*1 wrongful. evidence, In- check-writing scheme was sion of in denying a sentencing stead, continuance, suggested defense counsel that the calculating or in Wyman’s problem simply that these banks respects, therefore, were sentence. these we unsophisticated negotiate too small and AFFIRM the district court. par- As the checks. do not it agreed offset We believe was an ties are that Lee’s sentence was calculated, of discretion to erroneously abuse admit these state- we REMAND the non-hearsay for the purpose ments case to the district court for resentencing showing the banks were aware that these consistent opinion. with this wrongful actually transactions were appellants
informed the of this fact.
Wyman object and Lee also to the dis- allowing
trict court First South’s counsel testify appellants’ that in fight- actions
ing the foreclosure illegal. suit were Put-
ting context, challenged statement Robbins, attorney Mr. handling the CALLAHAN, James Petitioner- action,
foreclosure was asked on direct ex- Appellee, amination to discuss the content of Lee’s examination, legal filings. On cross Rob- v.
bins asked whether Lee was entitled CAMPBELL, Commissioner, Donal Ala fight against by filing lawsuit the sort Department Corrections, bama At issue, opposition documents such as torney Alabama, Respon General of to a motion dismiss. Robbins conceded dents-Appellants. nothing inappropriate there was making filing. Upon such redirect exam- No. 04-12009. ination, government then asked Rob- United States Appeals, Court of
bins if it was appropriate to write a check Eleventh Circuit. on a closed account pay mortgage. off a then Robbins testified that Lee was not Oct. wrongly entitled to state in a court filing paid mortgage, she had off the nor was she entitled to write bad checks. As pointed
the district court out in overruling objections,
the defense ques- the redirect legality
tions as to the of Lee’s actions
opened the government’s door to the fol-
low-up question to Robbins. find that We
the district court did not abuse its discre- allowing
tion in testimony go this before basis, jury. On this we affirm the
admission of evidence.
III. Conclusion
We find there was sufficient evidence to
sustain the convictions and also find that
the district court did not err its admis- *5 AL, Crenshaw, Montgomery, Clayton
J. Respondents-Appellants. *6 (CourWAppointed), Randall S. Susskind Alabama, Initiative of Mont- Equal Justice AL, Petitioner-Appellee. gomery, TJOFLAT, and Before BLACK WILSON, Judges. Circuit BLACK, Judge: Circuit sen- Callahan was convicted and James court for to death in Alabama state tenced murder of Rebecca Suzanne intentional a federal habeas Callahan filed Howell. corpus petition pursuant 28 U.S.C. 2254, part in and granted § which was and part. in Cal- denied Government court’s deci- appeal both the district lahan a granted certifi- sion. The district court four of Callahan’s appealability cate on of (1) to re- judge’s the trial failure claims: Amendment violated his Sixth cuse himself (2) ineffective assis- went to the washerteria look for Howell. he received rights; car, books, He found her her school her his counsel’s failure tance of counsel due to laundry, jacket, and her he did not but find state- object to the admission of his Knight police, her. called the and Officer the Ala- prior ruling on a of ments based (3) Sergeant Kathy Joe Carter and Thienes Court; his statements Supreme bama responded. The officers searched the area not have been admitted because should gray a roll of tape discovered duct they involuntary and obtained vio- were pair jeans vicinity a of men’s blue of (4) counsel;1 right lation Howell’s car but found no other evidence ineffective assistance of counsel at received of Howell’s whereabouts. counsel’s failure to sentencing due mitigating evi- investigate present February On two weeks after dence. affirm the district court’s deni- We disappearance, her Howell found dead (2) al of claim and reverse the district asphyxiation in the Tallasseehatehee (1) (4). grant of relief on claims court’s County, Creek Calhoun Alabama—her taped together;
hands were her belt was I. BACKGROUND down; upside wearing and she was not socks, pantyhose, vaginal or shoes. A appeal comes to us more than 23 This the presence swab revealed of seminal years after Suzanne the death Rebecca fluid. interim, In the there have been Howell. trials, sentencing hearings, two two two Suspect 2. James Callahan Becomes a appeals, post-conviction pro- direct relief night disappearance, On the of Howell’s court, ceeding in state which included a Jimmy Dunagan was in his car outside two-day evidentiary hearing, and the cur- six or blocks from washerteria seven petition. place rent In order to habeas Norge p.m., Around 11:00 Washerteria. proper and our decision in the con- issues Dunagan green observed late model text, necessary it for us to review the man, pickup being Ford truck driven history entire of the case. pull parking into a lot across street *7 young a in a phone from woman booth. A. Facts watching the for about ten After woman Becky Disappearance Howell’s minutes, pulled the man in the truck out of 3, 1982, February p.m., parking parked around 11:00 the lot and within ten feet On fiancé, A few Becky Murray phone met her of the woman the booth. Howell later, phone the woman Knight, perform- at the club where he was minutes left booth, Jacksonville, green ing passed with his band Alabama. and as she Howell, truck, 26, began running to her car. was a student at Jacksonville she away, green the woman drove University. visiting Knight State After When blocks, minutes, stop- truck followed her for several for 10 to 15 Howell went across onto Norge ping the street to the to do when she turned Jacksonville Washerteria University campus. Dunagan fol- laundry. supposed Howell was to return State club, Knight’s tag fin- the truck and wrote down its to the but when band lowed 20, a.m., February Dunagan On told playing ished at 1:30 she had still number. Kirby Max on Knight returned. became worried and Detective what saw Feb- argue right to counsel. He has 1. Callahan did not to this Court that his in violation of the Stephens waived that claim. See v. statements should not have been admitted therefore Hall, 1195, Cir.2005). (11th involuntary they were 407 F.3d 1202 because and obtained like to talk to him investigators told tag that the number ruary and lobby. “NRF467” or “RNF467.” and he could wait for them the either track was a.m., At 9:00 agreed. approximately He tag database for Kirby searched placed under arrest for vio- Callahan was nothing up, came and number “NRF467” lating probation by driving a vehicle belonged “RNF467” tag number but tag.3 subsequent incorrect A with an registered truck to James orange Ford revealed, truck inter search investigation revealed Further Callahan. alia, pairs a and two pistol, pillow, green now on a tag the “RNF467” jeans. men’s blue 21, February pickup track. On 1982 Ford green Ford outside of located the police to Police 3. Callahan’s Statements Harvey the de- residence of 23, February the course of and Over identified the Dunagan fendant’s father. gave po- four statements to the Harvey the same Callahan track at Callahan’s as and ac- concerning lice his whereabouts February on 3 at the washerte- one he saw February Before night tions on the 3.4 ria. his Mi- each statement Callahan was read 21, p.m. February Starting 9:30 rights signed a of coun- randa and waiver green out the Ford. Around police staked given orally # 1 sel. Statement morning, Deputy next John- 5:00 a.m. the 2, Kirby it. Statements # who transcribed ny Sergeant Alexander and Thienes ob- given during question- # and # 4 were get into the truck served James Callahan ing by Attorney Joseph Assistant District away. pulled drive The officers Hubbard; latter three statements tag. driving han over for switched by a taped were audio and transcribed door, opened the driver’s side reporter. court placed something behind the seat exited, truck, leaving the driver’s side February a. # 1: Statement open. explained The officers to Cal- door a.m. 9:30 going lahan that to be ticketed for he was Callahan stated he went to washerte- At having wrong tag on his vehicle. p.m. p.m. and 7:45 ria between 7:30 point very this became nervous driving green pickup Ford get to his truck. was attempted back and, get something going walked around Alexander truck.5 After truck, eat, to the getting without back into the shut he returned washerteria again approximately p.m. 10:00 He previously open driver’s side door and left Hospital then went to the Jacksonville transported locked it. The officers then jail they visiting him he met his father who was Callahan to the so could write where *8 tag.2 p.m., the defendant’s mother. At 11:00 driving a ticket for with a switched ticket, hospital left the and followed his receiving After Callahan was Callahan jail 3. was convicted twice in 1979 for had to be taken to the Callahan 2.Callahan and was still on assault with intent murder receive his ticket because the administrative 21, probation February crimes on for those policy of the sheriff did not allow officers to 1982. Anyone carry who ticket books in their cars. a a traffic offense in Cal- received ticket for 4. We will also discuss what has been referred County jail houn would be taken to the to as a “fifth statement.” courthouse, jail, receive their ticket. The and department were all located in the sheriff's Callahan's he was In each of statements driving green pickup building. 1982 Ford truck. same house, A few minutes later escaped his father’s where Calla- Callahan out father to night. for rest of the han remained the back door of the mobile home and away, leaving drove Howell alone with February- # 2: b.Statement Gladys. He did not have sexual relations 22, p.m. p.m. 1:45 to 3:25 with Howell. at a stated he arrived was- Callahan p.m.
herteria around 10:00 Howell was (addendum): c. Statement # 2 placed his clothes in a there. Callahan February p.m.6 3:48 get something machine and left to washing year Callahan stated that and a about to eat. When he returned the was- prior half to February he had dated later, approximately herteria 30 minutes Howell, they had sexual relations on there herself. Callahan Howell was one occasion. When Callahan saw Howell Billy knew Howell because Griffith’s wife washerteria, at the returning after from introduced them to each other at the Jack- restaurant, Howell intimated that she years ago. Nursing sonville Home few again. wanted to have sex with Callahan introduced, they were Callahan and Since said, In particular, she “I remember sever- passing several times. spoke Howell good al of the times we had at one time. think- night, That Callahan told her he was good Are the times still out there?” Calla- ing of out his renting mobile home “I replied, Why you han don’t know. don’t asked if she was interested. He offered to try it and we’ll find out.” After Callahan take her there and told her to think about returned from hospital, Howell said it while he went and visited his mother wanted she to look at Callahan’s mobile go He hospital. hospital left commented, good home and have a “We’ll p.m. around 11:00 and returned around get time once we there.” Callahan returned, 12:00 a.m. he Howell told When home, Howell arrived at the mobile had him would like to see the she mobile home sex, Gladys and were in bed when still night. Gladys It was this time that Gladys pointed entered the bedroom. wife, estranged the defendant’s pistol at them and ordered them to move washerteria, pulled up outside of the but to the kitchen. taped Howell’s did not enter and soon drove off. together escaped through hands then Howell left the washerte- back door. approximately ria at 12:10 a.m. Howell entered Callahan’s truck on the driver’s d. # February Statement 3: you get side because could not in on the 23, 10:20 a.m. passenger they side. Five minutes after photograph After the officers retrieved a home, Gladys arrived at his mobile also from Callahan’s father’s house of “running arrived accused Callahan request, may han’s stated his wife arguing around” on her. After thought Howell was the minutes, woman Gladys roughly Malera Fox. wife photograph, leaving. told her he and Howell were jealous very of Fox. Callahan further Gladys pistol That was when removed a *9 Becky relationship it detailed his with How- pocketbook pointed from her at He in Callahan. She then directed Callahan and ell. and Howell first met Mogul they Howell into the kitchen where Federal were intro- she forced where to tape together. by Billy Howell’s hands duced Griffith. Callahan asked previous 6. Callahan wanted to add more detail to his statement. any- you Did mention phone number. MR. HUBBARD: gave her his out and
her in body’s particular? name they went out on following weekend cur- Howell he was told date. Callahan No. I didn’t mention MR. CALLAHAN: someone, but he was not sure seeing rently just I her nobody’s name. told she stay person. Two he wanted needed. skiing took her water
weeks later Callahan say you MR. HUBBARD: Did who she boat, they on the had While on his boat. by, was needed Mr. Callahan? told Callahan he needed and Howell sex No, I MR. CALLAHAN: didn’t. he to be mind who wanted up make respond HUBBARD: What did she MR. anymore. him not see she would with or you somebody said needed her when later, when three months They spoke next over there? seeing had him she started told Howell said, MR. CALLAHAN: She “Undoubt- else, very it could call off but someone said, my boyfriend.” ed it must be She girl- would leave his easily if Callahan only “That’s the one I know that’d be that, only spoke After friend. there.” over two occasions before with her on briefly right. you All Did MR. HUBBARD: Norge in the Washerteria on they met say anything else to her at that time? February 3. started out the
MR. CALLAHAN: We said, “Well, just February and she I’ll take # 4: door e. Statement said, I in truck my car.” “No. Get p.m. 2:50 in it.” go and we’ll February that on stated Washerteria, Norge for the went to the you got MR. HUBBARD: After outside 12:00 night, a little after
first time Howell, happened what then? with Miss people several a.m. There were Howell, washerteria, including whom he said a few MR. CALLAHAN: She in a placed He his clothes said, just had met before. things. my “I’ll drive She to eat at a machine and then went washing said, get car.” I “No. Go ahead and to the was- said, Callahan returned restaurant. carry you the truck.” I “I’ll over 12:30 a.m. approximately herteria there.” say? MR. HUBBARD: What did she you did do MR. HUBBARD: What arrived back at the Laundro- you when MR. CALLAHAN: She started to mat from Gino’s? just mind changed truck she her get in the about the time she started I talked with her MR. CALLAHAN: truck. her, said, minutes, I and I asked few yonder.”
“Becky, you’re needed over happened MR. HUBBARD: What then? said, said, I “For what?” And She her, go MR. CALLAHAN: I told “Just yonder.” I just needed over “You’re said, get got ahead and in.” I “We on, said, carry you I’ll over “Come go.” there.” you MR. HUBBARD: else did What All right. What MR. HUBBARD: say? said, you “You’re need- when
you mean MR. That was about the CALLAHAN: yonder”? ed over just go I ahead extent of it. told her go. let’s And just get I her she the truck and MR. told CALLAHAN: said, “Well, might I know. I she don’t across the road. was needed *10 said, just my take car.” And I MR. HUBBARD: Mr. ought she said, “Well, no, I really.” you? “You need didn’t want to be with just in the truck.” go get particu- MR. CALLAHAN: Not at that you say anything Did MR. HUBBARD: lar time. her, Callahan, if hurting
about Mr. she MR. HUBBARD: she Did scream at you? go didn’t with any time? Really, I MR. CALLAHAN: No. didn’t No, MR. CALLAHAN: she did not. say anything actually hurting about her MR. try HUBBARD: Did get she guess I harming might her. she away you? from have, I thought though, on ac- MR. try get CALLAHAN: Not to count of there was a laying Bowie knife me, said, away. just “Stop She told she up on the dash of the truck at that time. the truck and forget let me out. And I’ll you point MR. HUBBARD: Did to the anything happened.” ever Bowie knife? story changed: then I MR. CALLAHAN: No. didn’t actual- MR. Okay. HUBBARD: All right. just ly point laying to it. It was there. Jimmy, you went inside the Laundromat MR. HUBBARD: Did she see it? you told Miss Howell that she was Yes, MR. CALLAHAN: sir. street; needed across the is that cor- say anything MR. Did she HUBBARD: rect? about the Bowie knife? Right. MR. CALLAHAN: MR. CALLAHAN: When she turned MR. All right. HUBBARD: And then say any- around and seen it she didn’t what did do? she just thing, she sat down. MR. CALLAHAN: She didn’t know MR. HUBBARD: She sat down where? whether it was true or not and she seat, MR. CALLAHAN: and slid jumped up and took off to the door. way get over. There was no in the right. MR. All ran HUBBARD: She passenger side there at that particular you the door. What did do then? time. just
MR. I CALLAHAN: followed be- hind her. you got MR. HUBBARD: After in- truck, got hap-
after she inside the what right. MR. All HUBBARD: What did pened then? you do then? I MR. CALLAHAN: started over that MR. CALLAHAN: she went out When said,
way. going She ‘What’s on Jim- thing toward her car I told her the best said, my?” just “I get And I want to put my to do—when I hand on her you by yourself again.” shoulder, said, thing just I “Best do is holler, say? go MR. get HUBBARD: What she the truck. Don’t don’t say nothing.” said, MR. “I CALLAHAN: She don’t said, ‘Well, just know.” I I want to be MR. happened? HUBBARD: Then what by you—just you again.” be with MR. CALLAHAN: Then to start with MR. said HUBBARD: She she wanted said, just she bucked me. “I She you again? to with be said, “Well, don’t know.” I I don’t want said, MR. CALLAHAN: No. I wanted to to have no I thing be trouble.” “Best again. just with her to do is go on.” *11 accompanied attorney. Judge Monk right. All Then what HUBBARD: MR. spoke office and Lybrand to the Sheriffs happened? Judge told The Sheriff with the Sheriff. So, got in the she MR. CALLAHAN: and then Lybrand, Monk what he had told change started to her she truck and interrogation Monk the Judge entered got to the the time she just mind about of evidence knocking. after The best room truck and up reached truck. She Judge Monk entered happened what when it and throwed back tape grabbed the transcript: room comes from the out. any- Jimmy, is there MR. HUBBARD: to his trailer and locked took her Callahan your you to add thing else want own kept He her locked in the her bedroom. time? free will at this day February entire in the bedroom the asked Howell to night, 4. That Callahan I didn’t mean MR. CALLAHAN: him, said she would and she with just sex anybody. jumped out hurt She night, Later that after go. if he let her run. sex, taped Howell’s
they Callahan had me, MONK: Excuse Mr. JUDGE her to Tal- together and drove hands May interrupt? I han. Excuse me. bound bridge. He Creek lasseehatchee Yes, sir. MR. HUBBARD: she it look like had to make her hands I’m Mr. MONK: JUDGE bridge, they neared escaped. When Now, you’ve I been know Judge Monk. passenger side jumped out Howell far.7 I want to your rights so explained creek, which ran toward door and you rights run over once those drove off away. yards about 30 what I’m you Do understand again. her. pursue did not saying? Involvement Judge f. Monk’s Right. MR. CALLAHAN: you All And do giving right. fourth JUDGE MONK: While Callahan statement, Lybrand, right at the have the you Fred attorney understand that father, coop- came to Sher- and not remain silent in this case request of Callahan’s anyway? with Callahan. police office to erate with the iff talk Snead’s repre- if he Lybrand The Sheriff asked Right. MR. CALLAHAN: said Lybrand no. sented you Do understand MONK: JUDGE he would Lybrand not told Sheriff you tell them can and anything that that Callahan because allow him in to talk with you in against will be used court interrogated and being had Callahan was of this case? prosecution State lawyer. Having been re- requested Yes, sir. I do. MR. CALLAHAN: Callahan, Lybrand went to fused access you understand MONK: Do JUDGE (who would Monk later Judge see Samuel you right that have a to discuss case trials). Lybrand ex- preside both over attorney before talk with an or to trying that he was Judge Monk plained questioning proceeds? request at the speak with Callahan Right. MR. CALLAHAN: father, but Sheriff you And do right. All being JUDGE MONK: not let him because you afford to understand if cannot right waived his interrogated and had rights. 909-10, infra, lahan had been read we discuss the basis pages 7. On he knew Judge Cal- Monk’s statement *12 MR. I’m attorney trying an will be CALLAHAN: not to attorney an that hire I you anything. just—I’m just upset. that the hide represent appointed to anybody I stop until such time as don’t want—I didn’t want to will questioning get talk hurt over this. It intentions opportunity an to with wasn’t you’ve had nobody getting hurt. attorney? that you my Do understand JUDGE MONK: I all understand MR. CALLAHAN: question? Lybrand Mr. is available to that. you you if to talk with speak with want right. you All Do un- JUDGE MONK: him, forcing you telling but no one is stop any can at time you derstand that you you that talk him. have to with It’s words, that you that wish to? other your going you again, choice. I’m to ask you stop answering questions can their you Lybrand would like to talk to Mr. you you want to? Do under- time you go any you before further or would that? stand all of your to talk right like waive to to Mr. Right. MR. CALLAHAN: Lybrand? Now, my it’s under- JUDGE MONK: just MR. CALLAHAN: Hold on for a you do not standing you told them you just second. Can I talk to a min- attorney you; wish to have an with ute? that correct? Callahan, you MONK: Mr. can- JUDGE I I MR. CALLAHAN: don’t need one. police not look to the officers to advise just— you your rights. something as to That’s Now, right. All JUDGE MONK: let to, already you that I’ve advised and I me, you—listen please, me tell Mr. they’ve you your rights. know given Your father has retained the Callahan. But you it’s a decision that have to attorney by the name of services of Now, you I’m going make. to ask one Ray Lybrand. you Fred Do know Mr. you more time. Do to Mr. speak wish to Lybrand? Lybrand you or do want me to tell Mr. Yes, I MR. CALLAHAN: do. Lybrand you speak do not wish right. Lyb- All JUDGE MONK: Mr. him? jail
rand is outside the outer office my If father sent MR. CALLAHAN: you time. He’s available to talk to this here, I talk to might ought him down However, if talk to him. it’s you wish to briefly. him But that would be about personal yours. choice of You do not all. if speak Lybrand you have to with Mr. your choice. JUDGE MONK: That’s to, your do not wish but he is outside at at this they’ll stop proceedings And all you request, father’s available for to talk point. you if you want to do so. Do under- morning, Lybrand told District The next that? stand Attorney repre- Bob Field that he did not Yes, MR. CALLAHAN: sir. sent Callahan. you MONK: Do want to talk to JUDGE February g. Statement # 5: you just—do you Lybrand Mr. or would 24, 11:00 a.m. go talking want to ahead and continue other formal police talking give officers without Callahan would no with the one, decision, after his fourth but on your personal to him? It’s Mr. statements 24, 1982, 11:00 and by you, February and it must made between be a.m., Kirby by your father. 11:30 Callahan sent word asserting that Callahan him. tran- affidavit his belief to see What that he wanted repeatedly suffering referred a mental disease that next has been from spired Although the “fifth statement.” prevent standing him from trial and is more im- produced evidence Callahan preparing a defense. Lane assisting said, simplicity, what he portant than psychiatric requested Callahan receive *13 24th as the events on the we refer to will evaluation, and the court ordered Callahan fifth statement.8 Callahan’s Taylor admitted to the Hardin Medical evaluation, a a Facility. After month of to him brought see Kirby had Callahan by psychia- final three report was issued made minutes after Callahan roughly 30 Salillas, Harden, trists, Alexander C.B. said he want- When Callahan request. his Thompson, diagnosing Callahan case, James Kirby advised talk about the ed to antisocial behavior and narcis- Miranda with adult rights, and Calla- of his Callahan They found he func- personality. of counsel. Callahan sistic han a waiver signed him he of intellec- Kirby range he could show where tioned within the normal told truck. competent boots out of his threw Howell’s tual abilities and was stand Snead, accompanied by Kirby and Sheriff trial in his and assist defense. went, Callahan, among places, other by In addition to the examinations house. Callahan father-in-law’s psychiatrists, aforementioned Callahan woodpile, and the the officers to directed by psychologists was also interviewed Don behind it. purse found Callahan officers Shealy. They found Whittaker and Allen the officers to his father’s then directed intelligence to be of normal with Callahan house, he removed At his father’s house. and “a rather dra- signs psychosis no of camper told the officers a knife from a frequent matic individual who uses in truck on it knife he had was the exaggerations describing per- in obvious police did not recover a February 3. The sonal life events.” Callahan told them he at this time.
pair of boots alcohol, stopped smoking used to abuse but James Callahan April On drinking religious in 1981 after a con- the intentional murder of Re- indicted for He had a emotional version. “strained Howell, in violation of Sec- Suzanne becca father, always relationship” with his but 2(a)(1) Act of the Acts tion No. 81-178 no felt close to his mother. There was § and Ala.Code 13A-5-40.9 Alabama in the or his report mention being by mother his father. abused Trial 4. The First a. Pre-Trial worker, Young, a psychiatric Vicki social report with represented by also filed based interviews Callahan was Wilfred Callahan, 19, 1982, Mary April Lane filed an the defendant and the de- Lane. On trial, fact, Rape specifi- complish or aid the 8. at the second the State commission try delving cally felony, flight it would to avoid into Degree, noted or the First there- had with the officers conversations Callahan charged essentially from. ...” Count II during trip. except same conduct that the abduction or attempt "with intent to to abduct done “James H. I of the indictment read: Count her, upon physical injury inflict or violate intentionally ... did cause the death sexually.” her Count III included the same Howell, by asphyxiating of Rebecca Suzanne except conduct that the abduction or basic obstructing airway, by her and the said her attempt to abduct was done "with intent to during caused said death James H. terrorize.” of, abduct, attempt the ... abduction ac- Rebecca Suzanne Howell with intent to Judge would want to call then Callahan Callahan discussed mother. fendant’s testify what he had as a witness to Young and indicated Monk childhood with interrogation father due to in the room. along with his observed getting trouble However, ac- heavy drinking. Judge Monk denied the motion and ex- his father’s father’s he cured his cording plained: in a leaving him outside alcoholism Lybrand attorney practic- Mr. Fred 13-degree weather. Cal-
wheelbarrow ing City ap- of Anniston at 14 and dated puberty lahan said he hit proached the Court and informed the teenage years be- frequently through his being ques- Court that Mr. Callahan was with the extremely popular he was cause County tioned in the Calhoun Jail and alcohol for He also abused young ladies. requested of the Court assistance pur- life—including one time *14 most of his whereup- ... to his client gaining access Dan- at the Jack portedly spending $1200 County proceeded on I to the Calhoun whiskey that did not last refinery on iel’s Lybrand; informed the Jail with Mr. drinking and quit him six months—but Snead, Sheriff, Roy Lybrand that Mr. in smoking 1980. I was there to see Mr. Callahan and Young, Mary Calla- During her talk with Mr. entered the room where Callahan the defen- great han in detail described I reporter was located with a court history psy- of youth and her own dant’s two, perhaps per- three other believe the defendant problems. chotic She said will that I sons. The record disclose fed, with toilet problem was breast had no rights informed Mr. of his Callahan age at the of training, began walking him that father had re- informed months; and am- energetic he was an ten attorney speak tained an who wished to chores always child who did his bitious him, Mr. in- whereupon Callahan house; and he suffered assort- around the that he did wish to formed the Court injuries falling out growing up, ed such that he speak Lybrand with Mr. pot of hot spilling of a tree house and But, him. the Court speak claimed Mary himself. Callahan coffee on nothing about the facts and cir- knows discipline who had to she was the one case and surrounding cumstances her husband was often children because denying I’m Mr. Lane’s motion to recuse she busy and from home. She said absent fact that myself. no material There is problems began experiencing psychological knows that he had testified the Court years first child left home 19 when her any regard to the voluntariness then, she had been treated earlier. Since statement. psychiatric approximately times statement, the follow- Judge After Monk’s great into detail problems. Despite going occurred: ing discussion and her upbringing defendant’s about the Mary Calla- psychological problems, own twenty- page LANE: Your Honor MR. being defendant han did not mention the that, referring I am six of the statement by his father. physically abused to, you entered the line fourteen is when I’m says, It “Mr. to stand room. being competent After declared Now, you I Monk. know trial, Judge Judge a motion for made Callahan explained your rights so far.” Was Judge on been Monk to recuse himself based present or did February Specifi- the Honorable Court actions on Monk’s know that the Defen- sought if Honorable Court cally, argued the State Callahan statements, to him? rights had his read dant had any to introduce of Callahan’s No, I not. That was Prichard was struck the contrast THE COURT: my part. on You assumption pretty girl an between the who was purely any judge participates no nicely ragged know that dressed and the man. Defendant, you interrogation of (cid:127) Sergeant Thienes testified she arrived knowledge. your own know that Norge February on Washerteria inspected car. Howell’s There b. Trial10 appeared to have been altercation trial, attempted to the State During the car. ob- on the hood of Howell’s She (but fifth statement introduce Callahan’s starting top fingerprints served four) objected, and Callahan not the first continuing way all the the hood and voluntary. was not the statement arguing it, including an unusual amount down objection, called of his support fingerprints part. on the lower Lybrand. Lybrand described Calla- Fred (cid:127) Chauncey testified Callahan Walter tired, February 23 as han’s demeanor him usually met at his house emotional, and almost to the somewhat morning, so the two of them could ride Lybrand, point of tears. After February 4 together. to work On Judge call Monk as a wit- attempted to a.m., around 5:00 called ness, Monk refused. Judge but *15 Chauncey him not and told he would be After the State offered detailed evidence day. day, that going work The next rights read his and that had been up Chauncey’s Callahan showed making his voluntarily waived them before house to ride to work with him. statement, denied Judge fifth Monk Chauncey observed fresh scratches on objection.11 han’s both of Callahan’s arms. he When statement, fifth to Callahan’s addition if asked Callahan the scratches were following the evidence presented the State wife, having from trouble with his Cal- against Callahan: laughed. lahan (cid:127) to what Jimmy Dunagan testified as he (cid:127) Howell, sister, Becky’s Karen identi- February saw on 3. purse fied the the officers found behind (cid:127) by drove Bragg testified she the Susan woodpile Becky’s purse. the as little after Norge Washerteria a 12:00 (cid:127) Henninger, Paul Callahan’s brother-in- February a.m. 4 and saw a “bluish on law, February that testified parked truck” out- green pick-up Ford a pair removed of boots from Calla- with someone side the washerteria han’s trailer and turned them over to it. police days a few later. (cid:127) Wayne Prichard testified that on Kevin (cid:127) Howell, sister, Becky’s Donna identi- a.m., February 4 around 1:00 he drove fied the boots removed from Callahan’s a past Norge and saw Washerteria by trailer Henninger belonging inside. He described man and woman Becky. having hair woman as dark (cid:127) Prevost, The man wearing nice clothes. had Fulton an Identifications Offi- Alabama, curly, slightly reddish brownish cer for the State of testified hair, kept. which was not that fingerprints gray blonde well on the roll of trial, opening closing 10. At the first 11. The State did not evidence about offer guilt penalty phas- statements of both the first four statements. es were not transcribed. same, only they tape were Norge found outside tape duct fin- consistent. matched Callahan’s were Washerteria gerprints. (cid:127) Morrison, in the a criminalist Roger (cid:127) a Forensic Patholo- Embry, Joseph Dr. Department of Forensic Sciences a one and a Howell had testified
gist,
Regional Hospital,
Huntsville
testi-
bruise on her left
inch in diameter
half
analyzed
vaginal
a
swab
fied that he
at least 30
present
that was
temple
victim,
sample
a
taken from the
semen
died,
that her
minutes before she
flaneé,
a
Murray Knight, and
from her
no scratches or
feet showed
legs and
from
to deter-
sample
saliva
In Dr. Em-
of trauma.
other evidence
which,
any,
if
a “se-
mine
came from
not
Howell could
bry’s
opinion,
medical
anti-
vaginal
cretor.”12 The
swab had
area of woods
through the
have run
on it that were indicative of
gens
said she
where Callahan
near the creek
Callahan’s saliva
Group O secretor.
did.
antigens, indicative of
sample contained
(cid:127)
the search of
from
Items recovered
Knight’s semen
Group
O secretor.
.25
truck included
loaded
Callahan’s
antigens present, mean-
sample had no
pistol,
pairs
several
automatic
caliber
ing he was a non-secretor.
jeans,
pillow.
and a
in his
called several witnesses
(cid:127)
Case,
Ala-
with the
a criminalist
John
Blackwelder,
professor
Robert
defense.
Forensic
Sci-
Department
bama
identifica-
expertise
fingerprint
ences,
the two
pair
testified that
tion,
dispute
fingerprint
that the
from Callahan’s
jeans recovered
blue
tape
roll of duct
was Calla-
found on the
by 30 and 30
truck were sized 29/£
han’s,
print
opined
but he
jeans found outside
The blue
*16
unusually full and
tape
on the
found
by
were sized 30
Norge Washerteria
questioned
Blackwelder also
complete.
conclu-
also made several
32. Case
compari-
reliability of hair and fiber
the
samples:
hair and fiber
regarding
sions
sons,
not be certain that
stating one could
hair recovered from
of human
a strand
partic-
from a
loose hair came
particular
a
was micro-
in
trailer
mop
a
Callahan’s
compari-
hair
dog
ular individual and
of
sample
with a
scopically consistent
those of hu-
less reliable than
sons were
Howell;
sample
a
of hair
hair from
man hair.
micro-
dog
Howell’s
taken from
him
visited
Fox testified Callahan
James
dog hair
with
scopically consistent
February in
to the 16th of
from the 8th
truck; acrylic fi-
in
found
Callahan’s
Charles,
re-
Louisiana. Fox did not
Lake
jeans found
in
pocket
bers
the
any scratches on Callahan’s
seeing
call
were
Norge Washerteria
outside the
Callahan, the
According to Michael
arms.
in the
present
of fibers
type
the same
brother,
father
he and his
defendant’s
trailer;
and a
carpet of Callahan’s
on Febru-
defendant’s trailer
went to the
tape
duct
recovered
piece of white
plastic
milk contain-
ary 14 and observed
trail-
pane
from a window
Callahan’s
Mi-
gas
on a lit
stove.
gasoline
full of
er
in
identical
construction
er was
gas
turned off the
chael Callahan
tape
to the
used
properties
chemical
him that
appeared
and left.
It
stove
could not
Howell’s hands. Case
bind
trailer.
fibers,
trying
up
to blow the
hair,
certainty that the
someone
say with
approx-
biological
stated that
fluids. He
as someone
their
described a secretor
12. Morrison
population
imately
are secretors.
factors into
80%
normal ABO blood
who secretes
cross-examination,
anyone.
the defendant’s brother-
hurt
all
Henninger,
Paul
On
in-law,
they
three witnesses admitted
he removed
container
knew Calla-
testified
han
firing gun
defendant’s
had been convicted of
into
from the stove
gasoline
later,
trailer,
11-year-old
his
days
hitting
the defendant ar-
ex-wife’s
his
trailer. Two
foot.
Henninger’s
early
house
in the
niece
None of the witnesses
rived at
abuse,
sexual,
Henninger
physical
mentioned
occur-
and told
he was on his
morning
Charles,
ring in the Callahan
Lake
Louisiana.
household while the
way back from
growing up.
not observe scratches on defendant was
Henninger
Henninger,
Sharon
arms.
Callahan’s
jury
The
recommended a sentence of
sister,
testified she also saw
defendant’s
death.
February 16 without his shirt
on
any scratches.
on and did not see
d.Sentencing—Trial
Findings
Court’s
At
sentencing hearing,
Callahan in-
guilty
all
jury found Callahan
troduced notes from interviews conducted
counts.
three
Thompson, private investiga-
Richard
c.Sentencing—Jury Recommendation
Thompson
tor.
people
interviewed
who
Callahan,
knew
hoped
James
and Callahan
Dobbins,
called Forrest
Clerk
The State
the notes would show that some individuals
Court,
County
and Hub-
of the Calhoun
community
had a more favorable
copies
read into evidence
bard. Dobbins
attitude towards Callahan than indicated
two convictions
assault
pre-sentence
report. The State of-
murder, and
con-
with intent to
Hubbard
fered no evidence.
was the individual convict-
firmed Callahan
§§
accordance with Ala.Code
13A-5-
ed
those offenses. Callahan called
47, 13A-5-51,
Callahan,
uncle,
findings
the trial court made
his
Caroline
Boyce
aunt,
respect
han,
potential aggravating
and Marie
mitigating factors.
According
Boyce,
aggravating
On the
sister-in-law.
side, the court found the defendant had
the defendant for his entire life and
knew
previously
been
get
separate
him
into
convicted of
never knew
trouble or
two
involving
felonies
Boyce
the use of violence to the
anyone.
nephew
hurt
believed his
person, and
just
capital
offense was com-
very
person
got
was a
nice
who
emo-
*17
during
mitted
kidnap-
the commission of a
tional sometimes. Caroline Callahan testi-
ping in
degree.
the first
The court found
fied
the defendant for almost his
she knew
such,
life;
mitigating
present.
no
factors
never saw him
As
entire
she
threaten or
the court
aggravating
concluded the
fac-
anyone
hurt
and did not believe he would
factors,
outweighed
tors
mitigating
do so.
also stated Callahan held a
She
recommendation,
supporting
jury’s
job
always
and
regular
supported
and
his two
sentenced Callahan to
Boyce and
death.
children.
Caroline Callahan
jury
to tell the
anything
were both asked
Appeal
e.Direct
might help
making
that
them
their rec-
Boyce
jury
told
ommendation.
The
Appeals
Alabama Court of Criminal
a
defendant had made
recent commitment
affirmed Callahan’s conviction and sen-
God,
State,
and
reasserted her
Caroline
belief
tence. Callahan v.
So.2d
any-
could never hurt
(Ala.Crim.App.1983).
the defendant
The Alabama Su-
preme Court,
one.
said she knew the
addressing only
Marie Callahan
the intro-
years,
always
statement,
defendant for 11
and he
held
duction of Callahan’s fifth
re-
job,
children,
a
his
supported
parte
and never
versed. Ex
b. Trial Two new witnesses were called Gladys State. Callahan testified she never The State all five of Calla- introduced Becky met Howell and was not at the han’s statements and offered detailed evi- washerteria Callahan’s mobile home on about he was dence how advised of his Bass, February Betty 3. Billy Griffith’s rights rights and waived his giving before wife, testified she did Becky not know Jimmy statement. Dunagan, each Susan Howell and did not introduce her to Calla- Prevost, Bragg, Fulton Howell, Donna han. Howell, Karen Lybrand, Fred and Paul Henninger testified to the same effect as Callahan called two witnesses in his de- they Yet, at did the first trial.13 the evi- fense—Gary Callahan, brother, and dence did in Jenny second differ Gary trial Fordham. Callahan told the respects several from the first trial. jury he had argument witnessed an be- Gladys tween Callahan and Howell at a Embry Dr. testified that Howell had a trailer in Jacksonville October of 1981. bruise on temple her her feet had Howell allegedly Gladys told to leave and no bruises or scratches consistent with Afterwards, never come back. Gladys was having through run the area of woods “a upset.” little Gary Callahan said he found, where she but he did not state unable describe Howell because it opinion his medical that Howell could night dark the he saw her. He ex- through not have run those woods. John plained that he testify did not about the again Case concluded white tape duct re- incident at the first trial because the de- from a covered window at Callahan’s trail- attorney fendant’s first did not believe his er had the composition, construction, same story. Gary Callahan never told the de- tape dimensions as the used to bind fendant happened what between Gladys hands, Howell’s but he did not testify Becky Howell, nor did he tell the about comparisons of hair and fiber police they when spoke to him.14 samples. Roger Morrison he stated exam- a vaginal ined swab from Howell and con- Jenny Fordham testified that on August human seminal 8, 1981, cluded present, fluid was Becky James Howell he not but discuss the “secretor” picked tests up her hospital, and the performed. three of them drove around for a few hours looking for Fordham’s truck. She In addition to identifying Becky’s purse, Becky being described 5'5" dark Karen Howell also testified that on Febru- hair and eyes. brown In the State’s rebut- ary 4 she saw scratches and prints hand on tal, Karen Howell Becky testified had blue Becky’s car from top of the hood to the eyes. grill; she had not seen the marks before day. Sergeant Thienes, jury again Kevin Prich- The found James Callahan ard, and guilty Walter Chauncey on all were not counts. called as witnesses at the second trial. The c. Sentencing—Jury’s Recommendation State introduced pillow retrieved from truck, but gun State, or a in its opening argument of description jeans. of the blue penalty phase, contended four aggra- Lybrand Henninger testify did not question of the voluntariness trial, *19 person at the second testimony but their han’s statements. from the first trial was entered into the rec- case, Lybrand's ord. testimony his was Gary pled guilty Callahan later perjury to jury, offered to the only but to the court testimony for his in this case. with it. mind. have to live He’ll (1) in his of- capital the factors existed: vating you pun- talk about to me that’s—if was But while Callahan committed was fense (2) is me that that ishment, it felony; Cal- seems another of sentence under circum- meet the that of would punishment convicted been previously had lahan course, just my opin- is to the that Of use of stances. involving the violence felony you to ask was com- I like (3) offense would capital ion. And the person; if you you fault kidnap- it, or I rape and don’t of consider in mitted furtherance mercy (4) ques- in like to ask for offense But I would capital don’t. and the ping; atrocious, heinous, guess or I some- respect. in that especially for him tion was know, you offenses. that capital thing, other mercy compared times cruel nearly mercy and by the State have somebody’s on free to put case The the State sentencing: and way to forgive, to the first their see identical sometimes Dobbins, into the read I’m who of times that. A lot agree Forrest I’ll to do called convictions of two and hatred copies disgust a lot of the record sure that to murder. intent Howell alive in stayed for assault and has such I think Jimmy Callahan. family for aunt, Caroline called I don’t not secrets. they’re probably family her said han. Caroline of wiped out hatred can be think that recom- jury to urged the James loved or their lives their minds their hearts parole. life of without a sentence mend chair recommending the electric could mother the defendant’s noted She it can. I think Maybe you Jimmy. hearing sentencing because at the not be that’s I think that it does. don’t see recount very ill.” “very, We she was to live going if that we’re something jury: to the argument closing Knight’s full cancer, it of like is sort with it—hatred jury, I Gentlemen of Ladies and heart head and eventually consumes that anything there’s think that don’t basis of if is the And that both. undo what’s say that can anyone can I think it wouldn’t sentencing is hatred that I think But sometimes done. been you I recommend right basis. be the goes handwriting goes said it’s you if like that I feel that isn’t. you don’t by. hope I on passes your see you’ll your hearts any mercy of on behalf speaking I’m foolish think I ask minds your exercise way to to the not be sentenced him that he so. you to do you dis- may that It be chair. electric I right. all That’s that. a sentence agree about jury recommended death of want certainly wouldn’t death. Howell, think that [is I
Becky either. Findings Court’s Sentencing—Trial d. that has done been thing one the] aggravating three court found The trial like to And I can’t be undone. sentence under factors: Callahan as life his sentence consider you ask i.e., probat felony, for a imprisonment live can out he parole, without been convicted ion; previously had wrongdoing [with] of his life the rest a sus- while under imprisonment, trial, term of found Callahan the court 15. At the first sentence, parole, probation or while on pended imprisonment. a sentence of not under release, furlough, escape, or difference, on work or while but explain cannot We while or trial, type or freedom of release other Alabama second of Callahan’s time imprisonment, other serving a term of clearly after stated: Appeals had of Criminal Court after and freedom release than unconditional 'under sentence of the term definition "[T]he " Tarver of sentence.' expiration of the term serving a while ... 'means imprisonment' *20 involving a the threat or apparently crime use closed from an unbiased wit- person; to the and he violence committed ness.” in furtherance of a kidnapping
the crime in Callahan also asserted he was denied degree. first The court concluded the right Judge “confront the as to his jury’s supported evidence recommen- observations at interrogation which is dation sentenced Callahan to death. one our most fundamental and basic laws known to our land.” In support of History—State B. Procedural Court16 claim, Callahan cited the Sixth Amend- Appeal 1. Direct Constitution, ment to the United States appeal On direct of his second convic- 12-21-137, § Ala.Code and several cases. tion, argued Judge Monk erred Section 12-21-137 of the Alabama Code in denying his motion for recusal. Calla- gives a right defendant the to cross-exam- argument han’s was based on Canon ine the witnesses against called him. Sim- 3.C.(1) of the Alabama Canon of Judicial ilarly, by the cases cited Callahan dealt Ethics, which states: with the Confrontation Clause of the Sixth (1) A judge disqualify should himself Amendment and a right defendant’s in proceeding disqualifica- in which his cross-examine an adverse witness. tion required impartiali- law or his ty might reasonably questioned, be in- appeal Court, On to this argues cluding but not limited to instances Judge Monk’s failure to recuse himself where: violated his Sixth Amendment right (a) personal preju- He has a bias or present witnesses on his behalf. Although concerning party, personal dice or right to confront is different from the knowledge of disputed evidentiary right compel, argument in facts concerning proceeding; state court largely premised on his (b) He a lawyer served as in the ability to call Judge witness; Monk as a in controversy, lawyer matter or a therefore we will properly assume he previously practiced
with whom he raised and exhausted argu- his current during law served such association as ment. matter, lawyer judge or the Callahan also argues now he was de- lawyer such has been material wit- prived of his Sixth right ness Amendment to an concerning it. impartial tribunal. only Not did Callahan In making argument, this Callahan stated fail to make constitutional argument in way no accusing “[wa]s the trial state court related Judge Monk’s bias or judge Rather, of bias.” he contended appearance bias, explicitly but he stated Judge personal Monk had knowledge of facts, he was not disputed making such a claim. Although such as the demeanor of we Callahan and will assume interrogators, Callahan raised argu- with- this out being court, call Judge able to Monk a ment state compelled we are witness, “these facts could never be very dis- note it is a question. close State,
v.
(Ala.Crim.App.
500 So.2d
post-conviction
tions for
relief. In this recita-
1986)
'd,
13A-5-39(7))
(quoting
§
Ala.Code
case,
procedural
tion
history
of the
we
aff
(Ala.1986).
into
“totality
remember telling his counsel
*22
to talk to
-require Judge
facts” did not
witnesses;
Monk’s re-
and he did not remember his
cusal.
counsel discussing with him the possibility
(internal
putting
of
on
omitted).
mental
Id.
health
citations
evidence.
Callahan’s
conviction and sentence were affirmed.
Judge
presided
Monk
over the two-day
Id. at 1310.
evidentiary hearing on Callahan’s Rule 32
Court,
The
Supreme
Alabama
in a one petition
2,
July 1 and
held
1997. Testimo-
decision,
paragraph
also affirmed Calla
ny at the hearing
on
focused
han’s conviction and sentence. Ex parte
claim that Knight was ineffective for fail-
Callahan,
(Ala.1989).
a. Deposition of James Callahan her and step between them and try make him stop. stated his father was When the often defendant drunk him, intervene, tried to and would hit her several husband would times beat him knocking as well. him As a result being unconscious. He also constant- wit- ly raped nessed abused, his abusing father his and mother she was and destroyed younger occasion, emotionally, brother. which On one led to attempt her sui- han cide fight intervened in a several times. Although between she his younger and out father, hospitals brother and his hospitals mental breaking father’s since with a she arm tire iron had no why idea disabl- her rec- ing him. ords did not mention her husband’s physi- cal and sexual abuse. She took medication Callahan was asked questions several “nerves,” her and it put her in a zom- about the penalty phase of his second trial: bie-like state. he did not remember discussing the penal- ty phase counsel, with his Harold Knight; Regarding trials, her son’s she testified he did not aunt, remember wanting his neither Wilfred Lane nor Harold Knight Caroline, to testify; he not remember contacted her about testifying on her son’s his mother ill being time; at that he did behalf. Knight did come to her house if gave remember his counsel names once speak with her husband about of people he testify; wanted to trial, he did not but she let her husband take care Shar- pregnant. she became when Al- was trials. to the everything related the defendant also told Terrell hospital in a being though she admitted contin- 13 and age drinking at began second during the state” a “zombie-like present for the arrested until he was ued “zombie testified trial, she would that he told Terrell Gary Callahan crime. if asked. all” hit his mother aware father Terrell ii. Joanne the defendant. *23 social a clinical was Terrell
Joanne on her based were conclusions Terrell’s as- “psychosocial worker, developed who personality that an individual’s belief state Under individuals.18 of or they sessments” are seven by the time formed diagnose law, authorized to was not she influence will that personality and eight, In this disorders. emotional or mental people. to respond will an individual how as- psychosocial a case, developed Terrell and review on her interviews Based the as- prepare To of Callahan. sessment came records, Callahan concluded Terrell Mary Calla- sessment, interviewed Terrell meet that did not family an abusive from Henninger, Henninger, Paul han, Sharon a result needs. As emotional his essential (Lisa), Michael Callahan, wife Gary’s Gary in, Calla- grew up he of the environment (Marie), and the Callahan, wife Michael’s control his how to taught not was han aunt, Hood. maternal Helen defendant’s laws of obey to and impulses how of the de- either interview did not Terrell drinking exacerbated society. Callahan’s not feel she because did ex-wives fendant’s his al- it diminished problem because Along talk to them. important was it cross-ex- On impulse control. ready low records, also she legal relevant Mary with amination, that admitted Terrell rec- psychiatric and the medical reviewed medical and James Callahan’s Callahan’s the de- and Mary Callahan for both ords of the ac- any not corroborate did records fendant. De- or sexual abuse. physical counts Harvey and that her conclusion spite with her interviews recounted Terrell alcoholics, con- she were Callahan James Mary family members. defendant’s steady to maintain were able both ceded her husband told Terrell Callahan Ter- their lives. throughout employment towards sexually abusive and physically Gladys Callahan was not aware rell suicide to commit tried and that she her tried had once the defendant said husband said also her times. several She pillow. with a her smother when beating the defendant starting admit- Mary was first years old. two John Goff iii. Dr. hospital health a mental ted Goff, psychologist, clinical Dr. John psychotic diagnosed she where evaluation neuropsychological thera- conducted electric shock and depression given cog- Callahan, intelligence, assessing Henninger told Terrell Sharon py. abilities, memory, personality and on a nitive James mother and her father beat her rec- medical at the looked Goff be- functions. her father said regular basis. Sharon psychi- and 1987 from Callahan’s ords she was molesting her sexually when gan about exams, Terrell talked with until she atric her to molest continued impact these envi- understanding the assessment, aid in as described psychosocial A18. individual's on the Terrell, had and evalua- factors accumulation ronmental involves society. developmental ability and behavioral function tion of individual background information family what the members told her. Goff forensic psychosocial evaluation and as- deposition did not gave Callahan, read sessment of which included ex- prior hearing to the Rule 32 amining interview in person and reviewing any family personally members because he the medical records of James Mary could not reach them. file, Attorney’s District trial transcript, and deposition. Callahan’s Goff concluded had a cog- mild Kirkland was able to interview deficit, nitive which caused poor memory members family, Callahan’s but in- skills, paranoid personality and a disorder. terview Callahan’s two ex-wives paranoid personality disorder friend, close Ann Payne. spoke Kirkland prevented Callahan from trusting anyone, Paris, with Lucretia who was married which hostility, suspiciousness, led to Callahan from 1969to the late 1970s. Par- perceptions. distorted Callahan also had is told Kirkland that Callahan did not have “a ... tendency towards untruths.” Al- *24 drug problem or alcohol they while were though Goff concluded Callahan had mem- married, and Callahan was not violent ory problems, acknowledged he Callahan against her until the end of their relation- employed life, for most of his including ship. In particular, Lucretia Paris related holding position supervisor at some an incident where Callahan gun fired a jobs. Goff was not of any aware documen- into her trailer. Callahan never told Paris tary support Mary evidence to Callahan’s he suffered physical abuse as a child. physical claims of and sexual abuse. He Payne Ann told Kirkland she never per- thought Mary testimony Callahan’s that ceived Callahan paranoid as or saw him raped she was every day years for to be in engage or inappropriate bizarre behav- “possibly an overstatement.” ior, but she was aware the incident admitted, Goff all psychiatrists where Callahan shot into the trailer. and psychologists to examine Kirkland IQ administered memory only one came to diagnosing close Callahan Callahan; tests to Callahan scored in the way the same he did. When why asked range normal on both. Kirkland conclud- only Callahan’s mother testified at ed Callahan was suffering from no mental hearing, expressed Rule 32 Goff belief illnesses that would have detracted from that family some members probably did ability his appreciate the wrongfulness not like Callahan. The ques State also of his actions at the time of the offense. tioned Goff about Alabama Court of Civil Kirkland further concluded that at decision, Appeals which referred to his trials, time of both Callahan was compe- “questionable” conclusions as they because tent and able to assist his attorneys. were based on “narrow investigation” Kirkland also observed that there was evi- and “incomplete” information. See In re dence showing Callahan tried to up cover (Ala.Civ. Bryant, 485 So.2d 752-53 crime, evidence, such hiding leaving App.1986). Goff that agreed the Court of state, changing story, his trying Appeals him, Civil had criticized but disa destroy his mobile home'—such in- actions greed with its observation that he had dicated Callahan knew what he did was available information that he chose not to wrong. use. Kirkland disagreed Taylor with the Har- Dr.
iv.
Karl Kirkland
din Reports that diagnosed Callahan as
Kirkland,
Dr. Karl
a psychologist
having
personality.
antisocial
Kirkland
medicine,
assistant professor of
completed believed there might be evidence of an
Specifical-
mitigating evidence.
disorder,
additional
but he did
personality
antisocial
that better investi-
contended
ly, Callahan
Kirkland
Finally,
one.
think
not
there
“many family
produced
gation
between
connection
no
found
causal
friends,
members,
other witnesses”
as a child
suffered
Callahan
alleged abuse
Mr.
about
have “testified
who would
committed, which were
crime
and the
no
family with
severely dysfunctional
Goff, han’s
Dr.
Like
years.
by 23
separated
intervention,
sexually and
his
service
social
Mary
Callahan’s
nothing
Kirkland saw
father, his sui-
alcoholic
abusive
physically
her ac-
to corroborate
records
medical
passive de-
chronically depressed
cidal
abuse.
and sexual
physical
counts of
mother,
al-
history of chronic
pendant
head
abuse,
history of closed
Assistance
c.
Ineffective
cohol
Phase
in and ad-
good behavior
injuries, and his
Counsel—Guilt
III, 767
Callahan
prison.”
justment
was ineffec
counsel
argued his
(internal
omit-
quotations
at 398-99
So.2d
failing
guilt phase
during
tive
ted).
I, the State
of Callahan
light
argue
evidence
sufficient
present
although
The trial court observed
constitutionality of Callahan’s
prove
were
many individuals
alleged
view of
Under
statements.
behalf, only one
testify on' his
available
I, the
introduction
State’s
hearing.
Rule 32
actually testified at the
*25
Alabama’s
precluded
was
statements
un-
Henninger was
example, Sharon
For
Jeopardy
Double
interpretation
it. For
did not honor
subpoena, but
der
Constitution.
States
of the United
Clause
reason,
court concluded:
the trial
this
State,
d.
Ineffectiveness
testimony
Callahan.
about
favorable
Phase
Counsel—Penalty
ex-
either
not interview
she did
particular,
be
they
thought
because she
wife
was ineffec-
his counsel
argued
in-
a further
As
Callahan.
against
biased
present
failing to investigate
tive
trial,
evidence,
State
detail,
the
at a second
then
unnecessary
going into
Without
19.
try
to
evidence
additional
cannot introduce
Hergott
the State does
is that
gist of Hull
prove
first
prove
what it failed
a court finds
get
apple;
at the
if
two bites
not
admissibility of
time.
prove
the State failed
bias,
Terrell’s
dication of
the court noted judge’s report, granting relief on both of
everything
family
she
mem-
believed
them.
Haley,
Callahan v.
F.Supp.2d
(N.D.Ala.2004) (Callahan
despite
poten-
IV)-
bers said
their
recognizing
We
tial
family
to make the
situation
motive
ordered
limited
instructing
remand
really
look
than it
worse
was. On the
district court
to address the other six
hand, the trial court
other
credited the
V,
claims. Callahan
han’s Penalty Phase he could violated because defense coun- court found Callahan’s The district particu- a witness. Monk as Judge call three sentencing for was deficient sel lar, stated: district court (1) call Knight failed to primary reasons: (2) 1) witness; mother certainly a witness judge was any sub- room, no evidence [wa]s interrogation “[t]here conditions or investigation strate- mitigation men- stantial 2) demeanor Petitioner’s by de- implemented 3) was discussed gy state, appearance tal/emotional (3) counsel”; “[e]qually crucial fense in- in the law enforcement officials counsel to of [Callahan’s] the failure room. terrogation Id. evidence.” any psychological present at trial as had testified judge If the district In particular, 1261-62. *27 testimony of witness, and confirmed have been should believed evidence court testi- Attorney Lybrand parts “dysfunc- regarding Callahan’s presented [Callahan], testimony would his mony of personality upbringing, paranoid tional weight more have carried much likely at Id. disorder, cognitive defects.” witnesses. testimony of other than had taken counsel If Callahan’s 1265. concluded court steps, the district those court did The district Id. probability Calla- a reasonable there case- any Supreme Court cite specifically been sentenced not have han holding, its portion this support law to Id. death. v. was Crane the basis presume but we 2142, 683, 90 106 S.Ct.
Kentucky, 476 U.S.
OF REVIEW
II. STANDARD
(1986),
was cited earlier
which
L.Ed.2d 686
Effective
proposition
the Anti-Terrorism
for the
Under
opinion
in its
(AEDPA),
federal
Penalty Act
guaranteed
Death
defendants are
“[c]riminal
prison-
court
grant
a state
ability
Id.
complete
defense.”
court’s
present
right
limited
corpus is
for habeas
petition
er’s
at 1263.
three
situations.20
See
plication
U.S.C.
must also be unreasonable.” Id.
2254(d).
§
411,
precedent where “the state court applies a must the factual determination have been
rule that
governing
contradicts the
law set
unreasonable, but the state court’s factual
forth in [Supreme
cases,”
Court]
or where
findings must be shown
by
unreasonable
“the state court confronts a set of facts
clear
convincing
evidence.
that are materially indistinguishable from
2254(e)(1);
§
see also
v. Cros
Rutherford
a decision of
Supreme]
[the
Court and
by,
1300,
(11th Cir.2004)
385 F.3d
nevertheless arrives at a result different
(concluding that
“[petitioner] has not
precedent.”
from [its]
Taylor,
Williams v.
by
shown
clear and convincing evidence
362, 405-06,
1495,
529 U.S.
120 S.Ct.
1519-
that the
Supreme
Florida
Court’s factual
(2000).
We
the state court’s decision
was based on an unreasonable determina-
A fair trial in a fair tribunal is a basic
tion of
the facts
of all
light
the evidence
requirement of
process....
due
To this
2254(d)(2).
§
before it.
end no man can
judge
be a
in his own
case and
permitted
no man is
try
2254(d)(1)
§b.
cases where he has an interest
in the
nowWe
whether the
consider
state
outcome....
It
very
strange
be
application
court’s
of law to fact was “con
system
if our
permitted
law
a judge to
trary to” or an “unreasonable application
act as a grand jury
try
and then
Supreme
precedent.22
of’
Court
only
very persons accused as a result of his
Supreme
Court case cited
Callahan ad
investigations.
dressing
judge
when a
preside
cannot
over
136-37,
Id. at
929 it was to think inclined Although we are gov- investigator an not Monk was court, state not, party, nor neither on therefore, is not Murchison ernment; it, assume Callahan so we will addressed rejection of Calla- court’s The state point. Judge to have request his denied was Monk’s failure Judge claim based han’s testify. Monk “contrary to” or not was himself to recuse clearly of’ application “unreasonable
an 2254(d)(2) §a. precedent. Supreme Court established attempt to Assuming Callahan Present Witnesses to Right witness, Callahan Monk as a call Judge terms, these not use Although he did finding factual state court’s challenges the essentially allegation an claim is Callahan’s anything observe Monk did not Judge that Pro- Compulsory under rights that his not that could room interrogation in the of the Sixth Amendment cess Clause witness. to another testified have been prevented he violated because been to claim enough for Callahan It is not as a witness. Monk calling Judge from to opportunity not have he did because rights, Amendment most Sixth Unlike Monk, not know he does Judge question initiation automatically on the which “arise may not have may or Monk Judge what of a right adversary process,” of the to is on Callahan burden The known. “de- compulsory process defendant to convincing evidence by clear show initia- entirely on the defendant’s pendant un information possessed Judge Monk 410, 400, Illinois, 484 U.S. Taylor v. tive.” Yet, Calla any other witness. known to (1988) 646, 653, 798 98 L.Ed.2d 108 S.Ct. fact that several contest the not han does [compul- (“The employ to whether decision the entire room in the were individuals rests case particular in a sory process] nor does Judge present, Monk time defendant.”). solely with the Lybrand entered fact that contest the At Judge Monk. immediately after record, room of the thorough review a After testified, trial, Hubbard the second actually find where cannot Callahan we testify, Calla to but available Lybrand aas wit- Judge Monk to call attempted from the testimony have his to han chose hearing suppression ness, at the either into the record instead read first trial only The reference trial. at the second two Because least again. calling him in Callahan’s testifying was Monk Judge Monk, Judge as knew as much individuals Judge he stated in which to recuse motion finding was factual state court’s a called as wit- “possibly” be Monk could unreasonable. fact, motion when Callahan’s ness. confer- pre-trial was discussed a
recuse 2254(d)(1) § b. 1987, his 6, focused July ence on ability to be Judge Monk’s argument on long line contends Judge to call desire impartial'—not right to cases establish Supreme Court Conversely, at the as witness. Monk behalf, on his witnesses present attempted trial, explicitly first “contrary to” decision is state court’s a witness. Judge call Monk them. application” an “unreasonable are he relies on Court cases Supreme The thus whether issue is 683, 106 S.Ct. U.S. Kentucky, 476 v. attempt Crane was a sufficient motion recuse (1986), v. Chambers 2142, L.Ed.2d 636 90 such that process compulsory employ 93 S.Ct. Mississippi, U.S. motion was Monk’s denial Judge Illinois, (1973), Taylor v. L.Ed.2d him as a call witness. request denial *31 930 400, 646,
U.S.
108 S.Ct.
Amendment. Callahan
point to a
must
to call
witnesses
one’s own behalf have
Supreme Court case addressing a situation
long
recognized
been
as essential to due
his,
similar to
and he has not done so. process.”), but the actual holding does not
Crane,
the trial court found the de
There,
resemble the case at bar.
an indi
voluntary,
fendant’s
confession
but the
vidual,
McDonald,
Gable
gave a sworn con
defendant still
wished
introduce evi
fession that
responsible
he was
for the
dence of the circumstances
confes murder Leon Chambers was charged with
sion to
validity
“cas[t] doubt on its
and its
committing.
287,
Id. at
93
at 1042.
S.Ct.
credibility.”
685-86,
In this the issue prevented is not whether from cross-examining witness, Callahan was able to introduce evidence nor prevented from introducing about the circumstances of the interroga- any hearsay evidence. Chambers is not on tion: Lybrand Hubbard and both point. testified Supreme
23. The
Court
explicitly
did not
ingful opportunity
present
complete
de-
ground
holding
specific
its
on a
constitutional
fense.’’) (quotations
omitted).
and citations
Crane,
right.
been
Counsel—
Assistance
B.
Ineffective
16-17,
at 1922.
at
87 S.Ct.
U.S.
crime. 388
Phase
Guilt
prevented
that
for
rule
justification
The
testifying at each oth-
from
co-defendants
ineffective
prong
two
test for
try to
“each would
was that
er’s trials
is well-known.
of counsel
assistance
at
charge.”
other out of
Id.
swear the
that coun
“First,
must show
defendant
(internal quotations
21,
at
87 S.Ct.
Strick
was deficient.”
performance
sel’s
omitted).
holding the statute violated
668, 687, 104
Washington, 466 U.S.
land v.
right
Sixth Amendment
Washington’s
(1984).
2052, 2064,
80 L.Ed.2d
S.Ct.
Supreme Court
compulsory process,
“Second,
that the
must show
defendant
could never be
hold a defendant
did not
the de
prejudiced
performance
deficient
calling any witness. See
from
prevented
that coun
showing
requires
fense. This
1925. The state
87 S.Ct. at
id. at
deprive
as to
so serious
sel’s errors were
it
because
statute violated
Constitution
trial, a trial whose
of a fair
the defendant
prevented]
“arbitrary rule[ ]
was an
Id.,
at 2064.
104 S.Ct.
is reliable.”
result
of defense witnesses
category]
[a] whole
deficient
claims
counsel
priori
basis of a
testifying on the
from
that,
on the
argue
based
unworthy
failing
them
presume[d]
categor[y]
interpretation
courts’
Alabama state
at 1925.
87 S.Ct.
Id.
belief.”
Her-
Hull and
Clause in
Jeopardy
Double
Here,
prevented Callahan
Alabama has not
Moreover,
I
gott,
holding
precluded
we are convinced Callahan
of all of his
the introduction
statements
could not satisfy
prejudice
prong of
his second trial. The Court of Criminal
ability
Strickland. Callahan’s
to demon-
Appeals concluded Callahan’s claim relied
prejudice
again
strate
foreclosed
interpretation
on an erroneous
of Callahan
state court’s decision in Callahan III.
III,
rejected
I
it. Callahan
So.2d
Knight
Even if
failing
was ineffective for
at 386-87.
objection,
to make the
the state court has
*33
told us that if he
objection
did make the
it
argument
Callahan’s
the
would not have been successful. Callahan
unreasonably applied
state court
Strick
prejudiced by
cannot be
his counsel’s fail-
obviously depends upon our deter
land
objection.
ure to
a losing
make
mining Knight’s performance
defi
was
cient,
we would have to
but first
conclude
C.
Assistance
Counsel—
Ineffective
of
law,
misinterpreted
the state court
state
Penalty Phase
i.e.,
I.
misinterpreted Callahan
Her
argues
ring
Secretary, Department
Knight
v.
Correc
was ineffective
of
(11th
(1)
tions,
Cir.2005),
primary
for three
gues he should have done.... It is a Deficient Performance principle ‘fundamental that state courts claim, Before addressing his it law, are final the arbiters of state and will be useful for us to first discuss in federal habeas courts should not second- greater apply detail how we perform ” guess them on such (quot matters.’ Id. prong ance of Strickland. When examin ing 1538, Agan Vaughn, v. 119 F.3d 1549 ing a claim of ineffective assistance of (11th Cir.1997)). counsel, we indulge “must strong pre [the]
Here, in Herring, sumption Alabama Court performance .the counsel’s Appeals already has Criminal answered reasonable and that sig counsel made all question would happened what have nificant decisions in the exercise of reason Knight objected had to the introduction of professional judgement.” able v. Chandler States, (11th Callahan’s statements based Callahan United 218 F.3d 1314 I, Hull, Cir.2000) (en banc) (citations Hergott—the objection and internal III, omitted). have been overruled. Callahan 767 quotations “[W]here record Therefore, So.2d at Knight [counselj’s 386-87. incomplete or unclear about failing actions, ineffective for to make that presume we will that he did what objection. done, he should have and that he exercised
933 passed away before Knight Because Id. judgement.” professional reasonable Head, hearing, we no evidence have v. Rule Williams (quoting n. 15 at 1314 Cir.1999)). (11th penalty prepare We he did what 185 F.3d In a distorting effects trial.26 situation ‘the of Callahan’s using phase avoid “must this, attorney the reason- “did presume the must evaluate we will hindsight’ and like done, ‘from performance that he of a counsel’s he should ableness what ” Id. at the time.’ judg- perspective professional counsel’s reasonable exercised omitted). (citation Williams, F.3d at 1228. ment.” Therefore, following: presume we will bears petitioner A habeas docu- legal Knight reviewed relevant performance proving counsel’s burden of ments, psy- medical and James Callahan’s heavy is “a that burden ineffective records, Mary chological “[PJetition & n. 15. Id. at 1314-15 one.” records; Knight questioned medical competent coun that no establish er must *34 Callahan, particularly family friends of action that taken the have sel would trial, at the about ones who testified pre 1315. The take.” Id. at did counsel evidence; Knight mitigating possible strong is even reasonableness sumption of mitiga- the defendant discussed what performance reviewing we are er when penalty at the present evidence to tion Id. at counsel. trial experienced of an to burden on Callahan phase. The is 1316.25 steps. not take these prove Knight did Concerning what constitutes not “counsel need investigation, reasonable Failure to Call His Mother a. or not pursuing always investigate before aas Witness Investigation a line of defense. pursuing trial, by her During the second (even nonexhaustive, investi preliminary admission, was in the Mary Callahan own counsel reason required not for gation) is her nerves and being treated for hospital a line of investigate ably to decline Although state. in a “zombie-like” (citing at 1318 thoroughly.” Id. defense “zombie testified states she would have she 690-91, 104 Strickland, at at S.Ct. 466 U.S. we do if asked—and all” she had been 2066). context, peti of a In this “evidence son—it to her doubt her commitment not dealing and acts statements tioner’s unreasonable, surprising, even not to ineffec highly is with counsel relevant not her as witness Knight did call that (citing Id. Strick claims.” assistance tive her mental condition. given 2066). land, at 104 S.Ct. 466 U.S. inves declining to conclude that “Once we Mental Failure to Present b. act, dowe further was a reasonable tigate Health Evidence investigation to see what further look argument Zant, Inherent v. Rogers produced.” failing for Cir.1994). (11th Knight was ineffective 384, 388 F.3d trial, experienced crim- Knight an was not ac- er stated second 25. At the time Callahan's Wilkinson, lawyer. prac- inal defense Knight cording had to Louis Birmingham, Alabama for over law in ticed only him Knight testified that he hired assist twenty years. Wilkinson also Wilkinson Wilkinson, phase trial. practice guilt Knight’s consisted with the think did not court- attorney permission, left the An with Callahan's criminal work. than more 80% began. Wil- phase penalty only cases room before criminal not limit himself need Knight not discuss his de- testified experienced kinson order to be considered phase with him. penalty preparation for the capital Wilkinson nev- lawyer in a case: fense trial, of his mental present evidence health is a counsel at pre-trial and defendant’s Knight should have contention known psychological exam suggest past did not problems. about his mental health There- problems). knew, Knight Given what it fore, Knight’s consider whether investi- we was reasonable him not to conduct gation into Callahan’s mental health was investigation further into Callahan’s men- reasonable. health, tal obviously, he was not inef- failing fective for to present evidence penalty
At beginning phase, what he did not know. Knight knew that Callahan had been ex- amined in 1982 and latter Knight’s request, for a total of three c. Failure Present Evidence by psychiatrists, months no less than six of Childhood Abuse psychologists, psychiatric two and a social As with Callahan’s mental reported
worker—none of whom
problems,
health
we must first conclude
having any
problems.
health
mental
To
Knight should have known about the abuse
contrary, everyone
who examined Cal-
suffered
Callahan before we can find
lahan found him to be of normal intelli-
him
failing
ineffective for
present
it.
gence. Knight also knew that Callahan’s
Especially when it comes to childhood
previous
present any
counsel did not
evi-
abuse,
supplied by
“[[Information
a peti
problems
dence of mental health
at the
tioner
extremely important
in determin
*35
trial,
penalty phase of the first
and there is
ing
lawyer’s
whether a
performance is con
no
Knight
evidence Callahan ever told
stitutionally adequate.”
Poyck
Van
v.
problems.
about his mental health
Dep’t of Corr.,
1318,
Florida
290 F.3d
1325
Although
spe
Callahan does not
(11th Cir.2002). This
already
Court has
cifically say
Knight
what
should have done
stated in no uncertain terms: “An attorney
differently, we assume he would have had
does not render
by
ineffective assistance
Knight
an independent expert
hire
to ex
failing to discover and develop evidence of
amine Callahan.
is not re
“[C]ounsel
childhood abuse that his client does not
quired
independent
to seek an
evaluation
Williams,
mention to him.”
185 F.3d at
when
display
the defendant does not
strong
mental problems.”
evidence of
1243,
Holladay
Haley,
v.
209 F.3d
place
When we
Knight’s
ourselves in
(11th Cir.2000).
In Holladay,
trial,
we found shoes at the time of the
it was rea-
indepen
counsel’s decision not to seek an
sonable for him
investigate
not to
pos-
dent
in part
examination reasonable
sibility
be
Callahan was abused
aas
child.
spent
foremost,
cause the defendant had
over a First and
Callahan
present-
has
Taylor
month at
Facility,
Hardin Medical
ed no evidence that he told Knight about
had been examined
several mental
the abuse or
Knight
did not ask him
health experts, and had not
diag
been
whether he had been
abused.
any
nosed
problems.
mental health
psychiatric records,
han’s
both Callahan
1251;
Id. at
see also
v.
Funchess
and his mother
youth
Wain
discuss his
in great
(11th
Cir.1985)
wright, 772
detail,
F.2d
e.g., when he started to walk and
(concluding
reasonably
counsel acted
dating
talk and his
prowess,
there
but
are
not investigating
psychological
defendant’s
no
physical
references to the
abuse that he
problems,
where
defendant did not tell
allegedly
and his mother
suffered at the
past psychological problems,
counsel of
de
hands of his father. Callahan’s mother
fendant
competently
acted
in assisting
actually said she was the one who had to
school; and, on at
lengthy absences from
because Callahan’s
the children
discipline
occasion,
him and
one
his mother left
much.
least
home so
away from
father was
food.”);
siblings
days
without
his
alone
his father’s
talk about
Williams,
would be remiss child, he com yet was 35 when credibility accompanying issues potential mitted the crime. When a defendant is she testimony. Although Mary Callahan’s decades removed from the abuse several fa- years of abuse spoke of being mitigation offered as evidence its ther, why her had no answer as she Dugger, v. value minimal. See Francis is did not contain refer- medical records (11th Cir.1990) (accord F.2d She also did not ex- ence to the abuse. “little, any, mitigating weight” if ing the abuse why she did not mention plain abusive child deprived evidence of a when she was interviewed her son suffered years was 31 old hood where defendant in 1982. The psychiatric evaluation murder). Terrell when he committed the ques- into could have further called State that, knowledge, none admitted to her also out her credibility by pointing tion her had committed vio siblings of Callahan’s problems. mental health long history of crimes, reducing further the value of lent forget that all of her Finally, we cannot Gray mitigating evidence. See abuse as have testimony penalty phase at the 1194, 1227 Thompson, v. 257 F.3d son in a while she was zombie-like been offered (11th Cir.2001) (“The Grayson fact that state. such a hei only child to commit may have undermined de nous crime also unlikely
It
Dr. Goffs conclusions
mitiga
childhood
fense efforts
use his
mental health would
about Callahan’s
tion.”). Overall,
mitigation evidence
jury
weight
much
with the
either.
carried
*38
III, 767
prejudice. See Callahan
interprets
if there was
the trial court's credit-
28. Callahan
Moreover,
2254(d)(1),
§
under
ing
testimony
requiring Cal-
So.2d
Dr. Kirkland's
'decision' and not
"we review the state court's
a causal connection between
lahan to show
rationale,”
Sec’y
v.
necessarily
Parker
demon-
its
abuse and the crime in order to
for
764,
(11th
Dep’t of Corr.,
785
Cir.
"contrary
331 F.3d
prejudice, which is
to”
strate
"
2003),
‘grading papers'
interpretation
in order to avoid
is with-
Strickland. Callahan’s
post-AEDPA
approach that is outmoded in the
support.
and the Court of
out
The trial court
Corr.,
era,”
Sec’y
Dep’t
278
Wright v.
applied a
Appeals both cited and
Criminal
Cir.2002).
1245,
(11th
F.3d
1255
probability standard to determine
reasonable
say
unreasonably ap-
behalf was less than
not
the state court
on Callahan’s
offered
plied
prejudice prong
of Strickland.
compelling.
hand,
other
the state court found
On the
TV. CONCLUSION
factors:
the crime was
aggravating
three
produced
James
has
no evi-
was under sen
committed while Callahan
rights
dence that his constitutional
were
imprisonment;
the defendant had
tence of
violated at
guilt
penalty
either
or
convicted of a crime of
previously
been
phase
petition
of his trial. His
for habeas
violence;
was committed
and the murder
corpus
on all
is therefore denied
counts.
kidnapping.
previously
We have
during a
PART
AFFIRMED IN
AND RE-
“[m]any
penalty
death
cases
noted that
VERSED IN PART.
carefully planned,
murders that are
involve
torture,
by
rape
kidnap
or
accompanied
WILSON,
Judge, concurring:
Circuit
1383,
Turpin,
Dobbs v.
F.3d
ping.”
Judge
step
Monk’s decision to
across the
Cir.1998) (alteration
(11th
original)
interrogation
threshold of the
room and
omitted).
types
“In these
(quotations
court,
speak with
out of
seems
cases,
aggra
this court has found
surprising
unusual to me. It is not
that no
of the
out
vating circumstances
crime
presenting materially
case
the same facts
any prejudice
lawyer
caused when a
weigh
Supreme
has ever reached the
Court.
present mitigating
fails to
evidence.” Id.
Yet,
lacking
Supreme Court decision
obviously not an
While that
absolute
so,
saying
deny-
the state court’s decision
rule, it demonstrates the burden a defen
not,
ing relief on the recusal claim is
under
trying
dant faces when
to overcome such
by
Supreme
the standards set forth
aggravating
mitigating
harsh
factors with
362,
Taylor,
Court Williams v.
529 U.S.
Alabama,
Clisby
evidence. See
v.
26 F.3d
(2000),
120 S.Ct.
939 than family members other Following v. United
aunt. Chandler (11th Cir.2000) (en
States, F.3d 1305
banc), that he did what he “presume we done, he exercised
should Id. at judgment”. professional
reasonable Head, v. (quoting
1314 n. 15 Williams (11th Cir.1999)). Wig
F.3d Smith, 510, 123 S.Ct.
gins v. 539 U.S. (2003), counsel
156 L.Ed.2d defense
investigated Wiggins’s youth, were aware background, psycholo
of his and hired a (who at tri
gist criminologist testified
al), their Supreme and the Court still held constitutionally
performance to be ineffec Here, no
tive. we have idea whether but,
Knight things; of these since precedent,
we are bound our circuit we
presume that he did.
Bryant FLURY, Plaintiff-Appellee,
v.
DAIMLER CHRYSLER
CORPORATION, Defendant-Appellant.
No. 04-15182. Appeals,
United States Court
Eleventh Circuit. 5, 2005.
Oct.