*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. 90 L.Ed.2d 69 the Alabama Court of Criminal Appeals, (1986). Fortenberry white, and con citing Alabama rules of criminal proce tends that prosecutor in his case un dure, Stated: following “The issues are constitutionally used peremptory strikes to procedurally barred from this court’s re eliminate African-Americans from the ... view The appellant’s claim that he was jury. claim, order make this Forten denied a fair trial based on the state’s use berry relies Ohio, on Powers v. 499 U.S. of its strikes.” peremptory Fortenberry v. 113 L.Ed.2d 411 State, (Ala.Crim. 659 So.2d 194, 196-97 (1991), in which the Supreme Court ex App.1994). Fortenberry, however, argues tended Batson to such a case. that a later passage in opinion dis The district court determined that For- cussed the merits claim, of the Batson tenberry’s Batson claim was procedurally that therefore “the consideration of comity *8 barred under Alabama law because For and federalism which would pre ordinarily tenberry had not raised it at trial or on clude federal review of procedurally de direct appeal. Fortenberry argues that in faulted issues no longer apply.” Horsley fact the Court of Appeals Criminal Alabama, v. reached 1486, (11th 45 F.3d 1489-90 the claim, merits of the Batson Cir.1995); thus obvi see also Cooper v. Wainwright, ating the procedural bar, and in 881, (11th the alter Cir.1986) 886 (explain that, native even if the state court did ing find deciding a constitutional ques his Batson claim procedurally barred, he when to, it does not have tion state court falls within each of three exceptions to “necessarily holds that the policies under procedural First, default. he argues, Ala pinning procedural its rule are unworthy bama courts have not consistently applied of vindication under the particular cireum-

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, 113 L.Ed.2d 411 S.Ct. collateral re applied retroactively be on applied retroac ... cannot “Powers that became final before view cases tively review convictions on collateral Davis, Farrell v. Powers was decided. See decid final that were before (11th Cir.1993); Potuers 370, Cargill v. F.3d 76, State, v. 599 So.2d ed.” Parker (11th 1366, Cir. Turpin, 120 F.3d Powers, Therefore, (Ala.Cr.App.1992). 1997).5 Fortenberry’s appeal be Because 1991, ap decided in which was years final in two before came appellant’s Appel case. plicable Powers, and Supreme decided be inef performance was not late counsel’s clearly applica limited its cause “Batson on failing raise this issue fective for of the same race as tion to defendants appeal. Farrell, jurors,” 3 F.3d at excluded Batson claim would neces Furthermore, no absolutely there if it to fall within one sarily fail even were viola- in the record that indication default. procedural the exceptions appel- tion of Batson occurred. support of this only grounds lant’s Penalty Jury Instructions 2. is that some blacks assertion Phase previ- As struck from the venire. stated Fortenberry argues next that post-conviction ously, petitioner regarding whether jury instruction pleading bears the burden of proceeding fact, September 1994. opinion its on above-quoted opinion, sued Nonetheless, issued 4. ambiguity remains. September supplanted the Court July opin- Appeals' original Criminal mistakenly cites United States original held opinion, ion. In the 1991), (11th Rodriguez, Cir. 935 F.2d 194 *9 Batson on the that there been no merits retroactively proposition is that Powers Fortenberry's trial. State The violation however, Rodriguez, pending applicable. was rehearing, urged the applied then decided, so appeal direct when Powers on pro- court to hold that the Batson claim Rodriguez applicable. is Teague was not response, reis- the court cedurally barred. In inapposite. therefore 1222 heinous, standard, a

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. 53 L.Ed.2d 594 counsel rendered ineffective assistance Newsome, Smith v. failing to raise HAC issue at trial and (11th Cir.1989). petitioner A can establish on appeal. argues cause by showing procedural that a default can prejudice demonstrate because he is constitutionally caused ineffective likely to have succeeded on the claim. assistance of counsel under Strickland v. argument Neither is it persuasive because 668, 690, Washington, 466 U.S. is clear that ultimately the HAC claim is (1984). Carrier, 80 L.Ed.2d 674 See without merit. Second, 477 U.S. at 106 S.Ct. 2639. Under Alabama’s current death-penalty

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. 120 L.Ed.2d 854 Because Fortenberry’s (1992), Fortenberry argues conviction became despite that final Espinosa, before order, Espinosa judge’s sentencing claim counsel was is Teague-barred. id.; thus See Teague nonétheless ineffective for failing to chal Lane, 288, 310, 489 U.S. lenge Espinosa, the HAC instruction. In S.Ct. (1989). 103 L.Ed.2d 334 Supreme that, Therefore in Court held in this a state case, even assuming that that places jury was sentencing authority in more improperly actor, than instructed to one consider an un sentencing judge’s instruction, constitutional proper re-weighing of HAC that error aggravating factors is prejudicial not is insufficient to cure if the sentencing judge constitutional defects properly in the sentencing jury’s re-weighed only the consideration of an constitution ally improper applicable aggravating factor. at factors. See Id. 1082- Glock v. Sin 83, 112 Instead, gletary, 878, 880, (11th S.Ct. 2926. jury consider 882-83 Cir.1995) (en banc).7 ation of improper imputed factor is the sentencing judge. Fortenberry argues Because the trial court found the exis- that the jury was. wrongly with instructed of only tence statutory one aggravating regard factor, to the HAC aggravating capital circumstance-—that “[t]he offense therefore, Espinosa would mandate rever was committed while the defendant was sal of his conviction he could overcome in engaged the commission of ... rob- procedural default. bery” must conclude that the HAC —we argument This falters because the Su- played factor no role in Fortenberry’s sen- preme Court Espinosa held that has an- Therefore, tence.8 defense counsel’s fail- arguendo 7. We Espinosa assume applies sentencing procedure may not jury's cure the penalty Alabama death statute. As the if, consideration of an invalid circumstance as Supreme explained Florida, Court in Harris v. Ala in judge the trial jury owes the defer bama, 504, 509, ence.”). U.S. 115 S.Ct. (1995), L.Ed.2d 1004 the current Alabama 13A-5-47(d) scheme § Ala.Code differs from the Espi- specifically Florida scheme directs nosa in requires considered Florida judge give jury’s recommendation upon Based presented the evidence "great weight” reaching in a conclusion as to presented the evidence during the sentence sentence, the proper while in Alabama hearing, pre-sentence and the investigation judge only need jury’s "consider” the recom report any evidence submitted in con- 13A-5-47(e). § mendation. Ala.Code 1975 it, nection with the trial court shall enter Although applicability Espinosa specific findings written concerning the ex- Hams, not at Supreme issue istence or nonexistence of each aggravating explain went on to consequential Espino- circumstance enumerated in Section 13A- sa "error attaches jury whenever 5-49, recom each mitigating circumstance enu- is process, mendation considered 13A-5-51, merated Section ad- only given great when it weight by the mitigating ditional circumstances offered judge.” Id. at S.Ct. 1031. This pursuant to Section 13A-5-52. The trial strongly suggests Espinosa applies Ala court shall also findings enter written penalty bama’s death though statute even facts summarizing the crime defen- "capital Alabama has sentencing less participation dant’s in it. authority” than it Espinosa, has in Florida. light requirement, we could not 2926; see possibly but find judge used Glock, ("to put 65 F.3d at 883 Espinosa’s rule the HAC factor to Fortenberry's arrive at sen- way, another judge a trial in a trifurcated tence. *12 Id. at 104 S.Ct. different.” have been HAC instruction to object ure to 2052. appeal the issue raise or to in- inconsequential. allegations of ultimately ofMost coun- defense concern assistance effective Counsel Assistance of an ade- Ineffective perform to alleged failure sel’s trial, duty a to Amendment, prior a criminal investigation quate the Sixth Under specificity. with effective addresses to receive Strickland is entitled defendant a de- conducting explains Strickland counsel of assistance of this violation a make reasonable duty to show to In order has a counsel fense. reversal, a defen- a reasonable to merit or to make investigations sufficient right two-prong investiga- familiar particular satisfy that makes must decision dant articulated In ineffective- unnecessary. Supreme tions test to not case, decision particular a Washington, 466 ness Strickland (1984): directly assessed investigate must L.Ed.2d S.Ct. circumstances, in all the reasonableness show that First, must' the defendant of deference heavy measure applying deficient. performance counsel’s judgments. to counsel’s made counsel showing that requires This 691, 104 that counsel 2052.9 serious S.Ct. so errors Id. at guaranteed the “counsel” functioning as argues that case, Fortenberry In this Second, the Amendment. the Sixth during both assistance ineffective received the deficient must show defendant his trial. of phases penalty the guilt the defense. prejudiced performance separately. claims these We consider that counsel’s showing requires This Phase A. Guilt deprive toas serious were so errors trial, a trial whose a fair of defendant attor- asserts Fortenberry first reliable. result guilt ineffective neys were failed to they standard test, proper his trial of phase Under Underwood, and be- Harvey of “reason is that investigate attorney performance pres- investigate we to they failed assistance” —conduct cause ably effective case, po- from various particular exculpatory of on the facts ent evaluate actions, would have they whom counsel’s witnesses time of tential at the as viewed Under- investigated they fell within had performance discovered if the to determine con- compe particular, professionally wood. “range the wide con- Harrison that, Buttram tends Id. at tent assistance.” . investigation, adequate prong ducted regard to second With 2052 witnesses— three have uncovered would prejudice explains test, Strickland Shadwrick, and Philip Tammy McCoy, proba ais reasonable where “there exists dur- testified of whom Pruitt —all William unprofessional that, counsel’s bility but for that Under- proceedings Rule 20 ing the would errors, proceeding of the the result au- law enforcement prosecution investigate “the duty attorney has 9. An re- investigate duty exists explore ave- The all thorities. case and circumstances or admissions accused's to the merits leading gardless-of to facts relevant nues of con- con- event of facts penalty in the defense case and the statements Jus- for Criminal stated Standards guilt A.B.A. the accused's stituting viction.” Furthermore, ed.1993). (3d 4-4.1 guilty. tice plead sire efforts investigation should include Id. possession in the information secure wood to them admitted that he had com- statement, Wood’s police which contained mitted Guest Service Station murders. description of an unidentified man at the tall, scene tanned, who was with large

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 104 S.Ct. 2052. Second, wood have uncovered her. never believed that would that his trial counsel murders, noted, Rule sus as district he had committed the and and an court determined Shadwrick pected along all that his admission was This Pruitt unreliable witnesses. were cover for else.11 For attempt to someone correct,12 presumed and termination is tenberry argues that because indicia, presumed quate be to in written shall and testified the Rule 11. Harrison Buttram correct, applicant shall estab- unless they proceedings that had believed appear, or lish it shall otherwise Fortenberry's he had statements that commit- murders, respondent admit— always shall they thought ted the and dispute (1) merits the factual that the covering up else. for someone that he in court hear- were not resolved the State pre-AEDPA version of U.S.C. 12. The ing; § 2254 stated (2) factfinding procedure em- (e) any proceeding instituted in a Feder- adequate ployed by the State court was not by application an for a writ of hearing; al court fair to a full and afford corpus by person custody pur- (3) a habeas were not ade- that the material facts court, judgment of a State quately developed State court hear- suant hearing ing; on the merits determination after issue, (4) jurisdic- made a State court of State lacked of a factual that the person jurisdiction proceeding subject over the competent matter or tion of proceed- applicant applicant the writ State court which agent ing; State or an officer or thereof (5) indigent applicant finding, parties, by a written evidenced court, deprivation State opinion, reliable ade- and the written or other therefore testimony their will not support even had trial counsel pri- interviewed her reversal of conviction.13 or to the beginning of the trial. Defense Third, Ogle’s Parks and testimony regard- counsel did interview prior to her testimo- ing ny the color truck passed cross examined her fully at the road is too simply alleged insubstantial cre- failure to her interview any ate earlier doubt in indisputably inconsequential. conviction. Fourth, although Yates would have testi- It is worth reiterating that the absence fied that he heard Guest make a state- of exculpatory witness testimony ment suggesting robbery that no had tak- defense is likely prejudicial more when a en place, there was conclusive evidence conviction is based on little record evi- produced at trial that a robbery had 'oc- dence of guilt. Strickland, See curred; thus, the absence of Yates’ testi- 695-96, (“a 104 S.Ct. 2052 verdict or con- mony is unlikely produced to have a differ- only clusion weakly supported by the rec- Last, ent outcome. there is no evidence ord likely is more to have been affected that Tracy Henry Wood would pro- have errors than one with overwhelming record vided additional or different testimony support.”). case, In this although there right, appoint constitutional failed coun- 13. argues also that the district represent sel him in the pro- State court court erred request when it denied his for an *15 ceeding; evidentiary hearing to determine when Un (6) applicant that the did not receive a alleged derwood's confession to Shadwrick full, fair, adequate hearing in State and Pruitt occurred. The district court relied proceeding; court or on the Rule 20 finding court’s that “there (7) applicant that the otherwise showing ha[d] been no testimony that the of process due nied of law in the State court [Pruitt] pre-dated concerned an event which proceeding; the defendant's trial." argues (8) part or unless of the record of the that this conclusion is flawed for two reasons. proceeding State court in which the deter- First, he contends that the Rule 20 court's made, mination of such factual issue was findings are supported by the record as a pertinent to a determination of the suffi- whole, and fact the record clear makes ciency of the support evidence to such fac- Underwood confessed to Pruitt in determination, tual produced provided is as Thus, Fortenberry's before trial. argues, hereinafter, and the Federal court on a the Rule findings 20 court's are not to part of entitled such consideration as record a presumption of a whole concludes that correctness. See such factual Townsend deter- Sain, v. 372 fairly mination is not U.S. supported by 83 S.Ct. 9 the rec- L.Ed.2d (1963). Second, ord: 770 Fortenberry argues that And in evidentiary an hearing the Rule simply 20 adopted the state's court, proceeding Federal proposed fact, due when findings of and that therefore proof of such factual determination has there was no independent credible judicial made, been unless the existence of one or regarding determination issue. In addi of more respectively circumstances set tion, Fortenberry states that the district (1) forth paragraphs (7), numbered to court's analysis, own in which it stated inclusive, by applicant, is shown other- is "it not clear from the evidence ... appears, wise or is admitted the re- Underwood alleged made this be admission spondent, .or unless the court concludes petitioner’s fore the trial ...” means that the pursuant provisions of paragraph court should hearing have held a to resolve (8) numbered that the record in the State the issue. Id. reviewing After Rule proceeding, whole, considered as a record, we conclude that the factual determi fairly support does not such factual deter- supported nation is the record as a whole. mination, upon the burden shall rest Fortenberry is therefore not entitled to an applicant by convincing establish evi- evidentiary hearing on this issue. dence that the factual determination by the State court was erroneous. record, as a eyewitness postconviction or entire viewed no conclusive forensic establishing Fortenberry’s guilt, mitigation of whole cumulative evi- evidence it multi- presented originally, had before dence raised rea- confessions, along with uncoerced ple probability that the result of the sonable placed posses- him in strong evidence that sentencing proceeding would been have weapon. We find that murder sion competent pre- different counsel had the jury no reasonable likelihood explained significance sented this evidence had it would have discredited all the available evidence. says testimony Fortenberry

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 152 L.Ed.2d 914 S.Ct. days, informing that Blanco (2002). produce needed time to witnesses. next proceedings The held strategic

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, 943 F.2d 1477 though attempt subpoena counsel did *17 explained we that order to determine Blanco’s brother testify, appears it if a present mitigating failure to that counsel for most part the waited for is reasonable the witnesses that Blanco and counsel

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