GREGORY HUNT, Petitioner-Appellant, versus COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
No. 09-15310
D. C. Docket No. 06-01209-CV-LSC-PWG
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
January 5, 2012
[PUBLISH]
Appeal from the United States District Court for the Northern District
Before DUBINA, Chief Judge, and TJOFLAT and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
Gregory Hunt is a death-row inmate in the Alabama prison system as a result of his conviction for capital murder on June 19, 1990. Hunt seeks a writ of habeas corpus on the ground that he received ineffective assistance of counsel in violation of the
I.
A.
On March 27, 1989, a Walker County, Alabama, grand jury returned an indictment charging Hunt with three counts of capital murder: intentional murder during the sexual abuse of a victim incapable of consent, intentional murder during sexual abuse by forcible compulsion, and intentional murder during a burglary.1 In June
Hunt had been dating the victim, Karen Lane, for about one month before her death on Tuesday, August 2, 1988. At the time, Lane was living with Tina Gilliland, Hunt‘s cousin, in Gilliland‘s apartment at 105 Elliott Heights, Cordova, Alabama. Hunt was with Lane at the apartment in the afternoon on Monday, August 1, when Gilliland‘s ex-husband arrived with his fiancée, Shirley Romine, to pick up his and Gilliland‘s two children. Gilliland was taking a nap at the time.
According to Romine, after Lane left the room where they had gathered, Hunt voiced frustration with Lane. He said that “he was tired of everything and that he was moving back to Miami, Florida.” He also said, “She makes me so mad I could kill that [b]itch.”
When Gilliland awoke, at about 6 p.m., Hunt was gone.2 Shortly after 6 p.m., Gilliland and Lane left in Gilliland‘s beige 1986 Yugo. After stopping to buy cigarettes, they went to the residence of Gilliland‘s then-fiancé, Clinton Cook, in Parrish, Alabama.3 When they arrived, at about 7 p.m., they saw Hunt‘s van outside. Gilliland got out of the car and entered the residence; Lane left in the Yugo.
Once inside, Gilliland encountered Hunt. Hunt, having noticed Lane in the Yugo, asked Gilliland, “You mean Karen is with you and she didn‘t get out because I was here? Where was she going?” Gilliland replied that Lane had gone to her mother‘s home. Hunt left.
After leaving, Hunt drove to the home of James Mullinax and Hortencia Ovalle in Jasper, Alabama, arriving at about 8 or 8:30 p.m.4 While there, Hunt again discussed his frustration with Lane. Mullinax testified that Hunt “kept on saying he was going to have to do something about the problem.” Both Mullinax and Ovalle testified that as he left, Hunt said he was going to “fuck somebody up.”
Hunt then returned to Cordova.5 At about 9:40 p.m., he called Cook‘s residence to speak to Gilliland. Hunt‘s mother, Ruby Savage, lived in Cordova, at 407 Second Street, and Hunt made the call from there.6 According to Gilliland, Hunt asked where Lane was. Gilliland told him that Lane told her she was going to her mother‘s home. Hunt warned, “I know how you women are. You better tell me where she‘s at.” When Gilliland replied that she did not know where Karen was, Hunt again insisted, “You better tell me
Later that night, in Cordova, Lane‘s father, W.O. Sanders, discovered that a house Lane had previously occupied was on fire.7 Sanders, who lived about two hundred yards from that house, testified that he heard Hunt‘s van pass his house twice that night. It was after the second time the van passed that Sanders discovered the fire.
After calling Gilliland and driving by Sanders‘s house, Hunt left Cordova and returned to Jasper. When Debra Twilley left work at 11 p.m. and returned to her home in Jasper, Hunt was there, using her telephone. According to Twilley, it appeared that Hunt “had been drinking.” Hunt followed her into the kitchen, where he asked to borrow her car. “I‘ve got some stuff I need to do,” he explained. “It‘s not wise that I‘m seen in my van.”
After Twilley refused his request, the conversation turned to Lane. Hunt said that he and Lane had been having problems and that he was “tired of her crap.” And he admitted that he had burned her house. He had “poured gas on it,” he said, “and set it afire.” When Twilley asked why, he replied, “I‘m just tired of everything.” He asked Twilley to drive him to Cordova. He did not know whether the house had “burnt down all the way,” he said. But, he told Twilley, he hoped it had.
After that conversation, Hunt returned to Cordova. Amy Sheree Long testified that, at about midnight or 12:30 a.m. the next day, August 2, as she was standing in the parking lot at the First National Bank, she saw Hunt in his van, chasing Lane in a beige Yugo at a high speed.
Hunt then returned to his mother‘s home in Cordova and, at 12:55 a.m., again called Cook‘s residence.8 This time he spoke with Cook. According to Cook, Hunt said that “something had happened, materialistically, and that Karen‘s family and Karen [were] going to be upset with him . . . because of what he had done.” Hunt said he would have to move back to Florida. But, he said, “people didn‘t screw him over like this and get away with it.”
Around 1 a.m., Hunt called Lane‘s mother, Betty Jo Sanders.9 According to Sanders, Hunt asked her if Karen was there, and she answered no. Sanders told him that Karen‘s house had burned. “Well,” Hunt said, “Karen will really be hurt about that because she really loved that place. . . . It will really depress her.” Hunt also told Sanders that he had been looking for Karen. “[S]he is running stop signs and lights,” Hunt said, “and all I want to do is say ‘Hi’ to her but she will not stop.” Hunt also threatened violence against Gilliland. “You know, Tina [Gilliland] is scum,” he said. “I‘m going to
Later, shortly before 2 a.m., Mary Turner, who lived at 103 Elliott Heights, in an apartment separated from Gilliland‘s by one other apartment, heard a noise that sounded like glass breaking. Turner testified that when she looked to see what had caused the noise, she saw Hunt reach his hand into the window of Gilliland‘s apartment and then enter through the adjacent door. After Hunt entered, Turner heard “peculiar noises“—one that sounded “like somebody had hit real hard, hit the floor,” and another “like somebody sitting in a chair and just sliding it across the floor.” Then, at about 2 a.m., she heard the door slam and looked out her window to see Hunt leaving the apartment.
At 2:44 a.m., Cook received another telephone call from Hunt.10 Hunt was calling from Gilliland‘s apartment. Hunt told him that Karen was “lying [t]here in the kitchen floor” and asked Cook to “get somebody up [t]here to get her to the hospital.” Karen Lane‘s body was discovered in Gilliland‘s apartment later that morning.
Evidently, after calling Cook, Hunt returned to Jasper. Both Mullinax and Ovalle testified that they found Hunt‘s van outside their home at about 6 a.m. According to Mullinax, Hunt was in the van and, as Mullinax left for work, “raised up a little bit and went back down.”
Later that day, Hunt drove to Cullman, Alabama, to Jack and Jean Kilpatrick‘s house.11 From there, at about 7 or 8 p.m., Hunt called his brother-in-law, Russell Davenport, at his home in Cooper City, Florida. According to Davenport, Hunt said he had “been out partying” with a woman and had gotten into a fight with her. “I don‘t think I killed her,” Hunt said. “I‘m not sure how she was when I left her. I checked with the hospitals and newspapers and I can‘t find anything else out about her at all.”
Hunt was arrested later that month. In October, his sister, Loretta Martin, visited him in jail. Martin testified that they discussed Karen Lane‘s death. During their conversation, she asked Hunt, “You did kill her?” Hunt said, “Yes, I did.” Hunt explained that he and Lane had a fight on the night of her death. Hunt said he “hit her and lost his head and couldn‘t control himself.” Hunt told Martin that he had “[gone] out looking for [Lane]” and “chased her through Cordova.” When Martin asked him if he had been drinking, he said he had been “drinking and taking some medication that the doctor had prescribed for him.”
Later, in June 1990, while he was detained in jail pending trial, Hunt also confessed to his cellmate. The cellmate, James Carr Sanders, testified that Hunt said that he and Lane had fought because she was dating someone else. He had “knocked her down and choked her and kicked her.” He also inserted a broomstick into her vagina. After that, he saw that she was bleeding, became scared, and called the police.
Dr. Joseph Embry, the physician who autopsied Karen Lane‘s body, testified that Lane had sustained some sixty injuries. Among those were about twenty injuries to the head, including lacerations, external bruises, bruises to the brain, fractured cheekbones, and nasal bones broken
Larry Huys, a serologist employed by the Alabama Department of Forensic Sciences, analyzed swabs from Lane‘s vagina, mouth, and anus. According to Huys, the oral swabs revealed that Lane‘s mouth contained semen. Huys said that the quantity and condition of the sperm found in Lane‘s mouth suggested that the semen was deposited “very close . . . to the time of death“—no more than an hour before—“if not postmortem.”
Huys also examined a broomstick found between Lane‘s legs at the scene of the killing. He testified that on that broomstick he found epithelial cells indicating the presence of mucus secretions. Those mucus secretions, he said, could have come from Lane‘s vagina.
A fingerprint analyst, John Vaughn, testified that a bloody palm print found at the scene of the crime had been successfully matched to Hunt. Vaughn also testified that prints found on the screen from the kitchen window of Gilliland‘s apartment were matched to Hunt‘s right palm, right index finger, and left ring finger.
B.
The strategy Hunt‘s attorneys pursued in confronting the State‘s case was to create a reasonable doubt about Hunt‘s guilt through cross-examination of the State‘s witnesses, as well as through their own evidence presented after the State rested. To that end, they brought out through John Vaughn on cross-examination that some fingerprints found at the scene of the crime could not be matched to Hunt or Lane, and that no fingerprints were found on the stool and broomstick found near Lane‘s body. They also established through Vaughn that no scratches or bruises—in other words, no signs of a struggle—were found on Hunt‘s body during a post-arrest examination.
In addition to eliciting this forensic information, the attorneys attacked the credibility of Loretta Martin‘s and James Carr Sanders‘s statements that Hunt had confessed to Lane‘s murder. Martin, after claiming on direct examination that Hunt confessed to her in jail in October 1988, admitted on cross-examination that she did not mention the confession in her initial statement to the prosecutors, and that she waited for over a year after Hunt confessed to inform the district attorney‘s office about it. As for Sanders, counsel tried, albeit unsuccessfully, to get him to admit that he hoped his testimony to Hunt‘s confession would earn him leniency in the final disposition of his pending theft charge and motion to revoke his probation.
After the State rested, Hunt‘s attorneys presented three witnesses of their own to cast further doubt on whether Hunt was Lane‘s assailant. They called John Tirey, one of the law enforcement officers who had investigated Lane‘s death. Tirey testified that, in order to obtain a warrant to search Hunt‘s van, he had signed an affidavit stating that Lane had died at about 12 a.m. on August 2. As Hunt‘s attorneys pointed out in their closing argument, the State‘s evidence showed that Hunt had been at Debra Twilley‘s home in Jasper at that time. Tirey also testified that investigators had never identified the owners of bloody clothing—a pair of boys’ underwear, a pair of panties, and pieces of a bra—found at the scene of Lane‘s murder.
Hunt‘s counsel also called Ruby Savage, Hunt‘s mother, to impeach Loretta Martin‘s testimony that Hunt had confessed to the murder. Savage testified that Martin had always harbored animosity toward Hunt, thereby calling into question Martin‘s motive for testifying.
In addition to attempting to create a reasonable doubt about whether Hunt was Lane‘s assailant, counsel questioned—through cross-examination of prosecution witnesses and in their argument to the jury at the close of the guilt phase of the trial—whether the evidence proved that Lane had been sexually abused.12 To counter the State‘s allegations of sexual abuse, they elicited testimony from Dr. Embry that his autopsy revealed no damage to Lane‘s vagina. Counsel also elicited testimony from Larry Huys that the mucus secretions found on the broomstick could have come from the mouth or nose. Using this testimony for support, counsel argued to the jury that the broomstick had not been inserted into Lane‘s vagina. Counsel also contended in their closing argument that the mere presence of semen did not, by itself, prove that the victim had been sexually abused.
Counsel‘s defense strategy proved unsuccessful. The jury returned verdicts of guilty on all three counts of capital murder and, later the same day, at the close of the penalty phase of the trial, recommended the imposition of a death sentence. On July 27, 1990, the circuit court imposed that sentence.13 On direct appeal, Hunt‘s convictions and death sentence were affirmed by the Alabama Court of Criminal Appeals, Hunt v. State, 659 So. 2d 933, 960 (Ala. Crim. App. 1994), and the Alabama Supreme Court, Ex parte Hunt, 659 So. 2d 960, 961 (Ala. 1995), and the U.S. Supreme Court declined certiorari review, Hunt v. Alabama, 516 U.S. 880, 880, 116 S. Ct. 215, 215, 113 L. Ed. 2d 146 (1995).
C.
On February 18, 1997, after his direct appeals had failed, Hunt, proceeding pro se, petitioned the Walker County Circuit Court for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.14 His petition alleged, among other things, that he had been denied the
2002, Hunt, with the assistance of counsel, filed an Amended and Restated Petition for Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure (the “Amended Petition” or “Amended Rule 32 Petition“).
The Amended Petition realleged that Hunt had been denied the effective assistance of counsel in preparing for and at his trial, as well as on direct appeal. The Amended Petition supported these allegations with numerous citations of attorney error. We address only the errors—the instances of ineffective assistance—at issue in this appeal.16
One of the errors was trial counsel‘s alleged failure to conduct a competent cross-examination of James Sanders. Rule 32 counsel contended that trial counsel
The circuit court set December 17, 2001, as the date for the evidentiary hearing on the Amended Rule 32 Petition. To assess Rule 32 counsel‘s progress in obtaining the evidence counsel would need to present at the hearing, the court held a conference on November 9, 2001. At that conference, it became apparent that counsel would not be prepared to go forward with the evidentiary hearing scheduled for December 17; the court therefore postponed the hearing to a date to be set later. On December 17, instead of an evidentiary hearing, the court held another conference. At the conclusion of the December 17 conference, the court, concluding that Rule 32 counsel would need at least three more months of preparation, scheduled the evidentiary hearing for April 8, 2002. The court subsequently extended that date to July 22, 2002. The seven months’ extension—from December 17, 2001, to July 22, 2002—gave Rule 32 counsel ample opportunity to obtain and present the evidence needed to support Hunt‘s claims.
At the July 22 hearing, however, Rule 32 counsel was unable to present even one witness to testify in support of Hunt‘s ineffective-assistance allegations. Both of Hunt‘s trial attorneys were deceased, and Hunt did not testify. Rule 32 counsel had hoped to introduce the testimony of four witnesses who, he claimed, would have testified that trial counsel never contacted them and that, had they been asked, they would have testified favorably at the penalty phase. But none of those witnesses came to the hearing. Counsel did offer hearsay testimony, through his associate, to statements that two of those witnesses would have made had they appeared.17 That offer was rebuffed on the ground that the statements were hearsay and thus inadmissible in Rule 32 proceedings.18 Counsel then offered the affidavits of two other witnesses,19 but the court excluded those as well.20 At the end of the day,
Specifically, counsel was unable to establish what Hunt and his trial attorneys might have said to one another prior to and at trial; what the attorneys had or had not done in preparing for trial;21 why they had pursued the trial strategies disclosed by the trial transcript; why they had cross-examined Sanders as they did; and why, at the close of the guilt phase, they had not requested jury instructions on lesser included offenses and the defense of intoxication.22 As for trial counsel‘s allegedly ineffective cross-examination of Sanders, Rule 32 counsel did present documentary evidence of Sanders‘s criminal history,23 and that Sanders was placed back on probation on July 5, 1990, less than a month after Hunt‘s trial. Counsel did not show, however, that Sanders had been offered anything in exchange for his testimony.24
As it turned out, Rule 32 counsel was able to do little more than refer to the allegations contained in the Amended Petition and argue that the court should, on the basis of his arguments, accept the allegations as proven and thereby grant relief. The State objected to counsel‘s arguments, contending that they did not constitute evidence, but the court permitted counsel to proceed.25 In short, the
court indulged counsel’s summarization of the Amended Petition. Counsel’s argumentative presentation was, however, to no avail. The court had been given no evidentiary basis for evaluating trial counsel’s preparation, investigation, or strategic decision making or for setting aside Hunt’s convictions or death sentence.
On December 17, 2002, the circuit court entered an order rejecting all of Hunt’s
Hunt appealed the circuit court’s decision to the Alabama Court of Criminal Appeals. That court affirmed. Hunt v. State, 940 So. 2d 1041, 1072 (Ala. Crim. App. 2005). The court upheld the circuit court’s rejection of two of the claims before us: Hunt’s claims that trial counsel was ineffective in cross-examining Sanders, id. at 1064–65, and in not requesting an intoxication instruction, id. at 1066–67. Such an instruction, the court said, “would have been inconsistent with counsel’s defense strategy.” Id. at 1067.
The court also addressed and rejected an argument Rule 32 counsel had made to the circuit court while summarizing the Amended Petition’s allegations of trial attorney error: that even if no individual error was sufficient to establish a claim of ineffective assistance, the errors, if considered cumulatively, demonstrated that the legal representation Hunt received was constitutionally ineffective. Id. at 1071–72. The court rejected this argument, quoting at length from Brooks v. State, 929 So. 2d 491 (Ala. Crim. App. 2005), a case in which the court had rejected the principle that the cumulative effect of multiple errors can establish ineffective assistance of counsel. Hunt, 940 So. 2d at 1071–72 (quoting Brooks, 929 So. 2d at 514). The lengthy quote from Brooks ended with an alternative holding: “‘If we were to evaluate the cumulative effect of the ineffective assistance of counsel claims, we would find that Brooks’s substantial rights were not injuriously affected.’” Id. at 1072 (quoting Brooks, 929 So. 2d at 514). The court concluded its discussion of Hunt’s cumulative-effect argument with a similar remark: “We, likewise, cannot say that Hunt’s substantial rights were not injuriously affected.” Id.
D.
After his petition to the Alabama Supreme Court for the writ of certiorari was denied, Ex parte Hunt, No. 1050302 (Ala. Apr. 21, 2006), Hunt petitioned the U.S. District Court for the Northern District of Alabama for a writ of habeas corpus. See
Whether the Alabama State courts placed on Mr. Hunt the burden of presenting extrinsic evidence of prejudice for his claims of ineffective assistance of counsel contrary to Strickland v. Washington, 466 U.S. 668[, 104 S. Ct. 2052, 80 L. Ed. 2d 674] (1984).
Whether the cumulative error doctrine applies to claims of ineffective assistance of counsel, and, in this case, warranted reversal.
Whether trial counsel’s assistance was ineffective based on trial counsel’s cross examination of, and failure to object to the direct examination of[,] the prosecution’s witness James Carr Sanders.
Whether trial counsel’s assistance was ineffective based on trial counsel’s failure to request guilt-phase instructions on intoxication, manslaughter, and felony-murder, individually and cumulatively.
II.
A.
Our review of Hunt’s ineffective-assistance claims is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA, a federal court may not grant habeas relief on a claim previously adjudicated in state court unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
As the Supreme Court has explained, the statutory phrase “clearly established Federal law” refers only to “the holdings, as opposed to the dicta, of [the U.S. Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). A state court decision is “contrary to” such law “if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 412–13, 120 S. Ct. at 1523. The “unreasonable application” clause of
B.
We evaluate claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To succeed on an ineffective-assistance claim, the petitioner must show (1) that counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064.
The performance prong is satisfied only if the petitioner “show[s] that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. Because “[t]here are countless ways to provide effective assistance in any given case,” id. at 689, 104 S. Ct. at 2065, “the range of what might be a reasonable approach at trial must be broad,” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus, “a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Id. at 1315.
The prejudice prong requires the petitioner to establish a “reasonable probability” that, but for counsel’s errors, the outcome at trial would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Both Strickland and AEDPA prescribe “highly deferential” review. Richter, — U.S. at —, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S. Ct. 2059, 2066 n.7, 138 L. Ed. 2d 481 (1997)) (internal quotation marks omitted). Where, as here, both apply, our “review is ‘doubly’ so.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, —, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009)); cf. Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011) (en banc) (observing that, because of the presumption under
III.
We begin by addressing the claim that the Alabama courts improperly required Hunt to prove prejudice using extrinsic evidence. We then turn to the specific ineffective-assistance claims at issue: trial counsel’s cross-examination of James Carr Sanders and failure to request jury instructions on manslaughter, felony murder, and intoxication. Finally, we address the claim that even if no single error establishes ineffective assistance, the cumulative effect of counsel’s purported errors entitles Hunt to habeas relief.28
Hunt argues first that, in rejecting his ineffective-assistance claims, the Alabama courts improperly required him to prove prejudice using extrinsic evidence. In other words, he was precluded from relying solely on the records of the trial and the direct appeal from his conviction; rather, he had to present evidence—testimony or documents—beyond those records. This requirement, according to Hunt, contravenes Supreme Court precedent under which the Strickland prejudice analysis depends on “the totality of the evidence—‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s].’” Wiggins v. Smith, 539 U.S. 510, 536, 123 S. Ct. 2527, 2543, 156 L. Ed. 2d 471 (2003) (alteration in original) (emphasis omitted) (quoting Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct. 1495, 1515, 146 L. Ed. 2d 389 (2000)).
To support his interpretation of the Alabama courts’ decisions, Hunt points to language in the circuit court’s order rejecting several of his claims on the ground that he “presented no evidence at his evidentiary hearing that would establish [prejudice].” Final Order at 45–47, 50, 57–60, Hunt v. State, No. CC-89-76.60 (Ala. Walker Cnty. Cir. Ct. Dec. 17, 2002). “Prejudice,” the circuit court reasoned, “cannot merely be alleged; it must be affirmatively proved.” Id. (quoting Williams v. State, 783 So. 2d 108, 119 (Ala. Crim. App. 2000)) (internal quotation marks omitted). The court of criminal appeals, as Hunt points out, affirmed the circuit court’s rejection of several claims on that ground:
The circuit court’s finding that Hunt failed to meet his burden of proof in regard to th[ese] claim[s] is supported by the record. At the Rule 32 evidentiary hearing, Hunt presented little evidence in support of his numerous claims of ineffective assistance of counsel. No witnesses testified at the Rule 32 hearing, and little demonstrative evidence was introduced. At the evidentiary hearing counsel read portions of his amended Rule 32 petition to the circuit court. Hunt made no attempt to satisfy his burden of proof under Rule 32.3, or to satisfy the requirements set out by the United States Supreme Court in Strickland.
Hunt v. State, 940 So. 2d 1041, 1055–56 (Ala. Crim. App. 2005) (footnote omitted) (citation omitted).29
We are not persuaded that the Alabama courts required Hunt to prove prejudice through extrinsic evidence. Some language those courts employed could perhaps be read to support Hunt’s argument. But nothing in their orders or opinions explicitly required extrinsic evidence. Instead, it appears that the courts simply required Hunt to present evidence of prejudice—extrinsic or not—and reasonably concluded that he had failed to do so.
That the Alabama courts did not demand extrinsic evidence becomes clearer when one considers how Hunt supported, or failed to support, the specific claims at issue. One, for instance, was Hunt’s claim that his trial attorneys were ineffective in failing to object to comments by the prosecutors that, according to Hunt, were intended to incite improperly the passions of the jury. Hunt’s Amended Rule 32 Petition simply listed these comments. Neither in his evidentiary hearing nor in any other filing in the circuit court did Hunt present anything further—extrinsic or otherwise—to support the assertion that
Hunt therefore cannot claim that he painstakingly assembled evidence of prejudice from the trial record only to be rebuffed because he lacked extrinsic evidence. Instead, he flatly asserted the existence of prejudice and was met with the admonition that “[p]rejudice cannot merely be alleged; it must be affirmatively proved.” Final Order at 45–47, 50, 57–60, Hunt, No. CC-89-76.60 (quoting Williams, 783 So. 2d at 119) (internal quotation marks omitted). Against this background, the Alabama Court of Criminal Appeals’ conclusion that Hunt “made no attempt to satisfy his burden of proof,” Hunt, 940 So. 2d at 1055, cannot be read as a demand for extrinsic evidence. Having found that the Alabama courts did not improperly require extrinsic evidence of prejudice, we turn to the specific ineffective-assistance claims at issue in this appeal.
B.
Hunt claims that his trial attorneys rendered ineffective assistance by inadequately cross-examining James Carr Sanders.30 In rejecting this claim, Hunt argues, the Alabama Court of Criminal Appeals unreasonably determined the facts and unreasonably applied clearly established federal law. Hunt argues, in essence, that his attorneys should have done more on cross-examination to show that Sanders was biased because he hoped to receive leniency on a pending theft charge in exchange for his testimony. Hunt also asserts that his attorneys should have used Sanders’s criminal record to further impeach his credibility.
Hunt has not convincingly explained how his attorneys’ cross-examination of Sanders could have accomplished much more than it did. Counsel tried repeatedly to elicit an admission that Sanders expected some benefit in exchange for testifying against Hunt—persistently enough to suggest this motivation to the jury even if Sanders denied it. In an apparent effort to show how much Sanders stood to gain, counsel elicited an admission that Sanders faced more than two years’ imprisonment if his probation was revoked because of the theft charge. Counsel also asked Sanders whether he knew he could face a significant prison sentence on the theft charge itself under Alabama’s habitual offender law. Counsel emphasized, moreover, that Sanders had first reported Hunt’s confession to his lawyer, not to any law enforcement official, suggesting that he sought to further his own interests.
Not all of counsel’s efforts were successful. Sanders insisted that he did not expect to gain anything by testifying. But the record does not reveal any means by which counsel might have pursued this line of cross-examination more fruitfully. Cf. Johnson v. Alabama, 256 F.3d 1156, 1186 (11th Cir. 2001) (“Absent a showing that real impeachment evidence was available and could have been, but was not, pursued at trial, [the petitioner] cannot establish that the cross conducted by his attorneys fell outside the range of professionally competent assistance.“). Sanders testified on direct examination that he had not reached any agreement with the State guaranteeing him a benefit in exchange for
Hunt argues that his trial attorneys failed to respond adequately to misstatements by the prosecutor that left the impression that Sanders was certain to serve at least fifteen years regardless of his testimony. The prosecutor began his redirect examination by stating, “You are going to the penitentiary for a minimum of fifteen years under the habitual offender law.” The prosecutor later repeated, “You’re going to the [penitentiary] for a minimum of fifteen years.” Although Hunt’s counsel apparently objected to these statements,31 counsel did not request any curative instruction from the trial court.32 Hunt argues that his counsel should have elicited testimony that the sentence, if any, that Sanders faced on the pending charge was not yet determined, and that he therefore had a motive to earn the State’s favor.
This argument slights the steps counsel did take to correct any misimpression left by the prosecutor’s statements. Counsel had already elicited an admission that Sanders had not yet been to court regarding the charge for which he was in jail.33 And after the first of the two statements that Hunt claims misled the jury, counsel asked, “[Y]ou don’t really know what is going to happen to you; do you?” Sanders admitted he did not. Thus, counsel did, in fact, elicit testimony indicating that Sanders was unsure what would happen to him and that, consequently, he had reason to prove himself useful to the State.
Hunt also argues that his counsel did not adequately question Sanders about his criminal record. But Sanders had already testified in response to the State’s questions that he had been convicted of receiving stolen property and robbery, and that he was in jail on a pending theft charge. Perhaps counsel could have lingered over Sanders’s record and further explored the facts underlying his convictions and pending charge. The attorney chose, instead, to impeach Sanders’s testimony by exploring his motives. As the Supreme Court has recently explained, “There is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’” Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 790, 178 L. Ed. 2d 624 (2011) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5, 157 L. Ed. 2d 1 (2003) (per curiam)). Hunt introduced no evidence in his Rule 32 proceedings to overcome this presumption. And given that the jury was already generally aware of Sanders’s criminal record, we cannot say that “no competent counsel” would have made the same choice Hunt’s counsel did. Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Thus, Hunt has failed to show that
Nor has Hunt shown that he was prejudiced by counsel’s cross-examination. We agree with Hunt that Sanders’s testimony was important to the State’s case. Because the physician who autopsied Lane’s body testified that there was no evidence of damage to the vaginal or anal area, Sanders’s testimony provided critical support for the State’s theory that Hunt had sexually abused her with a broomstick.
Hunt has not shown, however, that a cross-examination of Sanders, conducted differently, would have been reasonably likely to produce a different result. As we noted above, Hunt produced no evidence at his Rule 32 proceeding of an agreement between Sanders and the State. Nor did he produce evidence that, had counsel further probed Sanders’s criminal history, he would have revealed anything significantly more damaging to Sanders’s credibility than the information already known to the jury. Ultimately, Hunt presented nothing to the Alabama courts that would have justified a finding of prejudice.
We therefore cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied federal law or unreasonably determined the facts when it rejected Hunt’s claim that his counsel’s cross-examination of Sanders amounted to ineffective assistance. Accordingly, the district court properly denied relief on this claim.
C.
Hunt claims that his trial attorneys were ineffective when they failed to request jury instructions on intoxication and on lesser included offenses, and that, in rejecting these claims, the Alabama Court of Criminal Appeals unreasonably applied Strickland and unreasonably determined the facts. We first address the instructions on intoxication and the lesser included offense of manslaughter. We then turn to the instruction on the lesser included offense of felony murder.
1.
A capital murder conviction requires proof of a specific intent to kill. See
In support of this argument, Hunt cites Fletcher v. State, 621 So. 2d 1010 (Ala. Crim. App. 1993). In Fletcher, witnesses in a murder trial testified that the defendant had been using crack cocaine on the night of the crime. Id. at 1020. The Alabama Court of Criminal Appeals held that, given that evidence, the trial court’s failure to give an intoxication instruction was plain error. Id. at 1022. The court explained that an intoxication instruction “should be given if ‘there is an evidentiary foundation in the record sufficient for the jury to entertain a reasonable doubt’ on the element of intent.” Id. at 1019 (quoting Coon v. State, 494 So. 2d 184, 187 (Ala. Crim. App. 1986)) (internal quotation marks omitted). The court also noted that “‘[a] defendant is entitled to a charge on a lesser included offense if there is any reasonable theory from the evidence that would support the
As Hunt points out, a number of witnesses at his trial mentioned his intoxication on the night of Lane’s death. Loretta Martin testified that Hunt told her he had been “drinking and taking some medication that the doctor had prescribed for him,” and that she had given a statement to an investigator that Hunt “was on some drugs and pills that he had gotten from the doctor . . . and . . . was drinking.” Debra Twilley testified that a short time before Lane’s death, Hunt appeared to have been drinking. James Carr Sanders testified that Hunt admitted he had been using cocaine on the night of the murder, and that Hunt had “[gone] into a rage because he was messed up on dope.” Ruby Savage testified that Hunt appeared to have been drinking and told her he was on pills.
We are, however, unpersuaded. Hunt asks us, in effect, to second-guess his trial attorneys’ defense strategy. Their strategy was to argue that Hunt did not kill Karen Lane and that whoever did kill her did not sexually abuse her. Hunt’s counsel could have, in addition, pursued an intoxication defense. But as we have explained before, “[c]ounsel is not required to present every nonfrivolous defense.” Chandler, 218 F.3d at 1319. On the contrary, “[t]here is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’” Richter, — U.S. at —, 131 S. Ct. at 790 (quoting Gentry, 540 U.S. at 8, 124 S. Ct. at 5). Thus, “counsel’s reliance on particular lines of defense to the exclusion of others . . . is not ineffective unless the petitioner can prove the chosen course, in itself, was unreasonable.” Chandler, 218 F.3d at 1318.
Counsel’s strategy in this case was not unreasonable. The evidence presented at trial made defending Hunt a difficult task. But it also offered enough support for counsel’s line of defense—that Hunt was innocent and that Lane, in any event, was not sexually abused—that we cannot say no competent counsel would have chosen it. As one law enforcement officer, John Vaughn, admitted, and as counsel emphasized, Hunt had no scratches or bruises on his body when he was arrested shortly after the murder, suggesting he had not been engaged in any struggle. Counsel also elicited testimony from Vaughn that some of the fingerprints found at the scene of the murder could not be matched to Hunt or Lane, and that no fingerprints were found on the stool and broomstick found near Lane’s body. Counsel also elicited testimony from Steven Drexler, a state trace-evidence analyst, that the hair found on Lane’s body, though consistent with Lane’s hair, could not have been Hunt’s hair.
To defend against the sexual abuse allegation, counsel elicited testimony from Dr. Embry that his autopsy revealed no evidence of damage to Lane’s vaginal or anal area—and that roughly inserting a broomstick could damage the vagina. Counsel also tried to persuade the jury that the mucus found on the broomstick did not prove it had been inserted into Lane’s vagina, eliciting testimony from state forensic analyst Larry Huys that the mucus could also have come from the mouth or nose. Counsel also contended in their closing argument that the mere presence of semen—without further evidence of how it was deposited—did not with
certainty establish sexual abuse.34
Counsel‘s failure to request an intoxication instruction is further justified by the implausibility, on this record, of an intoxication defense. See Dill, 488 F.3d at 1357–60 (holding that counsel was not deficient in failing to pursue an alternative line of defense in part because that defense would have been “unavailing“). Under Alabama law, voluntary intoxication can negate specific intent only if it “amount[s] to ‘insanity.‘” Crosslin v. State, 446 So. 2d 675, 681–82 (Ala. Crim. App. 1983) (quoting Maddox v. State, 17 So. 2d 283, 285 (Ala. Ct. App. 1944)). The defendant‘s intoxication must “render impossible” the requisite mental state. Id. at 682 (emphasis added) (citing Gautney v. State, 222 So. 2d 175 (Ala. 1969); Walker v. State, 9 So. 87 (Ala. 1891)). It must be so extreme, in other words, that it renders the defendant “incapable of consciousness that he is committing a crime; incapable of discriminating between right and wrong.” Green v. State, 342 So. 2d 419, 421 (Ala. Crim. App. 1977).
A few vague references to alcohol, unspecified pills, and cocaine do not support the conclusion that Hunt‘s intoxication reached such an extraordinary level.36 Nor does testimony that Hunt later said he had “lost his head” on the night of
Even if the mere mention of drugs and alcohol were enough to suggest that Hunt was too intoxicated to form the intent to kill, the evidence of Hunt‘s conduct on the night of Lane‘s death belies any such suggestion. Hunt‘s conduct suggests a perfectly adequate understanding of his actions—even premeditation. Cf. White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992) (holding that counsel‘s decision not to present an intoxication defense “because it was inconsistent with the deliberateness of [the defendant‘s] actions during the [crime]” was reasonable).
One striking example is Hunt‘s request, some time between 11 p.m. and 12:15 a.m.,38 to borrow Debra Twilley‘s car. Twilley testified that when she asked why he needed it, Hunt replied, “I‘ve got some stuff I need to do. . . . It‘s not wise that I‘m seen my van.” One struggles to imagine such caution from anyone whom intoxication has rendered “incapable of consciousness that he is committing a crime.” Green, 342 So. 2d at 421.
In addition to this remarkably lucid exchange, Hunt had a number of coherent conversations about his anger toward Lane on the night of her death. He even suggested more than once that he might resort to violence. When Hunt visited James Mullinax and Hortencia Ovalle at their home in Jasper around 8 or 8:30 p.m., he “kept on saying he was going to have to do something about the problem.” Hunt also said, more ominously, that he planned to “fuck somebody up.” Between 9:30 and 10 p.m., Hunt called Gilliland, demanding that she tell him where Lane was. Failure to do so, he warned, would be “detrimental to [Gilliland].” He also told Gilliland “he was ready to go back to prison if that [was] what it took.” Hence, Hunt was not too intoxicated to articulate his frustration with Lane, or to voice an inclination to act on that frustration violently.
Some evidence suggested, moreover, that Hunt did act on that frustration that night: according to the testimony of Debra Twilley and W.O. Sanders, Hunt set fire to Lane‘s house. The evidence further suggests that when Hunt burned the house, he understood what he did and acted intentionally. Hunt told Twilley that by burning the house, he had “[taken] away the only thing that [Karen] had.” He also told Twilley he had burned the house by “pour[ing] gas on it and set[ting] it afire.” That Hunt evidently could—and did—form the intent to burn the house makes it difficult to believe he was too mentally incapacitated to form the intent to kill.
The evidence also showed that Hunt spent much of the night in pursuit of Lane, driving from town to town in Walker County. That he did so further undermines any claim that he was too impaired to form the intent to kill. At 6 p.m. the evening before the murder, Hunt was at Tina Gilliland‘s apartment in Cordova. An hour or so later, he was at Clinton Cook‘s residence in Parrish, a seven-mile, twenty- to thirty-minute drive from Cordova, when Gilliland arrived with Lane. Shortly after leaving Cook‘s place, he drove to Jasper, roughly eight miles from Parrish, arriving
On the evidence presented at trial, therefore, the suggestion that Hunt was too intoxicated to form the intent to kill would have been incredible. Perhaps, despite the weakness of the evidence of intoxication, Hunt would have been entitled upon request to an instruction on the intoxication defense. As Hunt points out, the Alabama Court of Criminal Appeals stated in Fletcher that “where there is evidence of intoxication, the extent to which the accused is intoxicated is a question to be decided by the jury.” 621 So. 2d at 1021. Even on that generous assumption, though, there is no realistic possibility that, had an instruction been given, the jury might actually have concluded that Hunt‘s intoxication amounted to insanity and acquitted him of capital murder on that basis. Hunt‘s attorneys were not required to supplement their defense with an inconsistent and utterly implausible alternative theory. See Dill, 488 F.3d at 1357. Thus, we cannot say that no “fairminded jurist[],” Richter, — U.S. at —, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted), could agree with the Alabama Court of Criminal Appeals’ holding that counsel‘s performance in failing to request an intoxication instruction was not deficient, Hunt, 940 So. 2d at 1067.
Even if counsel‘s performance in failing to request an intoxication instruction were deficient, Hunt has not shown that he was prejudiced by that failure. For the reasons explained above, there is no reasonable probability that requesting an instruction on intoxication and manslaughter would have changed the outcome of Hunt‘s trial. Cf. Hall v. Head, 310 F.3d 683, 695–97 (11th Cir. 2002) (holding that counsel‘s failure to obtain an instruction on the lesser included offense of voluntary manslaughter did not prejudice the defendant because there was no reasonable probability that the jury would have convicted him of voluntary manslaughter rather than capital murder). Accordingly, the district court properly denied habeas relief on this claim.
2.
Hunt claims that his attorneys rendered ineffective assistance when they failed to request a jury instruction on the lesser included offense of felony murder. But because Hunt did not challenge the circuit court‘s denial of this claim in appealing the court‘s Rule 32 decision, it is procedurally defaulted. We thus reject it without addressing its merits.
A federal court generally may not grant habeas relief to a state prisoner unless that prisoner “has exhausted the remedies available in the courts of the State.”
In sum, Hunt was required to appeal the circuit court‘s Rule 32 denial of his counsel‘s failure to request a felony-murder instruction to both the court of criminal appeals and the supreme court. But neither the briefs he submitted to the court of criminal appeals nor his subsequent certiorari petition asserted that his counsel was ineffective in failing to request a felony-murder instruction. That claim is therefore unexhausted. And when, because of a state procedural bar, further efforts to exhaust state remedies would be futile, the unexhausted claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (per curiam); Collier, 910 F.2d at 773. In this case, Alabama‘s bar against successive Rule 32 petitions would make exhaustion unavailable. See
Hunt‘s argument to the contrary is unavailing. Hunt could hardly dispute that he failed to argue to the court of criminal appeals and the supreme court that his trial attorneys should have requested a felony-murder instruction. Instead, he insists that he exhausted the claim by making a general argument that, in deciding numerous claims—one of which happened to be the felony-murder-instruction claim, though Hunt did not alert the Alabama appellate courts to that fact—the circuit court misconstrued the Strickland standard.
That argument, however, was not enough to “fairly present” the claim for resolution by the state appellate courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (alteration omitted) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)) (internal quotation marks omitted). It therefore was not enough to exhaust the claim. To satisfy the exhaustion requirement, “petitioners [must] present their claims to the state courts such that the reasonable reader would understand each claim‘s particular legal basis and specific factual foundation.” Kelley v. Sec‘y for the Dep‘t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004) (citing Picard, 404 U.S. at 277). In other words, “[t]he ground relied upon must be presented face-up and squarely; the federal question must be plainly defined.” Id. at 1345 (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)) (internal quotation marks omitted).
Hunt‘s felony-murder-instruction claim was not “presented face-up and squarely” to the Alabama appellate courts. Id. (quoting Martens, 836 F.2d at 717) (internal quotation marks omitted). Because his briefs and his certiorari petition never even asserted that his attorneys were ineffective in failing to request a felony-murder instruction, the reasonable reader could hardly have been expected to ascertain that claim‘s “specific factual foundation.” Id. (citing Picard, 404 U.S. at 277). Hunt alerted the appellate courts to only one facet of the felony-murder-instruction ineffective-assistance issue: whether the circuit court, and then the court of criminal appeals, had correctly understood the Strickland prejudice standard. Hunt did not, however, call on either of the appellate courts to evaluate the underlying felony-murder-instruction claim by applying the Strickland standard to it. Indeed, those courts could have addressed Hunt‘s highly general arguments about the Strickland prejudice standard41 without even discovering that he had raised a felony-murder-instruction claim in the circuit court. Hunt thus failed to “fairly present” that claim on appeal.42 Henry, 513 U.S. at 365 (alteration omitted) (quoting Picard, 404 U.S. at 275) (internal quotation marks omitted). Because this claim is procedurally defaulted, we reject it without addressing its merits.
D.
Hunt argues that the court of criminal appeals refused to consider whether the cumulative effect of counsel‘s alleged errors amounted to ineffective assistance and, in doing so, unreasonably applied clearly established federal law. We reject this claim. Even if we were to determine that clearly established federal law mandates a cumulative-effect analysis of ineffective-assistance claims, Hunt would not be entitled to relief: he has not shown that
IV.
For the foregoing reasons, the judgment of the district court denying Hunt‘s petition for a writ of habeas corpus is
AFFIRMED.
Notes
On the same day the petition was filed, Hunt filed a motion for the appointment of counsel. The record does not reflect a ruling by the circuit court on that motion. But on July 15, 1997, Arnold Levine, an attorney employed by the Legal Aid Society in New York, filed discovery motions on Hunt‘s behalf. Levine, who was licensed to practice law only in New York, had not yet applied for admission pro hac vice to practice in Alabama.
On June 18, 2001, another attorney, Cheryl J. Moran, who was employed by New York County Defender Services, a nonprofit law firm that contracts with New York City to represent indigent criminal defendants, filed a letter to the circuit court. The letter stated that Moran now represented Hunt and intended to apply for admission pro hac vice to practice law in Alabama. On June 21, 2001, Hunt filed a letter to the court stating that Moran, not Levine, was now his attorney. But so far as the record shows, Moran never appeared in court or filed anything on Hunt‘s behalf. Instead, Levine continued to file documents and appear in court on Hunt‘s behalf, though he did not file an application for admission pro hac vice until after the circuit court, on March 4, 2002, ordered him to do so. Accordingly, when we refer throughout this opinion to Hunt‘s Rule 32 counsel, we refer to Levine.
Notably, even after Levine began to appear on Hunt‘s behalf, Hunt repeatedly circumvented Levine to file pro se letters to the court insisting that the court not consider any challenges to the penalty phase of his trial, including any ineffective-assistance claims, and complaining of delays in his Rule 32 proceedings. Hunt filed such letters on February 18, 1997; April 2, 1997; February 24, 1999; November 29, 1999; January 10, 2001; April 5, 2001; April 25, 2001; May 17, 2001; December 10, 2001; and March 20, 2002.
Hunt also filed a pro se habeas petition in the U.S. District Court for the Northern District of Alabama on May 15, 2002, before his Rule 32 petition had been disposed of. On August 8, 2002, the district court dismissed that petition without prejudice to allow Hunt to exhaust his state remedies. Hunt v. Jones, No. 6:02-cv-01213-ELN-RRA (N.D. Ala. Aug. 8, 2002).