*3 BIRCH, Before DUBINA and BARKETT, Judges. Circuit DUBINA, Circuit Judge: Petitioner, Luther Jerome Williams (‘Williams”), inmate, a death row appeals the district court’s order denying him fed- eral pursuant habeas relief to 28 U.S.C. § follow, 2254. For the reasons that we affirm the district court’s order. I. BACKGROUND A. Facts The facts are taken verbatim from the opinion of the Alabama Court of Criminal Appeals on appeal. Williams’s direct 22, 1988, January On a 1981 dark blue Regency Oldsmobile automobile sto- len parking from a motel lot in Birming- ham, Alabama. In the trunk of this was, items, among vehicle other a .22 pistol. caliber A dark blue car arrived housing the Smithfield project in Bir- mingham evening later that same appellant was identified as the sole occupant. morning January On the John Kirk Robert was on his way home work. stopped from He vehicle—a red pickup 1984 Chevrolet of- pellant reportedly staying. The camper on the back—near truck with exit on Interstate the West Blocton ficers talked with lessee appel- County. South in Tuscaloosa They Bush. in- apartment, Margie traveling men south lant two were quired as to the whereabouts of the stolen Oldsmo- Interstate girlfriend, Debra appellant and his noticing victim’s vehicle bile. After Margie “Bootsie” Bush. Bush turned road, they and con- stopped beside the separated toward curtain which the vic- fronted him. The led apartment front the back nearby area and shot tim a wooded Bootsie, bedroom shouted for head, left him once in- the side of appeared then from behind the curtain. *4 .22 caliber style,” the “execution Bootsie that she did not know stated of the pistol had been in the trunk which where the was at that time. appellant body stolen Oldsmobile. The victim’s However, happened one of the officers shooting, and was left at the site the curtain the to look behind the and saw taken. money and vehicle were in the After a appellant lying bed. Later wit- morning, that same several into struggle, appellant the was taken the as the appellant nesses identified custody. “camper a red truck” which driver of housing parked was at the Smithfield supervising The officer then informed witnesses, of these Priscil- project. One Margie the was appellant Bush Jones, appellant’s, la a relative of the to thought gun requested have a appellant the had visited the for permission apartment to search day her on the the murder. She Margie gave it. Bush her permission. appellant stated that the told her that search, the During Bootsie stated “he killed a white man and stole his appellant had hidden gun the the truck,” proceeded that he to show weapon bedroom. The murder was her which weapon, the she described purse top found a located on inside black having handle. a white a room the dresser in which 24, 1988, January after night On appellant apprehended. was placed by a call a Rosie responding to Mims, Po- Birmingham members 29, appellant April The was indicted on Department lice interviewed Priscilla 1988, for the murder John Robert During regarding appellant. Jones Kirk robbery. during After his indict- interview, police the Birmingham ment, the was sent at his own appellant appellant’s learned of the statement Taylor request Hardin Secure concerning shooting of Ms. Jones Facility Medical evaluation of They white man. were also informed mental competency stand trial. Evi- staying apartment at an he was dence was at trial that while presented the housing project, and that he was an Hardin, appellant made escapee supervised from intensive “I have one statement killed white (SIR) program. restitution m_ f_; I’ll kill one.” another During very early morning hours of However, there was some conflict re- 25, 1988, verifying January after to whom garding person the state- appellant escaped had indeed ment was The directed. program the SIR that a warrant to be competent found stand trial outstanding, Birmingham was still facility from the on De- discharged police to the apartment went 23,1988. housing project ap- Smithfield where cember
1237
State,
1062,
(Ala.1992).
Williams v.
So.2d
1065-66
Williams’s trial commenced on Novem on March and amended 27,1989, days later, ber jury petition three his on June 2001. The district guilty returned a verdict on charge court denied request Williams’s for an evi- capital murder. After sentencing dentiary hearing and denied pe- Williams’s trial, phase of jury Williams’s recom tition for habeas relief. Williams an filed mended, by vote, a 10-2 the trial application for a appealability certificate of impose court penalty. the death After (“COA”) which initially this court denied. weighing the aggravating1 and mitigating reconsideration, Upon granted this court circumstances,2 the trial court followed the COA on grounds three assis- ineffective jury’s recommendation and sentenced tance of counsel. Williams to death. The Alabama Appeals Court Criminal II. ISSUES
affirmed Williams’s conviction and death Williams, 1. appeal. sentence on direct Whether Williams See received ineffec- 601 Supreme So.2d at 1087. The tive assistance of Court of counsel because counsel Alabama denied petition allegedly Williams’s for a failed review the Har- Williams, of certiorari. parte writ See Ex din file before trial.
1.
aggravation
The trial court found
personality,
that the
antisocial
that he did not have a
offense was
significant prior
committed while Williams
history
of assaultive or vio-
conduct,
imprisonment
previ-
under sentence of
for a
lent
that he had not had a stable
offense,
13A-5-49(l),
§
ous
Code
family
during
of Alabama
environment
formative
1975, and
during
years,
that it was committed
extensively
and that he had
abused
13A-5-49(4),
robbery, §
of a
drugs
course
Code of
alcohol and
since he was about 16
p.
Alabama
years
[R.
Vol. 7
p.
1430.]
old.
[R. Vol. 7
1433.]
found,
2. The
nonstatutory
trial court
3.Today,
Judge
miti-
jus-
Harwood is an associate
circumstances,
gating
Supreme
that Williams
tice on the Alabama
Court.
2254(d). Furthermore, a
§
state
received ineffec-
U.S.C.
2. Whether
findings
at the penalty-
presumed
of counsel
factual
are
cor-
tive assistance
court’s
allegedly
rect,
failed
his counsel
phase
petitioner
because
unless rebutted
back-
investigate adequately Williams’s
Id.
convincing
clear
evidence.
potential mitigation evidence.
2254(e)(1).
ground
§
clause,
received ineffec-
contrary
a federal
3. Whether Williams
Under the
guilt
at the
phase
counsel
if
may grant
tive assistance
writ
habeas court
allegedly
to in-
failed
counsel
oppo-
because
arrives at a conclusion
state court
present
vestigate adequately and
substan-
Supreme
site
that reached
reason-
support
tial evidence
Williams’s
question
or if the
Court on a
of law
state
defense.
able doubt
differently than
court decides a case
materially
a set
indistin-
Court has on
III.
OF REVIEW
STANDARDS
guishable facts. Under the unreason-
clear
review for
error
We
clause, a federal habeas
application
able
fact
findings
court’s
and review
district
grant
if the
may
court
the writ
state
questions of law
mixed
de novo both
governing
court identifies
correct
le-
Nyland
fact.
questions, of law and
v.
gal
Supreme
Court’s
principle
(11th
Moore,
1264, 1266
216 F.3d
Cir.
unreasonably applies that
decisions but
2000). An
ineffective assistance
counsel
prisoner’s
to the
principle
facts
mixed
of law
fact
question
claim is a
appro-
either
case. Under
standard
novo.
Roll
that the court
de
See
reviews
clearly
priate measuring stick is
estab-
(11th
Crosby,
ing v.
438 F.3d
law,
lished federal
which means the
—
denied,
Cir.2006),
U.S.—,
cert.
*6
dicta,
opposed
of
holdings, as
to the
the
—
-
(2006).
2943,
L.Ed.2d
S.Ct.
Supreme
as of the time
Court’s decisions
petition was filed after
Since Williams’s
of
relevant state court decision.
the
date of the Antiterrorism and
the effective
1308,
Crosby,
Schwab v.
451 F.3d
1310
(“ AEDPA”),
Penalty
Death
Act
Effective
(11th Cir.2006) (internal quotations, cita-
essence,
we,
the
review the decisions of
tions,
omitted).
and brackets
the
courts. Pursuant
to
AEDPA:
state
a writ of
cor-
application
An
for
habeas
IV. DISCUSSION
in custody
pus
person
on behalf of a
“It is well
established
the
of a
pursuant
judgment
the
State
Supreme
decision in Strickland [v.
Court’s
respect
granted
court shall
be
668,
2052,
Washington, 466 U.S.
104 S.Ct.
adjudicated
the
claim that was
(1984)]
‘controlling
1239
court,
focus on
what is
performance
penalty
“not
Williams did not raise
should
possible
prudent
appropriate,
or
is
or
phase
what
ineffectiveness
regarding
claim
(cid:127)
constitutionally
only
is
com-
but
what
[on]
counsel’s failure to read and review the
States,
v.
218
pelled.”
United
Chandler
Rather,
Taylor
report.
Hardin
Williams’s
(11th
(en banc)
Cir.2000)
1305,
F.3d
1313
claim of
at sentencing
ineffectiveness
relat
(internal
omitted).
court’s
quotations
ed to
investigate
counsel’s failure to
performance must be
review of counsel’s
present
evidence,
mitigation
sufficient
al
deferential,
highly
and the court must
allegedly
beit
information Bivens
could
second-guessing
perform-
avoid
counsel’s
gleaned
reading
from his
Tay
Strickland,
689,
ance.
104
U.S.
However,
report.
lor
specific
Hardin
Further,
must
S.Ct.
courts
fairly present
issue raised here was never
objective inquiry
make an
into
reason-
such,
ed to
state courts.
As
the claim
performance. Chan-
ableness of counsel’s
is
precluded
federal review. See
dler,
at 1315.
are no
218 F.3d
There
Corrs.,
Henry
Dep’t
v.
F.3d
dictating
absolute rules
what is reasonable
Cir.1999)
(11th
(“a
petitioner’s consti
performance
would
because absolute rules
‘fairly
tutional claims
presented’
be
[must]
restrict
latitude
have in
the wide
counsel
they
to the state courts such that
have ‘an
making tactical decisions. Id. at 1317.
opportunity to apply controlling legal prin
them’”)
ciples
upon
bearing
facts
Taylor
A.
Review
Hardin4 file
Connor,
Picard v.
(quoting
U.S.
two
ineffec-
Williams asserts
claims of
509, 512, 513,
92 S.Ct.
hibit 3 the at during the Williams had been arrested Likewise, ... this court finds this 25, early morning January hours of any deficiency case in the records 1988, at and had been incarcerated otherwise, review, investigation or at all various locations times between Sumrall, Formby, Dr. Dr. [trial and/or then the date of the statement requisite not result the did counsel] by Mr. Gaskin. Presum- overheard degree a defen- prejudice. of Unless ably oppor- no there would been per- dant satisfies both the deficient per- tunity kill undetected a white prong prejudice formance the Strickland, son, during that prong person, of “it cannot be said or other Accordingly, time frame. presumption state- are entitled to a of correct hearing ment made 2254(e)(1). § ness. See 28 U.S.C. of Gaskin would have related to an Williams cannot demonstrate that the state preceding January event 1988. courts’ decisions were either contrary'to, not Consequently, it is “remote” to the or of, involved an unreasonable application 23, 1988, incident, January and state- Therefore, federal law. Williams is enti ments that date Priscilla Jones. tled to no relief this claim.5 The court finds rel- evant. “The is rule stated be that B. Failure to investigate present acts, of declarations and demeanor mitigation evidence sufficient an or accused before after offense Williams contends that the Su part gestae whether a or of res preme Court’s in Wiggins decision v. him, not against are admissible but Smith, U.S. S.Ct. part gestae unless a res are not (2003), L.Ed.2d 471 requires ... admissible him.” grant court him habeas relief because his Accordingly, the court concludes that defense team insufficiently investigated objectionable the statement was not potential mitigation present evidence on grounds relevancy, and also con- sentencing. Both the state trial court and cludes Ap- Court Criminal the state appellate court rejected this peals would have noted it to have been claim on prongs both of Strickland. The objectionable, thus under the “search state courts found as follows: the record for error” rule review First, contends that his attending capital appeals, murder attorneys rendered ineffective assistance were that so. they allegedly because did not investi- The 783 So.2d 127-29. Alabama Court gate and present mitigating sufficient Appeals agreed Criminal with the cir- during evidence penalty phase of his findings cuit court’s and adopted them as Specifically, trial. he contends that part appellate Id. at decision. counsel should have called witnesses arguendo Assuming that Williams’s who could have testified about his back- for failing counsel was deficient to' thor- ground upbringing, including the oughly review the Hardin file “personal hardships and depriva- severe to prepare order for a response Mr. tions” he suffered. testimony, Gaskins’s Williams cannot satis- fy prejudice prong Strickland. The appellant’s record from the direct
state trial court found Williams could appeal Raymond shows O. Sum- prove prejudice becaüsé “there is no jury during rail testified before probability relevancy reasonable that a ob- n jection sustained, penalty-phase proceedings. Dr. would have Sum- been nor rail, overruling professor it who was a would have School constituted Williams, University reversible error.” of Social 783 So.2d at Work at the of Ala- AEDPA, 128-29. Under findings professor these bama and associate *9 Furthermore, 5. failing is not entitled to re to use evidence of ineffective prejudice arguments lief on' his other that drug Williams’s chronic alcohol and abuse were not raised and addressed in the state prove incapacitated that Williams was at the (1) courts: that Bivens was ineffective be Henry, time of the at murder. See 197 F.3d place cause he did not Williams's statement trial; (2) “in context” at and that Bivens was to help people and person of Criminal liked University’s Department
the ten hours He further testi- Justice, spent people. that he “look out” for testified he history the and that a interviewing appellant that he did not have fied appellant’s back- had reviewed the previous- that had never violence and he the appel- that ground. He testified crime. ly convicted of a violent been he was deserted him when lant’s mother claim, addressing this the circuit When ma- with his very young; that he lived following findings: court made the seven, that, age at grandmother; ternal Brief, Post-Hearing In his died, he grandmother his maternal when testimony that could have contends aunt; he not in with his did moved that by defense counsel been adduced environment; that a home stable Echols, through Debra Gren- Herbert not with relationships he had had in the tran- (spelled shaw “Grinshaw” his women in significant adult and stable evidentiary the script hearing), life; relationship did not have a that he appellant’s stepfather] Hill [the Jesse left father because his father with his paint pic- a Laura Williams and/or old; years appellant when the was two deprived of Luther ture Williams’ twelve, that, “he ages from the of nine to impoverished childhood. There is came much a street kid who pretty as to Mr. Echols’ ac- question some very supervision without much went availability during cessibility and (Trial 1026); It. he anybody” that period representa- counsel’s] of [trial himself; and that he discipline could Williams, tion of inasmuch as Mr. in the use extensively had involved been evidentiary at Echols testified since he drugs and other substances hearing living that he was Detroit Dr. also Sumrall testified sixteen. from 1988 to and even his broth- any pattern of that he had not observed really did not know how to find er as- appellant that was behavior him, one in time he point because at committing or saultive violent and 145). (EH was homeless. Nonethe- ap- murder was consistent with less, testimony him elicited from behavior, pellant’s prior which involved and from aforementioned other only property offenses. evidentiary hearing witnesses testimony that appel- There was also essentially cu- related information lant had evaluated at been jury provided to that mulative Facility (“Taylor Hardin Secure Medical Sumrall. argues in Dr.. his Hardin”) by Using several doctors. Post-Hearing Brief that those wit- evaluation, a Bryant, E. Bernard jury acquainted nesses could have psychiatrist, appellant testified that the the fact that mother had des- he personality had an antisocial siblings erted him and his when he showed remorse about offense. very young; was still his father trial Finally, separate court held him; that he likewise abandoned sentencing hearing jury bench after the Wil- thereafter was raised Laura had returned its recommendation and kins; that was often out he locked presentence investigation had after the of her house and forced fend for Re- completed. hearing, been At this In himself. evi- he Charles Hunter verend dentiary hearing, Luther Williams'ex- appellant appel- had known the since the plained that when Ms. Wilkins would not a lant was child and that he was out, days lock him for two to three person. also testi- violent time, live “over hearing type was the he would other [at] fied at *10 (EH 189-90). way presentation friends’ houses.” The for significant is made in the contention Post-Hear- non-statutory mitigation evidence, the ing testimony Brief that could have presented she in presented through been Mr. Echols disagreement with that of Dr. Sumrall Luther, Echols, with along Mr. or the State’s penalty-phase expert, by Mr. Hill regularly whipped Bryant. Dr. Bernard E. The conten- switches, belts, with and extension tion is in the post-hearing made brief himself cords. Williams testified at Tarkin, that “Dr. or qualified another evidentiary hearing that he had a psychologist, could an have offered good relationship with Mr. Hill when opinion, consistent with Taylor that of him, whip he didn’t and Luther still psychiatrist, Hardin’s that Mr. 190). (EH loved him. Dr. Sumrall Williams’ condition was condition jury before the put that Luther developed by all probability “mother deserted him at a Williams’ very virtue of his early childhood de- very young age” and that he lived 17). privation.” (PHB, p. Dr. a maternal grandmother with Bryant, who testified that he was em- while but that she died when he was ployed Hardin from April seven, leaving Luther with an aunt through August 31 of adopted him apparently when he opined that had antisocial nine; was about that “from his birth (R. 108). personality He explained age he nine had no stable environ- that it is a “characterologieal per- or ment”; that he “no relationship had sonality” disorder developed during significant adult wom- stable person’s “2, years, formative of ages life”; en had no rela- 3, 6, old,” years whereby per- “the tionship significant with a fig- father son has up personali- ended with this ]; ure that his father life[ (R. 1082). ty.” Bryant Dr. acknowl- years left only when he was two him. edged during cross-examination old; and that from about nine to family [trial that an counsel] unstable years twelve age pretty “he was could, if proper there were not a male much a street kid who came and went model, or female role contribute to a very supervision without much from person having antisocial characteris- (R. 1025-26). anybody.” When (R. 1097). tics. He further acknowl- present Williams’ counsel called Jesse edged “substance abuse does ex- Hill to evidentiary the stand at the (R. 1098). acerbate[.]” hearing, any ques- he was not asked The court does not find that the fail- concerning any alleged tions mistreat- sug- ure to utilize witnesses now Further, ment of Luther him. Mr. gested by Williams constituted inef- virtually Hill was asked no questions fective assistance of counsel .... that hearing concerning Luther pertinent pre- information was impoverished deprived Williams’ or jury sented through Sum- background, than concerning other rall, without being risk run undisputed fact that Luther’s possibly being harmful information mother and father were involved (EH elicited those witnesses on cross- early in his years. life after his 163). Furthermore, examination. if even respect argument With post-hearing preparation pres- [trial made in the counsel’s] brief use of a psychologist, such Dr. Bar- entation were deficient in this regard, Tarkin, paved bara could have requi- Williams has failed to show the *11 1244 to investigate hired Dr. Sumrall prejudice. He Bivens prong of
site second'
mitigation defense. Dr.
and conduct his
test of
met the Strickland
.has not
jury
to the
that,
Sumrall
evidence
presented
probability
showing a reasonable
in
strat-
mitigation
that
Bivens
his
ássisted
question,
in
the sen-
absent the error
that Williams
egy. Dr. Sumrall testified
that the
have concluded
tencer would
disadvantaged background
a
came from
mitigating
and
aggravating
balance of
drug
his
abuse and
death;
that led to
alcohol and
warrant
did not
circumstances
crimes,
in
were not violent
property
which
suffi-
probability
not shown a
has
téstimony
This
allowed Bivens to
in
nature.
cient
undermine confidence
to
to
was not a
argue
jury
Williams
outcome.
a
of life
person,
violent
and
sentence
the circuit court’s find-
agree with
We
prison
appropriate
be more
him.
would
part
as
of this
ings
adopt
them
and
Also,
spent
that he
ten
Dr. Sumrall stated
addition, we note that the
opinion;
In
Williams, recounting
family
his
hours with
found,
nonstatutory miti-
trial court
history,
history,
and criminal
educational
circumstances,
appellant
that the
gating
history. Dr.
also reviewed
Sumrall
that he did
personality,
had an antisocial
health, police,
mental
probation,
Williams’s
history of
significant prior
a
not have
Dr.
testimo-
parole
and
records.
Sumrall’s
conduct,
he had
or violent
assaultive
mitigation
trial court
find as
ny led the
to
family
had a stable
environment dur-
not
poor family history,
that Williams had
and
he had
years,
ing
formative
crimes,
history
an
of non-violent
extensive
drugs
extensively abused alcohol and
abuse,
history
drug
an
and alcohol
(Trial
years
was about
old.
since he
personality
anti-social
disorder.
1433)[.]
R.
For
above-stated rea-
sons,
has
shown
investigation was
Assuming this
defi-
ineffective assistance
counsel rendered
cient, Williams cannot
how the al-
show
presentation of
preparation
prejudiced
leged
investigation
deficient
evidence.,
Strickland,
mitigating
su-
-See
sentencing.
him at
At the Rule 32 hear-
pra.
expert
Dr.
ing,
psychologist,
Williams’s
State,
Our review unreasonably meeting ap- with Williams. She stated that whether the.state courts as Dr. plied virtually to the of this case. she read same files Strickland facts Sumrall; only family Although urges apply Wig- us to she talked to one Williams case, gins controlling Supreme phone; member over the she was “intimately with the facts of the precedent regard to claims of familiar” Court VI, hearing p. [R. assistance counsel is Strick- case. Vol. Rule 284- ineffective opinion, expert In Marquard, 315-17.] land. See F.3d her (noting .‘controlling is “the Dr. Tarkin found that Williams suffered that Strickland authority’ and Bivens legal applied to be ineffective anti-social disorder claims”). argued mitigation the dis- should have assistance of counsel As found, suffering did not from mental dis- trict court state courts turbance; passive stan- was too unreasonably apply the Strickland anything accomplice; claim of as- but an and that dard ineffective be Williams’s poor environ- investigate pres- shaped by failing sistance for Dr. Tarkin’s mitigation evidence at the ment which he was raised. ent sufficient essentially conclusions are same as sentencing phase.
1245 conclusions, to which he at hearing. Sumrall’s testified Williams’s Rule 32 pre- He sentencing. at sented evidence that was cumulative. The may witnesses prior have elaborated on Tarkin, In pre- addition to Dr. Williams evidence, mitigation no but witness testi- at sented several other witnesses the Rule fied to mitigating new Each factors. evidentiary hearing testify mitiga- 32 witness presented cumulative evidence previously presented tion not at evidence merely that re-established the mitigating (“Echols”) trial. Herbert Echols testified argued circumstances previously by Bivens alcoholic, that mother an Williams’s at trial and by considered the trial court at biologi- and that did not know his Williams (1) sentencing: personality anti-social cal father. He also stated that Williams’s (2) disorder, history, non-violent criminal Hill, step-father, Jesse if whipped Williams (3) life, (4) family an unstable an ex- something wrong, he did that these but tensive alcohol and drug problem. abuse whippings required never medical atten- There can be no probability reasonable V, hearing p. tion. Vol. Rule 32 140- [R. that this testimony mitigat- cumulative (“Greenshaw”) Deborah Greenshaw 151.] ing already factors presented to and con- that she had known Williams sidered trial court be “weak and years since he was 16 old. Greenshaw unpersuasive” tipped would have the sen- that stated Williams’s aunt often would tencing scales, especially when trial lock him out of days her house for several statutory court noted that the aggravators when Williams did do what she asked. (“Hill”) far outweighed at the mitigating [Id. Jesse Hill factors. 160.] [R. testi- 7 p. Thus, fied that Yol. 1427.] Williams’s mother moved to New Williams cannot York years when Williams was ten about demonstrate that the state courts’ determi- old, only that met Williams’s father nation that prove he failed to prejudice attorney once No or twice. asked Hill under Strickland objectively unrea- about his alleged whippings of Williams. Accordingly, sonable. Williams is not enti- (“Laura”), at [Id. Laura Williams 161-68.] tled relief on this claim of ineffective sister, Williams’s testified that their moth- assistance of counsel at sentencing. early er left at age, they them an lived investigate (“Ms. C. Failure aunt, adequately
with their Laura Wilkins Wil- kins”). the guilt phase Laura stated Ms. Wilkins was defenses “always good.” at [Id. 169-70.] argues his counsel rendered ineffective assistance because he prejudice Under prong reasonably did investigate Williams’s Strickland, question “the is whether there guilt phase incapaci defenses that he was that, is a probability reasonable absent the murder, tated the time of the errors, the ... sentencer would have con there was “reasonable doubt” cluded that the balance of aggravating and committed the murder because mitigating circumstances did not warrant there were other two individuals involved. Strickland, death.” 466 104 U.S. Both the trial appellate state court and standard, S.Ct. at 2068-69. Under it rejected court claim under Williams’s apparent is petitioner cannot es “[a] Williams, Strickland. See 783 tablish So.2d identifying ineffective assistance Specifically, 123-26. additional both found evidence could have been courts presented Formby merely qualified when that that Dr. in evidence is was well Poyck vestigator reasonably investigated cumulative.” Van v. Fla. Dep’t Corrs., (11th case, 290 F.3d n. guilt phase Williams’s and that Cir.2002). exactly happened presented This is what no evidence at explained in testi- adequately have affected sons hearing
Rule that would of the trial. Id. rec- mony, keep the outcome he did not detailed he interviewed or everyone ords Appeals of Criminal The Alabama Court all time he devoted to the case. *13 following: stated and He Priscilla Jones interviewed his First, appellant contends (EH 382-83). A DeWayne Pierce. attorneys rendered ineffective assistance and allegedly properly investigation lot of his interview- they because did poten- case and interview investigate develop ing trying devoted to was made The circuit court tial witnesses. Williams’ co-de- connections between findings concerning following property and the stolen from fendants contention: Kirk, against other evidence Mr. and on principally relied counsel] [Trial (EH 384). the co-defendants. Formby; engaged had Dr. who been projects He to the Titusville and went counsel, predecessor to conduct by his hours spent approximately two inter- in- investigation case and witness grandmother and viewing Williams’ Formby quali- Dr. well terviews. (EH 384).... As his one of sisters. many by for that role virtue of fied Attorney’s provided District office attributes, background as detailed and more dis- the defense with more evidentiary hear- testimony at the his materials, Formby Dr. covery “would ing and his “vitae” introduced talk him go back Luther and During 6 to the same. Exhibit State’s again push if he me or see could engagement time of his give in other directions.” me leads case, co-principal, he was also a with (EH He a lot. talked to Williams Dr. forensic services Sumrall 388). Formby Dr. went to crime Veritas, Formby Inc.... firm of Dr. (EH of couple scene on occasions. “probably put that he in easi-
testified 388-89). ly investigation, 200 hours” on the attempted to follow the He in the having commenced it service co- route Williams and two attorneys predecessor [Williams’s] at different had traversed defendants having on the case and therefore been points during ques- the incidents in “essentially longer anybody than (EH 389). tion. He and coun- [trial (EH 398). Formby “spent Dr. else.” meetings routinely “would have sel] Luther good talking bit of time probably up twice a week until spent good bit [Williams]” trial, then last few weeks before potential talking time witnesses (EH virtually every day.” we met Apartments area the Smithfield 389-90). Formby Dr. brief [tri- would (EH 378). Birmingham. visited He al all that counsel] on he devel- family of Williams’ mem- with some provide oped, and would [trial counsel] De1 projects the Titusville bers guidance things in terms of that he in the projects. bra Bush Avondale Formby that Dr. important felt were 378). (EH Margie He went to see (EH 390).... up on. needed to follow Bush, the Bush grandmother Debra part, personally counsel] For his [trial apart- she him to admitted her could to locate witnesses who tried appre- ment where Luther had been claim that corroborate Mr. Williams’ hended, showing him the bedroom. he intoxication incapacitated, “just Formby spent many hours (EH night the murder[.] on the walking talking to around that area 380). 79-80). (EH For rea- people.” various (EH 181). at- also contends affirmative. Both testified torneys rendered ineffective .assistance that Carmichael King’s came into they pres- because did interview and apartment and they were then able to alleges ent he could have witnesses who notice gasoline the smell of on him. most the circumstantial evi- rebutted Ms. Williams testified that he “had presented in Specifical- dence the case. some cigarettes smoke,” didn’t ly, he asserts that there were witnesses which were “a white man’s kind of placed could his codefendant cigarettes.” Asked what they brand day truck on the victim’s were, she they were impeached murder and who could have “Merit or something like that. I can’t *14 sister, Jones, Priscilla the appellant’s really remember what they kind who testified that the told her were,” whereas usually Carmichael he that had killed a white man. In smoked Kools. Bung Ms. testified issue, regard the circuit court that usually Carmichael smoked following findings: made the Newport’ “Kools or either 100s” and in argues Post-Hearing his that the cigarettes he had with him on Brief that the damaging counter [t]o the in question occasion were not “the evidence that Mr. Williams was seen same but kind” she could not state truck, driving Mr. Kirk’s trial counsel (EH what they 175-76, brand were. testimony through could have offered 183-84). or King Laura-Williams Sandra that Albert Carmichael had been seen Considering all interviewing of driving truck, the red that he smelled family Williams and his members con- gasoline of that Mr. Carmichael Formby, ducted and consider- cigarettes had white man’s on him ing all of the showing evidence the Saturday just evening, hours Mr. after involvement of Albert Carmichael and 12). (PHB, Kirk was p. murdered. Trosky Gregory in critical various King Ms. at Williams Ms. events of the in question, weekend the evidentiary hearing they were court does find that Williams has apartment at Ms. King’s house on a carried his burden proving of that a Saturday they night when observed failure to use Laura Williams or San- Albert Carmichael in red truck dra Kang as defense consti- witnesses in parked parking lot Priscilla counsel; tuted ineffective assistance of Jones’ house. As far as date or that their testimony the omission of occurred, which that Ms. Williams was in prejudiced way defense re- only asked if she being remembered quired by the Strickland test. Under days Ms. “a Kings’ few before Strickland, it enough is not to show time that Luther was arrested for the that trial errors “had some conceiva- murder,” she identified it aas pro- ble effect on outcome of Saturday night, King and Ms. ceeding,” rather the defendant “must if asked being she could remember show there proba- is a reasonable home visiting with Laura her “Janu- bility that, but counsel’s unprofes- ary Saturday' I night, believe errors, pro- sional result Saturday Saturday afternoon or night. ceeding would have been different.” may I wrong day, be on the I but {Strickland, 693-94, date, think that U.S. January is the 23. Do added)). you being (Emphasis remember home on S.Ct. 2052.... date?”, to which she answered in the That Albert Carmichael was observed his the matter in terms of apart- expressing truck at the camper
in the red her lack of during night personal knowledge Sat- complex own ment 23rd, Luther January veracity. testimony ultimately after urday, His to have observed personal had been own offered related his involved, points it at earlier history been her opinion or assessment al- day, would not have in time that untruthfulness, relating rather than implication or impact tered community. reputation it to her There critical evidence. of .the State’s opinion that Priscilla expressed He his that either Laura is no indication come down here and told the “had ever King or told Sandra me, it out here bunch of—to people they trial anyone before Williams’ (EH 166). fairy a bunch of tales.” is in the red seen Albert Carmichael conceded, however, Hill Mr. .... truck knowledge no about the evi- [had] post-hearing Williams asserts case that it dence counsel should brief defense testimony telling that Priscilla was damaging countered the “fairy people Tuscaloosa tales” be- *15 by testimony eliciting Priscilla Jones I my daughter, is and cause “that Hill, father, her Jesse that she of capable doing. know what she is 608(a) big Rule was “a liar.” Under say My daughter anything, would do of Evidence of the Alabama Rules (EH 167). anything anybody.” to ..., may the impeach a credi- witness how, if did know asked he not When bility of a witness who has testified case, the anything about facts opinion witness’s offering second credibility her he could attack first untruth- regarding the witness’s testimony, he answered that Priscilla Rules of Evi- fulness. The Alabama liar,” “a that she “never big was and until did not effective dence become of things.” tells the truth about a lot however, January the law 168). (EH Accordingly, as record existing of evidence at time stands, is no show- there affirmative the testimo- trial restricted Williams’ that Hill ing Mr. could offered to ny impeaching witness testimony that would meet the foun- gen- limited fact the other witness’ requirement showing dational that for reputation community eral reputation it related to Priscilla Jones’ a witness can untruthfulness. Before in her for truthfulness/untruthfulness testify concerning reputation in community in 1989 .... coun- [Trial community for the or truthfulness impeached Priscilla re- Jones with sel] witness, of another a untruthfulness spect to the inconsistencies between predicate establishing must be laid testimony trial her prelimi- her actually that the witness impeaching nary testimony, and testi- hearing her of the other witness’s knowledge has mony points was important several or untruth- reputation for truthfulness Ann corroborated that of Teresa fulness in first witness’s communi- Evans. of the critical features One evidentiary point That ty. was testimony was that Priscilla Jones’ by the in its com- addressed court her, told on the occa- Luther Williams to Mr. Hill’s during ments counsel apartment that came her sion he to 164-66). (EH testimony. Although Saturday, building, morning of Hill re- question put Mr. 23rd, in January the “red and white inquire phrased properly so as to truck,” camper that he had killed “reputation,” persisted Mr. Hill (R.479), just white man that “I killed but was unable so. to do [Id. 80-81.] (R.502). man.” She white did Once he could not find anything support 502). (R.480, him at believe the time. incapacitation theory, Bivens left Immediately prior making with “reasonable doubt defense” —at- statement, hugged he had her and tacking the case State’s com- apologized to her for the altercation mitted the through murder “innuendos and preceding night. between them the assumptions.” [Id. 62-63.] 502). (R.476, gas He had the odor of Formby Dr. testified that his primary (R.480). on him. she returned When goal any was to find evidence would apartment, to her he followed her develop stronger connections between the pistol showed her “a bul- some other individuals involved in the murder lets,” pistol having “a clear Bivens, and the actual murder. Like handle,” meaning it that was “white.” Formby twice traveled to the murder (R.480). only As the other participant if argument scene see could be conversation, to that Williams was the concerning made the trajectory of the bul- only person could have contra- VI, let. Vol. Rule hearing p. 25-26, [R. it, dicted Jones’ about but He also followed 388.] the same route testify he did and the trial strate- Williams and the other individuals took the gy regard decision is not chal- murder, day of the and he viewed the lenged proceeding. in this The court videotaped statements of the other individ- does not consider the fact Mr. to search anything uals exculpatory to Hill might have 389,416-17.] Williams. [Id. Dr. Form- knowledge daughter’s of his reputa- *16 by also visited project the Smithfield sev- truthfulness, tion for her eral times to talk with people in the area reputation regard was bad in that and to family interview Williams’s mem- a reputation she had for untruthful- at [Id. 382-84.] bers. He viewed also the ness, would have of such import been scene arrest and interviewed the a impeach as her as to the witness present women were at the time of extent that the of trial outcome Moreover, [Id. Williams’s arrest. at would have been 384.] different. attorneys when Williams’s initial trial re- agree with We the circuit court’s find- a ceived letter from former client claim- ings as to these and adopt claims them ing that one of the other individuals in- part of this opinion. Because the murder, committing has not volved admitted to established that his attorneys Formby rendered investigated ineffective assistance Dr. lead and instances, in these he is entitled to found the letter to be false. at [Id. 379.] Strickland, relief on these claims. See Wallace concerning When Gaskin testified supra. Danny Williams’s statement to inculpatory Hubbard, Formby Taylor Dr. Williams, traveled 783 So.2d 123-26. Danny Hardin search for Hubbard. As the state courts found and the record addition, In Bivens [Id. 392.] reflects, Formby reasonably Bivens and file, he reviewed entire State’s investigated of Bi- both theories defense. evidence, physical viewed State’s vens testified 32 hearing Rule Hardin reports reviewed to de- incapacitation theory “prob- of defense some type termine whether mental IV, ably” came from Williams. [R. Vol. IV, possible. health defense Vol. Rule hearing p. [R. at- 63-64.] Bivens 14-16, 20, 37-39, tempted hearing p. to find Rule 32 information that could 66.] or prove support theory, the incapacitation cannot show that “there is record, the state courts Williams Based on the probability Form- that the outcome correctly found that Bivens reasonable investigation of different,” by performed reasonable the- have been proceeding would possible defenses. case and Williams’s 427 F.3d Campbell, v. Callahan presump- to a findings are entitled These (No. (11th Cir.2005), filed, 05- pet. cert. for by our court. See 28 tion of correctness 10404) 2006), by adding two wit (Apr. 2254(e)(1). presents § Williams U.S.C. theory who corroborate the State’s nesses findings. There- these nothing to rebut knowledge who has no and another witness that the state fore, cannot show Williams case and can of the circumstances unreasonably applied Strickland’s courts testimo only present opinion inadmissible prong to this issue. performance Thus, ny. Williams cannot demonstrate could Assuming arguendo that Williams Accordingly, prejudice under Strickland. for not his counsel was deficient show that the state courts cannot show that de- thoroughly investigating potential his unreasonably preju applied Strickland’s any trial, cannot show that fenses case, therefore, and, he is prong dice his prejudiced de- performance deficient relief. entitled habeas hearing, At Rule fense. King of Sandra presented testimonies V. CONCLUSION Williams, both of and Laura (“King”) to demonstrate fails Because seeing another individual whom testified to unreasonably applied that the state courts driving Mr. Kirk’s red involved case standard to claims Strickland murder and night truck counsel, we assistance affirm ineffective cigarette. man’s” [R. a “white smoking denying judgment the district court’s V, hearing p. Rule 32 As 168-185.] Vol. Williams habeas relief. noted, the state court impact or AFFIRMED. not have altered the “would implication of the State’s critical BARKETT, concurring: Judge, Circuit Williams, at 125. evidence.” 783 So.2d refutes the Nothing these testimonies majority opinion I concur because *17 driving the fact that Williams was seen correctly issues legal resolves before shortly after the murder and truck alone trial argues us. that his counsel Williams day. in' the truck later that same leaving failing Tay- read was ineffective 3, transcript p. Trial [R. 61.] Vol. 457— file, Hardin in which he would have lor testimony presented also Williams unequivo- for discovered the basis Gaskin’s Hill who testified that Priscilla Jesse testimony viz., cally damaging — Jones, witness, liar” “big trial was a killed a white Williams told Gaskin that he during trial. “fairy [R. told tales” Vol. object have able to man—and would been However, V, hearing, p. Rule 32 166-68.] relevancy grounds. to the testify that he had knowl- Hill could proceedings Alabama Given for edge general reputation of Jones’s courts, satisfy the cannot state community, which was truthfulness on the prejudice prong Strickland admissibility in Alabama at standard of alone, objection strength relevancy Williams, the time of Williams’s trial. See only is see Ante at 1241 n. and that Rather, Hill’s testi- 783 125-26. So.2d issue, guilt-phase, for respect opinion. mony personal on his was based our review. Moreover, no Hill admitted that to note that only I write separately knowledge of the circumstances argued has in the state courts [Id 167.] case.
1251 pre should been counsel have better adequate not pared to mount defense
withstanding the vel non success
objection testimony. to Gaskin’s For ex
ample, had counsel in known Williams’ statement, certainly
culpatory he most
would discussed it with have
attempted ascertain the circumstances made,
under which statement was made,
purposes which it was might mitigat other information Beard, Rompilla
ed the statement. See v. U.S. S.Ct. L.Ed.2d (2005).1 limited, Because review our is
however, the grounds identified
majority, I must concur.
Raymond Anthony MILLER,
Plaintiff-Appellant,
v.
Terry City HARGET, Riverdale, J.
Defendants-Appellees.
No. 05-13573. of Appeals,
United States Court
Eleventh Circuit.
Aug. 4, 2006.
*18
case,
Contrary
argument
to the
appeal,
state’s
issue
sion at
in this
Williams’ case was
Smith,
510,
Rompilla
Wiggins
v.
539 U.S.
Contrary
us on
before
habeas review.
to the
2527,
(2003),
123 S.Ct.
al-
L.Ed.2d
contention, we
dissent's
therefore made no
they post-dated
though
the relevant
state-
resolving
new law
Williams' ineffectiveness
proceedings,
court
are relevant to our consid-
highlighting
duty
In
claim.
counsel's
in-
claim,
eration
for
of Williams’s Strickland
referring
vestigate, and in
to the ABA Stan-
they
clarify
applicability.
Strickland’s
both
guides,
ap-
dards
Criminal Justice as
we
See,
e.g., Wiggins,
539 U.S.
123 S.Ct.
plied
‘clearly
precedent
same
established’
("While
Taylor,
U.S.
[v.
today.”).
apply
we
of Strickland
I do
take
(2000)]
120 S.Ct.