Edward Horsley v. State of Alabama

HATCHETT, Before EDMONDSON and BLACK, Judges. Circuit EDMONDSON, Judge: Circuit Horsley, prisoner Edward a Alabama, appeals the district court’s denial petition corpus a of his for writ habeas § to 28 2254. We affirm the pursuant U.S.C. judgment.

BACKGROUND 1977, Horsley was convicted and sen- County, to death in Monroe Alabama tenced capital robbery for the offense of which intentionally killed, victim is Ala.Code 11—2(a)(2)(1975). § 13— Horsley’s guilt disputed. is not Both Horsley and his co-defendant Brian Baldwin briefly confessed. We review the facts. On (then Saturday, March old) years his nineteen co-defendant (then old) eighteen escaped a years from camp. Horsley had prison North Carolina robbery convicted four counts police a during the course of which officer victim, evening That was shot. murder Rolon, old, years sixteen left her Naomi in North to visit father home Carolina her , Horsley hospital. and Bald- who was forcibly car and win seized Rolon her N.C., Charlotte, despite pleas and drove to There, men prayers from the victim. both attempted to attempted rape her and stripped, her to death. She was choke parts a her with knife different stabbed once, body, run over with the car least they Ala- in the trunk while drove to locked afternoon, Horsley and Monday On bama. III, Soto, Madden, J. & Arthur Madden a both pickup Baldwin stole truck drove Mobile, AL, Hawkins, W. NAACP Steven a Baldwin vehicles to secluded wooded area. Fund, Inc., Legal Defense and Educational from trunk and told took Naomi appellant. City, New York for her the car. tried to back over twice, but the ear became stuck. Baldwin Poole, Crenshaw, Clayton Andy S. James a cut Naomi’s throat with hatchet. She then AL, Gen., ap- Attys. Montgomery, Asst. after this 40 horn’ ordeal. died pellee. separately was tried by jury fixed guilty charged as

found punishment at death electrocution.1 Act, hearing, “may Penally sentencing be once At the evidence Under 1975 Death Alabama's any specified presented as to matter that the court deems any a defendant was convicted offenses, 11—2(a) include mat- § to sentence and shall see relevant Ala.Code 13— sentence, mitigat- relating jury mandatory death ters ing returned the 13- required enumerated sections the trial court was hearing, hold § add- jury's § and 13-11-7.” 13-11-3 sentence 11-6 13-11-3. Alabama, ed). required to The court was then sentence dispositive. Baldwin 2727, 2729, 373-75, imprisonment with- defendant to death or to life imposed (1985). parole. § If out 13-11-4. L.Ed.2d conviction, capital Following challenging sen- after the conviction court,3 tencing hearing Horsley peti and sentence state conducted before the corpus for writ of tioned habeas the feder court. After the trial al court. The district court entered a “having considered deny memorandum order December hearing,” the trial at said sentence en- ing granting certain claims and an evidentia- following tered a sentence order- the ry hearing specified on four claims.4 After 1) aggravating capital circumstances: of- four-day evidentiary hearing, the district by person fense was committed under sen- court all denied claims. 2) imprisonment; tence of the defendant was felony involving earlier of a convicted rob- Horsley appeal, On two raises claims that bery, in police the course which a officer 1) merit discussion: the claim that his sen- 3) shot; capital felony was commit- was Eighth tence violated the Amendment be- engaged ted while defendant was in commis- judge trial expressly cause the in this case flight committing robbery; sion of or after mitigating limited his consideration of cir- 4) felony capital especially and was hei- cumstances to in those enumerated the Ala- nous, 2) penalty statute; atrocious or cruel. The court found bama death and the claim Horsley’s age be mitigating circum- provided that his counsel ineffective assis- stance.2 The trial court then sentencing by presenting found tance at expert aggravating Horsley’s circumstances “far out- alleged demonstrate weigh[ed]” mitigating vulnerability by and circumstances to domination his co-defen- Horsley sentenced to death. dant Baldwin.5 death, required sentence (Ala.Cr.App.1978), aff'd, to set forth parte in So.2d 363 Ex writing findings (Ala.1979). Horsley, of fact from the trial 374 So.2d 375 The Su sentencing hearing, including preme judgment at one or Court vacated least and remand Alabama, 625, aggravating light more of the ed circumstances enumer- in the of Beck v. 447 U.S. 2382, (1980). statutory Horsley ated in section 100 S.Ct. 65 13-11-6 of the L.fed.2d 392 Alabama, 903, 3043, mitigating v. 448 U.S. S.Ct. circumstances enumerated section 100 in 65 (1980). outweigh Supreme L.Ed.2d 1133 13-11-7 which it found The Alabama insufficient to appeals aggravating Court remanded to the court of criminal circumstances. Id. State, Horsley sentencing, which reversed. Ap- After v. 409 So.2d Court of Criminal (Ala.Crim.App.1981). peals 1347 required The U.S. to review of the decision court, affirmed, authority Court vacated and remanded trial and if certiorari Evans, 605, 2049, Hopper v. supreme 456 102 U.S. S.Ct. the state court was automatic. (1982). 13-11-5, 12-22-150; Baldwin, Horsley, 72 L.Ed.2d 367 §§ Alabama v. 457 see 472 U.S. at 1114, 2921, 5, U.S. (1982). 102 S.Ct. 73 appellate 379 n. 105 S.Ct. 2731 n. 5. "Both remand, On mitigating conviction and courts 'review ... the sentence State, again upheld, Horsley were once v. 476 circumstances found in the case trial (Ala.Cr.App.1983), 'd, parte So.2d 623

judge' Ex independently weigh those circum- aff (Ala.1985), denied, Horsley, 476 So.2d 626 cert. imposition stances to determine whether the of a Alabama, 1031, Horsley v. 475 U.S. 106 S.Ct. appropriate." (emphasis death sentence is Id. 1239, 1986, (1986). added) 89 L.Ed.2d 347 (citations omitted). petition filed a state coram nobis which was penalty repealed The 1975 death statute was State, (Ala.Crim.App.1988), denied. v. So.2d 527 1355 effective, entirety its er, It 1981. remains howev- denied, t. 527 So.2d 1355 for crimes while committed it was force. cer (Ala.1988), denied, 1059, rt. 20, Ala.Code, ce § See 1981 Ala.Acts codified as 1328, (1989). (1982). § 13A-5-57 2. The trial stated: granted 4. The district court hear- ing following The Court ineffective-assistance-of- now considers circum- 1) object 15, 342(9) alleged counsel claims: failure to an stances as described in Title Section violation; 2) Alabama, object Swain failure to excessive 1940 Code as amended: trial; 3) security failure to 4) sentencing; (a) prepare evidence at failure to only mitigating The court finds the circum- Horsley as a witness. age stance would be at the defendant crime, to-wit, time of the commission of the 1) appeal: raises other in this claims nineteen. ineffective assistance of object failure to State, (Ala.Cr.App.1978), v. So.2d 374 375 alleged to an violation Swain v. Ala- 'd, Horsley, parte Ex 374 So.2d 375 aff bama, U.S. L.Ed.2d (Ala.1979) added). (1965); 2) ineffective assistance of counsel object alleged conviction and sentence were af- for failure to to an violation of State, Illinois, appeal. Horsley firmed on Witherspoon direct v. disagree. OF error.7 We When read in NONSTATUTORY CONSIDERATION default, procedural law on EVIDENCE context MITIGATING prelimi- district court’s comments seem to be judge Horsley argues that trial nary passing nature. The mitigat- expressly limited his consideration of that, “[ujnless peti- held a habeas set in the those out prejudice, tioner cause shows a court penalty death statute force at the Alabama proeedurally of ... reach merits result, As a he conviction. time petitioner defaulted claims which the failed contends trial considered -applicable procedural to follow rules state mitigation Horsley’s youth in and excluded — raising Sawyer Whitley, claim.” mitigating circumstances that were be- other -, -, Thus, Horsley fore him. claims that he (1992). L.Ed.2d also have held that to in of Hitchcock sentenced death violation ” a federal habeas court “will not consider an 393, 1821, Dugger, v. 481 107 S.Ct. 95 U.S. proeedurally issue that is barred unless the (1987).6 Horsley ar- L.Ed.2d 347 bases this petitioner prejudice. can show cause and similarity gument on the between the trial (11th 1502, Kemp, Amadeo v. F.2d 1505 816 in court’s order and trial court’s Cir.1987). legal background, Given this we in Hitchcock. order proper- quite conclude that the district court evidentiary The district court held no hear- ly abeyance ruling held in on the merits of similarity upon Based on this issue. claim the procedural until default issue sentencing order this case between was resolved. Hitchcock, order in the district court and the First, procedural we address the bar. comment, said, pro- preliminary in a that the that argues the district court erred appear satisfy “does not Hitch- cedure proee- claim the Hitchcock to be court, however, cock.” The further conclud- durally He not that dispute barred. does he evidentiary hearing required ed that “no directly presented appeal never the issue on on this issue as the merits can be considered proceedings; or in collateral nor does he without further evidence. Whether contend that his collateral attacks proeedurally is a claim is barred matter way in any Alabama courts this claim. raised in the will be addressed Court’s final Order Instead, argues he this claim is not hearing.” following In its proeedurally defaulted because the Alabama order, that, final the court held because sponte of Appeals Court Criminal sua raised Horsley failed to raise this claim on direct question answered whether the appeal or on coram nobis and because he had mitigating court’s consideration of claim prejudice, failed to show cause complied requirements proeedurally barred. agree. Lockett. We appeal, Horsley contends that the dis- On court, order, findings initial trict made When a state court decides a constitu question, though it and held that was a Hitchcock tional even fact there 1770, Oklahoma, 104, 869, (1968); 3) assis 455 U.S. 102 S.Ct. 71 ineffective 586, (1982); Ohio, challenge alleged L.Ed.2d 1 v. tance failure Lockett 2954, (1978)). under-representation grand in the 57 A.Hitch- blacks L.Ed.2d 973 violation, petit jury processes upon Duren cock selection in violation violation based Lockett Missouri, 664, 357, applied 58 have held that Lockett is to be v. (1979); 4) Hargrave retroactively. 579 claim v. 832 F.2d L.Ed.2d 1528, Cir.1987) (in banc). (11th experts. entitled to funds for mental health 1533 rulings: claims We affirm district court's wholly clearly proeedurally contends that the erroneous are barred or without merit. applies review to the district court's standard of Hitchcock, findings repeated the Court its earlier factual the Hitchcock violation. But court, cases, purposes, holding capital the sentencer for Hitchcock the district as "in above, evidentiary hearing, precluded from noted held made not refuse to consider or be considering mitigating findings, the Hitch- relevant evidence.” no factual and never resolved Hitchcock, Accordingly, our U.S. at at 1822 cock issue on the merits. re- 481 Carolina, (citing plenary. Georgia, Skipper 106 view is v. South See Abdi Cir.1984). (1986); Eddings v. 1503 n. to, comity sentencing judge found ‘there [T]he considerations and federal- ordinarily preclude mitigating federal insufficient circum- [were] ism which woidd procedurally defaulted issues no review stances as enumerated Florida Statute Wainwright, longer apply. Cooper outweigh aggravating ... circum- (11th Cir.1986). have said process stances.’ He described that “a state court’s decision to raise and sentencing judgment reached he question sponte sua determining answer constitutional ‘In as whether the follows: subsequent permit will ... federal habeas should defendant be sentenced to death review.” Id. imprisonment, life is mandated apply the facts to certain enumerated In Horsley’s appeal, direct the Ala “aggravating” “mitigating” circum- Appeals bama Court of Criminal stated: stances.’ “We have reviewed Hitchcock, U.S. at S.Ct. at 1824 mitigating set out in the circumstances (record omitted; emphasis origi- citations and the trial court’s rela- nal). Hitchcock, the Court also consid- appellant tive those circumstances. The jury ered that the was instructed to consider .given opportunity present any mitigating those Ala- circumstances he desired. upon were listed the statute.8 Based felony fully capital bama’s act ... com- facts, these the Court that the held sentenc- Ohio, ports with Lockett 438 U.S. 586 ing proceeding complied in Hitchcock had not ... [98 57 L.Ed.2d 973] with Lockett. preclude in that it does not from consider- penalty The Alabama death statute ef- mitigating ‘any aspect as a ation factor of a Horsley’s sentencing permitted fect at the character and defendant’s record present defendant to on matter evidence of the circumstances of the offense the that the court deemed to sen- relevant the proffers as a for a defendant basis sen- § tence. Ala.Code 13-11-3. ” of less death.’ tence than not contend that the trial court him denied opportunity present mitigating the to evi- ease, Horsley, So.2d at 375. In this dence. courts, conclude the Alabama even they to,

though did not raised sentencing hearing, At the the court said result, answered the Lockett issue. As Horsley: to Horsley’s properly claim is before us for a Edward, your day this court to tell me on decision the merits. you your what have in own behalf in the way mitigating the sentence that has Lockett-Hitchcock claims review imposed you give been I and want to by matching the records the you you opportunity to me tell whatever with the consideration Hitchcock record. might you helpful get feel like be Hargrave v. Dugger, 832 F.2d sentence reduced from electrocution to life (11th Cir.1987) (in banc). Relevant factors imprisonment. you any- Do want tell me 1) by include: statements made the thing you’ve other than what else 2) sentencing judge; made comments the asked about? 3) counsel; prosecutor and defense the miti 4) gating presented; evidence sentencing. E.g., Knight

law the at time of you giving opportunity am now tell the 708-10 Cir. anything your you me whole life which 1988). might helpful you get feel like be sentence reduced.... The Court noted that the trial

judge expressly weighed, sentencing in Hitchcock in im- court invited sentence, posing only mitigating any mitigating those fac- evidence he desired. penalty Implicit

tors enumerated in the death statute: within this invitation is the notion circumstances, sentencing pro- vating mitigating 8. Because the Alabama scheme this factor jury weighing aggra- inquiry. vides no role for the is not relevant to our ting outweigh mitigat- circumstances far court would consider evidence ” ing also contains state- circumstances.... Id. offered. by the court: ment substantive We see differences the sen- Court, having hearing conducted tencing record in the two eases. Hitch- Alabama, ... pursuant to the 1940 Code cock, trial it weighed only court said amended, to or not as determine whether factors; enumerated and the Court would sentence Edward Court plain found other statements in the record imprisonment pa- life without to death or indicating that trial court believed that having role considered nonstatutory mitigating could consider no presented at the trial and said Hitchcock, 397-99, factors. 481 U.S. at findings_ following makes the case, S.Ct. at 1824. In this statements exist added). Horsley, 476 So.2d at 625 judge defense counsel that, during Horsley’s We also note testi- indicating that the court would consider non- mony sentencing hearing, defense statutory mitigating evidence. In its balanc- asked him on at least four occasions ing evi- anything there was else whether dence, trial court here referred to miti- judge. urged, to tell the He was wanted gating (again plural), circumstances even “[tjell you to.” The whatever want only though statutory it had found one miti- therefore, counsel, statements of defense also gating circumstance. they indicate that believed that sentenc- reason, moreover, petitioner’s court would consider testimo- There is that the sen-

ny. tencing order contains detailed statutory mitigating but argument best eourt did nonstatutory explicit makes no reference to nonstatutory mitigating evi- consider pertinent mitigating circumstances. The similarity the dence is the of one of trial may require sentencing state statute the judge’s statements to one statement of the judge explicitly to set forth his for sentencing in Hitchcock. As noted only statutory mitigating the circumstance above, sentencing judge weighing the the outweigh that he found insufficient to the aggravating mitigating and in circumstances aggravating § circumstances. Ala.Code 13- Hitchcock said that there were insufficient observed, Supreme Court has 11-4. As mitigating circumstances as enumerated in evidence, non-statutory “precisely because aggrava- outweigh Florida statute to any predefined category is does not fall into ease, ting In this the court’s circumstances. considerably organize difficult to into a more “The sentencing order said: Court now con- explanation.” v. coherent Parker mitigating siders as described circumstances 308, 318, 731, 738, 498 111 112 342(9) U.S. S.Ct. Section of the 1940 of Title Code Alabama_” (1991). that Hors- added). We believe The Id. ley’s on focus one isolated statement of sentencing court then found that Hors- much sentencing judge places far too stress ley’s mitigating age was a factor under the discourse, just long statement, one statement statute. The court’s next howev- whole, which, taken as shows that er, discourse “having aggravating was: considered the sentencing probably court considered mitigating circumstances and the circum- But, nonstatutory for mitigating evidence.9 [plural] weighing ag- after stances and circumstances, deciding appeal, will purpose gravating mitigating it is aggrava- nonstatutory mitigating evi- judgment that the assume the Court 1441, 1444, 739-42, appellate 108 9. We that the Alabama courts in- U.S. note dependently (1990) (state reviewed the record and seem to appellate 725 courts L.Ed.2d weighed aggravating mitigating fac- have tors for this As a independently weigh aggra weighing may states Horsley, case. So.2d See 476 at 624. thereby vating mitigating result, appellate may have courts cured errors). sentencing phase Because cure certain weighing errors that have resulted from origi argument in State did not raise this its failure, any, weigh mitigating all trial court's if brief, we decline to address this issue. nal Mississippi, Clemons v. 494 circumstances. See by sentencing dence was not considered alleging er constitutional trial error is enti- judge. tled to no habeas relief in court un- federal less he prejudice. can establish actual Id.12 Assuming error Lockett/Hitchcock held that Lockett and Hitchcock case, we nevertheless affirm type” governed by errors are “trial errors court’s relief denial of under the doctrine Singletary, Brecht. Bolender v. 16 F.3d 1547 Horsley, relying harmless error. Because (11th Cir.1994). Chapman California, (1967), L.Ed.2d decisions circumstances before the applying argued which, this court according Horsley, original briefs Hitchcock error were not considered include: absence of (other was not harmless because the activity earlier criminal than the con- recently Court has held that harm- different viction armed robbery police in which a for less error standards are to be applied shot which comprised the second officer direct factor); and collateral review state injury a childhood head sentences, sup- convictions and we ordered which suffering left from headaches plemental briefing on this issue.10 spasms and made him easier to domi- nate; Horsley grew and the fact that up recently has held that without a father. But struck we are a “less onerous harmless error” standard is full savage force of this facts crime. appropriate on habeas review of constitution We remember also the imbalance between — Abrahamson, al error. Brecht U.S. aggravating and mitigating (including non- -,-, 1710, 1721-22, factors) statutory circumstances marked (1993). On review collateral (which appellate Alabama’s courts we see as apply federal courts shall the less onerous matter, persuasive, as a factual weigh- our standard announced Kotteakos v. United injurious effect on the senteneer— States, L.Ed. although way controlling, in no a la Clem- is, “whether the error ‘had ). And, making ons after our own examina- injurious substantial and effect or influence anew, tion of the record we conclude inde- in determining jury’s [or court’s] pendently that ”11 error was harmless under — Brecht, at -, verdict.’ the Brecht standard. Kotteakos, (quoting S.Ct. at 1722 U.S. at 1253). 776, 66 expressly past, S.Ct. at The Court In the we have not flinched from that, test, said this petition- meet concluding habeas that Hitchcock errors were harm- reject Horsley’ Bolender, 10. We disagree, claim that the has compare State this seem to 16 And, (burden argument. abandoned harmless petitioner); error F.3d at 1567 on Cumbie v. 715, (11th argument Cir.), even if the State had Singletary, denied, abandoned this 991 F.2d 724 cert. - U.S. -, 650, we have the discretion to overlook a failure to 126 L.Ed.2d argue (1993) (same); Holt, sponte and harmlessness to undertake sua 608 with v. Bonner 26 F.3d 1081, (11th considering E.g. Cir.1994) (burden state). the task of harmlessness. Unit- 1083 on Giovannetti, 225, (7th ed States v. granted 928 F.2d recently Court has certio- Cir.1991); Cortes, 532, Morris, United States v. 949 F.2d rari on this issue. See O’Neal v. 3 F.3d (1st Cir.1991). (6th Cir.1993), -, 542-43 granted, cert. - U.S. (1994). 11. We know that one circuit has limited Brecht’s question We need not decide this in this case application considerably way and in such a applying because even the Kotteakos-Brecht might apply Brecht not to this case. See Omdorff reviewing and standard de the error' novo to Lockhart, (8th Cir.1993). v. 998 F.2d 1426 We determine "whether the error 'had a substantial (advancing think the Court’s rationale injurious determining and effect or influence " federalism, comity, finality, importance and the verdict,’ Brecht, U.S. at -, [court's] - trial) for the Brecht rule reaches almost at S.Ct. we conclude the error is cases, including all federal one. habeas differently, given Put harmless. the facts of this case, mitigat balance of circumstances, split ing note that circuits are on the sentencing failure of question proof nonstatutoiy of who bears the burden of to consider evi collateral review Brecht see dence before would have been harmless error Leonardo, (2d Cir.1994) Ayala v. party proof no matter bears the burden of noted), (conflicting panels authorities and that in federal court. ease,-Horsley applying In this claims that his coun- the more strict even when

less harmlessness, provided ineffective assistance at e.g., sel sentenc- Chapman standard by present expert ing failing to mental health Demps Dugger, to demonstrate vulnera- Cir.1989); so we think we could conclude by bility to Bald- domination his eodefendant rule But, considering the Brecht here. that, Horsley argues win.13 before trial his effect, injurious requires substantial counsel learned or should have learned that is, possibility that the more than a reasonable injury Horsley four- had suffered head as a sentence, we can and contributed error old, year investigate but counsel failed petitioner say greater reason do sought matter and no assistance from mental Accordingly, we no affirm due relief. experts. Horsley health contends that had Hitch- court’s denial of relief pursued defense counsel these matters grounds. cock sought help expert, of a mental health OF INEFFECTIVE ASSISTANCE they “Horsley would have found that suf- COUNSEL neurological impairments fered from. injury head that made him a learner slow assistance To demonstrate ineffective him and that made vulnerable domina- Horsley must estab sentencing, of counsel at ” that, [Baldwin].... tion of claims (1) acts or omissions lish both that identified sentencing if the had heard this evi- (2) deficient, and of counsel were dence, Horsley would not have received performance defense prejudiced the deficient penalty. death that, errors, there is such without probability that the balance reasonable reviewing the .After mitigating circumstances aggravating and trial, sentencing hearing and the coram been different. Strickland would have proceedings, mate- nobis 686-87, Washington, file, rials on the district court concluded that (1984). 2052, 2064, 80 L.Ed.2d 674 Courts the state record was insufficient determine components both these need address whether not counsels’ decision to show strategic “if the defendant makes insufficient 104 S.Ct. at 2069. inquiry on one.” Id. concluded that further into this claim At Because made insufficient was warranted. mother, grandmother

showing prejudice Horsley, we do and his to meet the element his injury.14 head performance. testified about his childhood not address expand Now claims that this issue was effec 13. We seeks note scope petition tively implied parties claim the habeas tried consent 15(b). alleging appeal that trial for the first time on under Federal Rules of Civil Procedure presenting cer- counsel were ineffective for not again, support the record does not Once non-expert testimony sentencing. This tain testimony argument. granted The district court an eviden- from teach- consists of evidence school tiary hearing to four issues. The issue limited and, petitioner; according to ers and friends non-expert testimony mitigation one was not petitioner, testimony the would have shown that Although permitted lay those the court of issues. alcohol, exposure to a he suffered from fetal background, testify Horsley's on witnesses to expo- learning disability, dysfunctional family, a merely provided background the factual evidence violence, history drug early to and an of sure expert's opinions upon based. which the were alcohol abuse. a the court believed That neither nor state being ineffective assistance was new claim of briefing, supplemental we In our order for raised, tried, or is clear from Horsley to cite to the record to show asked Because this from the district court's order. preserved. was No citation was where this issue appeal, on was for the first time issue raised provided. A review of the record shows that Lightbourne Dugger, to it. decline consider See non-expert of health was issue mental evidence (11th Cir.1987). 829 F.2d 1017 n. 5 proceed- raised neither in the state coram nobis ings proceedings nor the habeas below. Hors- sum, Horsley testimony their reflected that 14. ley's petition alleged ineffective assistance habeas old; year was fallen a four unconscious had as present mental health "[failure because of to month, hospital a a was in the for about for concerning domination as month, he from and that after the fall suffered Horsley’s evidence." brief in district siblings spasms, did, to as was unable remember his expert mental addresses the absence of easy persuade. testimony. and was health lay The court found that little of “presented district Strickland test because he testimony at the hear- presented reasonably evidence that it was probable that determining of was useful effect experts such as who those testified at the Horsley’s fall state mind or on mental evidentiary hearing available” at were court, therefore, competency. The district time the 1977 trial. The district court also evidentiary on granted hearing an found that there was no evidence that state claim of “ineffective assistance counsel for funds were such experts available for failing evidence at sen- no evidence was about tencing.” practice presentation in 1977 for of men- four-day At ap- federal hear- tal state evidence when the defendant ing, lay petitioner presented peared witnesses to be lucid and attentive normal gave testimony impover- who about intelligence. Horsley Even if had made such possible exposure to background, ished fetal showing, a the district court held that coun- school, alcohol, poor performance at ex- Horsley sel was not ineffective because failed posure Two mental health ex- to violence. probability to demonstrate a reasonable aof Phillips, psychiatrist perts, Dr. a from Con- expert testimony different sentence had the necticut, Lyman, psychologist Dr. a from result, Horsley As a offered. was not Tuscaloosa, Alabama, testified behalf prejudiced by expert the absence of mental petitioner.16 pe- held that health evidence.17 satisfy prejudice titioner failed to ele- Elledge Dugger, ment of the Strickland test. The court F.2d 1439 Cir.1987) Horsley curiam), (per found that had failed to meet we wrote: , Horsley's experts requirements mental health testified at conform his behavior evidentiary hearing expert appreciate federal court. The wrongfulness law or to of his Horsley But, substantially impaired. was indicates that neither un- conduct was when hospitalized a nor a conscious for month for asked on cross-examination whether a causal consciousness, Horsley month: and out was in connection could be established between Hors- hospital approximately days, murder, was ley's impairment in the for six Lyman and the Dr. seemingly so, had seizure while in the hos- one stated that he did not think at least not pital. definitively. expert testifying second held that when the state coram nobis Phillips, psychiatrist. Dr. Robert a He permit stated record is insufficient to a determination average IQ. had that many strategic He found that of whether counsel's decision Horsley’s judgment. had negligent factors affected proper evidentiary 1322, it was hold possible exposure He concluded that cohol, hearing. Kemp, fetal al- Thomas v. (11th Cir.1986). dysfunctional family, injuiy, organ- head disorder, personality ic and constant abuse of drugs lacking capac- and alcohol left Lyman, professor Dr. Robert D. of neuro- Tuscaloosa, Alabama, ity to conform his psychology in behavior because of vulnera- testified But, bility Horsley. to domination. he behalf of found also described He had an Horsley's participation IQ of in the as normal to low normal. About Hors- crime “half- stated, Further, ley's neurological functioning Lyman "clearly participatory.” hearted” but Dr. Phillips Horsley prob- Horsley's "I Dr. think I would conclude that stated he believed that Mr. ably degree "totally totally neurological choice free and not have mild voli- impairment.” underlying He said tional” because of the also that he believed that set circum- multiple predisposed Horsley faulty "pos- there stances which were causal factors such as effects," judgments. injury, sible From pos- fetal alcohol head his examination he concluded Horsley appreciated sibly genetic predisposition. criminalily He concluded of his capacity conduct but lacked all these factors manifested to conform themselves disorder," probably "attention deficit conduct. Under he and in a cross-examination admitted learning Lyman that none of the disorder. described factors described above Dr. Hors- were as, ley's causally to mental state at related the murder. the time of crime pressure pressure, "under time and emotional [Horsley] impulsively, think act presents has tended to 17.Because ineffectiveness of a consequences, considering question without without at- ple- mixed of law and fact we exercise tending nary underlying to all the events around him." Dr. review. The factual of crime, Lyman that, at presumptively concluded the time of the the district court are correct un- Horsley clearly acted Singletary, substantial domination less erroneous. Bush v. Baldwin, Cir.1993). capacity Brian and that to F.2d using and requires Horsley’s counsel faced reasonable test “[s]imply put, the Strickland a) diligence to that it would have petitioner ... show: discovered mental a habeas for coun- unreasonable professionally experts was would have testified as health who b) of, what kind investigate; Lyman.18 Phillips sel not did Dr. That ex- Dr. much, ordinary, investigation an rea- testify favorably how perts found would were who e) undertaken; lawyer have would years sonable twenty later is almost irrelevant. a reasonably probable that rea- that it is simply in this not demon- record case investigation up turned would have sonable Horsley’s experts either of would strate that have testi- expert an who would County, have to Monroe Alabama to come which was eventual- mony similar to that 1977. The also does not testify in d) adduced; reasonably that ly it is experts testify show that other who would testimony have probable that this would favorably plaintiff have would eventually imposed. affected the sentence that available at time.19 The record fails to steps to meet of these defeats Failure kind and much demonstrate what how inves- claim. ineffectiveness lawyer tigation would a reasonable added). at 1447 n. Id. case. made in the circumstances this As Elledge, no comment on whether make So, prove prejudice failure experts reasonably discoverable similar were produce a certain investigate and failure to or a of funds would have whether source witness, petitioner expert kind habeas testimony possible., merely made their a reasonable likelihood must demonstrate hold too record reveals little attorney competent con ordinarily that an an occur- demonstrate likelihood such investigation would ducting a reasonable Accordingly, Horsley has failed to rence. to the one expert similar have found prejudiced by coun- demonstrate that he was Id., eventually produced. at 1446. investigate his alleged sels’ failure to mental petitioner probability, of such a absence producé a favorable condition and failure investigate. injured the failure to is not expert witness.20 Horsley -has To determine whether to all the circum met burden we look CONCLUSION and consider all evi stances of petition court’s denial of the is The district Strickland, 466 presented. dence See AFFIRMED. 695-97, 104 on a S.Ct. at 2069. Based review record, we conclude has HATCHETT, dissenting: Judge, Circuit reasonably it showing made no that if the trial court lawyer holds ordinary, probable that reasonable error in money committed Hitchcock given the constraints time of. showing “probably” from the would have been available said to make such a

18. We have however, petitioner present testimony despite important, could from: Hors- More state. (a) ley's argument contrary, relating the record to the amount members of the bar investigation any experts completely is reasonable in in such silent about whether difficulty and the ease or presented testimony situation such similar to that “would have time, (b) experts psychiatrists, at that Elledge, eventually adduced.” widely relating experts ... to how other Thus, Horsley’s claim must at 1447 n. 15. accepted proposed theory was at the time ... fail. attorney have had in the ease an would (c) getting experts, such other relevant 20.And, important, perhaps even if even more testimony that would tend to demonstrate provided expert these witnesses at had reasonably probable dili- that reasonable sentencing hearing, we nonetheless expert gence similar to the would uncover an still affirm the court. would eventually one located. reasonably probable that it not established n. Elledge, 823 F.2d at 1447 17. The record having sentencer ... heard "the showing in case. reveals no such aggra- that the balance would have concluded availability require- claims that did war- vating by. responses met of trial counsel at ment was Strickland, U.S. at death." rant But, hearings. the record and federal both state S.Ct. at testimony equivo- reflects that relevant example, experts cal. counsel stated that For death, penalty by to it was harmless.1 The and that the death as fixed jury hereby accept- majority also holds that should be and present to failing ineffective for ex- ed. was not pert at his procedure appear satisfy This does not not hearing because shown Hitchcock or the eases cited therein. 1977, testimony was at the such available However, evidentiary hearing is re- disagree I sentencing.

time of his with both quired can on this claim as the merits be holdings of these and dissent. further considered without evidence. procedurally Whether this claim is barred THE ERROR I. HITCHCOCK is a matter that be addressed in will Horsley proce-

The court held that district following Court’s final Order the evidentia- durally defaulted his Hitchcock claim. ry hearing. agree majority’s conclusion that the with (Citations omitted). In footnote the ma- This, holding. district court in this erred jority obliged we declares that are not however, my agreement is where with the clearly finding defer under the erro- majority ends. neous standard because the did majority “suggests” The the trial and, evidentiary hearing not hold an there- error, court did not commit a Hitchcock but fore, did not make of fact on this purpose deciding ap- states “for the reasoning comport issue. This does not peal, nonstatutory we will assume that miti- precedent. this circuit’s most recent gating evidence was not considered Spaziano Singletary, In sentencing judge.” — denied, Cir.1994), cert. Horsley’s sentencing not hold that court com- -, 130 L.Ed.2d 793 Nonetheless, plied I am with Hitchcock. recently stated: “While the issue of respond compelled “suggestion” whether Hitchcock legal error occurred is a that a not Hitchcock error was committed. one, entirely dependent upon it almost granting In its order hear- question to a answer fact: Did the sen

ing, district court found that the trial tencing judge consider and all nonstatu- committed Hitchcock error: tory mitigating circumstance evidence that Likewise, is apparent from the record Spaziano, to him?” In judge Horsley’s that the trial con- district court found no Hitchcock error be sidered himself bound the enumerated judge cause “the trial knew that he was statutory mitigating factors: consider, consider, actually bound did non-statutory mitigating

THE COURT: court now considers circumstance mitigating Spaziano, circumstances as evidence.” 36 F.3d at described in IS, 342(9) reviewing determination, § Title we held: Code Alabama, as amended: finding Because that is a of historical (a) only mitigat- finds the fact —what knew and what he ing age circumstance would be the did—we review the under the def- defendant at the time of the commission clearly erential erroneous crime, to-wit, nineteen. Court defined as follows: having ag- The court quoted considered the then passage [We from Anderson gravating N.C., mitigat- City circumstances and City, Bessemer 573-74, 1504, 1511, weighing circumstances and after (1985).] aggravating mitigating case, circum- stances, judgment it is the of the Court the district court not did hold evidentia- ry circumstances far but instead based its fact find- outweigh mitigating record, ings documentary evi- considering 1. Hitchcock v. cluded from relevant evi- cases, (1987) (in capital dence). pre- sentencer refuse consider or be procedurally claim default- dence, held that the from other facts. or inferences ed, specifically went on state that the However, has held that we Court findings made “factual clearly as defined district court erroneous Anderson, findings clearly under the applicable.to fact are entitled to be reviewed in records, Alderman, documents, 22 F.3d at solely erroneous standard.” from drawn Anderson, Essentially, court in facts. the district Al- from other inferences exactly at 1511. There- derman did what the district court at (both peti- fore, this found the applies full force here. did in case courts it barred, procedurally but tioner’s claim be (parallel citations F.3d at 1032 Spaziano, 36 merits), and we made factual on the omitted). case, “did the district court find- still determined that the district court’s evidentiary hearing, but instead hold an not subject clearly ings erroneous were record,” findings on the state its fact based standard. therefore, and, 36 F.3d Spaziano, ap of review clearly erroneous standard clearly the district court did not I believe majority’s Spaziano, plies. that the trial court committed a err wrong. simply 7 is reasoning footnote if stan- error. Even the correct Hitchcock majority also states because however, novo, dard of review were de court determined district trial court com- would still conclude barred, it procedurally claim was Hitchcock a because of the simi- mitted Hitchcock error never have reached merits could larity trial court’s statements between the majority Consequently, the reasons claim. judge’s statements comments were district court’s holding this is not the Hitchcock. Since clearly merely and the preliminary nature however, I majority, will not discuss this apply. not This standard does erroneous further. issue flawed. reasoning is also er- holds Hitchcock otherwise, majority suggests Although the was harmless. Even ror in courts, practice in is common for federal it harmless error in though addressed court, cluding this to hold that habeas brief, not mention it initial the state did defaulted and corpus procedurally claim response brief: it did not list once its of the claim. to also address the merits then issues; statement of the harmless error its See, Singletary, e.g., Roberts v. harmless error did not mention Cir.1994) (11th (“Although we n. 2 find summary argument; its it did not list default procedurally claim to be the Ritchie heading in point its error as harmless ed, persuades us our review of and it not mention harmless argument; did on the if we addressed the issue that even argument. its anywhere body in the error merits, to no re would be entitled Roberts of, however, panel, stepping out its tradi- This lief.”). however, the ma importantly, More role, raised the issue and asked tional again a dis jority’s reasoning once manifests supplemental briefing. parties provide prece most regard for circuit’s recent harmless error first mention of The state’s Zant, In Alderman v. dent. request. The response to this came as a — denied, U.S. -, Cir.), cert. argument. the harmless error state waived 130 L.Ed.2d Hitchcock, indicated corpus court considered habeas should be proce that the harmless error issue that the claim was claim and “found writ, The Su- sponte in this context. defaulted, or in raised sua durally an abuse of the “Respondent made preme Court stated: merit.” When re the alternative without decision, argue that this error although attempt viewing we stated In the of such absence procedurally be harmless.... found the claim “to we the exclusion of barred, briefly showing, cases hold that necessary to our feel it is at issue here mitigating evidence of sort the dis merits of the claim and discuss the Alderman, invalid.” Hitch- the death sentence findings.” renders court’s factual trict cock, at 1824. though the district court F.3d at 1553. Even 1498 majority following penalty the dictates of the cases. Footnote 3 of

Instead the Court, required this court is Supreme length complexi- opinion summarizes the do, majority cites a Circuit case the First ty post-trial proceedings the this case. proposi- Seventh Circuit case for the proceedings These have included several tion that the court can raise the harmless courts, through trip trips sponte sua in this error issue instance. Ob- Court, and, course, United States viously, controlling; cases are not these corpus Clearly petition. this federal habeas moreover, they they on point, are not do type sua is not the of record suited for a Nonetheless, not Hitchcock errors. address sponte considering review. When the third non-binding, inapplicable authority even this factor, a reversal of sentence will impropriety raising reveals the the harm- costly, protracted, not result in and ultimate- sponte error issue in this less sua instance. ly proceedings. contrary, futile To the deciding These cases declare that when simply Alabama trial court will have to re- sponte, to raise harmless sua whether error Horsley. third sentence the factor controlling length are “the considerations the majority’s weighs against sponte also sua record, complexity whether discussion. harmlessness of the error or errors found is analysis of The the second factor is a bit debatable, certain or and whether reversal complex. more Whether the harmlessness is protracted, costly, will result in and ultimate- necessarily ly proceedings depends certain or debatable futile in the district court.” Giovannetti, 225, upon United States v. 928 F.2d the standard harmless error utilized.3 (7th Cir.1991).2 majority standard, 227 chooses Chapman Under the the harmless- Indeed, analyze not to these factors. if it ness of the Hitchcock error in ease had, recognized it would have that none of majority is far Even from certain. states weigh invoking the factors in favor of harm- think that “we we could conclude” sponte in less error sua this instance. added) that error was harmless under standard, Chapman thereby conceding analyses of the first and third factors course, the issue is debatable.4 Of straightforward. quite are When consider- majority rejects implements factor, Chapman and ing the first we are faced with the Still, do the Brecht standard. I not believe complex penal- of a voluminous records death ty After a full-blown murder harmlessness trial court’s case. trial and capital sentencing hearing, this case has trav- Hitchcock error certain under Brecht. In- deed, typical applying standard, eled circuitous route of death the Brecht (reasoning Admittedly, reasoning largely have relied on the that "the Brecht rule based before, emphasizing Giovannetti that we ad notion that because the state courts can sponte only properly apply Chapman dress the error issue sua harmless harmless error stan review, patently “is where harmlessness obvious." dard on direct the federal habeas courts Adams, 1566, (11th only United States v. 1 F.3d 1576 need review those decisions under the Kot- denied, - denied, Cir.1993), -, standard"), cert. U.S. 114 S.Ct. teakos harmless cert. error 1310, U.S. -, 1631, (1994). 127 L.Ed.2d 660 S.Ct. 114 128 L.Ed.2d - (1994). 354 out, majority points theAs in Brecht v. Abra - hamson, -, 1710, question U.S. 113 S.Ct. 4.While 123 here is whether the (1993), replaced harmlessness of Hitchcock error was certain standard, debatable, the traditional harmless error as artic it should be noted that this circuit 18, Chapman California, frequently v. ulated in 386 U.S. 87 concluded that Hitchcock errors 824, (1967), Chapman 17 L.Ed.2d 705 with the less were not harmless standard. 633, (11th Dugger, onerous described in Kotteakos v. Unit See v. 634 Booker 922 F.2d States, 750, denied, 900, 1239, Cir.), 277, ed 66 S.Ct. L.Ed. 328 90 cert. 502 U.S. (1991); Dugger, for cases on collateral review. 116 L.Ed.2d v. Jackson 712, Cir.), (11th denied, disagree majority's apply with decision to F.2d 973, cert. 452, (1991); Brecht harmless error standard in this case. 116 L.Ed.2d 470 Circuit, (11th Eighth Chap Delap Dugger, Like I believe that the v. 890 F.2d 304-06 Cir.1989), denied, apply man harmless error standard should when rt. ce (1990); corpus Dugger, a federal habeas court is the first court to Jones v. (11th Cir.1989); analysis. Magill conduct a harmless error See F.2d 1279-80 Orndorff Lockhart, (8th Cir.1993) 1987). 893-95 Cir. language, ing, as it the district court committed error of use decisive “say recognize it failed to this re- greater law because hesitantly that it can states Instead, Final- quirement. harmless. the district court was that the error was reason” trial impression the erroneous that it was ly, even if the harmlessness presented under the Brecht were certain to consider the evidence at court’s error weigh clearly evidentiary factors hearing. the other two error the federal This conducting sponte a harmless against apparent comparing sua when the dis- becomes au- majority’s evidentiary granting even court’s error review. trict order sponte thority hearing that a sua harmless coun- indicates the ineffective assistance of in this instance. analysis denying was ill-advised claim its final order error sel with claim. sum, district court’s agree In I with the court commit-

finding the Alabama trial that order, recog- In its initial district court its should a error and ted Hitchcock “Horsley’s nized that counsel recalled that clearly erroneous to under a be deferred probably psychiatric experts would that I also conclude Hitchcock standard. available, had such re- assistance been majority’s sua specifically prohibits determination, support of quested.” In Additionally, holding. sponte harmless error quoted testimony that the district court non-binding, inapplicable au- majority’s Horsley’s at his gave trial counsel coram sponte thority that a harmless indicates sua proceeding: nobis in- analysis is in this inappropriate error Q: At time was Edward disagree Consequently, I stance. tried, psychiatrist available from the a deny majority’s relief decision indigent defendants in the State assist claim. his Hitchcock handling their cases? person or not this was a A: Whether II. ASSISTANCE INEFFECTIVE psychiatrist I psychologist or a don’t re- OF COUNSEL My that member. best recollection is correctly in El majority states that probably somebody there would have been Cir.1987), ledge Dugger, that time. available at denied, 1014, 108 S.Ct. rt. ce 1487, Conversely, evidentiary conducting an after explained L.Ed.2d 715 Horsley’s court denied the district be two-pronged Strickland test that claim, explaining: “Pe- ineffective assistance inquiry are four-pronged a when we comes presented that it was titioner no evidence faced with a claim ineffective assistance reasonably experts as probable that sueh expert failure to testimo counsel for evidentiary hearing at the those who testified that ny sentencing.5 at holds attorneys in to Petitioner’s were available satisfy prong failed to the third incor- Apparently, district court 1977.” petitioner to requires which inquiry, it rectly believed that was confined reasonably probable “it is that show that at hear- evidence investigation turned would have reasonable stated, previously when view- ing, for had presented testi up expert who would have whole, as a the evidence eventually mony similar to avail- “probably would have been experts Elledge, F.2d at 1447 n. adduced.” able.” deciding In whether has satisfied court, majority rec- we “must look to all the Unlike the district prong,

this third all of ognizes obliged are to consider all the that we of the ease and consider states, It howev- Elledge, the evidence in the record. presented.” Strickland, er, too little” evi- record reveals (citing 466 U.S. at “the 2068). satisfy third-prong of the El- holding dence disagree. In addition to ledge test. I at sentenc- trial counsel was ineffective Second, 668, 687, performance the de- was deficient.... Washington, 466 5. Strickland 2052, 2064, (1984) perfor- deficient must show that fendant defense.”). ("First, prejudiced the mance show that counsel's the defendant must sort, believe, something testimony quoted opin- Searcy in the district court’s ion, portions of the Your Honor. three other record indi- availability expert testimony

cate THE COURT: Would that be true for psychologist psychiatrist? as as well First, Well, immediately before trial THE WITNESS: mental experts probably psychologist health had a counsel testified were center there available, part-time. he testified as follows:

Q. your understanding What as to THE COURT: Monroeville? availability expert assistance from Yes, THE WITNESS: sir. Who the state? part-time anyway. worked there Expert regard? A. assistance in what whole, reviewing the evidence as a I Q. Well, all, example —first portions believe that these are in psychiatrist there Monroeville? enough satisfy availability prong sir, No, A. but that there one from Elledge emphasizes majority test. The that time to time has been made available in Elledge petitioner that a must stated Health, through Department I be- experts show that were available at time lieve. “who would have testimony similar that which was eventual- proceeding, Later on in the coram nobis ly Elledge, adduced.” 823 F.2d at 1447 n. 15. Horsley’s counsel testified: experts Horsley produced at the Q. you Did know of assistance that evidentiary however, present did not might be available from the State assist- discovered, “cutting edge,” newly or radical ing you analyze psy- case from the psychiatric respect, theories. chological psychiatric point of view? distinguishable Elledge, ease is from where upon Court,- A. I petition think gave expert probably he could have been examined if it unacceptable hearing was that, something that he was shown had like Elledge’s time of sentencing. Elledge, 823 I specifically. don’t recall I but don’t simply, F.2d at 1446-47. Put the evidence as know. experts whole shows that from Moreover, evidentiary hearing at the be- Alabama were available to court, Horsley’s fore the district counsel tes- experts and these could have testi- tified: concepts fied experts about basic that the THE At that back in COURT: time evidentiary hearing described before psychiatrist practicing 1977 was there a the district court. Monroeville? Finally, because I also believe No, sir, THE WITNESS: there wasn’t. prongs Elledge has satisfied the other practice At that I time believe the would test, respectfully majori- dissent from the showing been to have made before ty’s him deny decision to on his relief ineffec- psychi- the trial about the need for tive assistance of counsel claim.6 evaluation, atric then I suppose he could one order based that. I mean-the

practice changed.

THE COURT: Where would have been psychiatrist

the nearest back in 1977? Well,

THE WITNESS: it would have institution, Mt. state Vernon or states, afterthought, conclusion, majority arriving enough say 6. As an foot- at this isit satisfy note also failed to that we have often held a failure to prong Elledge: expert fourth ny "testimo- psychiatric testimony similar has affected See, eventually would have affected the sentence eventually imposed. e.g., sentence Middle imposed.” Elledge, F.2d at n. (11th Cir.1988). ton v. engage any analysis Since did not

Case Details

Case Name: Edward Horsley v. State of Alabama

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 1, 1995

Citation: 45 F.3d 1486

Docket Number: 92-6813

Court Abbreviation: 11th Cir.