*1 expert wit- asked First, prosecution PAYNE, Petitioner- Max Landon regarding question hypothetical
ness Appellant, guilty to pleading of someone “likelihood fact felonies, they’re if not in drug three 793.) (Tr. A those felonies.” guilty Commissioner, ALLEN, F. Richard later, next government’s minutes few Department of Correc- correctly testified witness, agent, a federal tions, Respondent-Appellee. charges to state pled guilty Defendant cocaine, marijuana, and possession No. 06-15674. 6, 2005, but July on drug paraphernalia three that all incorrectly stated then Appeals, Court of States United However, defense felonies. were counts Eleventh Circuit. agent questioned thoroughly
counsel Aug. during cross examina- this error regarding unfa- she was tion, agent admitted and the law. She with Oklahoma
miliar drug with defense
agreed fact misde- count
paraphernalia marijuana that the and indicated
meanor “Where evidence be as well. might
count is revealed
refuting a false statement
cross-examination, cannot government the false relied on direct- to have said
be guilty obtain a testimony to
examination Crockett, 435 States v. United
verdict.” Cir.2006). (10th Based
F.3d during cross exami- admissions agent’s erro-
nation, that the earlier we conclude mis- of Defendant’s characterization
neous did as felonies convictions
demeanor rights or undermine his substantial
affect trial. of his fundamental fairness Defendant’s
Therefore, AFFIRM we and sentence.
conviction as felonies. objects mischaracterization
only to their
I. BACKGROUND A. The Crimes robbed, abducted, brutally murdered Braxton Brown. See (Ala.Crim. State, So.2d 442-47 23, 1992, App.1995). On March the eve- Brown, ning Payne murdered Easterly’s Faye his sister Wilma house *4 Walker, girlfriend, with his Sandra Easterly. Payne left the house with a shotgun. at double-barreled Id. Payne taking shotgun said he was “somebody case fucks with me.” Id. p.m., Around 8:25 or 8:30 two customers Payne Grocery, saw at Point West which Brown owned. Id.
Around p.m., company 8:30 an alarm operator received a “hold-up alarm” from Grocery West Point and called the sheriffs department. responding deputy Id. The open discovered the store door and saw floor, packs Marlboro scattered on the found no one there. Id. store,
Payne had kidnapped robbed Brown, and taken at gunpoint Brown to Easterly’s Easterly house. was still there with Walker. Id. Walker testified Brown appeared very scared, nervous and (Court-Appointed), D. Nestor Bruce De Payne gun, had a right stood next to Nestor, LLC, MN, Minneapolis, & Leon Brown, sling. Payne and had an arm or- Payne. for give Easterly dered Brown money. Id. Hughes, Montgomery, Beth Jackson Brown laid on a table. Id. Walker $20 AL, for Allen. Easterly overheard begging Payne “don’t
do this” several times. Id.
Easterly Payne asked to leave Brown with her or take him back to his store and “maybe forget said would [Brown] BARKETT, HULL and Before at this.” Id. 444. Brown nodded nervous- MARCUS, Judges. Circuit ly. Payne rejected Easterly’s sugges- Id. tion, “No, HULL, stating, I Judge: going am to do this.” Circuit Id. forced Brown to leave Easter- case, capital petitioner In this Max Lan- ly’s house with him. Id. Payne (“Payne”) don appeals the district § court’s denial of his 28 peti- p.m., Payne U.S.C. 2254 Around 9:15 to George went tion corpus. Cleghorn’s for a writ of habeas After house and asked to use the argument, review and oral we affirm. telephone. Id. called someone and shotgun a from a distance of one to one- a .22 rifle. Id. for bullets asked away. and-a-half feet Id. if he had Cleghorn Payne also asked time, Payne’s During this Id. bullets. 25, 1992, a call from following On March Thomas went to West Alma other sister authorities, police a Miami detec her police informed Grocery and Point tive met bus when it arrived in Brown and seen with had been brother Miami. Id. at 445. Items found on driving. Id. car described jeweler’s a in handgun; included Brown’s Grocery; made out to West Point voice investigator p.m., police 10:00 Around name; registration in Brown’s vehicle Grocery re- Point taking pictures West cigarettes; of Marlboro three cartons heard. gunshots had been ceived a call bags containing numer deposit three bank origin attempted to locate Id. He Grocery, Point ous checks written West inves- failed. Id. When the the shots but receipts, rings, credit card and food Grocery, he Point tigator returned West name; receipts bank in Brown’s stamps; had been seen a call that Brown received $1,085.84. Id. at 445-46. and a total of Following report Id. Payne. *5 many com Brown’s son identified items as East- investigator arrived at gunshots, an ing Grocery. from Point Id. Foren West Payne the car had erly’s house and found human tissue recov testing sic matched the car evening. Id. Inside used that sling ered from arm to Brown’s unspent shot- spent two and several were type. Id. at 446. blood midnight, Payne shells. Id. Around gun Florida. Id. a bus ticket to purchased Payne was indicted for three counts of torn agent Payne noticed wore The ticket arising murder from Brown’s capital cuts jeans stains and had blue with blood jury unanimously An Alabama death.1 on his face. Id. Payne on all and recom- convicted counts a sentence an 11-1 vote. mended death a morning the of March
On Payne judge The trial sentenced to state partial found a dental fireman volunteer death. and bridge a over Crooked Creek plate on bridge and dark red stains on the
noticed B. Pre-trial Motions team Id. at 445. The search dis- railing. trial, Greg to defense counsel body in the creek. Prior covered Brown’s Id. parte ex Sapp and Robert moved gone face due to two Nicholas Most of Brown’s was and investigate to the crimes face. Id. He had for funds shotgun blasts to the The court mitigating in circumstances. in his face: one his large two holes motion and defense counsel granted in Id. An and one his mouth. forehead Nesmith, Johnny a retired Alabama shotgun pellets hired autopsy later retrieved Investigation agent. Counsel at 446. A foren- Bureau of Brown’s skull. M from psychiatric moved for court-ordered Brown was shot with also sic examiner testified theft, (1) (1) committing a uses murder the course of The counts are: intentional during physical with the in- an abduction overcome resis- committed force with intent to accomplish or aid the commission tent force the imminent use of tance or threatens therefrom; (2) robbery flight or intentional compel acquiescence to the with intent during intent murder an abduction and property; taking escaping with the of or (3) injury; physical and in- to inflict serious (2) weapon danger- deadly armed with a is during robbery in the first tentional murder physical in- or causes serious ous instrument 5—40(a)(1)—(2), See Ala.Code. degree. §§ 13A— 13A-8-41, §§ 13A- jury Ala.Code to another. 13A-6-2, 13A-6-43, person A 13A-8-41. 8-43. he, when, degree robbery commits in the first intoxication. Dr. Maier found no competency during exam to determine memory cognitive impairment, mental and emotional evidence of and his trial stand hallucinations, The trial problems, of the offenses. or delusions. at the time evidentiary hearing time, on the place, and Payne was oriented court held normal, he speech motion. was purpose, average had or better intellectual function- hearing, Sapp attended the Nicholas within ing. Payne’s affective state was Fami- the witnesses. questioned Sapp limits, and he had normal abstrac- normal Payne’s diffi- testified ly witnesses in- thinking judgment and fair tive childhood, problems, his health cult sign saw of remorse sight. Dr. Maier no he suffered from physical abuse DSM-III, Dr. Using the crimes. Payne’s mother also discussed stepfather. Payne having as Axis I diagnosed Maier child, Payne as a surgery had the stomach II dependence personality alcohol and Axis time behavior around the disorder. Easterly about then- murder. testified Payne’s, medication fox- stepfather, abusive Compe- Dr. Maier also administered Payne’s irrationality problems, and nerve Trial Instru- tency to Stand Assessment murder. Alma Thomas day before the competent and found ment test Payne attempted suicide discussed how that of the to stand trial. Dr. Maier noted murder, how, out after the measures, the test thirteen areas him to the bus mind when she drove of his impairment had mild six areas. mental granted court station. The charges against of the was aware *6 motion. evaluation a consequences him and the of conviction. Maier, and psychologist Dr. a clinical person- the duties of court He understood examiner, examined certified forensic nel, the essential ba- procedure, courtroom of mental Payne and found no evidence plea-bargaining, sics of and difference illness, cog- capacity, diminished mental felony. Dr. between a misdemeanor and a Dr. Maier reviewed impairment. nitive Payne adequate believed had trust Maier his- Payne’s psychological psychiatric and attorneys. with his As to rapport and Payne’s history of sub- tory, including Payne’s mental state at the time of the stance abuse and current medications. concluded, crimes, “Payne Dr. Maier was alcohol, combined highly intoxicated from Payne any history hospitaliza- denied ” Payne admit- pro- pain pills.’ contact with a mental health with T3 or tion or or substance a a case and a half psychiatric consuming fessional for ted case to reasons, long history a reported eight abuse but hours be- during of beer the six to drug usage. of alcohol and street way abuse his 'drinking the crimes and on fore Payne heavy age a drinker since fif- was Dr. Maier found no evidence of Florida. years drank teen or sixteen and for several than any significant mental illness other drinking day. a case of beer a He was Payne’s Payne’s problem. alcohol abuse heavily Payne at the time of crimes. things he remembered and his report of had with nervous stomach problems suggested “he after the crimes behavior help medical since childhood and received wrong what he did did know that was for that. Payne’s claims of the law.” As to against surrounding recalling events blackout
Dr. Maier’s clinical assessment noted explana- Dr. Maier no kidnapping, saw Payne’s history any offered nothing works to “except it that such loss tion for organic explanations Payne’s alleged and could reflect advantage, defendant’s rages, that blackouts blackouts to the impairment due temporary cerebral anger outbursts were not uncommon Payne’s mother testified first about intoxication.” alcohol-caused effects of Payne young- appre- Payne’s childhood. was the understand and Payne “able to was Payne’s children. mother di- of his est of five consequence nature and ciate the father, alcoholic, Payne’s vorced alleged offenses.” be- at the time of actions under- cause he was abusive and violent toward Payne could Dr. Maier concluded Mims, Payne’s stepfather, him and the her. Pervis was charges against stand the cooperate physically also an alcoholic. Mims often and could procedures court Payne Payne’s siblings. Payne Maier stated abused attorneys. Dr. any professional received psychiatric immediate never not in need of help for the abuse he endured and wit- care. nessed. Payne competent The trial court found sickly “got made did not call was a child who Payne’s trial. counsel
to stand boys. Payne during up the trial. fun of’ and beat other as a witness Dr. Maier grade. fifth began drinking around When Trial Payne’s Jury C. thirteen, Payne away he moved from him. pick home so the kids would not trial, At the State try and Payne loved his sisters and would witnesses, who recounted various thirty them. stop whipping his mother from His pre- the crimes. The defense details of pictures mother identified several including witnesses two sented eleven as a child. sisters, mother, and Nesmith. unanimously jury convicted After biologi- Easterly did not remember their penalty phase began. The house did not being cal father guilt adopted the evidence from the State father know of contact between their stage. years until he was about twelve However, Easterly knew a lot about old. presented mitigation ev- physically Mims stepfather. through five witnesses: idence *7 (Gredell Thomas), Indeed, Easterly Payne. about once or abused mother sisters month, Coleman, Payne Thomas, and twice a from when was sev- Alma Dr. Jack and age'twelve around or family wit- en until he left home Dr. David Lairmore. The face, thirteen,. Payne in the Payne’s child- Mims beat testimony covered nesses’ stomach, Payne even wit- family, neglect anywhere. dysfunctional and the hood father, Eve- Mims molest his older sister Payne’s biological physical nessed home lyn Payne occasions. left by Payne’s stepfather, alcoholic on several abuse any- because he could not take this Payne’s witnessing repeated abuse of his abuse sister, Payne passed from relative to of alco- more. was mother and and use a Payne drinking quite bit early age as well as his extensive relative. was hol at an by age at both fifteen. drug alcohol and abuse. Witnesses penalty phases and testified about guilt Nonetheless, Payne always was there and alcohol on the drugs abuse of trouble, Easterly. Easterly got If for day of the murder. did it so Payne would tell their mother he whip Payne instead. their mother would petition Because federal claims Easterly when she Payne was there for trial counsel was ineffective and should his her miscarriages helped and with his had have more evidence about before abuse, daughter’s doctor bills. The week we detail childhood and substance murder, upset was because during Payne’s present what counsel did Payne baby was not his. wife said their jury trial. something any prob- for his not indicate mental or domestic get a doctor to went to worse, drinking got going lems or exhibit emotional distress. nerves. days every day. to every two or three Payne from Dr. neurologically was normal. sling Payne ordered a for Lairmore Thomas, sister, Alma Payne’s oldest shoulder, protect right wear which grandparents age from lived her with sprained. prescribed Dr. Lairmore was Payne not around much as twelve and was Tylenol a twelve tablets which is However, years in the four before a child. acetaminophen. combination of codeine and murder, a lot of time spent Thomas depresses person’s Codeine a mental sta- described as Payne. Thomas to feel had, pain, tus causes brain less the best friend she ever someone who a mental person’s but also lowers state anything anybody. Payne do for would drowsy. him fifteen-year-old with Thomas’s makes great was son, building him a treehouse and encour- Dr. explained Lairmore alcohol’s effect stay day aging him to school. The brain, person’s on the how it decreases a murder, Payne crazy acting and reaction time and causes drowsiness doing. did not know what he was depression, symptom and that one of an The next witnesses were Dr. Coleman A person alcohol overdose is blackouts. Dr. Lairmore. About three months health, Payne’s general age, physical murder, Dr. prior to the Coleman treated status who consumed twelve to sixteen nausea, vomiting, abdominal cans of beer over six or seven hours would pain, and diarrhea. also said he probably legally per- be The intoxicated. anxiety having and tension about some altered, reasoning ability son’s could be Dr. family problems. diagnosed Coleman especially combination with a narcotic gastroenteritis. with viral Dr. like Alcohol and together codeine. codeine prescribed Coleman medicine for produce multiplied a effect. problems stomach Ativan for the ten- The State called no rebuttal witnesses. anxiety. sion and Dr. Coleman also ex- jury After the recommended death sen- how Ativan plained and alcohol interact. tence, judge trial a separate held Ativan, Valium, drug similar to ais sentencing hearing a month later. calming agent quiet anxiety down at- Ativan is tacks. When combined with al- D. Sentencing State Trial Court’s cohol, drugs have a sedative effect and The state trial court considered the evi- however, A person, cause drowsiness. *8 dence at trial and the sentenc- go through phase an excitable could before verdict, ing hearings, jury’s advisory out, passes people he like how who come Payne’s presentence investigation re- go out anaesthesia can through a com- port. statutory ag- The court found one stage. bative If took Ativan in gravating capital circumstance: of- dosage prescribed excess of the in fense was committed while the defendant conjunction alcohol, Payne could lose robbery in engaged kidnapping reasoning his abilities. Because alcohol offenses. The court statutory found one depressants, and Ativan are both their mitigating circumstance: was then combination could have an effect on what a years 21 old. normally person would do. nonstatutory The court also found four murder,
A week before the
Dr. Lair-
(1)
mitigating
circumstances:
treated
after a car
more
accident.
pain,
prescription drugs
neck
under the influence of
Payne reported
pain,
shoulder
(2)
offenses;
on his hand. Payne
and an abrasion
did
and alcohol at the time of the
1305
Alabama,
1146,
Payne v.
520 U.S.
problems See
undergoing emotional
Payne was
(1997).
1319,137
non-paternity of a
alleged
L.Ed.2d 481
concerning
S.Ct.
(3)
his;
Payne’s
thought was
child he
Appeal
F. Rule
Petition and First
bad
experience was
because
childhood
and “as-
problems
alcohol
stepfather’s
counsel,
Payne,
through another new
sister,
mother’s
Payne’s
saulting” of
post-conviction-relief petition pursu-
filed
generally poor
and a
marriages,
numerous
ant to Alabama Rule of
Proce-
Criminal
(4)
environment;
Payne cur-
childhood
Payne’s
petition
dure 32.3
Rule 32
raised
good
have a
relation-
rently appeared to
(1)
claims of:
ineffective assistance of trial
family. The court concluded
ship with his
investigate
pres-
counsel for failure to
in this case
circumstances
mitigating
“the
expert
ent
mental health evidence and ade-
aggravating cir-
outweigh
the sole
do
(2)
evidence;
quate mitigation
ineffec-
imposed the death sen-
cumstance” and
appellate
tive assistance of
counsel for not
tence.
claims in
pursuing ineffective-trial-counsel
appeal.
a motion for new trial or on direct
Appeal
E. Direct
Payne’s
The state Rule 32 court denied
1994,
in
sentencing
after
days
Ten
petition.
new counsel for
appointed
trial court
The Rule 32 court held
ineffec-
time,
pro-
Alabama had a
Payne. At that
tive-trial-counsel claims were barred be-
rule,
parte
established
Ex
cedural
Payne’s appellate
cause
counsel did not
(Ala.1992),
Jackson,
which
The defense interviewed whether he believed was mentally friends, including his moth- members impaired years based on his two of interac- sisters, brother-in-law, er, two and a stated, tion with Nicholas “I don’t couple of friends. The defense introduced mentally believe that he was impaired as Payne’s traumatic child- evidence about having any far as kind of mental illness. abuse, physical drinking, hood and offense, At the time of I believe he was his, discovery may his child not have been probably intoxicated and was using the upsetting Payne. and how this was to drugs and alcohol.” Nicholas did not see present Nicholas decided not to evidence impairment indication of regarding ed- Payne’s prior employment history be- possible ucation or mental retardation. good. [Payne] cause it “had not been real Both Sapp Nicholas and Dr. received Mai- job had not had a that he had for a held report, er’s Payne which indicated was long period They of time.” decided not to competent to stand trial and did not need jail present evidence of behavior psychiatric care. Dr. report Maier’s noted an because of incident that occurred “that Payne drinking heavily was at the time of jury really not want we did know crimes, but contained no indication about,” they it were concerned would Payne was under duress or domination jail personnel come out if testified.5 person. another Had there been indica- Sapp Nicholas and considered tions of duress or domination in the report, history, medical to present decided Nicholas would have that to the through evidence Dr. Coleman and Dr. jury. Payne Lairmore. Nicholas knew was Sapp presented Nicholas and evidence accident, specifically but did not recall about emotional stress and intoxi- injury. head Dr. Payne Coleman treated cation at the time of the offenses. In Lairmore, for his nervous Dr. stomach. members, using Payne’s family Nicholas accident, Payne
who examined after his Sapp highlight “wanted to as much as gave injury no indication of a head or that possible tragic [Payne’s] early how life Payne complaining injury. was of a head All was.” the evidence from the guilt Dr. Lairmore testified about substance phase part penalty-phase was also of the abuse. Nicholas tried to obtain informa- sentenced, Payne evidence. After was drug tion about alcohol and abuse. Nicholas withdrew and new Payne Because had hospital- never been appointed. counsel was drug ized or treated for his or alcohol abuse, Nicholas obtained information Easterly also testified about Payne. Payne’s from mother and sisters family history Payne and childhood. was Payne’s history drinking testified about youngest, and she was his sib- closest young age at a and another witness was ling. Easterly lived with her mother when drinking aware taking grew up was born and him. medication. seventeen, Easterly age When married at Easterly presenting Nicholas considered moved with her. had no evidence cognitive impairments. memory memory When asked of her father. Her first During hearing, Payne’s regulation imag- the Rule 32 coun- that we had that could be "[fjrom jail Biyan Bueglar. Bueglar sel called administrator ined.’’ testified that time to Bueglar disciplinary [Payne] get angry, remembered some inci- time would and we would involving Payne, but could find no rec- cell dents have move him from his to another Bueglar “high Really, management problem ords. testified that cell. he was a violating every security risk ... kind of rule for us.” *11 abuse, at the time of the stance stress that he backhanded was stepfather her murder, stepfather’s physical and abuse sickly Payne was a recliner. her over multiple family members and sexual abuse popular,” never “never was real child who and Payne never met of one sister. Gersh a loner.” “was more like sports, and played opinion his on conversations with based smaller than other generally Payne’s attorney and his review of always in Payne was age. children opined record. state court criminal Gersh down, push would him boys fights; other background, “there is a given Payne’s that Payne started gravel. in the face first psy- that a concluding for substantial basis it although one time fights, of these some evaluation chological/neuropsychological mentally boy retarded who was for a prior to trial” should have been conducted on. getting picked attorney reasonably competent “a Payne drink alcohol Easterly first saw expert evaluation would have obtained eight. Payne’s step- seven or when he was supplemen- at hand.” in the case Gersh’s Payne with alcohol. supplied father Mims not want to explained tal affidavit he would tur- trips weekend to Easterly described opinion offer an on case “without Payne often went on with key shoots to deter- neuropsychological assessment fifty more or “basically or stepfather as whether or not there is normal brain mine Payne witnessed Mims men.” less drunk functioning, personality assessment Evelyn, which bothered his sister molest functioning.” personality look at going try time he was Payne. One affidavit, per- In his Dr. Maier had no “got up stop the abuse and beat call 911 to examining sonal recollection of for that.” pretty bad copy report. did not have a of his written years around two or three Payne was All of Dr. Maier’s data and notes from his stepfather Mims first hit their old when destroyed. Dr. 1992 evaluations had been him. turned a china cabinet Mims also in the Maier reviewed the court orders and kicked and broke mother over their performed case and stated he “would have jump into Payne would either her ribs. only regards an evaluation to the two away Their run and hide. fighting or issues of whether the defendant was men- Payne with a belt. spanked mother tally competent to stand trial and whether counseling witnessing no received the defendant was insane at the time of mother, of his the sexual physical abuse not direct- report the offense.” His would sister, early or his alcohol abuse of his capacity of diminished ly address the issue use.6 any mitigation issues. “In order to Payne’s Rule 32 counsel also submitted with re- perform thorough evaluation (2) (1) Gersh, Dr. Frank spect mitigation, affidavits from: to factors of more exten- (3) Maier, social, medical, Dr. and educational histo- Lawrence sive Gersh, psychol- ry a licensed the defendant would have regarding mother.7 Frank required he had learned about been and a more extensive inter- ogist, detailed what injuries, testing process view and conducted.” history, head sub- social argue proffered Although parties about the admis- 32 counsel also 7. Rule affidavits, testimony sibility the Rule 32 court Easterly provide about an would mother, hospital- admitted.” Payne's ruled that “all affidavits will be incident in which Mims, ripped relevant evidence before the Rule 32 because of Other ized with broken ribs pre-trial report, from court included Dr. Maier's out of her arms to come home IVs records, Payne's jail beating Payne's medical hospital stop East- medical Mims from records, Bue- erly. Easterly testify seeing and two letters from would also regarding jail Evelyn. gler visitation. Mims beat her sister *12 Payne’s property Payne. Payne mother dis- and tease did An affidavit from twelve, complete eighth grade. age not At pregnant his childhood. While cussed Texas, he went to live with his father in a pack cigarettes Payne, she smoked briefly, returned then went back to Texas. occasionally. alcohol day and drank When time, During Payne’s this mother divorced her brother pregnant, she was six months Mims physical because of the violence in forcefully her the stomach. She struck Payne physi- which witnessed. Mims also anything not recall else unusual about does cally Payne. Payne’s abused mother Payne’s sep- pregnancy her or birth. She sought only medical treatment once for all Payne’s arated from father Patrick be- Payne abuse received. never re- she heavy drinking cause of Patrick’s and counseling ceived or treatment for sub- physical gone abuse. father was abuse, being physical stance a victim of Payne year was a old and saw before abuse, or seeing stepfather abuse his Payne only a half-dozen times before mother and sisters. Payne Payne’s stepfather was twelve. Payne’s pres- in physically assaulted her H. State Rule 32 Court’s Second Order physically Payne. ence and abused After evidentiary hearing, the Rule role male models were alcoholic 32 court denied petition, Rule 32 physically violent. concluding Payne’s appellate counsel was Payne okay in through did school not The court found trial ineffective. grade. Payne third was smart before he counsel was not deficient in obtaining and started school and was able to do his sis- presenting mitigation evidence or expert problems young age. ter’s math at a In evidence, mental health ap- thus new grade, Payne the fourth started to exhibit pellate counsel was not ineffective for fail- problems. Payne’s behavior mother was ing raise those trial-counsel claims. In in called several times to talk with teach- addition, Payne the court found “has not Payne ers about behavior. was performance prej- shown the deficient always a age small child and sick from nine udiced [him].” Payne eating to eleven. had trouble pointed The out trial court frequent, pain. severe stomach The doc- psychiatric moved for a exam to determine Payne engage tors recommended not Payne’s competency to stand trial and physical activity he could play so ball mental state at the time of the offenses. or ride bikes. He was bullied and teased examining Payne, report- After Dr. Maier other children. came home from drinking heavily ed at the time every day school almost the fourth history of the crimes and had a of alcohol grade clothes, bruises, with torn abuse. Dr. Maier found no evidence of scrapes. Payne’s him mother described as disease, defect, mental or diminished ca- boy “the whipping neighborhood.” The court found trial counsel had pacity. began lost interest in school and Dr. Lair- pre-trial investigation made poor performance. exhibit more, Coleman, members, family Dr. eleyen, surgery When he had testimony jury. to the presented their to correct his intestines. mother The court noted trial counsel filed motion hired a tutor to teach him at home. Even investigator, for funds to hire an which then, edge granted.8 children would stand on the of was quoted history, Payne's history, 8. The Rule 32 court trial counsel's medical educational pre-trial stating: history, employment! training family motion as and] “Counsel is re- quired history, any] religious to obtain information to Mr. social and cultural [relevant] [and *13 that to succeed on his peals Court noted out both new pointed court Rule 32 The claims, Payne trial counsel prior ineffective-appellate-counsel appellate underlying as witnesses and ineffective- called must establish his not been had Sapp Sapp it was who that meritorious claims were stated trial-counsel “Nicholas part of mental/psychological raised, of his the the outcome they handled had been while Nicholas han- motions pretrial different. the have been appeal direct would venue motion.” The change of dled the Id. (1) testified but only Nicholas noted court reviewed Appeals The Alabama Court (2) the trial and files since his had lost he findings and observed Rule 32 court’s the hearing, at the although present (1) Payne under- Rule court found: the 32 relationship his testify as to did not exam to determine psychiatric went counsel, any nor trial with his preparations his mental to trial and competency stand performance. in counsel’s deficiencies (2) offenses; the infor- at the time of peti- Rule 32 the determined The court investigation of regarding mation that the fact much with not so
tion “deals
from an automobile
head
trauma
out, but
brought
not
certain evidence
jury;
available to the
accident
made
in precisely the
presented
it
not
that was
(3)
Payne was com-
trial counsel believed
manner,
same detail
or in the
as
same
trial,
a men-
requested
stand
petent to
have liked.” The
would
Rule 32 counsel
of
tal
unusual
evaluation because
decisions about
trial
found
counsel’s
court
prob-
underlying mental
childhood and
mental im-
present
to
evidence
whether
(4)
lems;
expert findings suggested
no
abuse, family dysfunction
alcohol
pairment,
duress
mental
emotional
Payne suffered
testimony mitigation
as
evi-
non-family
he
offenses or that
could
at the time of the
strategy
all trial
decisions
dence “were
criminality of his con-
appreciate
not
the attor-
investigations
upon
based
400-01,
Id. at
duct.
investigator, discussions
and the
neys
evidence, the
health
expert
As to
mental
family members and
conferences with the
“Payne
Court concluded
Appeals
Alabama
knew that
which counsel
the evidence
fail-
that his trial counsel’s
has not shown
found,
The court
possessed.”
prosecution
testimony on his
present expert
ure
event,
Payne had not shown
any
range
outside the wide
mental health was
prejudiced him.
performance
deficient
Id.
professional assistance.”
of reasonable
Payne appealed.
omitted).
marks
(quotation
at 401
As
Court’s Second
Appeals
I. Alabama
Rule
Appeals
prong, the Alabama
prejudice
Decision
32
“[a]dditionally, Payne
stated that
testimony
additional
not shown that
ha[s]
Appeals
The Alabama
Court affirmed
would have
mental health
about his
petition.
Rule 32
the denial of
Id.
of his trial.”
changed the
State,
383, 394,
outcome
So.2d
underlying ineffective-tri-
Ap-
The Alabama
Because
(Ala.Crim.App.2000).9
investigating
wit-
[Therefore, cjounsel
"primarily
fact
must direct
cused
influences.
guilt phase.”
... for the
investigator
all doc-
nesses
records from
obtain
tors,
schools,
employers,
hospitals,
[and]
Appeals
first
Court's
knowledge
the Alabama
people
9. Both
interview
[and]
remanding
to the
opinion
the case
Rule
Payne's background.”
aspects of
the[se]
Mr.
court,
this,
July
and its second
dated
say
as
Trial counsel's motion does
modi-
25, 2000,
February
are
opinion, dated
shown in
fied
the few words
brackets.
Payne v.
See
published document.
During
hearing,
same
the Rule 32
Nicholas testified
State,
(Ala.Crim.App.1999).
ultimately
1313
Mitchem,
followed.” Hurth v.
procedural grounds
generally preclude
will
400 F.3d
(11th Cir.2005).
857, 858
any subsequent
federal habeas review of
Judd,
that claim.” See
courts’
we conclude the Jackson
Nonetheless,
for a state proce
procedural
firmly
bar was
established and
regularly
review,
by
followed
ruling
preclude
dural
federal
the Aabama
state
State,
courts. See Alderman v.
647 So.2d
ruling
upon
state
must rest
an “indepen
28, 31 (Ala.Crim.App.1994); Covington v.
Id.;
see
adequate”
ground.
dent and
state
State,
109,
671 So.2d
110 (Aa.Crim.App.
(11th
Lynd
Terry,
1308,
470 F.3d
State,
1995);
Brown v.
1102,
681 So.2d
- —
denied,
cert.
Cir.2006),
U.S.-,
1103 (Aa.Crim.App.1996); Arrington v.
232,
(2007). Payne
S.Ct.
225
constitutionally ineffective assis
caused
(Ala.Crim.App.
Perkins,
So.2d
v. Wash
counsel under Strickland
tance of
However,
conviction and sen-
2005).
668, 690, 104 S.Ct.
ington, 466 U.S.
Jackson was
before
were
in Gunn
tence
(1984).” Fortenberry
...
a manda-
L.Ed.2d
addressed
decided,
Perkins
(11th
1213, 1222
Cir.
F.3d
Haley, 297
discovery.15
petition
mus
2002).
failing to follow
To
cause for
show
was an
Jackson rule
Alabama’s
Because
rule,
as
the ineffective
procedural
a state
adequate
ground,
state
independent
during
occur
a
of counsel must
sistance
habeas review
from
we are barred
a constitution
had
stage
petitioner
when a
un-
claims
Payne’s ineffective-trial-counsel
Hall,
See, Mize v.
e.g.,
right
al
to counsel.
prejudice
to over-
he shows cause
less
Cir.2008) (“Inef
(11th
1184, 1191
532 F.3d
bar.
procedural
Alabama’s
come
stage where
a
during
assistance
fective
is a
right
counsel
valid
had
petitioner
To Overcome
Prejudice
B. Cause and
proce
failing to follow state
excuse for
Bar
Procedural
Alabama’s
rule.”).16
Payne obviously had a
And
dural
exist
prejudice
Payne claims cause
counsel
his state
right to
constitutional
bar be-
procedural
Alabama’s
to overcome
appeal.
trial
direct
rendered
his new
cause
Thus,
prejudice,
to determine cause
Specifically,
ineffective assistance.
Payne has
ascertain whether
ineffective we must
appellate counsel’s
argues his
in not
appellate counsel
ineffective
timely
his inef-
shown
raising
assistance—in
timely raising his ineffective-trial-counsel
court—
claims
fective-trial-counsel
And to determine whether
preju-
default and
claims.
procedural
caused
*17
counsel, we
ineffective
has shown
contends
ineffective-
him.
diced
Payne has shown
must determine whether
claims are meritorious
appellate-counsel
ineffective-trial-
underlying
preju-
meritorious
requisite
show the
thus he can
So,
day,
at
end of the
claims.
dice.
relief,” nothing
post-conviction
Appeals
petition for
in
Similarly the Alabama
389-90.
would,
fact,
petitioner
in
receive
holds
applied the Jaclcson rule
the cases
Hale
in
Court
Hale,
13,
ap-
a direct
post-conviction relief and
supra,
of convic-
as the
in note
dates
listed
case,
Jack-
even
whether
peal
does not
discuss
were between
in those cases
Jackson
tion
post-
present
procedural bar to
son would
Ingram.
Id.
relief.
conviction
reject Payne’s contention
Hale v.
We
that
15.
722,
State,
Thompson,
U.S.
v.
501
(Ala.Crim.App.1992), 16. See Coleman
1202
611 So.2d
2567,
755,
2546,
1315
through
(quoting
whether
the lens of cause and
support Maier, who found no by Dr. duty to evaluation words, has a counsel In other defect, illness, cognitive impair- or mental or to investigations make reasonable Further, investigated trial counsel ment. that makes decision reasonable amake evidence from significant presented and unnecessary. investigations particular Dr. Lairmore about Dr. Coleman and case, particular ineffectiveness In and from three problems Payne’s medical must be investigate di- not decision Payne’s difficult about family members in all reasonableness rectly assessed family background, childhood circumstances, heavy applying a and wit- Payne suffered physical abuse judg- to counsel’s of deference measure nessed, history, his medical alcohol his ments. anxiety abuse, mental over and his 690-91, at 2066. 104 S.Ct. “A U.S. miti- child. Given all of his paternity investigate not decision counsel’s family from members evidence gation evidence must be rea develop favorable the state presented, that was doctors profes range fall within sonable Payne had that because courts concluded Lynd, 470 assistance.” sionally competent counsel, trial his new ineffective not shown However, “even when trial at 1316. F.3d ineffective appellate counsel is investigation presentation counsel’s ineffective-trial-counsel failing to raise counsel’s, tri than collateral complete less simply has claims. conclude We deficiently has not performed counsel al decisions the Alabama courts’ not shown lawyer could have de a reasonable when (1) claims are his on ineffective circumstances, not to in cided, under to, application unreasonable contrary or an particular evidence.” present or vestigate law, as de- of, federal clearly established 1194, 1225 257 F.3d Thompson, Grayson (2) Court; or Supreme termined Cir.2001). (11th determination on an based unreasonable Prong 1. Performance light of the evidence the facts proceedings. Rule 32 See U.S.C. in the performance prong, As to the both 2254(d). § 32 state court and the Alabama Rule found failed to show only a few comments about addWe in not counsel was ineffective his claims. As Payne’s performance claims as to raising ineffective-trial-counsel claim, Payne, in the expert-mental-health evidence and expert mental health ade pre- still has not proceedings, collateral mitigation The Alabama evidence. quate of what a mental any evidence sented court conducted extensive evi- Rule would have said expert health hearing dentiary ineffective- it mental health or how affected issued a claims thereafter assistance crimes. mitigated Payne’s behavior *19 fact, findings of containing order thorough alone, Thus, Payne’s mental- on this basis claims, denying the and then discussing claim fails for lack of health-performance affirming, In them. would of what trial counsel any evidence the Rule 32 repeated adopted and Court if he had conducted more have learned conclusions, legal and findings court’s and file investigation. recognize did We 791 So.2d Payne, on them. at expanded affidavits, they not do Dr. Gersh’s 400-08. opinion any expert contain Indeed, Dr. Gersh has Payne had not own mental health. courts Both state decided Payne. More examined never seen nor investigation his trial counsel’s shown affidavit, Dr. Gersh in his importantly, in the penalty of evidence presentation con- acknowledged without himself empha- Both courts phase was ineffective.
1317
”
ducting a neuropsychological
Chandler,
evaluation of
tance.’
found had cognitive impairment, no In conclusion, given Strickland’s strong illness, defect, mental or capac- diminished presumption that performance counsel’s ity other than alcohol abuse and trial coun- was reasonable and AEDPA’s deference to sel made a strategic decision pres- not adjudications, state court we cannot say ent Dr. Maier’s report. the Alabama courts’ decisions-that trial counsel not ineffective and
As to thus adequacy mitigation his new appellate counsel not ineffec- generally, evidence we note the sentencing tive for not raising judge found four ineffective-trial-counsel non-statutory miti to, claims-are (1) contrary or an gating circumstances: unreasonable being of, application Supreme under precedent, the influence of alcohol drugs or (2) unreasonable offenses; the time of determination of the facts. problems emotional questionable over the (3)
paternity
child;
of his
Payne’s poor
2. Prejudice Prong
childhood, particularly
stepfather’s
al
abuse;
(4)
coholism and
Payne’s good
Even if Payne did demonstrate
relationship
Thus,
family.
the ev
that his trial
per
counsel’s
idence trial
did present
already
formances were deficient under Strick
convinced the sentencing
land,
judge to find
Payne has not carried his burden to
separate
four
mitigating circumstances,
show there is a “reasonable probability”
and this
strongly supports
that,
the state
but for his trial counsel’s deficient
courts’ decisions that trial counsel’s
performance,
inves
the result of the penalty
tigation
presentation
of mitigation evi phase would have been different and the
dence was not deficient. The mere fact
sentencer
imposed
would
have
a death
family
members could have pre
sentence. More specifically, “[i]n assess
sented more thorough and
detail
graphic
ing prejudice,
reweigh
we
the evidence
physical
about the
abuse
suffered
aggravation against
totality
of avail
and witnessed
early
and his
substance
able mitigating evidence.” Wiggins abuse does not
Smith,
render
perform
counsel’s
510, 534,
2527,
U.S.
S.Ct.
ineffective,
ance
especially
where
(2003).
the sen
Thus,
L.Ed.2d
“the
tencing judge already found such circum
question is whether there is a reasonable
stances were mitigating factors.
that,
The test
probability
errors,
absent
for reasonableness is not whether counsel
sentencer
... would have concluded that
could have done something
more
differ
the balance of aggravating
mitigating
ent; instead courts must consider whether
circumstances did not warrant death.”
performance
fell “within
Strickland,
the ‘wide
18. As to mental health the Rule 32 791 So.2d at mitigation As to evidence court concluded had not shown defi- generally, the Rule 32 court concluded performance cient prejudiced him. The Ala- had not perform- shown counsel's deficient bama said Court had not him, prejudiced ance Ap- but the Alabama shown additional mental evidence health changed "would have Payne, the outcome.” 1318 childhood, Payne’s gating evidence length ev- at already reviewed
haveWe abuse background, at the substance family evidence Payne’s relevant of ery bit by aggravating whether evidentiary hearing, negated the not have 32 would Rule affidavits, which now testimony proven or murder this abhorrent direct nature of preju- the succinctly evaluate us enables to As we have by the State. all beyond doubt reasons, con- we For several prong. dice cases in- noted, penalty “‘[m]any death a reasonable not Payne has shown clude carefully planned, are that volve murders penalty of the the result probability torture, rape, or kid- accompanied or ” different. have been phase would F.3d at Grayson, 257 napping.’ omitted). (alteration original) (emphasis proceed First, in the collateral cases, court this has types of “In these no new ex Payne simply ings, circumstances aggravating the found that health to his mental evidence as pert any prejudice outweigh of the crime his behav health affected his mental how miti- lawyer present fails to a crimes, caused when much less how mitigated ior or Turpin, Dobbs gating result of his evidence.” changed the it would have Cir.1998). (11th Second, None of was undis there phase. F.3d penalty childhood, nor Payne’s tragic present, circumstances mitigating evidence the puted and wit he suffered abuse in the more de- physical the found any that be could distraught over nessed, being and his background in explication of tailed father of his may not be the he learning have would de- proceedings, Rule 32 the of evidence was also wealth child. There gruesome the from significantly tracted alcohol abuse longstanding early and of his Significantly, committed. crimes the drugs on of alcohol and his abuse found the four sentencing judge even the Indeed, sentencing the day crimes. above, detailed circumstances mitigating cir mitigating already found four judge mitigating multiple the concluded but still evidence trial based on the cumstances outweigh aggra- the did not circumstances majority of The present. counsel did Thus, Payne’s crimes. vating nature proceed in the collateral Payne’s evidence case, Payne this has all facts of under jury of what ings was cumulative establish his burden to not carried trial. judge at heard on his inef- prevail prejudice requisite and as Third, earlier we recounted as claims. fective-counsel found, the evi- Appeals Court the Alabama “strong guilt was dence of IV. CONCLUSION at 443. Payne, 683 So.2d convincing.” denial of district court’s affirm the We partic- murder of Brown And § petition. being brutal, robbed ularly with Brown AFFIRMED. only to be shot hostage, and then held shotgun close face with twice in the BARKETT, specially Judge, Circuit creek. dumped in a The range and concurring: of both the evidence strength of with the majority opinion I concur in nature of the aggravating and the guilt per its conclusion exception of detailed miti- Some more great. crimes is we conclude Appeals Court because prejudice did not peals reach Payne has de novo review at 407-08. 791 So.2d that even under prong. See requisite issue, burden establish carried his need not decide prejudice we On the prejudice. AEDPA deference owe whether we only to that of the decision or 32 court’s Rule *21 prong formance of the test established in v. Washington,
Strickland 466 U.S.
688, 691,
104 S.Ct.
(1984), was met in this case. Considering
the defendant’s aberrant behavior —for ex
ample, handing the victim clip from his
gun during the course of the kidnapping—
as well as history family abuse and
chemical dependence, I believe counsel failing
was ineffective for to obtain the
opinion of a mental expert health who
could have addressed conduct and
mental health condition and informed
counsel of relevant mental health miti
gation However, evidence.1 because I
agree prejudice, failed to show
I concur that he has not met his burden
under Strickland.