Borden v. Allen, 2011 U.S. App. LEXIS 14647

Borden, a death row inmate, was convicted of capital murder in Alabama in 1995 following a guilt phase and penalty phase trial.
He alleged his penalty-phase counsel rendered ineffective assistance by failing to investigate and present mitigating evidence, including treating physicians, in violation of the Sixth and Fourteenth Amendments.
Borden pursued post-conviction relief under Alabama Rule 32, with an amended petition asserting extensive deficiencies in penalty-phase preparation and presentation.
The circuit court dismissed the amended petition for lack of specificity, and the Alabama Court of Criminal Appeals affirmed, addressing merits under Rule 32.6(b) and other provisions.
The district court denied habeas relief, and on appeal the Eleventh Circuit held that the Alabama rule-based dismissals were adjudications on the merits and reviewed under AEDPA.
The court ultimately affirmed the denial of habeas relief, applying Strickland and AEDPA standards to evaluate deficiency and prejudice in the penalty-phase representation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is Rule 32.6(b) a merits adjudication for AEDPA review?	Borden contends Rule 32.6(b) dismissals are procedural defaults, not merits rulings.	The majority treats Rule 32.6(b) dismissals as merits adjudications for AEDPA review.	Rule 32.6(b) dismissals are merits adjudications reviewable under AEDPA.
Did the Alabama court properly apply Strickland to assess prejudice from penalty-phase failure to investigate?	Amended petition pled substantial prejudice from failure to investigate and present mitigating evidence.	Pleadings were insufficiently specific and failed to show a reasonable probability of a different outcome.	No reasonable probability shown; claims not pled with sufficient specificity to establish prejudice.
Did defense counsel's failure to call treating physicians at the penalty phase prejudice the outcome?	Treating-physician testimony could have strengthened mitigation and altered the balance of aggravation and mitigation.	Pleading shows no prejudice; testimony would be speculative and not likely to change the result.	No prejudice shown under Strickland, given the record and standard of review.
Can a 'cumulative effect' theory support relief when no single error is prejudicial?	Cumulative errors could warrant relief even if individual errors do not.	No basis to grant relief on cumulative-error theory without pled facts showing prejudice.	Court declines to decide, noting insufficient pleading of cumulative prejudice.

Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court, 1984) (two-prong test for ineffective assistance; deficiency and prejudice)
Wiggins v. Smith, 539 U.S. 510 (U.S. Supreme Court, 2003) (unrevealed mitigating evidence can establish prejudice)
Rompilla v. Beard, 545 U.S. 374 (U.S. Supreme Court, 2005) (counsel's failure to investigate mitigating evidence can be prejudicial)
Harrington v. Richter, 131 S. Ct. 770 (U.S. Supreme Court, 2011) (AEDPA review is highly deferential to state-court merits decisions)
Powell v. Allen, 602 F.3d 1263 (11th Cir., 2010) (Rule 32 pleading sufficiency analyzed under AEDPA; merits-based review where appropriate)
Judd v. Haley, 250 F.3d 1308 (11th Cir., 2001) (procedural default and review standards in habeas corpus)