Lawhorn v. Allen

unsigned sented here: an motion is sub- LAWHORN, James Charles

mitted to court and the district is subse- movant, Petitioner-Appellee, quently signed by the after the filing passed. deadline Reading has Fed. categorically R.Civ.P. 11 to foreclose the ALLEN, Commissioner, Richard F. Alabama opportunity movant’s cure the lack of pt. Corrections, Attorney De signature filing after deadline has Alabama, Respondents-Ap General of § passed contrary to the amended pellants. 3(b) requires Rules. Amended Rule No. 04-11711. clerk to file and docket the upon motion receipt, even if it does not conform to the United States of Appeals, Court requirement technical in Rule 2 that the Eleventh Circuit. signed. motion be In the event of a con- March § flict between the amended 2255 Rules Procedure, and the Federal Rules of Civil govern:

the former “The Federal Rules of

Civil Procedure and the Federal Rules Procedure,

Criminal to the extent

they are not inconsistent with statuto-

ry rules, provisions may or these ap- be

plied proceeding to a under these rules.” Governing

Rules Section 2255 Proceed- (2006).6

ings, R. 12 Since the amended

§ govern 2255 Rules the outcome this

case, the district court’s reliance on Gon-

zales, case, a Rule 11 was inappropriate.

V. CONCLUSION reasons,

For the foregoing the district §

court’s dismissal of Michel’s 2255 motion reversed,

as time-barred is and the matter

is remanded to the district court for fur-

ther proceedings consistent with opin- this

ion.

REVERSED AND REMANDED. product 6. This application version of Rule 12 was a of the mitted of the Federal Rules of § amendments to the 2255 Rules. they Prior Civil Procedure to the extent that amendments, however, per- these § Rule 12 were not with inconsistent 2255 Rules. Newsom, Bradley, Christopher

Kevin White, LLP, Arant, Birmingham, Rose & AL, Hughes, Montgomery, Beth Jackson AL, Respondents-Appellants. Morrison, Neumeier, Maho- Richard L. MA, Miller, LLP, Boston, ney for Law- & horn. BIRCH, BARKETT and

Before WILSON, Judges. Circuit BIRCH, Judge: Circuit James petitioner An Alabama found (“Lawhorn”) guilty of Charles capital murder and recommended that he road. Id. at 294-96. Williams said that be to death. The state circuit “fairly young sentenced there were three people” sit- judge adopted court recommendation ting in the front seat the truck cab and Lawhorn to death. After sentenced “at least one “heavy of them” had a remedies, exhausting his state court Law- beard.” Id. at 295-96. corpus petition horn filed a federal habeas Jones, Mona Lisa who lived across a pursuant § to 28 U.S.C. 2254. The district Store, road from Highway Collier’s granted part court and denied in part Road, east of Sylacauga Wiregrass near petition, Lawhorn’s habeas and the state said she and her husband followed a appealed.1 thorough After a review the red car and a truck on the road out from record, having the benefit of oral ar- Sylacauga toward their house. Id. at 282. briefs, gument parties’ and the we RE- man; car was driven truck judgment VERSE the district court’s was driven a woman. After both driv- granting by sup- Lawhorn habeas relief got buy ers out of their vehicles to drinks confession, pressing his and AFFIRM the store, from a they machine front of the district judgment granting court’s Law- got into away. the truck and drove Id. at horn habeas relief on the issue of ineffec- P.M., 283-84. Around 3:30-4:00 William

tive assistance of counsel. Collier, Store, the owner of Collier’s re- turned from a trip Sylacauga to find a I. BACKGROUND sitting car in front of his closed store. A. Facts2 at 279-80. The car remained in front of Collier’s by Store until it was police towed During the late morning of 31 March on 2 April. officers 1988, Sylacauga, Alabama Police Officer Kenneth Brasher people observed some April, On 2 Berry’s body was found arguing across the from gas street wooded area Wiregrass off Sy Road near station stopped. where he had He saw lacauga, autopsy Alabama. An revealed woman in belonged a truck that to Altion forehead gunshot abrasions and 27 wounds Walker, Maxine and also saw William pistol from a or a shotgun. rifle and a Berry Clarence run get and into his auto State, Lawhorn v. 581 So.2d being mobile while chased James (“Lawhorn I”). (Ala.Crim.App.1990) “The Lawhorn, Charles nephew. Walker’s cause of death ‘multiple gunshot ” I, (Ala.Crim.App.1990); 581 So.2d shotgun wounds’ because wounds “[t]he 9 at Tab 287-294. R1-1 weapon from either would have fat been About 3:30-4:00 day, P.M. that same al.”3 Id. That evening and in the follow Grover C. Williams ing days, shotgun, saw truck turn to- pistol, and shells were ward him Highway off 148 and onto a dirt recovered from Walker’s residence. A 1. appealability (Lawhorn V) (referenc- A certificate required (Ala.Crim.App.1999) is not appeal an R.App. ing a state. Fed. P. the "essential facts of this case” recited in 22(b)(3). I). cited, Except as otherwise the facts are tak 3.There were four entrance wounds from the opinions neck, en from pistol of the Alabama Court of or rifle: one to the one to the Lawhorn, chin, Appeals. I, parte Criminal See Ex and two to the chest. Lawhorn (Ala. 1991) ("Lawhorn II") So.2d chin, So.2d at 1161. The wound to the which (referencing brain, the "detailed statement of the traveled to the and the one of the State, pertinent chest, facts” found at Lawhorn v. wounds to spine which severed the ("Law- cord, (Ala.Crim.App.1990) So.2d 1159 spinal instantly.” death "caus[ed] I")) State, horn and Lawhorn v. remaining 756 So.2d 971 Id. The twelve entrance wounds Id., Talladega County Jail.6 Tab 4 at spent shot- expert noted that firearms however, body- Lawhorn, victim’s did not talk to a found near the gun shells as the lawyer class characteristics” at that time or before he next saw had the “same resi- from Walker’s shotgun April. recovered on 7 Wallis absolute dence, say unable to with but was Wallace, Ann an April, On 7 Wallis and spent shells were certainty whether Talladega Attor- employee of the District was, shotgun. Id. He how- from the fired office, past ney’s walking were Lawhorn’s spent that the .25 ever, to determine able cell when Lawhorn called to Wallis from the projectiles recovered auto-caliber Id., talk. told him that he wanted to Tab 9 pistol. body were fired from the victim’s 340-41; Tab 10a at 371-70. Wallis lifted print matched a fingerprint expert A explained to Lawhorn he could door of Walk- passenger the exterior talk to Lawhorn he had asked for because truck to Lawhorn. er’s attorney that he an but Lawhorn said Lawhorn was interviewed evening, That Wallis, rights, wanted to waive his talk to Wallis, investigator with the by Frankie Id., happened. him what had Tab tell County Department.4 Talladega Sheriffs that he was 9 at 341. Wallis told Lawhorn Wallis advised Exh. Tab 9 get back with busy but that he would rights using Lawhorn of his constitutional Lawhorn, by tell- responded and Lawhorn 332-33; form.5 Id. a standard Miranda Id. at 341-42. ing to come back. Wallis 335-337, 387-88, 392. After Tab 10a at afternoon, Wallis, Wallace, That rights, Lawhorn indicat- was advised of his Billy Pope Joe met with Law- Lieutenant rights, and an- ed that he understood 343, 348; Id. 10a at horn. Tab asked whether he “[y]es” swered when again Wallis advised Lawhorn and the other wished to talk to Wallis his Miranda and Lawhorn stated rights Id., 336; at at that time. Tab 9 officers rights that he understood his wished at He then executed waiv- Tab 10a 388. Id., 342-45, 348; 9 at to waive them. Tab form, Wallis, and made er witnessed 350-51, Lawhorn Tab 10a at 389-91. Id., Tab 9 at 336-37; Tab 10a statement. on it that he did signed a waiver and wrote statement, Lawhorn said at In the 388. Id., 46; lawyer. 9 at not want a Tab 345— for several stayed that he had with Walker Lawhorn’s waiver Tab 10a at 391. who he Berry, that he had met nights and Wallace, and signed by Pope, then boyfriend. Id. at understood was Walker’s Id., 345-46; witnesses. Tab 9 Wallis as After he was asked Tab 9 Lawhorn then made two Tab 10a during Brasher being about seen was made The first statement statements. March, Lawhorn said morning of 31 time, At that Lawhorn 3:55 P.M. about lawyer questioning and all he wanted him kill to hire that Walker tried stated Id. at 338. Lawhorn was then stopped. Id., it. that he would not do Berry in but Berry’s placed murder and arrested for that Lawhorn was arrest form shows shotgun and were to both 6.The were from the abdomen, chest, arms, right April at 10:30. The time upper arrested on 2 however, leg, upper back. two day, unclear: the form has whether the to be checked to indicate boxes Wallis, According spoke to Lawhorn P.M.; mark on the or the check time is A.M. midnight. P.M. and between 9:00 sometime two boxes. in between the form is located 333, 335; Rl-17, Tab 10a at Exh. Tab 9 at Exh. Tab at 6. Arizona, 384 U.S. 86 S.Ct. 5. Miranda (1966). L.Ed.2d 694 347-48; 352, 392,

Tab 9 Tab 10a at 394. She got then into the driver’s seat of her After a break in conversation and truck after and had Lawhorn Mac lie down encouraged truth, Lawhorn in to tell the the truck bed. She told Lawhorn and that, Lawhorn Mac caught up made second statement about when she with Berry, Id., 348; she 5:40 P.M. Tab 9 at would slam on the Tab 10a at brakes. 352-54, 392-93. Between the two state- brakes, When she slammed on the Mac afternoon, ments that the officers did not up” “raised in the truck Berry. and shot

readminister a Miranda warning, but “re- I, Lawhorn Berry 581 So.2d at 1162. fell ferred warning giv- back” to the Miranda got but up and ran towards the woods. Id., en to Lawhorn day. earlier that same Lawhorn stated that Mac then shot at Tab 9 at 348-49. Berry fell, again. Berry After Lawhorn statement,

In the walked over to Berry second Lawhorn de- and heard him mak- ing “gurgling scribed in detail his participation Ber- noises.” Id. at 1163. Law- ry’s that, horn murder. He said said that he shot Berry about three Walker, week when he was times to staying with “make sure he was dead.” Id. Walker told him that she Lawhorn and Mac then got was scared of back into the and, truck, Berry daily, pay put pistol almost had offered to Walker and the shells sack, “get Berry. Lawhorn to rid” of into a they returned to town. I, 581 So.2d at 1162. He said while P.M., About 5:30 Kilgore Lawhorn and they errands, were running they out went to the murder scene to look for the brother, picked up Lawhorn’s Mac Law- pistol shotgun shells because Lawhorn (“Mac”), horn and Walker asked Mac if he did not want to any leave evidence at the in earning was interested money. some scene. They did not find and went to Mac “[y]es” After answered and asked Walker’s Kilgore house. instructed Walk- job involved, what the explained Walker er to shotgun clean the get the pistol “[g]et she wanted to [Berry].” rid of but found out that given Walker had Rl-17, Exh. Tab 10a at 410. Walker had pistol to Mac to discard. Lawhorn called Mac lie down in the truck they while drove Mac, and then went with Walker to Law- shotgun retrieve a and shells from the horn’s mother’s house to pis- retrieve the son, automobile of Walker’s Robert Kil- tol. Walker waited the truck while gore. Id. at 410-12. Walker then drove got pistol. they When re- Lawhorn and Mac to a wooded area which house, turned to Kilgore Walker’s took the she and Berry had visited. Lawhorn and pistol and said that he would take care of gotMac out of the truck and waited in the it. The next morning, Lawhorn went to woods while Walker get Berry. went to the bank with paid Walker. She Lawhorn Lawhorn pistol carried a taken from Walk- ‘getting “for rid’ of Berry.” $50 Id. at truck; er’s Mac loaded and then carried 1164. shotgun. A complaint charging Lawhorn with in-

Walker returned Berry, with and then tentionally causing Berry the death of pur- she left go the truck to across the road. suant ato contract with Walker for consid- Berry initially started across the road with $100, eration of in violation of Ala.Code Walker and began running then 13A-5-40(a)(7), down the and an arrest warrant road. Walker found Lawhorn and Mac Rl-17, were issued on April 8 1988. Exh. and told Berry them that away. 5, had run 4 Tab at 9.7 Lawhorn submitted an 7. Walker and Mac were also indicted for the $40 hire for a consideration. Walker was Berry pursuant murder of to a contract for convicted in 1988 and sentenced to death. 1988, May February, at In Fannin and Gid- on 10 65-66. indigency, of and affidavit appointed [ejmploy [psy- D. Giddens was moved for to attorney “[f]unds Steven dens Rl-17, 4Tab at Exh. to him.8 ... represent chiatrist” to “consult with counsel and Berry’s for Lawhorn was indicted 7-8. investigations ... and examinations” make at 1988. Id. 9-10. on June murder during for of preparation defense for as a guilt phase mitigating and use 1988, attorney Fannin Hank On 9 June Id., penalty phase. Tab factor represent to Lawhorn as appointed was apparently 4 at motion was de- counsel, 18. This ap- Fannin and lead Giddens Id., arraignment. at nied.9 peared with Lawhorn 7-8, 10, 19, Fannin and Tab 88. Although was psychiatric no assessment June, on met with Giddens pre- prepared, mental assessment Id. at

August, 10 November 1988. pared by Talladega Mental Health Center 27-28, 33, 20-22, 94. In June Gid- Gary request L. Garner at the coordinator to sup- and filed a motion prepared dens assessment, judge. trial In the at 23. In Lawhorn’s confession. Id. press reported Garner Lawhorn “admitted motion, alleged that his 14.” age to alcohol use since Id. 21. under in “were made duress statements opined appeared that Lawhorn “ca- Garner leniency to or better response promise pable legal the nature of understanding appar- The motion was treatment.” Id. proceedings” “capable that he facing, denied, proceeded to case ently assisting attorney preparing for discovery. trial,” and not “in need of defense and January During court” “open psychiatric examination and treat- further attorneys ap- moved for Lawhorn’s ment.” investigator “to discover of an pointment to with- April In Giddens moved any signifi- ... of any mitigating factors file gave as his case draw counsel con- wa]s ... in the event [Lawhorn cance Id., Tab 43 at One Fannin. 88-89. Id., Investigator Tab victed.” began, attorney week before trial investigate appointed Matson was Jack represent appointed Mark Nelson was including his fami- background, Lawhorn’s Lawhorn, as lead remaining with Fannin education, criminal employment, histo- ly, 41-42, Id.; Fannin Id. at use. Tab 43 counsel. ry, drug and alcohol State, (Ala.Crim.App.1990), So.2d 970 horn v. appeal, conviction reversed be On her denied, (No. (Ala. 25, 1991) Kentucky, Batson v. Jan. of a violation under rt. cause ce 1900484). L.Ed.2d 69 106 S.Ct. State, (Ala. (1986). Walker v. 586 So.2d (remanding evidentiary Crim.App.1991) practice less than five had been in Giddens (Ala.Crim.App.1992), proceedings), 611 So.2d 1133 His broth- years. Exh. Tab 43 1993) (No. (Ala. Jan rt. denied Giddens, er, district ce 1920188), was an assistant Rod grounds, v. on Smith overruled other pros- attorney assigned to in Lawhorn’s assist State, (per (Ala.Crim.App.2002) 413 So.2d 23, objection was Id. 97-98. No ecution. at curiam). in She was retried and convicted resulting any potential as to conflict raised 2002, conviction and sentenced to life. Her serving as brothers defense from the Giddens Alabama, Walker v. 919 So.2d was affirmed. attorneys. prosecuting Id. at 98-99. and (Ala.Crim.App.2004). petitions Her for denied, Walker, re were In writ of certiorari addressing the 9. is neither an order There (Ala.2004); Walker Ala So.2d 1141 psychiatrist employ a nor for funds to motion bama, 125 S.Ct. in the record. Rl- psychiatric assessment (2005). L.Ed.2d 81-85, 102-03. Exh. Tab 43 sentenced was in and Mac convicted possibility parole. of Law- to life without the strategies, defense the 7 April. and Nelson discussed made statements on Id. at including of the and suppression confession penalty in mitigating phase factors the trial, Following and days one one-half of guilty. event was found Id. the Lawhorn parties permitted closing argu- the were began, at 109-11. Before the trial Nelson During closing argument, ments. venue,

prepared change a motion for of Fannin that conceded there was a murder Lawhorn, file, once met with reviewed that and Lawhorn shooting had admitted research, library did some and contacted victim but asked that not potential witnesses. Id. at 107-14. Id., change venue convict Lawhorn of capital The of motion was on murder. based prejudicial publicity; it pretrial was denied Exh. jury, Tab 12 at 458-62. The howev- Id., April on 24 Tab at 13-17. er, guilty capital returned a verdict of Id., April murder on P.M. 3:15 Tab trial began April Lawhorn’s on During trial, Exh. Tab 3. Law- attorney objected horn’s to the introduc- began The penalty hearing P.M. 4:05 tion Lawhorn’s on 7 second statement Id., day. on the same Tab 16a. After an new April warning because a Miranda was opening prosecutor, statement Fan- given; objection was overruled. witnesses, presented nin several including Id., Tab 9 at 349. Lawhorn testified Lawhorn. Fannin asked Lawhorn after the on 7 April first statement name and asked Lawhorn to make his in changed tape Wallis the recorder requested jury. statement to the Lawhorn told and him that he [his] “needed tell then stated: part story, exactly what happened Id., and tell the truth.” Tab 10a at 353-54. Members of the I jury, know I was Lawhorn that stated he told Wallace “that wrong you and I want all I know was truth, tape gave the first that I was the wrong, say Pd please like to have said, ‘No, and [Wallis] it was not the truth.’ mercy you on me. I want all to know I I part [Wallis] said that to tell needed I wrong. lead and I was I played in this ... murder ... and wrong. I should not have did it. I did I 354; tell said needed to the truth.” Id. at sorry. it. I’m I say. That’s all have to see also 355-56. Lawhorn said that Wallis Id., stop one who told him lying Exh. 18 at Tab 545. Fannin asked truth, Wallace, to tell the but Pope, no questions, further and turned Talladega County Jerry Sheriff Stud- prosecutor him over to the for cross-exam- dard were also the room. Id. at 354. Following ination. Lawhorn’s cross-exam- “fright- declared that he was ination, prosecutor introduced the rec- they ened” and “scared to death” because prior ords Lawhorn’s convictions for kept “questioning over over [him] theft, burglary, possession burglary thing.” about the same 356-57. He Id., tools. Exh. Tab 19 at 575-78. that, although said Wallis said that “it Fannin closing argu- then “waive[d]” would be better ... if I [Lawhorn] objected ment and making “to the State truth,” would tell the Wallis never provid- Id., closing arguments.” further Tab any specific ed it information as to how 21 at 584. state it had responded better, him, would be never threatened that, “split” argument a and Ala- based on and never or promised anything offered in Supreme bama precedent, Court the exchange for had a statement. Id. at 359- right argue” “even if he open 364. He also that was does not “to conceded he rights aware of his Miranda Although when he and to close.” Id. Fannin main- jury proceeded to At argue, the state deliberations. if he did not tamed P.M., closed,” jury the a verdict rec- pros- the 7:35 returned already “opened and had ommending to position that Lawhorn be sentenced that “Fannin’s responded ecutor Id., 24 at ... it is not death. Tab 601-02. in a civil case but ‘the law was ” Id., Tab 22 case.’ in a criminal law] [the investigation report A was presentence then the permitted The trial court at 585. and prepared filed the June 1989 second, closing to a rebuttal present state Id., At sentencing hearing. Tab at 44. Id.; During 43 at 52. the argument. Tab hearing, the neither nor coun- prosecutor the closing argument, rebuttal any to within the objected sel statements jury’s to Lawhorn the attention directed presentence investigation report, offered Berry’s him as “executioner” and identified evidence, requested or a life other lying-in-wait ambush” which was “a Id., Tab 25 at 607-08. The trial sentence. and cold calculated as merciless “as and that it considered the court indicated had Id., 22 at you get.” can Tab ... as investigation report, that presentence in ... a “[njothing would constitute [it] Id., jury 1 at mitigating the on circumstance.” Tab The trial court instructed It that had necessary aggravating to 66-67. found the Lawhorn elements find the convictions, prior felony crime. It three and that the involved the circumstances pecuniary gain circum- was committed for aggravating that offense explained one heinous, atrocious, stance, “especially the was committed for was that offense compared capital cruel to other offenses.” jury’s was capital gain, established hire. It 67-68. The trial court then sen- of murder for guilty verdict of Id., Lawhorn to death. Tab 25 at tenced then stated: you con- could [circumstance] Another by your proven ... not verdict is sider and sentence were Lawhorn’s conviction especially capital

that offense was Alabama of Crimi- affirmed Court cruel, hefinous], ]rocious, or com- at[ State, nal Appeals, Lawhorn So.2d as capital other offenses set pared with (“Lawhorn I”), (Ala.Crim.App.1990) defining aggravating out [in statute] Court, Supreme Alabama In re circumstances. (Ala.1991) Lawhorn, 581 So.2d (“Lawhorn II”).10 Id., 9 September On Tab 23 at 595. prosecutorial following tencing miscon- appeal, as result 10. On Lawhorn raised I, (1) at 1164-79. trial erred in: duct. Lawhorn 581 So.2d issues: whether the court (a) change pre- denying a of venue based petition writ of Lawhorn filed a In (b) publicity; failing inquire certiorari, trial to whether addressing the issues raised before penalty the venire so favored the death that Appeals and addi- of Criminal “13 Court II, they imprisonment would not vote for life 581 So.2d at tional issues.” (c) parole; possibility denying without the 1180-81. One of the raised additional issues suppress subjected his confession because un- motion whether he was concerned (d) involuntary; charging judicial delay securing was deter- it reasonable aggravating probable cause for his warrant- it could consider the circum- mination iv, atrocious, Exh. Tab 30 stance that the murder was cruel less arrest. days capital argued his four of detention compared to of- He or heinous as fenses; other (e) warrant was obtained uncon- finding mitigating no circum- before arrest stances; (2) stitutionally right a fair deprived him of his whether his death sentence probable cause. argued and reliable determination unconstitutional because state Supreme Court found no sympathy; Id. The Alabama the verdict should not be based on (3) presentence report highly and addressed one of reversible error whether newly whether the trial court prejudicial it raised issues: because included recom- death; (4) prosecutor’s wit- by allowing two of whether erred mended sentence of prosecution's table to sit at denied fair trial and reliable sen- nesses petition Lawhorn filed a for writ of and out strategy guilt certio work a for both the Supreme rari with the United States and penalty phases. Id. at He 13-14. denied, petition was information, Court.11 certiora confirmed that he obtained in- ri, Alabama, 970, Lawhorn v. U.S. confession, cluding Lawhorn’s from the (1991) (“Law 116 L.Ed.2d 463 S.Ct. prosecution, and that he and con- Giddens III"), petition hom and rehearing, for sidered whether Lawhorris confession Alabama, Lawhorn v. suppressed could be and whether venue (1992) (“Law 919, 116 L.Ed.2d 818 S.Ct. be challenged should based where IV’). horn 14-17, 24-28, crime occurred. Id. at 69- 70, 90-97. Fannin’s fee re- declaration In appeals to the Alabama Court of spent vealed he 14.5 hours out of Appeals Supreme Criminal and Alabama Court, Rl-17, court preparing for trial. Exh. represented by Lawhorn Fan- Tab at Exh. Capital spent eight nin with from Fannin assistance Re- in hours Montgomery, source Center on October 1988 investigating Alabama. Rl-17, 73-74,117-18. county occurred,12 Exh. in which Tab 43 at the crime and remaining six one-half in hours postconviction Lawhorn moved for relief meetings three with Lawhorn and in pre- under Alabama Rule Criminal Proce- paring psychiatrist. a motion for a Id. at motion, raised, dure 32. In this Exh. 2 at 2. Fannin and Giddens’s trial alia, delay procurement inter in the strategy was to make prove the state its Id,., 3; an arrest warrant. Tab 36 Tab “beyond case a reasonable doubt to the at38 3. The state court held an evidentia- Rl-17, jury.” satisfaction of the Exh. Tab ry hearing on the motion. At hearing, that, 43 at 69. Fannin explained after court-appointed Lawhorris trial counsel researching discussing the matter it testified. Fannin stated at the time Giddens, with Lawhorn and made of his appointment, practice he had been in strategic argu- decision to closing waive years, for over 20 had tried between 150 ments because prevent he wanted to trials, felony jury including and 200 other prosecutor “inflaming cases, minds capital and was familiar with Ala- the jury” calling Id., Lawhorn “a cold penalty bama death law. Tab 43 at blooded He murderer back shooter.” Id. opined 62-63. attorney Fannin providing effective believed that capital prose- assistance in case “investigate opportunity would cution’s to case as much make the final clos- possible,” ing as confer and argument following discuss the closing law defense co-counsel, with the defendant and argument was foreclosed under the Ala- II, Lawhorn, defendant, throughout the trial. Lawhorn challenge So.2d a white at 1180-81. the state's exclusion of black venire mem- R17-1, i, bers. Tab Exh. 34 at 7-12. He petition 11. In his writ of certiorari did not raise the issue of de- unreasonable Court, Supreme United States lay obtaining an arrest warrant. (1) raised two issues: whether state permitted find "especially investigation The defense crime scene fo- heinous, aggravating atrocious or cruel” cir- cused on specific their concerns as to the cumstance when it had received an instruc- county in which the crime occurred. This tion on that circumstance and the strategy ultimately circum- pursued one after rejected separate stance had been in two trial witness testified that the scene was clear- offense, involving (2) trials ly Talladega County the same legal research Ohio, provided whether Powers v. prosecuted 499 U.S. that a crime could if be (1991) S.Ct. 113 L.Ed.2d county should it one occurred within mile of a line. applied retroactively be permit and thus Exh. Tab 43 at 24-27. by Berry’s she at work proached if the defendant while was evidence” “rules of bama Berry’s at widow. Id. 185-86. widow told Id. at 51. closing argument. waived “sorry was that [Lawhorn Hudson that she they that wanted explained Giddens got and involved” because “she didn’t Mac] one, ... to keep [the confession] “number with they anything feel had to do it” and out,” that, they unable to do and if were that “it all Maxine do- [] was Walker’s that, testify they for Lawhorn needed 186-87; at Tab 42 ings.” Id. at 453. not was what that the admitted confession that they Hudson and Jones testified visit- at com- Id. 96. Giddens actually said. report ed Fannin to this conversation to that, once a defendant “confesses mented Fannin, he did consider it impor- but not crime, very difficult to the the defense is 453; 168-69, at at tant. Id. Tab 43 187. It’s difficult to point from that forward. (“Jerry”), Lawhorn’s Jerry defendant] [the convince the brother, that, after di- testified Hudson police do it he told the he did. didn’t when father, vorced their Donald Lawhorn just point up at that strategy [T]he (“Donald”), George she married Bates. at 100. the air.” Id. Id. at Bates a “a mean 138. was real physically fellow” who drank lot and Giddens, Matson, their in- Fannin, and “mother, the kids abusive to their [includ- poten- with number of vestigator, spoke ing anyone and who came across Lawhorn] including before the trial tial witnesses 137-41, path.”13 Id. at 158. In mother; Hudson, De- Shirley Lawhorn’s Bates Hilton “real bad” cut Maddox Jones, sister; Lawhorn’s bra Lawhorn fight by and killed and then shot Peters, juvenile proba- Rhonda Lawhorn’s Jerry said Hud- Maddox. Id. at counselor; Jerry and Law- tion officer and brother, Howard, son married Maddox’s rence, princi- junior high school Lawhorn’s alcoholic,”14 year within a another “abusive 42-44, 50, 70, Id. 74. Fannin pal. at him death but about a of Bates’s divorced visiting with Hudson and remembered at A year years Id. 142-43. few later. Jones, not sub- but did remember later, began Hud- dating Hudson Randall at conversation. Id. 42-43. stance their (“Randall”) and him in 1977. son married Although report mentioned that Matson’s Id. at 146. Randall was also abusive to and marijuana smoked used Lawhorn had boys, beating handcuffing them them and alcohol, did learn Fannin Giddens Id. they when misbehaved. stairs drug by any alcohol or use significant 148-49, 168. When Hudson their with Law- Lawhorn from interviews with spending weekends working horn, with report, or discussions Matson’s Randall, younger three and his 63-64, 76- possible sister, witnesses. their siblings were cared Jones, after years 100. Hudson testified Law- two older than Law- who was 146-48,162,165-66. arrested, horn.15 Id. at ap- were she was horn Mac abusive, Id. at making too much noise and beat them. Bates 13. Lawhorn also considered that, although Jerry Maddox had injured said that Bates Hudson to and testified had him, Rl-17, penis, had twisted his tried to smother that she needed stitches. extent chin, him, stomped on and busted Exh. at 204-06. Tab 43 Lawhorn, occasionally Maddox denied beat Jerry episodes a few Lawhorn related 144-45, Id. at 150-51. all conduct. such Maddox once abuse Howard Maddox. that Maddox hit shouted Jones added hunting, and Jerry and Lawhorn duck took around, they siblings and had her if were hitting injured Jerry by across his head him sexually her. Id. at 169-70. abused they strap 12-gauge as were with full shell signed name to school Hudson's getting Exh. Tab 43 15.Jones of the truck. out grandmother ad- reports, and their proved unsuccess- grade, Lawhorn in the eighth When was Lawhorn admitted that had he used to he and Mac were sent live with their drugs years, for including marijuana and Donald, father, in Texas because Lawhorn 206, narcotics such as Dilaudid. Id. at 222. of Randall want- living was tired with and He said that “extremely high” he was on at get ed to to know Donald.16 Id. 151. the afternoon of the murder. at 222- Id. enrolled in school but did not Lawhorn 23. Id. eighth grade. finish at After 192-99. 1988, In employed Lawhorn was at Rus- for driving was arrested under the Donald Pipe Foundry, sell and making per $3.90 later, influence a few months Lawhorn 1988, hour. Id. at 206-07. On 31 March lived with some of Donald’s friends for he cashed paycheck gave money his and to occasionally about six months and attended pay his mother to for the preparation of 1981, In school. Id. at Donald 194-96. his income tax return. Id. at 207-08. He a admitted he was chronic alcoholic to expected receive as an tax income $586 job, they and unable hold a was to and refund. Id. at 208. Georgia moved to to live with Donald’s Roger Appell, Birmingham attorney a sister-in-law, and Bill brother and Dather- specialized who in criminal and law had Lawhorn. 199. lene Id. at capital cases, defended ten testified as an Lawhorn Georgia, After moved to expert Appell witness. at Id. 309-12. be- periods lived for short of time with his provided lieved Fannin ineffective as- aunt, uncle and step-father, his mother and counsel, of sistance and that his “most relatives, father, other his and and occa- egregious mistake” was his to failure make sionally Id. attended school. at 199- closing argument penal- the end of the 204. In out dropped ty phase.17 Id. at 323. He com- years school when he turned 16 old and mented that he never a closing had waived complete grade. did not ninth Id. at argument in a capital case and had never He moved

203. into rental trailer with of anyone heard doing else so. 323- friend, his Jerry brother another 24. attempted support himself. Id. at 152- Jerry The postcon- 204. state trial testified Lawhorn used court denied the narcotics, but was never violent towards viction motion.18 Tab 42. Exh. anyone. 151,157-59. Id. at Appeals Alabama Court Criminal prevent alone to child welfare intervention. not sentence Lawhorn to death. Id. 317- 147-48, 325-26, 329-31, 339-40,

Id. at 18.Addressing time, ineffective assistance of 16. Donald was married but later divorced, counsel claim a closing for failure to make and Mac was soon returned to Ala- argument during penalty phase, the trial bama because Donald unable to care for court found that Fannin’s him. Id. at closing argument decision to waive did Appell believed that Fannin was ineffective performance render not deficient be- failing judge, jury, in to advise the and the strategic keep cause it was a decision to attorney Berry's district widow's contact attorney making closing district from ar- Appell with Hudson. Id. at 332-33. also gument. This has [the] Court watched dis- opined effectively represented to have attorney many trict [] occasions Lawhorn, pressed closing argument. Fannin should have for powerful He is and ef- psychiatric for a psychological during closing funds argument. evalu- fective Based on ation, drug offered experience, evidence Lawhorn’s use this Court’s it is not an unusual Berry's widow's desire that Talladega County tactical decision in for death, attorneys be sentenced to closing argument pre- rebutted unfavorable to waive presentence investigation attorney statements in the making vent [the] [ ] district sentencing, judge closing argument. and asked the and the Trial court's decision to in denial, granted part part, be and denied Alabama Su affirmed conviction and sen vacated Lawhorn’s petition for Lawhorn’s Court denied preme alia, held, tence. The district court inter State, 756 Lawhorn v. of certiorari. writ subjected to an uncon that Lawhorn cert. de (Ala.Crim.App.1999), So.2d delay judi securing of a stitutional 1982018) (Ala. 2000) (No. nied Jan. for his probable cial determination of cause V”).19 (“Lawhom petition Lawhorn’s effective arrest and denied assistance to the States Su writ of certiorari United of when trial counsel failed to counsel denied. Lawhorn preme Court was closing argument during make penal a the Alabama, 885, 93, 121 S.Ct. 148 581 U.S. ty phase. v. Haley, Lawhorn 323 VI”). (2000) (“Lawhom L.Ed.2d 53 (N.D.Ala.2004) (“Lawhom F.Supp.2d 1158 petition VII”). filed a federal The State Alabama appealed, of corpus. The writ of habeas district stay judgment for and for a of the moved magistrate judge’s re adopted appeal.20 the The district court pending court stay. petition granted the the motion for a R2-38 at and recommendation that port virtually It closing argument in the trial court. Id. at 992-94. waive is unchal- raised lengeable. performance Trial counsel’s also that several claims raised within noted not postconviction petition pro deficient. were Lawhorn's (citations at 420-22 Exh. Tab 41 omit- they cedurally raised barred because “were ted). ap and addressed trial on direct and/or 994, peal,” have been raised at id. "could appeal the 19. On denial of motion not," appeal direct but id. at trial and on were relief, postconviction Lawhorn raised the for 995, have but were raised at "could been not (1) following court erred in issues: trial trial, appeal,” on id. at but were addressed findings adopting proposed of fact the state's 996, “although appeal, and ... not raised on law; (2) of and ineffective and conclusions they appeal” by Ala were addressed on (a) failing to counsel for make a assistance of Appeals of or the Ala bama Court Criminal 79, Kentucky, claim under Batson v. 476 U.S. Supreme plain a error bama Court under trial, 1712, (1986) at S.Ct. 90 L.Ed.2d 69 106 review. Id. The Alabama Court of Criminal (b) failing a to assert claim for unconstitution- Appeals indictment, included claim that he Lawhorn’s obtaining delay in and thus al delay subjected to an unconstitutional County claim Riverside v. a under of 44, 1661, judicial probable of cause McLaughlin, determination U.S. S.Ct. trial; (1991), (c) failing lay group procedurally of that were to a in the claims L.Ed.2d proper they trial foundation for the trial court to rule because were not raised at barred voluntary; appeal, that his second confession was not but addressed and cited Lawh were on (d) V, II, failing adequately investigate Lawhorn’s to orn 581 So.2d at 1181. Lawhorn history prevent- drug of thus alcohol use So.2d at 996. intoxication; ing jury charge involuntary a (e) failing object jury to to the trial court’s cross-appeal district 20. Lawhorn did not doubt; (f) failing instruction to on reasonable not, therefore, order, a seek court’s did adequately prepare and other wit- appealability. He certificate of contends penally phase; (g) failing for nesses to necessary, and cross-appeal is not notice of closing penalty make a statement at proceeds by the dis- to claims denied address (h) phase; failing to have examined him arguing requesting he is not us trict court (i) psychologist; object failing to to granted enlarge to the relief the district regarding ag- trial court’s instruction disagree will not these court. We review gravating circumstances that the murder was claims. heinous, atrocious, “especially cruel” when proceeding, may appeal “an offenses; In a habeas compared capital to other and 0 appeala- “certificate not be taken” absent a of failing adequately object respond to indicating specific is- bility” "which issue or presentence investigation report. Law- V, satisfy showing” “of of a the denial hom sues 756 So.2d 977-92. The Alabama 2253(a), Appeals right.” § 28 U.S.C. Court Criminal observed that Law- constitutional (2), (3). (c)(1), exception for an many horn had abandoned of the issues that B. Issues 466 U.S. 104 S.Ct. 80 L.Ed.2d (1984). the district court Whether erred refusing apply rule of v. Pow- Stone II. DISCUSSION ell, 96 S.Ct. 49 L.Ed.2d When we examine district court’s (1976), to bar consideration on habeas in proceedings order filed pursuant corpus Fourth of Lawhorn’s Amendment § we the questions review of law and post- claim that he was denied prompt questions novo, mixed law and de fact probable arrest determination of cause. and the findings fact for clear error. Corrs, Sec’y, Dep’t Stewart v. 476 F.3d If Lawhorn’s Fourth Amendment (11th Cir.2007). Under barred, claim whether the district is, however, our review clearly limited and concluding appro- court erred in highly deferential to the decisions of the priate remedy Pugh, Gerstein v. Id.; 2254(e)(1). state courts. 28 § U.S.C. 103, 854, 420 U.S. 95 43 54 S.Ct. L.Ed.2d State court determinations factual are (1975) County Riverside v. of “ ” ‘presumed to be correct’ and the peti 44, 1661, McLaughlin, 500 111 U.S. S.Ct. “ tioner bears ‘the burden rebutting of (1991) 114 L.Ed.2d 49 violation the ... presumption by th[at] clear and con suppression of Lawhorn’s confession. ” vincing evidence.’ v. Marquard Sec’y for 3. Whether the district court in erred Corrs., Dep’t 1278, 429 F.3d 1303 of concluding that (11th Lawhorn’s counsel’s stra- Cir.2005) 2254(e)(1)). (quoting § tegic decision to closing argu- waive his Habeas relief in is available cases (a) ment sentencing both constitu- adjudicated where the were claims on the (b) tionally prejudicial deficient and within adjudication merits and the resulted in a meaning to, of v. Washington, Strickland “contrary decision or involved an [that] by appeal government, a state or the federal appealed may bring who has not argu- not an probable and no certificate of opposition cause re- ment in judgment to a or attack 22(b)(3); quired. R.App. Fed. judgment any State Tex.v. respect, in United States v. of Graves, (5th Cir.1965) Co., 425, (per 352 F.2d 514 Ry. Express cu- American 265 U.S. 435- riam) 36, 560, 564, (adopting reasoning (1924), of 44 United States S.Ct. 68 L.Ed. 1087 Cavell, (3rd Tillery ex rel. v. 294 F.2d 12 or "hitch a adversary’s ride on his notice of Cir.1960) that, 2253, despite § 28 appeal” "enlarge rights U.S.C. a judg- under probable certificate of cause was not essential or opposing par- ment diminish those of the appeal by to an filed state representa- ty.” Campbell a or its Wainwright, v. 726 F.2d tive). Tillery, (11th Cir.1984). legis- In the court examined By failing 704 file a cross- history § lative of appeal, 2253 which preserve “ma[d]e clear Lawhorn failed to these is- Teleline,Inc., petitions by that appeal. to the federal courts filed sues for See Sikes v. persons Cir.2002); custody resulting (11th in state in unneces- 281 F.3d n. 44 1367 T.D.S., Co., sary delay proceedings in the Shelby state was the Inc. v. Mut. F.2d Ins. (11th sought Cir.1985). evil to be Compare remedied.” 294 F.2d 1528 n. 5 (11th "Congress It noted that Herring, was not concerned Jaclcson v. F.3d Cir.1995) appeal with in by (addressing petitioner’s these cases taken a state or claims representatives” its by and that the cross-appeal certificate of raised from denial of probable requirement plainly cause by "was a district where claims denied court Ala- appeals grant device to reduce appealed from decisions bama habeas relief on claims). favor appeals of states ... their not from other against any decisions them.” Id. at 15. address To We will of Lawhorn’s thus extent, would, any review of arguments scope additional claims in- issue as to outside the deed, delay. appeal. Tug cause additional See Barge, Harbor & Alabama’s Further, Co., although party Towing may raise Inc. v. Belcher 733 F.2d (11th argument support Cir.1984). judgment, party aof n. 1 rule clearly estab- side set forth “new for the conduct application unreasonable law, determined prosecutions,” as of criminal it is “applied lished Federal of the United States” Supreme Court retroactively yet all cases ... not final.” on an unreasonable determina- 84-85, was “based Nevada, 511 U.S. Powell v. evidence light facts in tion of the 1280, 1283, (1994); S.Ct. 128 L.Ed.2d court proceeding.” in the State presented 314, 328, 107 Kentucky, Griffith (11th Hall, F.3d Crowe v. (1987). 708, 716, S.Ct. 93 L.Ed.2d 649 2254(d)). Cir.2007) § (quoting 28 U.S.C. generally We are barred from Fourth hearing to Bar Lawhom’s Fourth Amendment claims in a A. Refusal corpus proceeding. Amendment Claim habeas In federal Stone, Supreme Court held argues that Lawhorn’s River- Alabama Amendment claim Fourth provided oppor where the State has side/Gerstein on habeas was barred consideration tunity litigation for full and fair aof It that Stone review Stone. contends claim, Fourth pris Amendment state of all Fourth Amendment bars review may not granted oner be federal habeas not limited to those contest- claims and is corpus ground relief on the evi findings. It ing state courts’ factual in an dence obtained unconstitutional the claim was barred also maintains that search or seizure was introduced at his so, do because, opportunity the despite trial. of failed raise the issue his 494, at 428 at 96 S.Ct. U.S. at trial and post-arrest detention extended full fair “opportunity litiga- An claim was and decided because the raised just opportunity. tion” means that: an by appellate the court. state provides processes If the where- a state Amendment, a the Fourth Under by a defendant can obtain full and fair provide a fair and reliable state “must claim, of litigation a fourth amendment a of cause as con probable determination v. bars federal habeas cor- Stone Powell pretrial restraint significant dition for pus of that claim whether consideration liberty, by judicial ... made officer of those employs pro- or not the defendant or after arrest.” promptly either before cesses. 125, Gerstein, at 420 at 868- U.S. 95 S.Ct. 1188, Ala., v. State 577 F.2d Caver of Riverside, Supreme 69. In the Court con “ Cir.1978). (5th and fair consider- ‘[F]ull question ‘prompt’ “the what is [of] sidered in the of the Fourth Amend- ation’ context more “articulate[d] under Gerstein” evidentiary least one ment includes ‘at clearly permissi the boundaries of what is availability in a court the hearing trial the Fourth Amendment.” 500 ble under when there meaningful appellate of review 56, 1669, 55, at 1670. To U.S. at S.Ct. in and full consideration dispute, are facts intent, declared Court by appellate court when the facts are an requirement is promptness met Gerstein ” Nagle, 212 dispute.’ Bradley v. not in (1) probable determina where cause (11th Cir.2000) (quoting Cav F.3d arrest, of tion is held within 48 hours 1191). er, Although F.2d at “some the arrested individual’s demon absent ‘full and fair consideration’ means times (2) delay, an stration of unreasonable courts!;] tiers state by two of consideration government bona emer shows fide by requires it consideration sometimes extraordinary circum gency, or other Wainwright, O’Berry v. one.” at delayed the determination. stances 1977). (5th 1204, 1213 56-57, F.2d Circuit 111 S.Ct. at 1670. Because River- (1) fairly fully For a to be court the decision “contrary claim consid- unless courts, by application state “where to” or an ered “unreasonable of’ dispute, “clearly full and fair Supreme facts are in consid- established” Court law. requires by 362, 412, Taylor, eration consideration Williams court, (2000). and at least the fact-finding avail- S.Ct. 146 L.Ed.2d 389 ability meaningful A appellate “contrary Supreme review decision is to” Court Where, however, court. higher precedent state “if the state court arrives at a undisputed, the facts are and there opposite is conclusion to that reached [the nothing by ordering Supreme to be served a new a question Court] on of law or full ... evidentiary hearing, differently and fair decides case than [the requirement Supreme consideration satisfied has on of materially Court] a set court, appellate present- indistinguishable where the state facts.” Id. at record, at undisputed ed with an factual S.Ct.

gives full consideration to defendant’s Lawhorn raised the issue the involun- Fourth Amendment claims.” April tariness of his second 7 statement in Dugger, Tubes v. 911 F.2d 513-14 a suppress motion to filed in June in (11th Cir.1990) (quoting O’Berry, trial, 546 F.2d objection during the and on direct 1213). at Although Rl-17, a defendant 23; cannot appeal. Exit. Tab 4 show a 349; I, Fourth Amendment violation if Exh. Tab 9 at 581 So.2d “[t]he state of law at the time of 1166-68. He raised issue again deprive trial did not [the of an the petition defendant] for writ of certiorari from opportunity for full litigation” and fair denial of his direct appeal when he Caver, claim, argued 577 F.2d subjected that he was to an unrea- situation if is different the claim did delay securing sonable of a judicial exist the time of his trial. probable Where the determination cause during his “particular Fourth Amendment claim Rl-17, did warrantless arrest. Exh. Tab 30 at years iv, not even until exist after petition, [the defen In that he cited Ger ], stein, and McCollan, dant’s] arrest ... he did v. trial[ not Baker 443 U.S. 99 ‘opportunity benefit from the for (1979), fair S.Ct. and L.Ed.2d 433 and (Ala.Crim. State, full of it in litigation’ Waldrop [the state’s] v. court[ ] 523 So.2d 475 to which was App.1987). entitled.” Anderson Supreme v. The Alabama Court Calderon, (9th F.3d denied petition Cir. for writ of certiorari on 2000). A argued claim trial May 1991, and on and Lawhorn filed a petition appeal “ignored” by but appellate the state for writ of certiorari to United the States court has not received full fair Supreme and consid Court on 9 September 1991. In eration, and our consideration of it is this petition, thus Lawhorn neither raised the Stone,21 White, not by Agee barred 809 issue of delay unreasonable nor cited Riv (11th Cir.1987). 1487, 1490 erside, F.2d had which been decided the Supreme on May Court 1991. grant A court peti federal cannot a tion for writ habeas on In corpus claims the raised issue of adjudicated in on the delay merits the state in petition unreasonable his state for however, Where, presented the rehearing issue was a dissent denial of before trial, appellate, to the state appellate intermediate intermediate was court written courts, issue, supreme rejected state petitioner each court on that "cannot success- issue, appellate fully argue intermediate court stated that he did not full receive consid- "carefully that Swicegood it had v. State of examined the record eration of his claim.” Ala., issue, (5th Cir.1978). determined” merits of 577 F.2d Baker, retroactively to relief, applicable was citing Wal Riverside postconviction P. all non-final cases. Riverside, Ala. 4.3. R.Crim. drop, 3; 38 at 3. Exh. Tab Tab Lawhorn’s conviction did not be and Alabama Court state trial court The retroactivity final for until purposes come found that this Appeals each Criminal petition for writ of certiorari to it procedurally barred because claim was denied in November Supreme Court was not, been, raised have but could Because Riverside was decided Id., appeal. on and was addressed trial days Supreme the Alabama three after V, 5-6; 756 So.2d 42 at Tab rehearing, petition denied his Court opportunity Lawhorn did not have that magistrate judge recommended The a delay obtaining the issue a raise be petition habeas Lawhorn’s federal ex cause determination which probable issue, noting that Lawhorn on this granted fully fairly have it ceeded 48 hours or for six and detained had been arrested Although the issue was not considered.24 ob- warrant was days before an arrest clearly at the the Ala established time of magistrate R2-22 at 15. The tained. direct Supreme bama Court’s denial of his Alabama recognized although judge claim appeal, denying decisions within required arraigned that he be law and, contrary Riverside were because hours,22 delay Riverside held that final, yet the law was his case not probable cause obtaining a determination Further, the issue applicable Lawhorn. presumptively 48 hours clearly “exceeded] which when Lawhorn established R2- the Fourth Amendment.” in his postcon violate[d] it Rule 32 motion for raised judge noted magistrate 22 at 15. viction relief. The Alabama Court Appeals revisiting final River- when erred not Lawhorn’s case was Criminal change in law. May 1991,23and that on 13 side was issued Id.; 4.3(a)(iii)(2003), Comm. required person Ala. R.Crim. P. 22.In Alabama requires warrant be taken before a defen- arrested without a That rule Cmt.1997. magistrate probable determina for a cause receive detained a warrantless arrest dant delay.” L. Nicholas tion “without undue hearing hours. probable within 48 cause Jr., (The Chiarkas, Trial Practice Ala.Crim. 4.3(a)(l)(iii) (1990). R.Crim. P. Ala. Co.1988) (1981) (citing Pro Ala. Harrison 4.3). deter posed P. Arrests and the R.Crim. Although magistrate judge that stated 23. probable person de mination of cause for a petition Supreme denied Court Lawhorn’s by governed warrant were tained without a or writ of in November 1990 for certiorari and were addressed statutes caselaw not petition ac certiorari was October gener Temp. 1980 R.Crim. P. See in the Ala. R2-22 tually November 1991. denied on 18 (1980) (West Temp. ally P. Ala. R.Crim. III, n.3; 502 U.S. Lawhorn Maddox, 1989); Hugh Publ’g Ala. R.Crim. Co. 445, 116 S.Ct. L.Ed.2d (1999). Su In the Alabama P. 197-98 Pro preme adopted Court Rules of Criminal claim was raised Because the Riverside required person ar that “[a] cedure which appeal, direct Lawhorn at trial and on both ... taken before [be] rested without a warrant arguable ineffective have claim for did not delay, judge magistrate without undue attorney’s based on his assistance counsel (72) seventy-two except no later than event Alabama argue issue. The this failure arrest, charge which unless the for hours after by Appeals erred conclud- of Criminal Court person arrested is not a bailable was procedurally barred ing the claim was (1991); that 4.3(a)(l)(iii) P. offense.” Ala. R.Crim. time on Maddox, it for the first following was raised because supra, In at 199. Riverside, 4.3(a)(l)(iii) appeal. amended. collateral was Rule so, Appropriate B. as an Rem- with the to do that Suppression capacity his will edy was by surrounding pres- not overborne sures and circumstances. Id. Alabama contends that the district court adopting magistrate erred by judge’s magistrate judge acknowledged The suppress recommendation Lawhorn’s that fact that given “[t]he [Lawhorn] was April appropriate remedy confession as an warnings his Miranda on two occasions for violation. It Riverside/Gerstein weighs somewhat favor” [Alabama’s] that maintains Lawhorn admitted waiving length but “[t]he Lawhorn’s detention knowingly rights his Miranda and volun- and his isolation do not” and that “ argues tarily. temporal prox- It that the ‘temporal proximity’ weighs factor heavi- imity closely must factor follow unlaw- ly in Rl-22 Lawhorn’s favor.” at 23 ful police activity separated and not be Illinois, (quoting Brown U.S. activity by significant that amount 2254, 2261, L.Ed.2d S.Ct. of time. (1975)). magistrate judge The found that appellate The state court noted that only Lawhorn’s confession “occurred after Lawhorn admitted that he initiated the 7 he had two given exculpatory statements Wallis, April conversations with that he custody and after had been in he for five acknowledged received and his under- days without access to counsel” and thus standing of his Miranda warnings, and only “violated not but Riverside also the knew rights under Miranda Alabama which required statute his ar- stop questioning any could time. raignment within 72 hours.” The I, 581 So.2d at 1167. He also magistrate judge gov- also found that the admitted that he not any offered ernment failed had to demonstrate promise or reward or threatened Wal- circumstances, intervening other than his lis, person one in the room was incarceration, extended and that this incar- armed, visibly and that he was not hand- ceration for “an improper purpose.” appellate cuffed. Id The state court Id. at 24. “totality looked to the of the circum- The issue of whether suppression is an stances” and found that Alabama had met appropriate remedy for a Riverside/Ger- its of showing burden the voluntariness of stein violation is unresolved the Su- “abundant, Lawhorn’s confession with preme although Supreme Court Court credible” evidence. It concluded that sub- has held appropriate that exclusion is stantial evidence showed after other making confessed an informed constitutional violations.25 See Pow- ell, independent n.*, choice of his own free will at 85 S.Ct. 1284 n. ment, exclusionary declining rule sup- contained in but to decide whether and, Fourth Amendment because Fourth pression “necessarily appropriate Amendment violation occurs when there is an remedy" for such a violation as it was not seizure, unlawful search or there is not a court). addressed before district See also separate Fourth Amendment violation for the Fullerton, United v. States 187 F.3d 592 use of the fruits of that search or seizure. (6th Cir.1999) where, (denying suppression Evans, 1, 10, v. 514 U.S. 115 S.Ct. Arizona despite delay, an unreasonable another reme- 1185, 1191, (1995). 131 L.Ed.2d 34 available); Sholola, dy was United v. States wrongfully Other courts have that held (7th Cir.1997) 124 F.3d (reserving 821 may seized evidence result in exclusion of the suppression appropriate issue of as an Davis, evidence. United v. 174 States F.3d remedy day issue for another where the de- 941, 942, (8th Cir.1999) 946 n. (affirming 8 fendant had failed to a establish Riverside suppression of a statement because it was violation). obtained in violation of the Fourth Amend-

1291 * (“Whether to the law remedy applies desire” talk enforcement suppression arrest, re- Amendment violation] Fourth officials “soon after a lawful after [in pri- question.”). The mains an unresolved advice of and while his rights, detention exclusionary mary from use of benefit Anderson, plainly 232 legal.” F.3d at police rule of conduct is “the deterrence If law officers had enforcement suf- rights,” Amendment that violates Fourth time ficient evidence at the of defen- may of and effect the rule “the educative charged support dant’s arrest of- passes between the mo- dissolve” “as time fense, there a Riverside is neither violation Amendment violation] ment of the [Fourth suppression any nor the need subse- of Petitioner’s final collat- and the moment Sholola, evidence, quently 124 obtained years O’Berry, later.” appeal eral federal probable at fact that F.3d 820-21. “[T]he 546 at 1214 n. 16. F.2d supported cause the initial arrest does To determine whether or not,” however, subsequent cure unconsti- appropriate remedy, exclusion is Davis, 174 F.3d at tutional detention. prosecution prove must first the threshold The appellate state court reason any requirement the voluntariness of ably presented that Alabama concluded Brown, 603-04, at 422 U.S. 95 statement. substantial credible evidence Law- The determination of S.Ct. at 2261-62. voluntary. horn’s He confession was ad factors, four governed voluntariness is mitted that he initiated conversations independently dispositive: none of which is received, April, acknowledged, 7 (1) on and procedural safeguards whether Miranda, rights understood his that he prescribed 384 U.S. Miranda warning (2) 444-45, 1612 was given; S.Ct. at stop questioning could time. of the temporal proximity arrest “[t]he to show clear con has failed (3) confession”; presence inter “the vincing that the state de evidence court’s (4) circumstances,” and vening pur “the termination was incorrect. pose flagrancy official miscon given warnings on two Miranda occasions: Brown, 603-04, duct.” U.S. (1) initially before interviewed on he was time S.Ct. at 2261-62. The amount of (2) again when the interview April the temporal prox found to meet sufficient began 7. He testified that he ing April imity ranges factor immediate rights explained as on both understood his time,” Berry, States v. “close in United no Although dates. there is indication (11th Cir.1982) (en 583, 588-89, 605 F.2d intervening five the record minutes, banc), v. United States to three anyone in days, spoke he to either (11th Santa, Cir.2000), 662, 677 236 F.3d no family attorney, or to an there also Chanthasouxat, F.3d United States permission to requested indication that he (11th Cir.2003), hours, to two anyone. Lawhorn’s speak Despite testi Brown, S.Ct. at during that mony peri scared he was Davis, Anderson, at 943. But see 174 F.3d be time told he would treat od of and was (temporal proximity is at 1073 F.3d confessed, testimony if other ed better already “should met the defendant when good “in a mood and described Lawhorn as arraigned.”). have effect of the been testified not nervous” and four witnesses illegal may “dissipated” through “a act be no told Lawhorn that he one had intervening significant of time” or lapse if he would be treated better confessed. between the misconduct and circumstance I, Further, at 1167. So.2d Santa, A the 236 F.3d at 678. confession. although judicial determination the in significant intervening circumstance is until 8 was not obtained probable cause where the defendant “volunteered dicated confession, sponse that day argument after Lawhorn’s to Lawhorn’s Fan- April, the investigation law, continued their nin police and the had failed to research relevant it detention, Lawhorn acknowl- during presented his noted that the evidence edged that the arrest warrant was based during hearing regarding legal the Rule 32 solely statement.26 on Walker’s testimony research concerned Fannin’s a trial “that he found case before that magistrate judge correctly the

Although supported position [prosecu- the his that that was unlawfully determined if argue tor] could not the defense waived detained, do not that suppres- we conclude Rl-17, argument.” closing its Exh. Tab appropriate an sion of his confession is 42 at state court stated that remedy light appellate in of the state Fannin a supporting had found case “and finding court’s that Lawhorn’s confession presented to an it the trial court.” Id. at given independent was as informed choice of own free will. 462-63. It found Fannin’s decision to argument waive closing not deficient be- C. Assistance Counsel Ineffective strategic cause it “a keep decision to argues attorney making district a closing Alabama court district from concluding in state argument.” erred court’s Id. at 489. It commented rejection that, of Lawhorn’s ineffective assis- its pros- based on observations claim tance of counsel based on his at- “powerful closing ecutor’s effective” closing torney’s argument waiver of his arguments, waiving argument closing penalty phase objectively not “an tactical unusual decision Tal- that, It unreasonable. maintains al- County.” ladega Id. at It 489-90. also though may Fannin’s choice seem found prejudiced by that Lawhorn was not strange, strange it was not all because closing Fannin’s decision argu- because a hoped prevail he to upon judge to ment necessary present was not to preclude prosecutor making from explanation mitigation of the evidence or a closing second rebuttal and because the plea mercy jury. for Id. 490. It prosecutor’s initial closing argument was not a “[t]his concluded that case [wa]s low-key. accepted plea where the would have for ... mercy mitigating The state court found that Fannin’s found rep- resentation was not ineffective. In outweighed aggravating re- evidence that 179, 197, 199-204, 208-09, 233-36, 252-53, appeal In on direct to the his brief Ala- Court, 258-59, Supreme bama Lawhorn acknowl- 330-32. Alabama United cites States edged Daniels, Cir.1995) police (7th that "the facts to the available 64 F.3d support probable solely cause based were proposition pre- that it is "ludicrous” “to Walker’s statement.” Exh. Tab 30 at bolstering clude law enforcement from its regarding proba- 50. Wallis testified at trial against case defendant while awaits his April ble cause on 2 Walker made Daniels, hearing.” probable Gerstein In Berry statement Wallis and Wallace that arresting cause was established offi- Id., was shot Lawhorn. Tab 9 at 325-27. employee] cer’s affidavit that "two ... [bank [the witnesses identified defendant bank rob- During the time of Lawhorn's detention un- confession, array photo ber] from a included [the April April, til until picture” and that "another ... investigation defendant's] Berry’s into the murder contin- 'positively' [bank customer] witness identified investigators gathered physical ued. The evi- scene, array.” photo [the defendant] from a finger- dence the crime obtained

prints investigation, 313. The which consisted of a from Lawhorn and his codefendants vehicle, photo compared line-up, preparation and from a motor continued after the fin- gerprints, arresting weapons. support of the and recovered the Rl- officer's affidavit 152, 157, 159, 166, 169, probable Exh. Tab 9 at Id. at cause.

1293 An ineffective assistance of offense. Id. at 491- the circumstances” upon counsel can be established a claim 92. (1) showing perform “counsel’s affirmed, court find- appellate The state (1) deficient,” ance “that the defi that, par- with these “in this situation ing performance prejudiced cient the defense” facts,” Fan- closing argument by a ticular were as to because the “errors so serious impact” had little nin “would have trial, of a a trial deprive the defendant fair “unpersuasive” Lawhorn’s claim finding Strickland, whose is reliable.” result miti- suggested have that Fannin could 687, 104 at at In a habeas U.S. S.Ct. domina- circumstance of substantial gating action, petitioner car corpus generally suggestion such a “would tion because compo ries the to establish both burden jury’s merely attention redirected have 952, Singletary, nents. Atkins v. 965 F.2d of this crime.” egregious nature to the (11th Cir.1992). exception to 958-59 The V, 756 at 987-88. Lawhom So.2d petitioner’s burden lies if the circum stances of counsel’s ineffective assistance ob- district found Alabama’s The court so accused that likely prejudice “are to judge’s recom- jections magistrate to ... litigating the cost their effect ineffective assis- regarding the mendation Cronic, unjustified.” States v. United “unpersuasive,” claim tance counsel 2046, 2039, 104 S.Ct. portion of the recommenda- adopted (1984). L.Ed.2d Such circumstances relief, tion, granted vacating Law- exist in where “the is de a case accused VII, Lawhom horn’s death sentence. at a critical of his trial stage nied counsel magistrate at The F.Supp.2d entirely to ... counsel fails [or where] state court erred judge found that the subject meaning to prosecution’s case presented found and asserting that Fannin testing.” ful adversarial Id. supported which a ease to trial court “closing A is a argument S.Ct. the record showed position his because v. ‘critical of a trial.” Hunter stage’ presented neither nor that Fannin had (11th Moore, Cir. 304 F.3d 1070-71 to a to the trial court or mentioned case 2002) that, holding (quoting Cronic and that, He jury. Id. at 1225-26. noted a er regardless prejudice, constitutional Fannin hearing, the Rule con- an if defense counsel is denied ror exists present he a case to the ceded that did not closing argument). opportunity for court, that he and admitted based state personal in his file on reference position 1. Performance State, Ala. 55 So. Sheppard constitutionally To establish (1911), erroneously be- which must performance, deficient defendant rested, prosecu- held if he lieved “identify ... the acts omissions presenting precluded would be tion have the result of are not to been alleged VII, argument. Lawhom further judgment” professional reasonable magistrate judge F.Supp.2d at 1226. The fell representation “show that counsel’s representation that Fannin’s concluded reason objective standard of below an deficient, and that fail- objectively range of “outside the wide ableness” and argument and present closing ure to competent assistance.” professionally present opening argument failure to 687, 690, Strickland, 104 S.Ct. 466 U.S. mercy or spare asking “highly deferential” Lawhorn, life, humanizing strong “indulge Lawhorn’s must court reviewing falls position, preju- that counsel’s conduct summarizing presumption Lawhorn’s pro- range of reasonable within the wide at 1226-27. Lawhorn. diced 1294 assistance,” State, 689, 1221, id. at 104 S.Ct. also 571 1227 Floyd So.2d

fessional 2065, (Ala.Crim.App.1989), recognize warrant rev’d other at cases on grounds, parte Floyd, Ex 571 So.2d 1234 grant the of habeas relief based on an ing (1990) (counsel’s strategic decision to waive assistance claim “are few and ineffective argument closing depriving succeeded in States, far between.” Chandler v. United Cir.2000) prosecution closing argu- the of its second (11th (en 1305, 218 F.3d ment). omitted). banc) (quotation and citation performance unreasonable must have A to the re- determination as whether competent

been such that “no counsel quest the use of in a for this discretion have pe [the would taken the action that capital constitutionally case constitutes Grayson v. titioner’s] counsel did take.” performance requires deficient a review of (11th 1194, Thompson, 257 F.3d Cir. Bell, Supreme the circumstances. In the 2001). defendant overcome “[T]he must objectively Court that it was un- held not the circum presumption the under for a defense reasonable counsel to waive stances, challenged ‘might the action be final at argument sentencing could which ” sound trial strategy.’ considered Strick have reprised earlier summation of the land, at mitigating plea 104 S.Ct. evidence and life to for prevent “very in determining persuasive” prosecutor Our interest lies “whether “depicting] his client process ... as a heartless adversarial worked ade- just jurors killer before the their quately” began in “grading not law- [the] Zant, deliberation.” U.S. at performance[.]” yers’ Rogers v. Bell, however, S.Ct. at 1854. In (11th Cir.1994). the de-

F.3d Because attorney fense had made an opening state- easy “it all too to that a par- conclude sentencing ment at a few earlier hours ticular act or omission un- of counsel was discussing mitigating evidence reasonable of hind- light harsh life, urging plea prosecution did Cone, 685, 702, Bell v. sight,” 535 U.S. put any not dramatic impressive or 1843, 1854, 122 S.Ct. 152 L.Ed.2d 914 testimony during the sentencing hearing, (2002), we ... “every must make effort to prosecution delivered a fact-based clos- distorting eliminate the effects of hind- ing not dwell on did of the brutal sight, to reconstruct the circumstances of crime, aspects pre- and the waiver conduct, challenged counsel’s eval- prosecutor’s vented the closing argument. perspec- uate the conduct from counsel’s 701-02, 122 Id. at S.Ct. 1854. Also see Strickland, tive at the time.” 466 U.S. at (11th Kemp, Messer v. 760 F.2d 689, 104 S.Ct. at 2065. Cir.1985) (trial counsel’s failure to make an In reviewing an ineffective assis opening during guilt phase statement claim brought tance under 28 U.S.C. was not ineffective when “he accomplished § petitioner must not estab during attorneys voir dire what set most lish that the state court applied Strickland remarks,” out to do in their opening incorrectly, but also that the state court with consistent “his ... strategy to use “applied Strickland to of his the facts case low-key approach, credibility maintain with objectively in a unreasonable manner.” jury, present and to the human side of Bell, 535 U.S. at S.Ct. his client sentencing phase,” Alabama, In if a criminal defendant’s there “no evidence” which he defense); attorney closing declines argu- to make a presented could have further ment, the judge trial has the discretion to Ligh v. Dugger, 829 F.2d tbourne (11th permit deny prosecution Cir.1987) curiam) a closing 1012, (per 1025-26 (trial argument. Sheppard, 55 So. at 515. See present counsel’s failure to all avail- duty prepare owes to his client is the sentencing mitigating evidence able adequately prior” legal pro- himself to a the circumstances “[g]iven ineffective v. ceeding. Magill Dugger, 824 F.2d counsel conducted an case” when th[e] of (11th Cir.1987). preparation Such in- background, into his client’s investigation an understanding legal proce- cludes of the significant client’s lack of a focused on his legal significance dures and the of tactical record, argued against the wis- criminal proceedings. decisions within those most penalty, of the death and when dom Zant, 792, 794, Young v. 677 F.2d 799-800 presented evidence was mitigating of the (11th Cir.1982) (an attorney’s reliance on investigation report presentence in the procedure former law and unawareness of judge trial by considered which was assistance). deprived his client of effective Floyd, 571 So.2d at sentencing); before strategic Tactical or decisions based on (counsel’s to waive strategic decision misunderstanding of the law are unreason- “unchallengeable” closing argument Hardwick, 1163; able. 320 F.3d at see closing initial ar- prosecution’s where the Zant, 1449, 1462, also Horton v. 941 F.2d unemotional, “very brief’ and gument was (11th Cir.1991) (counsel’s “tactical de- anticipated that “the and defense counsel present mitigating cision” to no evidence ar- saving persuasive its prosecution sentencing phase was “unrea- last.”) gument for it sonable” when was based on misinter- performance is demon Deficient pretation of the law and the failure to to by attorney’s strated failure use Jackson, 42 paths); evaluate alternative jury’s closing argument to focus the atten (counsel’s strategic F.3d at 1367-68 deci- any miti tion on his client’s character or “unsup- sion was not reasonable as it was circum gating factors of the offender’s ported by investigation” sufficient and in- stances, his failure to ask the “of options”). formation the available Turpin, life. v. spare to his client’s Dobbs performance Fannin’s was unrea (11th Cir.1998). 1383, 1389 142 F.3d sonably deficient. His decision was of whether counsel’s The issue thorough investigation made after a of the a ques tactical decision was reasonable is gross law but was made based on a misun tion of law that we review de novo. Hard derstanding a clear rule Alabama 1127, 1158, Crosby, v. 320 F.3d wick procedure. criminal His decision to waive Cir.2003). (11th “[Strategic choices made closing argument was unreasonable be thorough investigation after of law and complete cause it was based on a misun plausible options facts are vir relevant derstanding of a clear rule of law. The tually unchallengeable; strategic is not Fannin’s performance deficient in complete choices made after less than closing argument decision to waive but precisely vestigation are reasonable legal adequate also his failure to conduct professional judg extent that reasonable of that decision. support research support investiga ments the limitations on at the time of Viewing the facts the case Head, decision, tion.” 311 F.3d counsel” would competent “no Crawford (11th Cir.2002) Strickland, (quoting legal made a mistake in his have such 2066). 690-91, deciding closing argum 104 S.Ct. research waive at 1216. Grayson, ent.27 See 257 F.3d primary “One of the duties defense counsel making closing argument" unsup- is 27. The trial court’s comment that it was state Talladega ported by Tab 42 at the record. Exh. "not an unusual tactical decision in nothing attorneys closing argu- is in the statement County to waive 489-90. There attorneys waiving clos- prevent attorney ... that indicates that the ment to district [the] (3rd (“The 36, 99,103 Cir.2002) adequately investigate He failed to or re- F.3d penal- ty phase production search the law and was thus unable to focuses ‘on the of evi- dence strategic humanizing make a decision as to whether to to make a case for life’ the defendant argument prosecu- showing meaning waive or to lessen the ‘the and value of closing argument by an the defendant’s life’ and ‘wor- tion’s alternative ”); Hardwick, thiness to live.’ see means. It also combination those acts Marshall). F.3d at (citing Through that make representation constitution- closing argument, counsel has one “last ally deficient.

clear chance” or final opportunity to mar- Prejudice shal all of the mitigating evidence before jury the or explain pros- minimize the constitutionally Once deficient York, Herring ecution’s evidence. v. New established, performance petitioner is the 853, 862, 2550, 2555, 422 U.S. 95 S.Ct. must, must prejudice. spe also show He (1975). L.Ed.2d 593 Even in cases were cifically, “show that there is a reasonable background easily factual under- ... probability that the result of the [sen stood, closing argument by the defense can tencing] proceeding would have been dif remind the factfinder of favorable facts ferent,” Strickland, 694, 466 U.S. at that may forgotten it have mistakenly competent S.Ct. at “if counsel had downplayed or prematurely misjudged, presented explained significance of help prevent an erroneous verdict. Williams, all the available evidence.” Id. at S.Ct. U.S. at S.Ct. 1516. Our deter mination is based a review of “the During the trial sentencing, postconviction entire ... record as a jury shocking heard the evidence of whole” and with consideration of all cumu Berry crime: that Lawhorn shot after lative evidence. Id. at 120 S.Ct. at Berry had entangled fallen and become underbrush, vines and and with the intent are aware that penal-

We “some [death of insuring Berry During dead. ty] certainly cases almost cannot be won his opening argument during penalty by defendants” because “sometimes the phase, Fannin outlined mitigating the four just best lawyering, lawyer- reasonable thought factors that he the evidence would ing, (1) cannot convince the sentencer to over- establish: Lawhorn “signifi lacked a or, look the facts of a (2) brutal even history acts”; cant of violent Lawhorn murder — a less brutal which murder[ ]for there is acted under “extreme duress or ... — strong guilt evidence of in fact.” Clisby v. substantial domination person”; of another Alabama, (11th (3) State 26 F.3d relatively young at the Cir.1994). (4) Because one impor- offense; of the most time of the Lawhorn had tant functions of the capital sentencing good character. Exh. Tab process opportunity is the to humanize the jury He advised the that they defendant, importance of the defense’s “any could mitigation” consider evidence in cannot, closing argument therefore, be “which would entitle to life [Lawhorn] Hendricks, overstated. Marshall v. parole 307 without instead of penal- the death ing arguments did so based on a mistaken the facts in those referenced cases or even understanding attorneys of the law. These they penalty whether were death cases where may have known law and taken a calcu- closing argument during penalty phase risk, specific lated based on the factual situa- plays adju- a different role than it does in the cases, right tion in their to waive their clients’ guilt dication of or innocence. any close. The record does not reflect requested during opening argument at 499. He facts ty.” Id. on a recommendation of jury “come back which would have summarized Lawhorn’s parole.” Id. at 501. Lawhorn, life without position or humanized and failed mercy spare ask the or to closing argument, presented If he had Lawhorn’s life. Herring, See U.S. at jury’s have refreshed the Fannin could 2555; I, 95 S.Ct. at memory of the evidence of substantial So.2d at 1177.30 Fannin’s failure to guilt presented during domination present closing argument prejudiced substan- phase. The evidence Walker’s Lawhorn because there is a reasonable of Lawhorn at the time of tial domination that, probability but for his unprofessional significant: the offense was Lawhorn’s error, sentencing proceed- the result of the days confession indicated ing would have been different. murder, preceding living Lawhorn was Walker, frightened with she persisted that she in her re-

Berry, and III. CONCLUSION Berry. for Lawhorn to kill Fannin quests argued mitigation could have also for the We do not find that Lawhorn has rebut- age of Lawhorn’s at the time of the offense ted the of presumption correctness that family background. and his troubled judgment the Court Criminal Appeals finding that Lawhorn’s confession closing argument, Even without a one voluntarily given. We do find that juror voted to recommend life instead of Lawhorn has demonstrated that the state Rl-17, Exh. Tab 4 at In Ala- death. court finding decision that his counsel’s bama, jury have a vote required closing argument during waiver of pen- at least 10-2 to recommend a death alty phase “contrary clearly to” estab- sentence; a vote of at least 7-5 was re- lished federal law. We reverse the district quired for a recommendation of life with- 13A-5-46(f). judgment granting court’s Lawhorn relief § parole.28 out Ala.Code Thus, by suppressing his confession but affirm Fannin needed to convince two jurors granting the district court’s of relief on the other alter the outcome of the Fannin, however, closing argument proceedings.29 surren- issue of waiver of penalty phase. clear chance” to forth dered his “last set jury advisory mitigating evidence. Id. at 971. The 28. "If the is unable to reach an ferent sentence, recommending jury imprisonment or for oth- recommended life without verdict necessity, may parole. er manifest the trial court de- Id. hearing.” clare a mistrial of the sentence Appeals Criminal 30.The Alabama Court of 13A-05-46(g). Following § Ala.Code such "unconflicting” that the evidence was noted mistrial, sentencing hearing a second "shall "overwhelming” that Lawhorn jury” ad- be conducted before another for an visory parties may verdict or the consent to conscienceless, “directly participated in a advisory jury waive a verdict and submit to a Berty’s pitiless, murder. last and torturous terror, trial court sentence. Id. obviously with minutes were filled fear, knowledge that his death was imminent, brother, Mac, experienced high de- and he Lawhorn's co-defendant charged murdering Berry pur- gree prolonged pain before his death. was also with Lawhorn, accomplished by [Lawhorn] to a for hire. All of this was suant contract complete complete During guilt phase, indif- So.2d at 971. with indifference — to, arguably, Berry's pain and terror and com- less ference to heard Mac’s confession plete shocking indifference to the value of human conduct than Lawhorn's. life, $50.” be worth During penalty phase, Mac’s which he found to I, presented closing argument 581 So.2d at 1177. counsel and dif- part REVERSE and AFFIRMED

part.

BARKETT, Judge, concurring: Circuit Judge opinion

I concur in Birch’s

also believe there were other instances of

ineffective counsel would warrant a sentencing hearing.

new FOX, Carroll,

M.H. Jeniece Teresa

Brothers, Angela Hatchett, Sharon

Mitchell, White, Joy Thomas Lee Ava

ner, Garrett, Earl, Janet Winfred Brown, Woodworth,

Princess Pamela

Plaintiffs-Appellants,

Carolyn Able, al., Proposed B. et

Intervenors-Appellants, FOODS, INC.,

TYSON Defendant-

Appellee.

No. 07-11852.

United States Court of Appeals,

Eleventh Circuit.

March notes When the hunt ful, anyone they were not to tell vised them Jerry and Lawhorn for Maddox blamed

Case Details

Case Name: Lawhorn v. Allen

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 11, 2008

Citation: 519 F.3d 1272

Docket Number: 04-11711

Court Abbreviation: 11th Cir.