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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11855 ________________________
D.C. Docket No. 2:10-cv-02929-CLS-HGD
JOE NATHAN JAMES,
Petitioner-Appellant,
versus
WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL, STATE OF ALABAMA, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondents-Appellees. ________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(April 28, 2020)
Before ED CARNES, Chief Judge, MARTIN, and GRANT, Circuit Judges.
GRANT, Circuit Judge: Case: 17-11855 Date Filed: 04/28/2020 Page: 2 of 18
Joe Nathan James has been tried, convicted, and sentenced to death twice for
the murder of Faith Hall Smith. In this appeal, he seeks federal habeas corpus
relief on the ground that his attorneys provided constitutionally ineffective
assistance in the penalty phase of his second trial by failing to investigate or
present mitigating evidence. After a thorough review of the record, and with the
benefit of oral argument, we conclude that the Alabama Court of Criminal Appeals
reasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in rejecting
James’s ineffective assistance of counsel claim because he has failed to show a
reasonable probability that his counsel’s performance affected the outcome of his
sentencing proceeding. We therefore affirm.
I. BACKGROUND
A.
James and Smith dated for a time in the early 1990s. They had a volatile
relationship and James stalked and harassed Smith after they broke up, showing up
uninvited at her home on several occasions and threatening to kill Smith and her
ex-husband. On the day of the murder, James followed Smith to her friend’s
apartment and forced his way inside, carrying a gun. James demanded to know
about a man he had seen with Smith, while Smith hid behind her friend and asked
him to put the gun away—which he did, briefly. After a few minutes, however,
James said “f**k this s**t,” pulled his gun back out, and started shooting. Smith
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ran toward the bathroom and James chased her. James shot Smith three times:
once in the abdomen, once through the arm and chest, and once in the top of the
head, apparently after she had fallen to the floor. She died of her gunshot wounds.
A Jefferson County, Alabama jury first found James guilty of Smith’s
murder and recommended the death penalty in 1996. See James v. State, 723 So.
2d 776, 777–78 (Ala. Crim. App. 1998). The Alabama Court of Criminal Appeals
reversed his 1996 conviction based on the erroneous admission of hearsay
evidence during his first trial. See id. at 784, 786.
B.
Attorneys Virginia Vinson and Gordon Warren were appointed to represent
James six months before his second trial. Vinson was an experienced criminal
defense attorney who had participated in dozens of capital murder cases and had
been lead counsel in at least ten of those cases. Warren was a new attorney with
no capital case experience.
Vinson was lead counsel and, according to Warren, had primary
responsibility for investigating mitigation evidence. Warren’s responsibility
leading up to trial was to develop the facts surrounding the murder. He did nothing
to prepare for the penalty phase or to investigate possible mitigation evidence—he
did not even consider the matter, although he presented the defense argument
during the penalty phase.
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Vinson, on the other hand, did some investigation into possible mitigating
circumstances. She met with James at Holman prison soon after she was
appointed. He told her that he shot Smith after Smith charged him. When Vinson
asked—several times—whether he had any witnesses (presumably for either phase
of trial), he said that he had none. To the best of Vinson’s recollection, James
would not give her the names or contact information of any family members,
except for his grandmother. Vinson spoke with James’s grandmother on the
telephone, but she was not able to provide any useful information. She also spoke
with James’s mother, but his mother did not want to get involved.
It appears that Vinson made no other efforts to collect mitigation evidence
before trial. She did not contact any other family members, although James’s
siblings (two of whom were adults) were identified in the presentence investigation
report completed before the first sentencing hearing. She did not contact Mara
Ruffin, James’s former girlfriend and the mother of his two young daughters,
although her name, address, and Social Security number were in Vinson’s file
materials. She did not seek any school, employment, social services, medical, or
prison records.
Vinson did not request funds for a psychological evaluation or review the
psychological evaluations contained in James’s prison records because there was
no indication in speaking with him that he had any mental problems. She was
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familiar with the psychologist who had conducted James’s competency evaluation
before his first trial and believed the psychologist to be capable and unbiased. The
psychologist’s report stated that James was competent to stand trial, had a Verbal
IQ of 102 (average), and did not display any “signs or symptoms associated with a
major psychiatric disorder such as psychosis, a thought disorder, or a major
affective disorder.”
James was moved from Holman prison to Jefferson County jail shortly
before trial. Vinson and Warren met with him several times thereafter, but he did
not have much to say. He instructed them not to get his family involved. He did
not want to see his family, and he did not want them to testify. He advised his
attorneys that there was no need to prepare for trial in any event, because he
intended to plead guilty.
A few days before trial, an attorney with the Equal Justice Initiative
contacted Vinson and Warren and told them that he had arranged a life-without-
parole plea deal for James. Vinson and Warren contacted the prosecutor, who
confirmed that the state would agree to a life sentence if James pleaded guilty
before trial.
Shortly after they arrived at court on the scheduled trial date, however,
James told Warren that he had changed his mind and wanted to go to trial. Warren
warned him that if he went to trial, he would probably be convicted and sentenced
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to death again, but James said that he did not want to be moved back to the general
prison population. James explained that he had it pretty good on death row—he
had his own room, his own television that he could control to watch what he
wanted, and plenty of reading material. He did not have to worry about being
attacked by other prisoners, because he was always one-on-one with the guards.
Warren and Vinson both tried to reason with James, but his mind was made up.
So the court brought in the jury, and James’s trial began immediately.
James’s mother and sister surprised Vinson by attending the second day of
the two-day trial. Vinson interviewed his sister and asked his mother again about
testifying during the penalty phase. His mother declined, and Vinson decided
against calling James’s sister after she told Vinson stories about violent episodes in
James’s past, including that he had broken a previous girlfriend’s arm, and that he
had threatened his stepfather with a gun on the day of the murder. The sister said
that James’s father had abused him, but when Vinson asked James about it, he
denied any abuse.
The jury found James guilty of intentional murder during a first-degree
burglary, a capital crime. See Ala. Code § 13A-5-40(a)(4) (1975). After the
verdict, Vinson spoke with James about the penalty phase. She told him about her
interview with his sister, and he became angry that Vinson had spoken to her.
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Vinson asked James what mitigation evidence she could use for the sentencing
proceeding, and he told her none.
The next morning—the day of the penalty-phase proceeding—Vinson spoke
with James’s mother, stepfather, and sister. James’s mother was again unwilling to
help. Vinson told James about this conversation and he reemphasized that he did
not want anyone to testify in mitigation. He did not want his family to testify, and
he did not want to testify himself, either.
James did not offer any mitigating evidence or witnesses during the penalty
phase. Warren presented James’s penalty-phase argument, arguing that James had
reduced culpability because of his age (22 years old at the time of the murder) and
emotional immaturity, and that he was under the influence of strong emotions at
the time of the shooting.
The jury unanimously recommended a death sentence, and the court
sentenced James to death. The Alabama Court of Criminal Appeals affirmed
James’s conviction and death sentence on direct appeal, and the United States
Supreme Court denied his petition for certiorari. James v. State, 788 So. 2d 185
(Ala. Crim. App. 2000), cert. denied, 532 U.S. 1040 (2001).
C.
James filed a motion for collateral relief in the Jefferson County circuit
court, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. In his
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motion, James argued, among other things, that Vinson and Warren had provided
ineffective assistance during the guilt and penalty phases of his second trial, in
violation of his Sixth Amendment rights.
At the evidentiary hearing on his Rule 32 motion, James called his maternal
aunt, his sister, one of his younger brothers, and his father’s former employer to
testify, as well as Vinson and Warren. 1 James’s aunt testified that James’s mother
was sexually promiscuous, often drank to excess, used marijuana, and was
generally absent or neglectful when James was growing up. She abused alcohol
when she was pregnant with James, and James was born with an oversized head,
small ears, and droopy eyelids that required corrective surgery. According to
James’s aunt, his father and mother had an unhappy and violent marriage; his
father beat his mother on a weekly basis—while James was in the same room—
until his mother left his father when James was about two years old.
After that, James’s mother had a new boyfriend almost every week. She was
always out at work or socializing with men, while James, who was the oldest,
cared for his five younger brothers and sisters. James’s mother moved with her
children to a different house or apartment at least once every year—they lived in
18 different addresses during James’s childhood.
1 James also subpoenaed Mara Ruffin to testify at the hearing, but she refused to appear and the state court declined to issue a bench warrant to force her attendance. 8 Case: 17-11855 Date Filed: 04/28/2020 Page: 9 of 18
James’s aunt testified that several of James’s relatives on his father’s side,
including his father, grandfather, aunt, and uncle, all behaved oddly—James’s
father was antisocial and paranoid, his grandfather believed in magic, his uncle
was mentally disabled and aggressive, and his paternal aunt talked to herself.
James’s father’s former employer also testified that he thought James’s father was
mentally ill, though he was a good employee and a hard worker.
James’s sister confirmed that their mother was frequently absent from the
home, leaving her and James to care for their siblings, and at one point, leaving all
the children with relatives for roughly three years while she moved out of state to
pursue a relationship with one of her boyfriends. James’s sister did not remember
their father well, but family members described him as violent and mentally
unstable. She described James as protective of her. She said that she did not
remember telling Vinson about incidents of violence in James’s past, although she
acknowledged that she had heard about those incidents from their mother.
James’s brother testified that James visited his mother and stepfather’s house
on the day of the murder. James was upset because his brother, who was nine or
ten years old at the time, had left his bicycle on top of James’s clothes. Before
James left the house that day, James’s brother heard “an altercation” between
James and his stepfather.
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James also introduced documentary evidence that he contended should have
been presented to the jury at his sentencing proceeding or should have led counsel
to conduct additional mitigation investigation. This evidence included a police
report from several months before the murder indicating that the victim had
attacked James and Ruffin by smashing the windshield of their car with a car jack
while they sat in a fast-food drive-through. It also included records from two
psychological evaluations conducted while James was in prison: a 30-day
segregation review in which the evaluator (a licensed psychological counselor)
noted that James demonstrated “[s]chizoid characteristics,” and a psychometric test
score indicating that James might exhibit a thought disorder. 2
The Alabama circuit court denied collateral relief, and after a complicated
procedural course, the Alabama Court of Criminal Appeals affirmed. See James v.
State, 61 So. 3d 357 (Ala. Crim. App. 2010). In relevant part, the state appellate
court concluded that James had not shown that Vinson and Warren had provided
ineffective assistance during the guilt or penalty phase of James’s trial. Id. at 371–
78.
2 James also proffered affidavit testimony from two mental health experts stating that these records and James’s family history indicated a need for additional psychological testing, and from a “mitigation specialist,” criticizing counsel’s mitigation investigation. Because these affidavits were not submitted until the evidentiary hearing and the state was unable to respond or prepare counter-affidavits, the state circuit court declined to consider them. 10 Case: 17-11855 Date Filed: 04/28/2020 Page: 11 of 18
Applying Strickland v. Washington, 466 U.S. 668 (1984), the court
determined that counsel’s performance was not deficient because despite James’s
lack of cooperation and instructions not to present mitigating evidence, Vinson did
some mitigation investigation by interviewing James’s mother, grandmother, and
sister, and reviewing the competency evaluation completed before James’s first
trial. James, 61 So. 3d at 376–77. The court also found that James could not show
that his counsel’s failure to gather and present mitigating evidence prejudiced him
because (1) he had instructed counsel not to present any mitigating evidence, and
(2) in any event, the potential mitigating evidence that James introduced at the
Rule 32 evidentiary hearing “was not compelling and would not have affected the
verdict if it had been presented at James’s sentencing hearing.” Id. at 376–77, 378.
D.
James filed a petition for federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254, again arguing in part that Vinson and Warren provided constitutionally
ineffective assistance during both phases of his capital murder trial. The district
court denied James’s habeas petition, finding that the Alabama Court of Criminal
Appeals decision was not an unreasonable application of Strickland. We granted a
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certificate of appealability on James’s claim that his trial counsel provided
ineffective assistance during the penalty phase. 3
II. STANDARD OF REVIEW
We review a district court’s ruling on a petition for habeas corpus relief de
novo. See Cummings v. Sec’y for the Dep’t of Corr., 588 F.3d 1331, 1355 (11th
Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), we are prohibited from granting a state prisoner’s habeas corpus
petition unless the relevant state court decision on the merits of the petitioner’s
claim “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
A decision is “contrary to” clearly established federal law if the state court
applied a rule that contradicts governing Supreme Court precedent, or if it reached
a different conclusion than the Supreme Court did in a case involving materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A state
court decision involves an “unreasonable application” of clearly established federal
3 Our review is limited to the issue specified in our certificate of appealability. See, e.g., Williams v. Allen, 598 F.3d 778, 795 (11th Cir. 2010). We therefore decline to address James’s argument that the district court should have held an evidentiary hearing before ruling on his § 2254 petition. 12 Case: 17-11855 Date Filed: 04/28/2020 Page: 13 of 18
law if the court identifies the correct legal principle but applies it unreasonably to
the facts before it. Id. “The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). “A state court’s application of clearly
established federal law or its determination of the facts is unreasonable only if no
‘fairminded jurist’ could agree with the state court’s determination or conclusion.”
McNabb v. Comm’r Alabama Dep’t of Corr., 727 F.3d 1334, 1339 (11th Cir. 2013)
(citation omitted).
III. DISCUSSION
James’s ineffective assistance of counsel claim is governed by the standards
set out in Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore,
562 U.S. 115, 118 (2011). Under Strickland, a petitioner claiming that he received
ineffective assistance of counsel in violation of the Sixth Amendment must show
both that his attorney’s performance was objectively unreasonable “under
prevailing professional norms” and that counsel’s poor showing prejudiced his
defense. Strickland, 466 U.S. at 687–88. The petitioner bears the burden of
proving his ineffective assistance claim, and he must meet his burden on both
prongs to succeed. Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010). We
“need not address the performance prong if the defendant cannot meet the
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prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000) (internal citation omitted).
The Supreme Court has cautioned that the “object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697. That is the case here. Accordingly, we decline James’s invitation to evaluate
his counsel’s mitigation investigation—charitably described by the state court as
“limited”—and move instead to the prejudice prong of the Strickland analysis.
To show prejudice under Strickland, James “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
A petitioner alleging that his counsel was ineffective for failing to discover
and present mitigating evidence during the penalty phase of his capital murder trial
must show that, absent counsel’s errors, the sentencer “would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.”
Id. at 695. This requires a preliminary showing that the jury would actually have
heard helpful evidence during the penalty phase if his attorneys had discovered
it—if the petitioner would not have allowed his counsel to present mitigating
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evidence at sentencing, then he “was not prejudiced by anything that trial counsel
did.” Gilreath v. Head, 234 F.3d 547, 551 n.12 (11th Cir. 2000); see Landrigan,
550 U.S. at 477.
So a petitioner who instructed his counsel not to present mitigating evidence
at sentencing must make two showings to meet the prejudice prong of the
Strickland test. As a threshold matter, he “must show a reasonable probability that,
if he had been more fully advised about the mitigating evidence and its
significance, he would have permitted trial counsel to present the evidence at
sentencing.” Pope v. Sec’y, Florida Dep’t of Corr., 752 F.3d 1254, 1266 (11th Cir.
2014); see Gilreath, 234 F.3d at 551 & n.12. If he makes this showing, he must
then establish a reasonable probability that if the jury had heard his proffered
mitigating evidence, it would have recommended life instead of death. Pope, 752
F.3d at 1266.
James focuses on this secondary showing, arguing that the mitigation
evidence he presented at the Rule 32 hearing would have given the jury a
completely different impression of him and his relationship with the victim. But
James has not presented any evidence showing that he would have permitted his
counsel to introduce mitigation evidence at sentencing, even if they had collected
any. We need go no further to conclude that he cannot prove prejudice under
Strickland; as we have explained before, “there cannot be a reasonable probability
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of a different result if the defendant would have refused to permit the introduction
of mitigation evidence in any event.” Cummings, 588 F.3d at 1360.
James also argues that the Alabama circuit court’s finding that he instructed
counsel not to present any mitigating evidence during the penalty phase was “an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Specifically, he contends that
Vinson’s testimony to that effect was not credible because other parts of her
testimony—her affidavit statements that James refused to talk to her about the
murder or provide information about his family—were contradicted by her hand-
written notes. That inconsistency, James says, shows that Vinson was lying in an
attempt to blame him for her failure to gather mitigation evidence.
But regardless of inconsistencies on other issues, Vinson’s testimony that
James told her not to call any mitigation witnesses is wholly consistent with other
evidence in the record. For example, her contemporaneous notes state that James
became angry when he learned that she had spoken with his mother and sister
about testifying during the penalty phase, and that when she asked him what
mitigation evidence she could use, “he said none.” Moreover, Warren—whose
testimony is uncontradicted—testified that James told Vinson not to call his family
to testify on his behalf at the penalty phase.
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Importantly, Warren also testified that James clearly expressed his
preference for a death sentence, explaining that he would much rather spend 10 or
12 (or, as it turns out, more than 20) years on death row, where he was comfortable
and had plenty of reading material and his own television, than be sentenced to
spend life without parole in the general prison population. James rejected the
state’s offer of a life sentence in exchange for his guilty plea, although he knew
that the case against him was strong—Warren specifically advised him that if he
rejected the plea offer and went to trial, he probably would be found guilty and
sentenced to death again. If James’s goal was to remain on death row, permitting
his attorneys to introduce mitigation evidence would have been counterproductive.
The state court’s finding that James instructed his counsel not to put on mitigation
evidence was not an unreasonable determination of the facts.
And James has not shown that he would have changed his mind if his
attorneys had had more mitigation evidence to offer. Indeed, no evidence in the
record shows that he would have done so. He himself has never made such a
statement—he did not testify on his own behalf during the sentencing proceeding,
and when the trial judge asked whether he agreed with the decision not to present
any witnesses in mitigation, he simply nodded his agreement. Nor did he testify
during the state collateral proceedings, either at the evidentiary hearing (where he
appeared by telephone) or by deposition or affidavit. Without any evidence that he
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would have agreed to let it in, James cannot show that helpful mitigation evidence
would have been heard by the jury even if his counsel’s performance had been
beyond reproach—much less that there was a reasonable probability that the
evidence he proffered would have convinced the jury to recommend life rather
than death.
* * *
To succeed on his ineffective assistance of counsel claim, James was
required to affirmatively prove that his counsel’s allegedly deficient performance
prejudiced him. In the circumstances shown here, proof of prejudice requires some
evidence that if counsel had discovered the evidence he now proffers, he would
have permitted them to present it during the penalty phase proceedings. Because
James has not produced any such evidence, we conclude that the Alabama Court of
Criminal Appeals reasonably applied Strickland v. Washington in rejecting James’s
ineffective assistance of counsel claim. We therefore affirm the district court’s
denial of James’s § 2254 petition.
AFFIRMED.