*1 affirm FBI. We report false counts. these on convictions Spielvogel’s was not
However, prop Spielvogel counts, we remand these
erly sentenced resentencing.
them PART; REVERSED IN
AFFIRMED PART; VACAT- RENDERED IN
AND IN PART. AND REMANDED
ED FORTENBERRY, J.
Thomas
Petitioner-Appellant, Commissioner, HALEY, W.
Michael Department of Correc-
Alabama
tions, Respondent-Appellee. 01-12553.
No. Appeals, States
United
Eleventh Circuit. 17, 2002.
July
I. BACKGROUND people four August On Sta- killed at the Guest Service shot and Attalla, victims Alabama. tion *3 Nelson, Guest, T. Wilbur Ronald were In late Nancy Payne. Payne, and Bobby pistol found a local resident March Creek, nearby Black bank of on the showed City. Ballistic Alabama to commit been used pistol had that the pistol Because murders. the Guest impossible it was grips, without was found however, it; from any fingerprints to lift gun to a trace it police able owned partly that was business repair Snyder David W. Klett and L. Edwin named PA, and man Pe- father for Pittsburgh, (Court-Appointed), addition, of- sheriffs Jerry Gable. titioner-Appellant. people from three statements fice obtained Montgomery, Hughes, Beth Jackson pistol who seen had AL, Respondent-Appellee. mur- shortly before the Guest possession evidence, officers on this ders. Based 2,May on Fortenberry’s home went him to the courthouse brought and at They arrived questioning. ANDERSON, and BIRCH Before Fortenberry p.m. about 6:45 at courthouse BARKETT, Judges. Circuit Officers form. rights of a waiver signed PER CURIAM: pistol Fortenberry about questioned pris Alabama Fortenberry, an at Guest murders Thomas in the four used death, appeals Station, Fortenberry of admitted under sentence oner and Service of habeas for a writ petition of At denial his father and Gable. from it his taking rejected eigh The district corpus. Fortenberry showed midnight, around of, claims, seven them teen constitutional dis- had he said he where investigators remaining eleven the merits the same which was pistol, posed dis default. procedural because Then, over found. it had been spot where Appeal- a Certificate granted trict Fortenberry provided days, two the next issues, (“COA”) all respect to with ability had of what accounts inconsistent several here. Fortenberry raises three which station. Guest Service at happened (1) prosecu argues Fortenberry some statements these We describe dis challenges to peremptory tion used its to the central they were because tail here unconstitutionally on basis criminate Fortenberry, against case prosecution’s “heinous, (2) court’s race; the trial is inno- he claims that he now and because instruction cruel” atrocious and the murders. cent of (3) unconstitutional; that defense a.m., Forten 12:50 May about On assistance ineffective rendered he in which taped statement made a berry of Fortenber phases penalty guilt murders, that, day of the on the below, explained forth set the reasons ry’s trial. For Chev green in his brother’s riding he was we AFFIRM. rolet truck with the pistol, stolen when Guest Service Station. pulled He up in upon came a man named Harvey Under front of the station in his green brother’s wood and “this other guy” in the woods. truck, and white in, Chevrolet went pulled Fortenberry stated that the “other guy” his gun on Nelson and demanded money. out,” was “passed and that Underwood He also held gun his on Bobby Payne, who drinking and smoking marijuana. beer just up driven to the station and come Fortenberry stated that he and Under inside during the course of the robbery. wood together decided ride to Albert- Another car up, pulled said, ville, they but that stopped at the Guest opened Guest the station door to en- Service way Station on the ter. Fortenberry hid gun Guest, had run out of beer. stated but Guest away turned and left after Nel- *4 that, station, while were at the he sat son whispered to him. something Forten- in truck the while Underwood the robbed berry then got money from Nelson and station and committed the murders. For- leaving when Bobby Payne followed tenberry said that he returned Underwood out him of the store. Guest then up came to place the where he met had him and beside him and said “Tommy, put down that kept gun Underwood until Forten- the gun.” Fortenberry said that pan- he berry got it from him a days few later and icked and Bobby ordered Payne give to threw it into Black Creek. He said he him money, whereupon Payne said Forten- never told police because he was berry would have to kill him to get his frightened of Underwood. money. Fortenberry then shot Bobby
On the day Payne, Guest, same and p.m., 5:25 and Forten- back went inside the berry made a written in station and Then, statement shot which Nelson. Forten- he taped berry contravened his explained, statement. he This went back out to his truck, time Fortenberry explained that he saw a had woman running, and shot her. gone to the Guest Service Fortenberry Station on the stated that got he into his evening murders, intending to truck and steal drove northbound for a while money gambling. for After he took until he came to a some turnaround and then Nelson, money from he outside, headed went back and toward Attalla. Fortenberry Guest and Payne Bobby walked said he front of took Nelson, $240 but him. Fortenberry nothing stated that he from anyone shot the else. He drove out men, two and went back in thé station an area Creek, and near the Black threw the shot Nelson. gun Then he woods, came into back outside and pool went to a hall and Nancy saw Payne running hill, order up the to establish an alibi. Fortenberry and shot her. Fortenberry repeated explained that that his earlier story that Under- he left with of stolen wood money, $240 had threw committed the murders was the gun away, and went to a pool false. hall to
provide himself an alibi. He also declared Fortenberry was under indicted the Ala- that his earlier statement blaming the bama Death Penalty Act for two counts of murders on Harvey Underwood was false. “[mjurder wherein two persons or more On the following day, are May by Fortenber- murdered defendant one act ry gave a sworn statement before a pursuant one scheme or course of reporter conduct,” which he provided third, § (a)(10) Ala.Code 13A-5-40 more detailed account. (1975), “[mjurder Fortenberry now and by the defendant explained that on the day murders a robbery in the first degree or an he gone looking had for a place to attempt rob thereof committed the defen- gambling money, when he upon dant,” came § 13A-5-40(a)(2)(1975). Ala.Code truck, in the get back him instructed Harrison Stephen appointed his then did, backed Guest and trial, which he and Wal- Fortenberry at represent At station. the service reentered Har- and Neither car him. to assist Buttram den Payne ar- Nancy Bobby and tried point previously had Buttram nor rison into Payne went rived, Bobby “not Fortenberry pleaded and case. capital point, Fortenber- At some to trial.1 station. case went service guilty,” truck said, returned ry Undemood he Fortenberry testified At murder for the knife exchanged his Forten murders. committed had not weapon. through driving he that was said berry “the upon came evening and three men one Fortenberry woods testified at.” partied everybody minute, after place fire where station pistol under he He stated to his car out back walked which Guest beer drinking saw Underwood He ear. it. over inside and bent out.” “passed man who another car out got Guest’s then a woman said he noticed Fortenberry stated store,” of" back up the and “ran there, did but parked truck station. walking back Guest started it was Underwood’s. know shot, and saw heard Fortenberry then *5 gun the sell had tried to he that testified store, followed exiting the Undemood could he said Underwood to Underwood. at him. shouting who was Bobby Payne, some knew it, that he but afford not Undemood, and front of walked Payne to want might who in Albertville “boys” him. other side the up on Guest came he that proposed then it. Underwood buy Payne Bobby that Fortenberry testified together to Albertville Fortenberry go and names and calling Undemood then started potential the to meet car to Payne asked him. cursing Undemood he de that testified Fortenberry buyers. leaving. When he and said up shut he drive, did that protesting to clined he told Undemood then Payne Bobby sug tire, then Underwood so spare have police, Under- wait for to would have parked truck they take gested Then, Mike Guest. and him wood shot nearby. woods, toward Payne ran Nancy when Un- he and Fortenberry testified Fortenberry testi- her. shot Undemood way to see their were on demood to woods returned they then fied that they stopped when buyers gun potential parked. Un- car was Fortenberry’s- where Station. Service beer at Guest the gun to throw him instructed demood some purchased and Fortenberry' went Fortenberry did. Creek, which in Black as Underwood out beer, walked and then that Undemood Fortenberry testified cooler. the store’s through going started anyone about tell to him not warned when Guest truck in the Fortenberry was murders. store. into go to started up and pulled heavily trial relied case at The State’s door, howev- at the Guest stopped Nelson confessions, and Fortenberry’s prior car. Forten1 er, returned and Guest For- jury argued prosecution out of got he then testified berry riddled explanation tenberry’s in-court the service into back walked truck addition, inconsistencies. with threat- station, Undemood he saw where ac- established prosecution Underwood knife. with ening Nelson again admit- investigators in which police escaped awaiting While Station mur- Guest having committed ted having been January jail. On ders. statement Fortenberry gave a recaptured, cess to the gun murders, used in the enough to have committed the mur- four defense witness testified ders with the pistol. had tried .to sell it to him. Prosecution jury returned a verdict at pun. 6:00 Tracy Henry
witness
Wood testified that
on Saturday,
February
1986, convicting
she and her boyfriend
time,
at the
Mike Fortenberry on both counts of the indict-
Guest, had arrived at the
shortly
station
ment. The trial court
polled
then
occurred,
before the murders
and that
about whether it was prepared to move
Guest
gone
inside to
aget
coke while
immediately to the penalty phase. When
she waited outside. Wood testified that
the jury indicated that
it
pro-
wished to
she had seen a
blue
white pickup truck
ceed, defense counsel moved for a continu-
with some people inside. She also testified
ance before beginning the penalty phase,
that after Guest went
station,
into the
arguing that defense counsel
unpre-
tall, tanned man with a large stomach
pared and would “be much better able to
came out of the station holding two beers.
present
position
[its]
mitigation”
if a
She testified that Guest
out,
then came
granted
continuance were
until the follow-
and told her to get
AMs,
his father
who
ing Monday. The court denied this motion
lived in the house
station,
behind the
and immediately began the penalty phase
to tell Alvis
bring
a gun, because “there
of trial.
was going to be trouble.” Wood testified
During the penalty phase, which lasted
that when she
got
the Guest home she
approximately forty-five minutes,
pros-
shots,
two
heard
and then two more on her
argued
ecution
for the
penalty
death
based
way back to the station. When she ar-
on two aggravating
first,
factors:
rived,
that the
she found the four victims. At trial
capital offense was committed in
*6
Wood was
shown a photograph of Under-
course of robbery or
wood,
attempted robbery;
but she could not
recall
she had
second,
and
that the offense
ever
was especially
him
seen
before.
heinous,
(“HAC”).
atrocious or cruel
Wood never identified Fortenberry as
Adopting the evidence presented during
having
station,
been at the
but the prose-
guilt
phase,
the prosecution argued
cution argued that her account of events
the jury
should find the robbery fac-
was more consistent with Fortenberry’s
tor because it had already
For-
convicted
confessions than his trial
testimony.
tenberry of murder in the
course
a
response,
pointed
defense counsel
to the
robbery, and the HAC factor because For-
fact that
in both her statement
to the
tenberry had committed multiple
a
“execu-
police and her testimony
Wood
style
tion
slaying.”
had described the man with the large
stomach, who did not fit
To make
a
mitigation case,
out
Forten-
scription. Defense
berry’s
argued
counsel called Fortenberry’s father
jury that this man
actually
testify as
only
committed the
witness. Fortenber-
crime, consistent with
ry’s
father gave
testi-
fourteen lines of testimo-
mony regarding
ny,
Underwood.2 The de-
in which he stated that his son was a
fense also presented testimony from
twenty-two-year-old
sever-
graduate of nursing
al of Fortenberry’s family members,
school,
who
with
adult
no
criminal
Af-
record.
testified that Fortenberry was not
ter
experi-
the close
case,
of mitigation
its
defense
enced at firing pistols.
Gable,
Jerry
how-
counsel again moved for
continuance,
“on
ever, testified that Fortenberry was skilled
grounds
earlier,
stated
on the basis
prosecution argued
The
person
that this
probably Bobby Payne.
Alabama,
Fortenberry v.
time
not had sufficient
have
that we
(1995). Forten
133 L.Ed.2d
S.Ct.
for this
argument
prepare
of habe
for writ
petition
berry then filed
denied
The court
trial.”
phase
e
court,
district
in th
federal
corpus
as
and
instructions
receiving
After-
motion.
an
Requesting
Motion
with a second
along
a verdict
jury returned
deliberating,
Ex
and a Motion to
Evidentiary Hearing
Fortenberry receive
recommending that
de
court
The district
the Record.
pand
penalty.
the death
motions.
and
nied the writ
sen
later,
separate
Two weeks
asserting
appeals,
now
judge,
Fortenberry
the trial
hearing
tencing
before
grounds;
three
for
relief on
request
entitled to
counsel’s
defense
court refused
that the district
First,
argues
or a new
sentencing
postponement
pro-
that he was
jury.
wrongly
The
concluded
hearing before
court
claim
presenting his
from
cedurally barred
sentenced
then
judge
by
af
courts
fair trial
of a
appeals
deprived
The Alabama
that he
death.
sentence,
discriminatory
and
racially
and
use of
conviction
prosecutor’s
firmed the
Second,
denied
Court
Forten-
Supreme
challenges.
peremptory
States
the United
wrong-
writ of certiora
the' district
Fortenberry’s petition
berry asserts
State, 545 So.2d
procedurally
Fortenberry v.
that he
ri.
ly determined
For
parte
Ex
claim that
(Ala.Crim.App.1988);
presenting
barred
(Ala.1989); For
ag-
545 So.2d
one of
regarding
tenberry,
jury instruction
911, 110
Alabama, 495 U.S.
hei-
crime was
tenberry
factors —that
gravating
(1990)
1937, 109
L.Ed.2d
unconstitu-
nous,
cruel—was
S.Ct.
.
and
atrocious
process
violated due
tionally vague
post-
petition
Fortenberry filed
un-
cruel and
against
prohibition
Ala. R.Crim.
pursuant
relief
conviction
ar-
Third, Fortenberry
punishment.
usual
the law firm
by
represented
Temp.
P.
ineffective
rendered
trial counsel
gues that
app
in this
him
currently represents
fail-
guilt phase,
assistance
Fortenberry raised
petition,
In that
eal.3
present
investigate
adequately to
ing
de
Rule 20
issues.
forty-five
sen-
evidence,
during the
exculpatory
following
Fortenberry’s petition
nied
to in-
adequately
failing
tencing phase,
The Alabama
evidentiary hearing.
*7
evidence.
mitigating
present
vestigate
the denial
affirmed
Appeals
of Criminal
sequentially
grounds
consider these
We
relief.
post-conviction
below.
applications
filed
of Alabama
the State
court,
response
rehearing
REVIEW
OF
II. STANDARD
Ap
Criminal
Court of
Alabama
which the
court’s
district
novo a
de
We review
opinion
original
peals withdrew
Sims
petition.
corpus
aof
habeas
denial
affirming
opinion
a new
substituted
(11th
1297, 1304
F.3d
155
Singletary,
v.
Fortenber
petition.
20
the Rule
denial of
of a
Cir.1998).
dismissal
A
court’s
district
(Ala.Crim.App.
State,
v.
So.2d
ry
like-
is
default
procedural
claim for
habeas
1994).
Court then
Supreme
The Alabama
Nagle,
v.
Bailey
novo.
de
reviewed
of wise
for writ
petition
denied
Cir.1999).
(11th
An
1299, 1302
172 F.3d
of Crimi
Court
the Alabama
certiorari
claim
assistance
ineffective
Supreme
States
United
nal
Appeals.
fact,
law and
questions
mixed
presents
Fortenberry’s petition
denied
Tur-
Dobbs v.
de novo.
we review
which
claims.
the collateral
on
of certiorari
writ
proceedings
venience,
these
refer
we
by
replaced
subsequently been
rule has
3. This
20.”
throughout as "Rule
con-
For
R.Crim. P.
permanent Ala.
pin,
(11th
1388,
Cir.1998).
F.3d
procedural default to Batson claims. Sec
Because Fortenberry filed
petition
pri-
ond, Fortenberry
contends
can
April
or to
1996 it is not governed by show
prejudice”
“cause and
for the failure
the Anti-terrorism and Effective Death
to raise the Batson claim on direct appeal.
(“AEDPA”).
Penalty
Rather,
Act
both the Third,
avers
that a “funda
district
this court must apply mental miscarriage
justice”
would result
pre-AEDPA law. Under the pre-AEDPA from applying precedural default in this
standard applicable to factual determina
instance.
tions, we
are bound
the state court’s
As we explained in Cochran v. Her
findings of fact
they
unless
are
“fairly
ring,
(11th
Cir.1995):
supported by the record.”
28 U.S.C.
A
may
federal court
not reach a federal
2254(d)(8).
§
We will not disturb the dis
question on collateral review of a state
trict
findings
court’s
of fact
unless
are
conviction
the state court’s opinion
clearly erroneous. Williams
Turpin,
a ‘plain
“contains
statement’ that [its]
1204, 1209(11th Cir.1996).
F.3d
decision rests upon adequate and inde
pendent
grounds.”
state
A state proce
III. DISCUSSION
dural bar constitutes an adequate and
1. Peremptory Challenges
independent
ground,
state
thereby pre
Fortenberry first contends that the dis
cluding federal
review,
habeas
only if
trict court wrongly concluded
proce
that a
the last state court rendering a judg
precluded
dural bar
his claim that he was
ment in the case clearly and expressly
deprived of a fair
the prosecutor’s
states that it rests its judgment
use of racially discriminatory peremptory
procedural default.
challenges. See Batson v. Kentucky, 476 (Internal
omitted).
citations
In
case,
106 S.Ct.
1221
it”).
“pre-
his
proving
allegations
Fortenber
of
case before
the
stances
of the evidence.” Rule 32.3
ponderance
in the
following passage
the
points to
ry
The
failed to al-
appellant
Ala.R.Crim.P.
Appeals opin
of Criminal
Alabama Court
in
who was struck from
lege
petition
ion:
any
con-
the venire or
other information
argues that he
further
appellant
The
the
or
cerning
composition
the
of
venire-
because, he
of
fair
deprived
jury.
of
composition
appel-
The
peremp
used his
argues,
prosecutor
lant has failed to meet his burden.
discriminatory
racially
in a
tory strikes
State,
Su
v.
659 So.2d
200.
violating
Fortenberry
the United States
manner
Ken
holding Batson v.
preme Court’s
observes,
pas
As
1712,
79,
tucky, 476 U.S.
be a
determination
sage appears to
merits
(1986),
his appellate
L.Ed.2d 69
procedurally barred Bat
on
was ineffective
performance
counsel’s
claim.4 But even if the state court
son
to raise this issue.
counsel failed
issue,
reached the merits of the
fact
white
The
is a
male.
appellant
The
able
over
Fortenberry were otherwise
final
appeal was
appellant’s direct
procedural
any
under
come
bar
yras
by the
extended
1990. Batson
invokes,
exceptions
three
outcome
Supreme Court whites
United States
has held
would be the same. This Court
400,
Ohio,
v.
499 U.S.
in Powers
rule that cannot
that Powers created new
(1991).
1364,
capital
“especially
petitioner
offense was
meet
must
unconstitutionally
or cruel” was
likely
atrocious
“show that it is more
than not that
vague
process
juror
due
and the
no reasonable
would
violated
have convicted
against cruel and
prohibition
pun-
unusual
him” of the
v.
underlying
Schlup
offense.
concluded,
Delo,
327,
298,
851,
ishment.6
district
as
513 U.S.
115 S.Ct.
130
“
Ap-
(1995).
had the Alabama Court of Criminal
addition,
L.Ed.2d 808
In
‘to be
peals, that this claim was procedurally
credible,’
a claim of actual innocence must
under
faulted
state law
Forten-
on
present-
based
reliable evidence not
but
berry could have
failed to raise it at
ed
trial.”
Thompson,
at
v.
Calderon
523
addition,
appeal.
trial or
on direct
538, 559,
1489,
118
140
U.S.
S.Ct.
L.Ed.2d
district court held that
could
(1998) (quoting Schlup,
513 U.S.
overcome the procedural
not
default under
851).
324; 115 S.Ct.
of
recognized exceptions
either
the two
Fortenberry argues that
the dis
First,
petitioner may
the rule.
a
obtain
trict court erred because he satisfies both
review of procedurally
federal
a
defaulted
of
exceptions.
these
We
For
disagree.
can
claim he
show
both cause
tenberry
presented
persuasive
has
evi
resulting
default and actual prejudice
innocence,
of
dence
his actual
we
and thus
Carrier,
default.
v.
Murray
See
reject
miscarriage
his fundamental
jus
488,
2639,
U.S.
106 S.Ct.
91 L.Ed.2d
tice
Fortenberry argues
claim.
that he
(1986); Wainwright
Sykes,
433 U.S.
because,
can
says,
establish cause
he
(1977);
S.Ct.
federal may grant also a habeas statute, following a petition jury guilt verdict procedurally claim, defaulted phase, the without a trial court showing prejudice, of cause or conducts sentenc- ing phase in which jury presented correct a miscarriage jus- fundamental Carrier, 495-96, with tice. See evidence of aggravating mitigat- (explaining ing § S.Ct. 2678 that a factors. “fundamental See Ala.Code 1975 13A-5- miscarriage justice” Having evidence, an occurs “in ex considered this case, traordinary jury where a “advisory constitutional then issues verdict.” Id. Then, has violation resulted in the conviction of a separate hearing, innocent”). actually someone who is judge To the weighs aggravating and miti- heinous, 6. The atrocious, trial court especially instructed the that it offense was or aggravating should consider whether compared two cir- cruel capital to other offenses.” proven beyond cumstances had been explained rea- The court “[t]he term heinous first, evil; sonable doubt: capital extremely "the whether of- shockingly means wicked or fense was committed while the defendant was outrageously term atrocious means vile; engaged or accomplice in was an in the com- wicked and the term cruel means de- of, commit, attempt flight signed mission or an high degree pain or inflict with to, committing, of, after or attempting to commit enjoyment utter indifference second, robbery"; capital suffering whether "the of others." *10 history significant no has the Defendant Ala. a sentence. arrive at factors to gating having only activity, In so criminal 13A-5-47(a) prior of seq. et § Code Burglary (1) jury’s prior conviction the one “consider” must judge the doing, by it. finds no evi- Court recommendation, degree. not bound The is third but 13A-6-47(e). ad- acting Defendant was § that the dence Ala.Code See issue, -writing, in mental must of dition, judge influence extreme the under the of the to each regard with or that findings specific or disturbance emotional that factors mitigating and aggravating to the capacity appreciate the lacked Ala.Code the See to sentence. lead to conform his conduct or criminality of 13A-5-47(d). § The Court of law. requirements the that vic- no evidence finds further the case that this dispute in is no There con- in the Defendant’s participated HAC tims find the did not sentencing judge the De- it or that single that a consented duct or factor; judge determined the to another accomplice was an fendant factor—that aggravating a rob and that in the course of offense the murder who committed committed factors mitigating relatively minor. The the bery outweighed participation — pros Although the the case. in the no evidence finds presented further Court at HAC factor waive the under did not duress or ecution under acted Defendant it sentencing judge, the hearing before another of domination the substantial thought that it judge out to pointed person. be sufficient factor robbery would time at the Defendant age of the The evidence, and mitigating outweigh crime was of the commission find the need to judge did (20) the Court age and years twenty Forten- order to sentence factor in HAC cir- mitigating is a that this determines judge ob sentencing The berry to death. and be considered cumstance writ following issuing the viously agreed, to consideration In addition weighed. ten sentence: circumstances, mitigating statutory presented evidence From the has Defendant that the finds the Court and hearing the sentence and trial aas licensed for and become studied inves- pre-sentence of the from review specifically Court The nurse. practical finds the Court report, tigation training the Defendant’s determines Fortenberry, did Defendant, Tommy J. cir- mitigating licensing as nurse per- more two or murder intentionally considered is herein which cumstance Nelson, Ronald sons, Wilbur T. being weighed. Payne, Guest, Robert William Michael a consideration The Court finds pursu- act or Payne, by one Nancy of the on the taken of conduct. course one ant to scheme hearing that at the case and Defen- that the finds further The Court listed circumstance aggravating inten- Fortenberry, did dant, Tommy J. 13A-5-49(4) this case exists Section Nelson T. Wilbur tionally murder the sentence support and is sufficient degree. the first robbery in of the Court opinion It is of death. statutory aggra- finds as further Court here- circumstances mitigating that the circumstance, intentional vating insufficient are enumerated tofore Defen- while committed murder circumstance. aggravating outweigh the aof in the commission engaged dant pun- therefore, that the finds The Court degree. first robbery should Defendant ishment weigh- considering The Court at death. fixed circumstances, finds mitigating ing *11 1224 State, 129, v. 545 So.2d 143 nounced a new rule that cannot applied (Ala. (citations omitted). Crim.App.1988) retroactively to cases on collateral review. See Lambrix v. 518, Singletary, 520 U.S. Florida,
Relying
Espinosa v.
505
1517,
117
(1997).
S.Ct.
137
L.Ed.2d
U.S.
112 S.Ct.
McCoy testified that she had known stomach and sandy hair. At Wood Fortenberry and Underwood since child- gave a similar description. According to hood, and that Underwood confessed to Fortenberry, trial counsel knew that this her three or four weeks after the murders. *13 description did not match Fortenberry; explained She that Underwood had threat- yet they did not interview Wood before ened kill to her and her children if she trial. they When did prior interview her spoke it, anyone to about so kept she to her testimony, trial counsel chose not to secret finally until she revealed the confes- show her a photograph or composite sion to Buttram in 1991.- Shadwrick and Underwood, sketch of even though they Pruitt testified that Underwood confessed believed at the time that to Underwood them while they were sitting around murderer., Fortenberry avers that drinking in the woods. these actions amounted to ineffective assis- that, Fortenberry next asserts had trial tance of counsel entitling him to a reversal performed counsel adequate an investiga- of his conviction. tion, they would have uncovered called to testify the allegedly exculpatory wit- general, defense counsel ren Parks, nesses Rachel Donna Ogle, and ders ineffective assistance when it fails to Willard Yates. The record shows that de- investigate adequately the sole strategy fense counsel obtained the names of these for a defense or prepare to evidence to on the Friday witnesses before the trial on support that defense. See Code v. Mont Monday, and that they attempted without gomery, (11th 799 F.2d 1483-84 Cir. success to subpoena them. At the Rule 20 1986). The duty to investigate requires hearing, Parks and Ogle both testified that that' counsel “conduct a substantial investi they had approached the Guest Station gation into of his client’s plausible shortly crime, after the and observed two lines of Balkcom, defense.” House v. people in a blue travelling truck at great (11th F.2d Cir.1984). 617-18 Al speed in the opposite direction.10 Yates though a defendant’s actions or directions testified that when he arrived at the sta- may in some instances render a failure to tion, Alvis Guest told him that it did not reasonable, investigate Strickland, see look a robbery like had occurred because U.S. at there per is no Nelson, cáshier, money still had in his se rule absolving counsel of duty its to pocket and there money was still in the examine simply because a defendant facts cash drawer. This testimony would have suggests another course. See Thompson crucial, been claims, because v. Wainwright, (11th it would have contradicted Alvis Guest’s Cir.1986) (“[Attorney’s] explanation that testimony that a robbery had oc- he did not investigate potential mitigating curred. evidence because of Thompson’s request is
Finally, Fortenberry faults trial coun- especially disturbing in this case where sel’s handling of Tracy Henry Wood, who [attorney] himself believed that [defen was the only at the witness murder scene. difficulties.”). dant] had mental Indeed, trial, Prior to defense counsel had obtained even when a defendant tells his attorney testimony This important, would have been Fortenberry's lion in brother's green and according Fortenberry, in his truck, con- white while in his several denials he fessions, Fortenberry stated that he and Un- stated had taken a different vehicle. gone derwood had Guest Service Sta- knew to Un pointed guilty, defense plead he wishes independent derwood in some of statements must still make police, circumstances it was unreasonable not to investi of the facts and examination Singletary, possible role even Agan gate See Underwood’s of the case. Cir.1994) (11th (finding though Fortenberry guilty. claimed to be F.3d it Moreover, where failed Fortenberry points counsel ineffective out defense when, po statements to investigate conflicting eventually on the eve of the possibility innocent, that defendant suggesting lice told his counsel he was murder to cover accepting blame to investigate counsel still failed Under murderer, defendant’s despite for actual wood. Specifically, we have held guilty plea). Whether or defense counsel’s inves- ignored when counsel assistance ineffective tigation in fact unreasonable under *14 any attorney reasonable flags” “red that Strickland, testimony find the we that to demand further perceived
would have
Fortenberry argues should have been dis-
Zant,
Cunningham
See
investigation.
to
is insuffi-
covered and offered
the
Cir.1991).
(11th
1006, 1018
F.2d
928
to
in his con-
cient
undermine confidence
Strickland,
at
viction. See
466 U.S.
that trial counsel’s
argues
Alabama
that a “reason-
(explaining
S.Ct. 2052
more ful
investigate
to
Underwood
failure
of a
result is a
probability”
able
different
assistance
ly cannot have been ineffective
to
confi-
counsel,
probability sufficient
undermine
until the eve of the
up
case). First,
dence in
outcome of the
Fortenberry
guilt,
his own
the
trial
maintained
Tammy McCoy’s testimony shows
she
investigation
of the
the reasonableness
and
substantially
alleged
did not reveal Underwood’s
confes-
“determined or
was therefore
Fortenberry’s
many years after
own
sion until
by
influenced
defendant’s
state
Strickland,
conviction,
has not shown
at
and
actions.”
U.S.
ments or
investigation
that a
of Under-
Fortenberry answers
reasonable
heard
(internal
lawyers
pre-
have discovered
should
omitted).
marks
find that
Accordingly, we
sented.
Trial
performance
counsel’s
failure
an ade-
alleged
perform
counsel’s
deficient if counsel fails to make a reason
of Underwood did not
quate investigation
investigation
possible mitigating
able
ev
Fortenberry’s conviction.
prejudice
idence in
preparation
penalty phase
a capital
Single
trial. See Lambrix v.
Sentencing
B.
Phase
(11th
Cir.1996);
tary, 72 F.3d
that his
Fortenberry next asserts
coun-
Thompson Wainright,
v.
787 F.2d
sel
ineffective
(11th Cir.1986).
perfor
Counsel’s
they
of his trial because
failed to
phase
mance is unreasonable where counsel fails
investigate
mitigating
and discover
evi-
altogether
investigation,
or
make
Fortenberry’s psychological
dence about
only
desultory
where
counsel makes
character.
problems,
good
alcoholism and
cursory
mitigating
effort
find
evidence.
addition,
to defense
Fortenberry points
Lambrix,
1504;
Armstrong
See
F.3d
sentencing phase
counsel’s failure at
(11th
1430, 1433
Dugger,
Cir.
mitigating
present the scant
*16
1987) (counsel’s investigation consisted
presented
defense counsel
did discover:
only
probation
of consultation with
officer
only
unprepared
lines of
testimo-
fourteen
par
and one interview with defendant and
Fortenberry’s father—testimony
ny from
ents).
that was itself cumulative of evidence al-
during
phase.14
circumstances,
ready presented
guilt
the
Under some
reasonable
may
an
strategic considerations
convince
during
with claim of ineffectiveness
As
a
attorney
presentation
mitigation
a claim
guilt
to succeed on
phase,
or
harm
evidence would
unfruitful
even
penalty
during
ineffective assistance
Thus,
v.
example,
ful.
for
Waters
petitioner
a
both defi-
must show
phase
(11th Cir.1995)
Thomas,
1506, 1511
performance
prejudice
cient
under
(en banc),
had
we held that trial counsel
Taylor, 529
Strickland. See Williams v.
made
reasonably
present
the decision
1495,
390, 120 S.Ct.
146 L.Ed.2d
U.S.
mitigating
all of
available
some but not
(2000);
v.
72
Singletary,
Lambrix
F.3d
may
Strategic
Cir.1996).
evidence.
considerations
(11th
Supreme
The
reasonably
even
lead defense counsel
explained in
Court
Williams
where
mitigating evi
presenting
conclude that
no
counsel
deficient
sen-
petitioner’s
was
For
dence is to the defendant’s benefit.
tencing,
for deter-
question
the relevant
Burger Kemp,
mining prejudice is whether the
v.
example,
evidence,
adopted
elicit-
Testimony presented
this
then
trial
counsel
age,
Fortenberry's
signif-
testimony
Fortenberry's
showed
his lack of
ed
father that
record,
prior
that he
icant
criminal
was
showed the same facts.
nursing
phase,
penalty
At the
trial
student.
(1987),
L.Ed.2d 638
termined that the
present
failure to
avail-
an ineffective
Supreme Court denied
assis
able evidence was
based on
tactical
not
decision,
claim
defense
tance
where
counsel had
performance
concluded,
professional
on
based
sound
sufficiently
require
deficient so as to
investigation,
judgment and substantial
granting relief. The facts of Blanco are
interest would not be
petitioner’s
that the
enough
similar
present
to those
case
by presenting
mitigat
available
served
worth recounting
are
here:
recently,
ing evidence. Most
Bell v.
verdict,
Following
jury’s guilty
Cone,
recently upheld
Supreme
Rodriguez
fense counsel
informed the
a state court determination that defense
prepared
court that he
not
present
mitigation
decision to
no
counsel’s
phase
penalty
and needed a continuance
closing argument
at the
evidence
sen
to locate witnesses. The trial
stat-
objectively
tencing stage was
unrea
ed that he had previously informed
sonable,
where defense counsel
fearful
sentencing phase
would
mitigating
evidence
presenting
would
immediately
guilt
commence
after the
present the
prosecution
opportunity to
phase was completed. The trial court
— U.S. -,
attack.
put
damaging
on
nevertheless continued the
four
Absent
viable
rea
evening
before the sentencing
son, however,
present
the failure to
phase
begin. During
charge
was to
mitigating evidence renders as
available
conference,
queried
the trial court
coun-
constitutionally
sistance
ineffective. For
sel and Blanco as to the
efforts that
example,
Turpin,
Collier
F.3d
(11th Cir.1999),
been made to
1184, 1201
locate
we found trial
witnesses.
charge
transcript
actual
conference and
presentation
mitigation
counsel’s
attorney Rodriguez’ testimony
evidence
where trial counsel
deficient
ten
but
“very
hearings
called
witnesses
elicited
lit
collateral
are not clear as to
tle relevant
about [petitioner’s]
steps,
any,
what further
counsel took
Similarly, in
character.”
Blanco v. Sin
over
the four-day
Al-
continuance.
(11th Cir.1991),
gletary,
it must be previously determined whether a rea- had attempted to dur- contact investigation sonable have un- ing should an overnight guilt recess in the mitigating so, such If covered evidence. phase to return their calls.... Counsel a then’ determination must be made managed never any to meet with whether the to put failure this evidence these witnesses over the continuance to jury before the was a choice by tactical determine what testimony might their so, trial counsel. If such a choice must exception be. With the of Blanco’s strong a given presumption cor- brother, any counsél had not talked to rectness, inquiry and the generally is at these witnesses. The record reflects an end. that counsel and Blanco had further con- Id. at 1500 (quoting Middleton v. Dugger, concerning versations the witnesses who (11th Cir.1988) 849 F.2d (empha- during sentencing, would be called omitted)). original; sis in citation We de- that Blanco indicated he did not want Here, trial. the guilt phase his of the trial on behalf.... any evidence offered shows, in Blan- acquiesced transcript- Fortenberry’s that attor essentially Counsel evi- knowing what any co’s without failed useful neys present mitigat defeatism foregoing. Counsel dence Blanco was jury the ing beyond evidence to what had Blanco have advised could not therefore guilt out phase. come Unlike of his choice fully consequences to the as performance of even the defense counsel mitigation evidence. any on put not to Williams, where the “record established] (notes Blanco, prepare omit- that counsel did not for begin 1500-1501 ted). a phase that of the until proceeding week trial,” before here the record shows present of the The circumstances virtually trial no spent counsel time that trial counsel’s case lead us to conclude ne preparing penalty phase. for This investigate adequately present failure or based on a tactical glect decision evidence was unreasonable. mitigating counsel; they trial as told the court in approx jury The convicted continuance, requesting a “we have not Saturday evening. At imately on 6:01 time, time to jury prepare trial had sufficient evi court informed on phase court would not be session dence or of the argument that the Blanco, re Sunday, Thus, would be trial.” as was true For Monday if following quired to return the tenberry’s not interview trial did The right away. no was obtained sentence prepare single prior or witness ready that it was and able jury indicated hearing; only testify who did witness immediately moved proceed. Trial counsel behalf, father, stated following Mon until the continuance hearing Rule that he had no idea at the coun day. request, of its trial support testifying why he was was the what late fatigue, sel hour and cited hearing. purpose counsel specifically more trial importantly, is evident in the preparation The lack of Trial not prepared. stated that telling After the court transcript. trial when, in a this later counsel reiterated fac- adopting mitigating it was those continuance, for a Harri request renewed proved during guilt-phase—which tors stated, mo “And renew our son we would young included that grounds stat tion for a continuance on murders, he committed the when earlier, have not ed on the we basis record, criminal significant lacked any evi prepare had sufficient time to nursing-school graduate— that he was a phase of the argument for this dence or fa- called defense counsel Nonetheless, trial denied trial.” testify. following totali- ther to request for continuance. testimony in the presented all ty of Regardless of whether Fortenberry’s behalf: phase on penalty allow *18 a continuance to granted should have name, Q: you your please, Would state coun counsel to defense prepare,15 defense sir? sentencing have known that sel should Fortenberry. Jerry A: Verben heels of might follow close hearing Fortenberry’s Q: Tommy And are you attorney reasonable Any a conviction. father? at least a minimal prepared would have Yes, sir, I am. A: penalty case before the conclusion challenge does deter- Alabama courts 15. We note its court did not abuse mined that termination here. continuance, by refusing grant a discretion Q: Mr. Fortenberry, And do you know As before, we have stressed pur “[t]he right
how old son is your pose a sentencing now? hearing is to provide Yes, [sentencer] with the sir, information A: he neces twenty-two yester- ' sary for it to render an individualized sen day. tencing determination ... upon] [based Q: Twenty-two yesterday? the character and record of the individual Yes,’ A: sir. ized offender and the circumstances of the Q: And old your how would son have particular offense.” Collier v. Turpin, 177 in August been of 1984? F.3d (quoting at 1202 Dobbs v. Turpin, 142 A: Nineteen. (11th Cir.1998)). 1386-87 F.3d 1383, See Q: Now, your graduated has son Cunningham Zant, also high school? (11th Cir.1991). Despite the fact that Yes, A: sir. his father Fortenberry’s only charac Q: What school? high witness, ter trial counsel failed to any ask A: Emma Sansom. questions might conveyed have Q: jury any Has he education sense type person or train- “what [Fortenberry]
ing since then? was.” father testified Rule 20 hearing that de Yes, sir, A: we through went nursing fense counsel had not interviewed him in school together, graduated together. advance, advised him that he would be Q: You through nursing went school called, prepared him testify, or even together? explained procedure the sentencing Yes, A: sir. phase to him. Rather than elicit testimo Q: you When graduate? did ny might conveyed have a sense of A: In 1984. record,” “character and Col Q: youDo remember the month? lier, 177 F.3d at to offset the appar A: I am up right now, no, rather shook ently aberrational events of the night of sir. murders, trial counsel simply asked Q: Okay, but it inwas 1984? questions regarding information that had been Yes, shown during guilt A: phase. sir. Even prosecution acknowledged the lack of Q: you Do your know if son has had mitigation stating, “We submit any convictions as an adult before been, there haven’t he hasn’t offered got he this trouble? anything outside of a grieving father.” know, A: you He minor, he was a had— Thus, the record reveals that counsel’s ac did, he but nothing as an adult. performance tual Q: All right. And he did graduate phase was deficient. from nursing school? Despite our conclusion that For Yes, sir, A: he did. tenberry received ineffective assistance at Q: your Did son take his state boards the penalty phase, we are unable to find to be a after nurse school? prejudice case, in this because there is Yes, sir, A: he did. nothing in the record that we can consider Q: youDo know if he passed that? to support Fortenberry’s assertion that Yes, sir, did, A: passed eventually with adequate representation he would the state boards. presented have mitigating additional *19 evi Q: He is a practical licensed nurse? dence sufficient to undermine confidence in Yes, sir, A: he is. his conviction. Fortenberry argues that Q: I think that’s all. had trial counsel effectively represented consequence, As a altered the result. prof- have located and him, have they would say preju we cannot family of additional testimony fered allegedly per ineffective diced counsel’s friends, nursing members, high school sentencing phase. at the formance classmates, these wit- and that had school called, have jury would been nesses IV. CONCLUSION accom- Fortenberry’s testimony of heard reasons, In AFFIRM sup- foregoing kindness. For the we and acts of plishments court’s denial of Fortenberry attempted present the district port, corpus. writ of habeas petition from a number affidavits the district court availability witnesses to substantiate of AFFIRMED. not We do mitigating evidence. of this have tes- ANDERSON, witnesses would Judge, that these doubt Circuit The dis- Fortenberry’s behalf. concurring: tified on however, correctly held that court, trict opinion in all of the I concur 504 U.S. Keeney Tamayo-Reyes, v. under court, addressing the except portion (1992), L.Ed.2d 318 112 S.Ct. analysis of inef- performance prong an evidentia- not entitled to Fortenberry is at the sen- assistance of counsel fective without a affidavits hearing on these ry Fortenberry can- Because tencing phase. prejudice, cause and showing of pointed as satisfy prejudice prong, not presented facts not they are material I not opinion, the court’s need out the state-court developed adequately performance prong. address the thus, and, consider we cannot hearing,16 analysis. prejudice them our addition, that tri Fortenberry argues evidence presented have
al counsel should or Report Lunacy Commission compe to determine dered America, UNITED STATES Taylor prepared by tency to stand Plaintiff-Appellee, (“Taylor Report”). Hardin Hospital Hardin showed report That Mario, HERSH, a.k.a. Marvin drank for most an alcoholic who been Defendant-Appellant. life, psy “significant revealed and also No. 00-14592. dis personality chological problems” judgment by lack order characterized Appeals, States Court United say that We cannot poor self control. Eleventh Circuit. likely to have the nature of evidence 17, 2002. July in this case. Forten the sentence altered any other evidence provided not berry has presented could have
of what his counsel might phase that attempt, Fortenberry does not even ing.”). Fortenberry responds that the affidavits evidence, however, why could explain he is entitled these affidavits are new thus Townsend, hearing 372 U.S. presented under reasonably have been ("Where newly therefore, discovered court; district habeas state alleged application, in a habeas evidence is declining to hold an err in did not reasonably have which could not hearing and we evidentiary to consider them facts, the presented trier of been to the state them here. cannot consider evidentiary grant hear- federal court must