leads going in all different directions” with “various and sundry leads or
pieces of evidence or information.” (Vol. 4, R-13 at 405.) Most importantly, the September 26
Order observed that, even after disclosure of the DCSO letter, petitioner never developed
evidence that lent even dim support to the notion that Harville had been murdered somewhere
other than the cotton field where her remains were found. By all appearances, this letter was
9

“The non-disclosure of cumulative or repetitious evidence is not sufficient to
establish a Brady claim.” Pardo v. Secretary, Florida Dep’t of Corrections, 587 F.3d 1093,
1106 (11th Cir. 2009).

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mere conjecture at an early stage of a difficult murder investigation. Thus, assuming the letter
were suppressed, there is no reasonable probability that its timely disclosure would have caused
the result of the proceeding to have been different. Petitioner has not met the materiality/
prejudice threshold necessary to sustain a viable Brady claim based on suppression of the DCSO
letter.10 See, e.g., Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000) (rejecting Brady claim
where petitioner “presents only speculation that he would have uncovered any admissible
evidence from these three hearsay leads,” and court could not say that “had the jury heard
evidence of these tenuous and ultimately fruitless police suspicions … they would have reached
a different conclusion,” such that “we are unable to say that this verdict is not worthy of
confidence”).
As for the alleged Brady evidence concerning the Mabins murder investigation, the
September 26 Order rejected Ray’s claim because, inter alia, he failed to satisfy the materiality
element of Brady by showing that such evidence would have been admissible, given the general
prohibition on a defendant collaterally attacking one conviction in another case. (Doc. 37, at 28.)
In other words, the September 26 Order found that Ray had not shown prejudice from the alleged
suppression of the Mabins evidence because he did not explain how evidence concerning the
Mabins murders (of which he had been convicted by another jury after a full trial) was
admissible in the penalty-phase proceedings of the Harville murder trial. In his Rule 59(e)
Motion, petitioner points to Attorney Whatley’s Rule 32 hearing testimony that “I think I would
have been entitled to argue” the point. (Doc. 41, at 14 n.6.) This contention, devoid of any legal
citations, reasoning or analysis, falls far from satisfying Ray’s prejudice/materiality burden under
Brady.11
10

Another way to say it is this: Petitioner insists in his Rule 59(e) motion that
disclosure of the DCSO letter would have caused his trial counsel to investigate new leads.
(Doc. 41, at 15.) But he offers not the slightest scrap of evidence that such leads would have
borne fruit or would have made any difference, or that the DCSO letter was anything more than
speculation untethered to any articulable facts supporting a conclusion that the murder site was
somewhere else.
11

Even if petitioner could meet that threshold, this Brady claim would nonetheless
fail. If Ray had presented evidence in the Harville trial that Sheriff Huffman at one point
believed that the Mabins brothers had been killed by their father, Ray would have opened the
door for the State to present the full weight of evidence incriminating him in the grisly slaying of
two young boys, thereby allowing “the State to demonize him with extensive, highly damaging
(Continued)
-10-

B.

Ineffective Assistance of Counsel with Respect to Mitigation.

Petitioner’s Rule 59(e) Motion attacks the September 26 Order’s analysis of his penaltyphase ineffective assistance claim in three respects. First, he decries what he calls this Court’s
“heavy reliance on the judge’s conclusions that he would not have been swayed by the additional
mitigating evidence.” (Doc. 41, at 16.) Second, he says that this Court’s ruling is contrary to a
2011 Eleventh Circuit decision captioned Johnson v. Secretary, DOC. (Id. at 17-18.) Third, he
brands the September 26 Order “inconsistent” by calling certain new evidence cumulative while
also reasoning that its admission would have opened the door for the State to present additional
damaging evidence. (Id. at 18-19.)
Petitioner’s “heavy reliance” argument mischaracterizes the September 26 Order. This
Court did not begin and end its Strickland prejudice analysis by citing Judge Jones’
determination that Ray’s additional mitigation evidence would not have altered his conclusion
that the aggravating circumstances outweighed the mitigating circumstances. Instead, the
September 26 Order observed that most of the childhood abuse/trauma evidence that petitioner
now advances “was cumulative of themes trial counsel actually did develop in the penalty
phase.” (Doc. 37, at 48.) In light of that conclusion, the September 26 Order continued, “[i]t
was not unreasonable for the state courts to conclude that petitioner has not shown a reasonable
probability that, had counsel investigated and presented the mitigation evidence concerning
Ray’s childhood that petitioner says should have been presented, the sentencer would have
concluded that the balance of aggravating and mitigating circumstances did not warrant a death
sentence.” (Id. at 48-49.) Judge Jones’ statement about what he would or would not have done
was by no means dispositive of the analysis; rather, the Court’s reasoning was rooted in Ray’s
failure to satisfy the Eleventh Circuit’s directive that “[h]e must show that the evidence would
have been so helpful that every reasonable jurist, without exception, would have concluded that
there is a reasonable probability that the sentence would have been different if the jury had heard

evidence and details of the Mabins’ killings.” (Doc. 37, at 27 n.35.) Presenting this Brady
evidence to the jury would in all likelihood have done more harm than good, and would certainly
not created any reasonable probability that the result of the Harville penalty-phase proceedings
would have been more favorable to Ray. Petitioner’s Rule 59 Motion does not rebut this
reasoning.

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all of the aggravating circumstances evidence and all of the mitigating circumstances evidence.”
Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1273 (11th Cir. 2012).
Next, petitioner contends that this Court must revisit its mitigation analysis in light of
Johnson v. Secretary, DOC, 643 F.3d 907 (11th Cir. 2011), because he says “the mitigation
evidence that could have been presented in Johnson presents a less compelling story than that
here.” (Doc. 41, at 18.) This is an improper argument. The Johnson decision was handed down
by the Eleventh Circuit on June 14, 2011, nearly a year before Ray filed his merits brief. Ray
admits that he never cited Johnson before, but nonetheless seeks alteration or amendment of the
judgment in light of Johnson. Motions to reconsider are not properly used to raise arguments
that could have been presented before, but were not. See, e.g., Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007) (Rule 59(e) motions cannot be used to “raise argument … that could have
been raised prior to the entry of judgment”); Dyas v. City of Fairhope, 2009 WL 5062367, *3
(S.D. Ala. Dec. 23, 2009) (motions to reconsider “do not exist to permit losing parties … to
provide evidence or authority previously omitted”). The Court therefore will not consider
petitioner’s newly raised Johnson argument.12
12

Even if this argument were to be considered, the result would be unchanged.
Petitioner inaccurately couches the facts in Johnson as “less compelling” than those here. In
Johnson, the Eleventh Circuit found Strickland prejudice where defense counsel’s mitigation
case with regard to the defendant’s childhood consisted of the following: (i) the defendant’s
parents were uncaring, (ii) the defendant’s parents would take a drink on weekends, (iii) the
defendant was placed in an orphanage when his parents were separated, and (iv) the defendant
was sent to live with nurturing grandparents when his father moved to Florida. Johnson, 643
F.3d at 936. The jury did not hear that (i) the defendant’s parents were abusive alcoholics who
drank constantly, (ii) the defendant would often cower in his bedroom in terror while his drunk
parents physically abused each other, including butcher knife attacks, (iii) the defendant was
severely beaten by his mother with her fists and a leather strap, (iv) the defendant’s mother
singled him out for emotional torment, (v) the defendant’s grandparents’ home was “pure hell”
as they heaped horrible physical and emotional abuse upon him (i.e., rubbing his face in his own
urine), (vi) the defendant witnessed multiple suicide attempts by his mother, and so on. The gap
between the evidence that was and was not presented to the jury in Johnson is far wider than in
Ray’s case; therefore, Johnson does not assist petitioner’s prejudice argument. (Incidentally,
while petitioner does not mention it, Johnson is quite damaging to his Strickland deficient
performance argument.) Although the jury did not hear all of the details of Ray’s background,
“the basic story of his troubled abusive childhood was nonetheless known to the … jury when it
sentenced him to death.” Holsey, 694 F.3d at 1265-66. It was not unreasonable for the Alabama
courts so to conclude, and Johnson does not require a different result.

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Third, petitioner characterizes the September 26 Order as “inconsistent” because it refers
to new mitigation evidence as cumulative, on the one hand, while saying on pages 28 and 81 that
if such evidence had been offered it would have opened the door for the State to present harmful
evidence. (Doc. 41, at 18-19.) This “inconsistency” does not exist, as petitioner unhelpfully
compares apples to oranges. In the Brady analysis, the September 26 Order pointed out that
evidence postulating some other culprit for the Mabins murders would have opened the door for
the State to present damaging inculpatory evidence to the Harville jury establishing Ray as the
Mabins brothers’ killer. (Doc. 37, at 28 & n.35.) But petitioner never brought a Strickland claim
faulting trial counsel for not putting on mitigation evidence relating to the Mabins slayings, and
this Court never opined that any Mabins guilt/innocence evidence that trial counsel might have
offered would have been cumulative. By the same token, the September 26 Order explained that
if trial counsel had put on character evidence of Ray’s reputation for being peaceful and nonviolent, doing so “would have opened the door for the State to present evidence that Ray had
been convicted of brutally gunning down two young boys in cold blood.” (Doc. 37, at 81.) This
Court never found that any such character evidence as to Ray’s reputation for peacefulness and
non-violence was cumulative of the mitigation evidence that trial counsel did present. In short,
this ground for Rule 59(e) relief proceeds from a false premise.
C.

Ineffective Assistance of Counsel with Respect to Alleged Steroid Abuse.

Finally, petitioner seeks reconsideration of the September 26 Order’s denial of an
evidentiary hearing to allow him to put on evidence that Ray was abusing steroids at the time of
the Harville murder. (Doc. 41, at 19-21.) The steroid-abuse issue is relevant to these habeas
proceedings only insofar as petitioner contends that he received ineffective assistance of trial
counsel in failing to investigate a steroid-abuse defense.
This ineffective assistance claim is subject to the normal two-pronged Strickland analysis
of deficient performance and prejudice. At most, the proposed evidentiary hearing might
facilitate petitioner’s efforts to shore up the “prejudice” side of the equation. Such a hearing
would do nothing to establish Strickland deficient performance. After careful examination of the
record, both the Alabama courts and the undersigned agreed that “trial counsel had no inkling
that steroid abuse was a pertinent consideration for Ray’s trial. There were no ‘red flags’ and no
reasons to investigate further.” (Doc. 37, at 112.) No one ever told Ray’s trial counsel that he
was abusing steroids or experiencing personality alterations at the time of the Harville murder:

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Not Ray, not his mother, not any of the numerous other fact witnesses (family members,
acquaintances, etc.) interviewed by trial counsel. Ray’s trial counsel testified as to the steroid
issue as follows, “In my discussions with Domineque it was not a big deal. It was not a problem.
It was not an issue.” (Vol. 25, R-52 at 411.) The Alabama courts made a finding that “counsel
had no reason to believe that steroid use was an issue in this case.” Ray II, 80 So.3d at 997.
Petitioner says that his lawyer’s failure to investigate the steroid-abuse issue was
constitutionally deficient because Dr. Ronan’s report specified that Ray had told her that “he had
used steroids for several years and was addicted to these at about 16” (Vol. 14, R-47 at 1345),
some three years before the Harville murder. That slender reed did not trigger a constitutional
obligation for counsel to retain a steroids expert, particularly where he followed up by discussing
the issue with Ray and reasonably concluded that it was a non-issue. See, e.g., Blankenship v.
Hall, 542 F.3d 1253, 1273 (11th Cir. 2008) (“[I]n evaluating the reasonableness of the
investigation, a court must consider not only the quantum of evidence already known to counsel,
but also whether the known evidence would lead a reasonable attorney to investigate further.”)
(citations omitted); Michael v. Crosby, 430 F.3d 1310, 1322 (11th Cir. 2005) (failure to
investigate a line of defense further “would not establish deficient performance under Strickland
because, based on our own review of the record, there were no ‘red flags’ that would have
prompted a reasonable attorney to investigate further for PTSD materials”). Moreover, “what
investigation decisions are reasonable depends critically upon information the defendant
furnishes to his counsel.” Pooler v. Secretary, Florida Dep’t of Corrections, 702 F.3d 1252,
1269 (11th Cir. 2012) (citation and internal quotation marks omitted). On this record, the Court
finds that trial counsel’s decision not to investigate the steroid issue further was a reasonable
exercise of professional judgment based on the evidence known to him. Petitioner having failed
to establish that no competent counsel would have declined to investigate the steroid defense
further in those circumstances, his efforts to establish that trial counsel rendered constitutionally
ineffective assistance as to the steroid defense cannot succeed.13

13

Petitioner insists that trial counsel was “warned of the possibility that Ray’s
steroid addiction played a role in the crime.” (Doc. 41, at 20-21.) This is wishful thinking. A
report that Ray had been addicted to steroids three years earlier did not warn his lawyer that he
was under the influence of anabolic steroids when he stabbed Tiffany Harville to death. A
reasonable attorney would not feel compelled to investigate the issue further when his own
(Continued)
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In finding that this claim flunks a Strickland deficient performance analysis, the Court
need not make any determinations as to prejudice. Therefore, holding an evidentiary hearing to
hear expert testimony that Ray was prejudiced by his trial counsel’s failure to develop a steroid
defense would be a waste of time. Even if Ray successfully proved prejudice, the claim would
be denied for failure to prove deficient performance. The law does not require the habeas court
to hold evidentiary hearings that would be futile, hollow endeavors. “In a habeas corpus
proceeding the burden is on the petitioner to establish the need for an evidentiary hearing.”
Chavez v. Secretary Florida Dep’t of Corrections, 647 F.3d 1057, 1060 (11th Cir. 2011)
(citations and internal marks omitted). “[I]f a habeas petition does not allege enough specific
facts that, if they were true, would warrant relief, the petitioner is not entitled to an evidentiary
hearing.” Id. (citations omitted); see also Valle v. Secretary for Dep’t of Corrections, 459 F.3d
1206, 1216 (11th Cir. 2006) (“no evidentiary hearing is necessary where the proffered evidence
would not affect the resolution of the claim”). Such is the case here.
IV.

Conclusion.
For all of the foregoing reasons, petitioner’s Motion to Alter or Amend Judgment (doc.

41) is denied in its entirety.
DONE and ORDERED this 12th day of November, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

conversations with the defendant had satisfied him that steroids were not an issue, when the
defendant had not identified steroid use at the time of the offense, when the defendant’s mother,
family and friends did not raise any inkling that Ray was abusing steroids at the time of the
murder, and so on. Perhaps a steroids expert with specialized training can credibly testify that a
defendant was “very likely” abusing steroids when the defendant says he wasn’t, when his
friends and family members did not believe there was an issue, and so on. But a defense
lawyer’s performance cannot be branded objectively unreasonable and outside the wide range of
reasonable professional assistance where counsel declined to expend scarce defense resources
chasing down what looked for all the world to be a non-issue.

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