Hammonds v. Commissioner, Alabama Department of Corrections, 822 F.3d 1201

Artez Hammonds was convicted of capital murder in Alabama (trial completed 1997) and appealed; his conviction was affirmed by Alabama appellate courts.
During trial the prosecutor said “let him testify,” referencing Hammonds’s decision not to testify after a pretrial motion in limine forbade such comments; the judge denied a mistrial and gave a curative instruction.
The original trial transcript recorded the curative instruction using the word “innocence” where the court reporter later concluded it should have read “inference.”
Four days after the Alabama Supreme Court affirmed the conviction, the court reporter filed a Certificate of Replacement Page correcting page 228 to substitute “inference” for “innocence”; the corrected page was docketed and sent to the appellate courts.
The Alabama Supreme Court denied rehearing without modifying its opinion; the federal habeas court and district court relied on the original transcript in denying relief; Cullen v. Pinholster limits federal §2254(d)(1) review to the state-court record.
The Eleventh Circuit found no clear answer under Alabama law whether the corrected page was "before" the Alabama Supreme Court when it adjudicated Hammonds’s claim and therefore certified two questions to the Alabama Supreme Court instead of resolving the issue itself.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether corrected page 228 was part of "the record ... before" the Alabama Supreme Court when it adjudicated Hammonds’s Griffin claim	Hammonds: corrected page 228 was not properly before the Alabama Supreme Court; Cullen bars reliance on it for §2254(d)(1) review	State: corrected page 228 was part of the appellate record (docketed) and thus may be considered; Rule 10(e) allows correction	Eleventh Circuit declined to decide; certified the question to the Alabama Supreme Court for authoritative state-law determination
If corrected page 228 was before the Alabama Supreme Court, whether the corrected page or the original page is the official trial transcript	Hammonds: corrected page is unreliable/legal nullity and not properly certified; original transcript was what appellate courts relied on	State: court reporter’s Certificate of Replacement makes corrected page part of the record and purports to correct a transcription error	Eleventh Circuit did not resolve; certified the issue to the Alabama Supreme Court to determine which page is official

Cullen v. Pinholster, 563 U.S. 170 (limits federal habeas review under §2254(d)(1) to the state-court record)
Griffin v. California, 380 U.S. 609 (prosecutorial comments on defendant's silence violate the Fifth Amendment)
Ex parte Hammonds, 777 So. 2d 777 (Ala. 2000) (Alabama Supreme Court opinion affirming Hammonds’s conviction)
Hammonds v. State, 777 So. 2d 750 (Ala. Crim. App. 1999) (state appellate decision describing trial record and curative instruction)
Royal Capital Dev., LLC v. Maryland Cas. Co., 659 F.3d 1050 (11th Cir. 2011) (factors for deciding whether to certify questions to a state supreme court)
Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302 (11th Cir. 2001) (approach to phrasing certified questions to a state supreme court)