Case: 12-13535 Date Filed: 08/28/2013 Page: 1 of 34
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________
No. 12-13535 _____________
D.C. Docket No. 2:08-cv-00683-MEF-SRW
TORREY TWANE MCNABB,
Petitioner-Appellant,
versus
COMMISSIONER ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
______________
Appeal from the United States District Court for the Middle District of Alabama ______________
(August 28, 2013)
Before TJOFLAT, DUBINA and JORDAN, Circuit Judges.
DUBINA, Circuit Judge: Case: 12-13535 Date Filed: 08/28/2013 Page: 2 of 34
Petitioner, Torrey Twane McNabb, is currently serving a death sentence
following his convictions for two counts of capital murder in connection with the
murder of a Montgomery, Alabama, police officer. After unsuccessful state
appeals and post-conviction proceedings, McNabb filed a federal habeas petition
pursuant to 28 U.S.C. § 2254. The federal district court denied McNabb relief and
also denied his motion to alter or amend the final judgment pursuant to Rule 59(e)
of the Federal Rules of Civil Procedure. However, the district court did grant
McNabb’s petition for a certificate of appealability (“COA”) on the issues that he
raised in his Rule 59(e) motion. Upon review of the record, including the briefs of
the parties, and having the benefit of oral argument, we affirm the district court’s
judgment denying McNabb’s federal habeas petition and his Rule 59(e) motion.
I. BACKGROUND
Facts
At trial, the State presented the testimony of numerous witnesses who were
near the intersection of Rosa Parks Avenue and National Avenue in Montgomery,
Alabama, on September 24, 1997, the day McNabb shot and killed Officer
Anderson Gordon. Sanford Sharpe, a bail bondsman, testified that he was
attempting to locate McNabb pursuant to a capias warrant because McNabb had
failed to appear for two court appearances relating to charges of receiving stolen
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property and possession of a controlled substance. [R. Vol. 13 p. 1759‒Vol. 14 p.
1857.] On this fateful day, Sharpe located McNabb sitting in an automobile parked
on the street outside his grandmother’s residence. Sharpe attempted to pull his
truck in front of McNabb’s vehicle to block McNabb, but McNabb sped away
when he saw Sharpe. While pursuing McNabb, Sharpe saw McNabb run past a
stop sign and strike another vehicle. As Sharpe approached the accident, McNabb
got out of his vehicle, pulled a gun, and began shooting at Sharpe. Sharpe began to
speed from the scene and telephoned 911. When he returned to the scene of the
vehicle accident, Sharpe parked next to a Montgomery police patrol car and saw
that the officer in the patrol car had been shot several times.
Annie Gamble testified that she was driving on Rosa Parks Avenue when a
white vehicle ran a stop sign and struck her car. [R. Vol. 14, p. 1858‒1889.] She
stated that a man, whom she later identified as McNabb, exited the white vehicle
and waved a gun in her direction. Gamble pleaded with him not to shoot her. She
saw a red truck drive by and McNabb began shooting at it. After the truck
disappeared from sight, Gamble testified that McNabb walked to the patrol car
with his gun hidden from the officer’s view. She noticed that “some words were
passed” between McNabb and the officer, and when McNabb reached the rear of
the patrol car, he began firing into the car. [Id. at 1871.] When the officer
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attempted to return fire, Gamble stated that McNabb fled, running behind a nearby
church.
Christopher Best testified that he was walking toward the Beulah Baptist
Church at the time of the vehicle accident involving McNabb and Gamble. [R.
Vol. 14, p. 1894‒1910.] He saw McNabb exit the white vehicle and begin
shooting at a red truck that was driving down National Avenue. When Best heard
the first shot, he ran behind the church for cover and later heard several gunshots in
rapid succession. He then heard Gamble screaming for someone to call 911 so he
entered the church and asked someone to call emergency. When he returned to the
intersection, a crowd had gathered, and he noticed that both the front and back
windows on the driver’s side of the police car had been shot and were no longer
intact.
The State also presented the testimony of Michael Johnson, who lived in a
residence located at the intersection where the crime occurred. [Id. at 1911‒1928.]
Johnson testified that he heard what he thought were firecracker explosions about
the time of the vehicle accident and looked out his front window. [Id. at 1912‒13.]
From there, Johnson saw a Montgomery police patrol car stop in front of the
church. He then saw a young black male, wearing dark-colored shorts and no shirt,
approach the patrol car, holding a gun behind his back. After the police officer
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rolled down his window and spoke to the young man, the man opened fire on the
officer “out of the blue.” [Id. at 1915.] Johnson testified that when the young man
first fired at the police officer, he did not see a weapon in the hands of the police
officer. Jeffrey Dyson testified that he was working on the cable near the corner of
the intersection and saw the two wrecked vehicles. [Id. at 1928‒1941.] He noticed
a man with green shorts and no shirt walk toward a Montgomery police patrol car
with his hands behind his back. Dyson testified that he returned to work at this
point, but almost immediately, heard gunshots. When he turned around, Dyson
saw the man shooting at the officer in the patrol car. [Id. at 1931.] John Reynolds
testified that he was working behind Beulah Baptist Church on the day in question
when he heard what sounded like a vehicle collision at the roadway intersection.
[Id. at 1942‒1945.] He then heard gunshots, ran for cover, then heard more
gunshots, and saw a man wearing green shorts and no shirt run behind the church
and “scale the fence.” [Id. at 1943.] Reynolds saw the man drop a gun on the
ground, but he picked it up before he climbed the fence. The man then ran toward
a ditch behind the church.
Corporal E. B. White testified that he received a call about a shooting at the
intersection of Rosa Parks Avenue and National Avenue on September 24, 1997.
[R. Vol. 14, p. 1947‒1956.] He saw Corporal Gordon “slumped over in the seat,”
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and he tried to revive him, but was unsuccessful. [Id. at 1949‒50.] Officer Perkins
testified that he responded to the emergency call regarding the gunshots and met
Officer Danny Jackson at the Beulah Baptist Church. [R. Vol. 14, p. 1985‒Vol. 15
p. 2011.] While they surveyed the area around the ditch, a man who was in the
vicinity alerted the officers to McNabb’s hiding place in the ditch. At that point,
McNabb stood up in the ditch and fired at Officer Perkins one time. Officer
Jackson returned fire, wounding McNabb.
Procedural History
A grand jury indicted McNabb for the capital offense of murdering
Montgomery County Police Officer Anderson Gordon, in violation of Alabama
Code § 13A-5-40(a)(5) (1975) (murder of police officer on duty), and for the
capital offense of murdering Officer Gordon while he was sitting in his patrol car,
in violation of Alabama Code § 13A-5-40(a)(17) (1975) (murder committed by or
through the use of a deadly weapon while the victim is in a vehicle). In separate
indictments, the grand jury indicted McNabb for the offense of attempted murder
of Montgomery County Police Officer William Perkins and the attempted murder
of Sanford Sharpe, violations of Alabama Code § 13A-4-2 (1975). The trial court
consolidated the charges for trial.
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At trial, McNabb admitted that he shot and killed Officer Gordon and that he
had fired at Sharpe and Officer Perkins. However, he asserted two somewhat
conflicting defenses. As to the charge of attempted murder of Sanford Sharpe,
McNabb asserted that he acted in self-defense. As to both capital murder charges
and both attempted murder charges, McNabb asserted that he did not have the
intent to kill when he shot Officer Gordon and shot at the other two men because
he had ingested so much cocaine on the morning of the shootings that he was in a
cocaine-induced state of paranoia that left him unaware of his actions.
The jury found McNabb guilty of all charges. After a penalty phase
proceeding, the jury recommended, by a vote of ten to two, that McNabb be
sentenced to death. The trial court followed the jury’s recommendation and
imposed a death sentence. On direct appeal, the Alabama Court of Criminal
Appeals (“ACCA”) affirmed McNabb’s convictions but remanded the case to the
trial court with instructions that the trial court make corrections to its sentencing
order. McNabb v. State, 887 So. 2d 929, 989 (Ala. Crim. App. 2001). On return
from remand, the ACCA affirmed McNabb’s convictions and sentence.
While McNabb’s case was pending in the ACCA on his application for
rehearing, the United States Supreme Court issued its decision in Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428 (2002). At the ACCA’s request, the parties filed
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supplemental briefs addressing the effect, if any, of this decision upon McNabb’s
sentence. The ACCA denied McNabb’s application for rehearing, finding that his
death sentence did not violate Ring. The Alabama Supreme Court affirmed his
convictions and death sentence, Ex parte McNabb, 887 So. 2d 998 (Ala. 2004), and
the United States Supreme Court denied his petition for certiorari review, McNabb
v. Alabama, 543 U.S. 1005, 125 S. Ct. 606 (2004).
McNabb filed a petition for post-conviction relief, pursuant to Rule 32 of the
Alabama Rules of Criminal Procedure. The state circuit court summarily
dismissed his petition for post-conviction relief, and the ACCA affirmed. McNabb
v. State, 991 So. 2d 313, 335‒36 (Ala. Crim. App. 2007). The Alabama Supreme
Court denied the petition for certiorari. Ex parte McNabb, 991 So. 2d 336 (Ala.
2008). Thereafter, McNabb filed a federal petition for writ of habeas corpus,
which the district court denied. McNabb filed a motion to alter or amend the
district court’s final judgment, pursuant to Rule 59(e), which the district court
denied. The district court then granted McNabb’s request for a COA on the issues
he raised in his Rule 59(e) motion.
II. ISSUES
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1. Whether the district court abused its discretion in dismissing McNabb’s
habeas petition before the parties had filed additional briefs addressing the merits
of his claims.
2. Whether the district court erred in denying relief on McNabb’s claims
alleging that his counsel were ineffective for failing to investigate adequately and
present mitigation evidence regarding his background.
3. Whether the district court erred in dismissing McNabb’s challenge to
Alabama’s lethal injection protocol as unconstitutional because it determined that
McNabb’s manner of execution claim would be more properly raised in a 42
U.S.C. § 1983 action.
4. Whether the district court erred in conducting a deferential review of
McNabb’s ineffective assistance of counsel claims.
III. STANDARDS OF REVIEW
“We review de novo the denial of a petition for writ of habeas corpus.”
Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) precludes federal
courts from granting habeas relief on any claim adjudicated on the merits in state
court unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Berghuis v.
Thompkins, 560 U.S. 370, ___, 130 S. Ct. 2250, 2259 (2010). This standard is “a
highly deferential” one that “demands that state-court decisions be given the
benefit of the doubt.” Renico v. Lett, 559 U.S. 766, ___, 130 S. Ct. 1855, 1862
(2010) (internal quotation marks omitted). “A state court decision is ‘contrary to’
clearly established federal law if it applies a rule that contradicts the governing law
set forth by the United States Supreme Court, or arrives at a result that differs from
Supreme Court precedent when faced with materially indistinguishable facts.”
Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1331 (11th Cir. 2013). An
“unreasonable application” of federal law occurs when a state court correctly
identifies the governing legal principle from the relevant Supreme Court decisions
but unreasonably applies that legal principle to the facts of the particular case. Id.
“[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct.
1495, 1522 (2000). “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.” Ferguson, 716 F.3d at
1332 (quoting Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257
(11th Cir. 2012)).
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To prevail on his claim of ineffective assistance of counsel, McNabb must
establish “both that trial counsel’s ‘performance was deficient, and that the
deficiency prejudiced the defense’” during the penalty phase. Ponticelli v. Sec’y,
Fla. Dep’t of Corr., 690 F.3d 1271, 1294 (11th Cir. 2012) (quoting Wiggins v.
Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003)), cert. denied, ___ S. Ct.
___, 81 U.S.L.W. 3702 (June 24, 2013) (No. 12-9386). The performance prong is
satisfied only if the petitioner “show[s] that counsel’s representation fell below an
objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,
688, 104 S. Ct. 2052, 2064 (1984). In other words, the petitioner “must establish
that no competent counsel would have taken the action that his counsel did take.”
Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Under
the prejudice prong, the petitioner must show a “reasonable probability” that, but
for counsel’s errors, the outcome of his trial would have been different. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.
Furthermore, “[b]ecause the failure to demonstrate either deficient performance or
prejudice is dispositive . . . there is no reason for a court deciding an ineffective
assistance claim to address both components of the inquiry if the defendant makes
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an insufficient showing on one.” Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227,
1248 (11th Cir. 2009) (internal quotation marks and alteration omitted).
IV. DISCUSSION A. Dismissal of habeas petition
McNabb asserts that the district court violated his procedural due process
rights when it decided the merits of his habeas claims without allowing him an
opportunity to submit a brief in support of his claims. McNabb claims that he
relied upon the magistrate judge’s scheduling order, which stated that the court
would determine first whether any claims were procedurally barred from federal
review and then order briefing on the merits of the remaining claims. We agree
that McNabb should have been able to rely upon the court’s scheduling order;
however, the failure of the district court to give notice to the parties that it would
decide the merits of the claims without briefing does not rise to the level of a due
process violation.
First, the Rules Governing Section 2254 Cases do not specifically provide
for briefing before a district court disposes of a habeas petition. Rule 2(c) provides
that the petition must specify all grounds for relief, state the facts supporting all
grounds, and state the relief requested. See Jones v. Sec’y, Dep’t of Corr., 607
F.3d 1346, 1354 (11th Cir. 2010) (“By rule, in the district court, a petition for a
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writ of habeas corpus must specify all the grounds for relief available to the
petitioner.” (internal quotation marks omitted)). Rule 4 provides that a district
court must examine promptly a petition and must dismiss it “[i]f it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court.” Rules Governing Section 2254 Cases, Rule 4. Rule 5
governs the filing of the respondent’s answer, and it specifies the specific material
the respondent must include with its filing. Rule 6, 7, and 8 address discovery,
expansion of the record, and procedure for an evidentiary hearing, respectively.
None of the remaining rules address briefing. Thus, there is no provision in the
habeas rules that contemplates that a district court should grant the parties leave to
file briefs addressing the merits of the claims that are contained in the habeas
petition. See, e.g., Maynard v. Dixon, 943 F.2d 407, 411‒12 (4th Cir. 1991)
(affirming a district court’s order adjudicating a habeas petition without briefing
and stating that “the district court acted consistently with the rules in deciding on
its own that no evidentiary hearing was required and that briefing was
unnecessary”). Although adversarial briefing is vital to the court’s decision-
making process, a petitioner has no right to briefing in his habeas proceeding.
Accordingly, we conclude that the district court did not violate McNabb’s due
process rights in this circumstance.
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We are hard-pressed, however, to understand why the district court
permitted the case to languish for approximately four years without any
determination on which issues were procedurally barred from federal review. It
was the State who brought the matter to the district court’s attention by filing a
motion requesting a ruling on the issues that were procedurally barred. Of course,
at that time, McNabb could have requested leave of court to file a brief on the
merits of his petition before the district court ruled, or he could have filed a brief
because the scheduling order provided a time table for such filing. Instead,
McNabb remained silent and did not raise any challenge to this procedure until he
filed his Rule 59(e) motion. The district court did address the challenge in its order
denying McNabb’s Rule 59(e) motion, stating that the court had exhaustively
reviewed the record and concluded that because no evidentiary hearing was
necessary, the court was within its discretion to dispose of the habeas petition
without merits briefing. We may not fully condone this procedure, but neither can
we say it amounted to a due process violation. Accordingly, McNabb is not
entitled to relief on this claim.
B. Ineffective assistance of penalty phase counsel
McNabb contends that the district court erred in determining that the state
courts reasonably applied Strickland to his claims of ineffective assistance of
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penalty phase counsel because there was no evidence that his counsel conducted an
adequate mitigation investigation and his counsel failed to introduce any mitigation
evidence at his sentencing proceeding. McNabb also asserts that the state courts
unreasonably applied Strickland’s prejudice prong because there was significant
mitigation evidence that counsel failed to present that would have changed the
outcome of his sentencing. The specific mitigation evidence that McNabb claims
would have changed the outcome of his sentence was the fact that he grew up in a
housing project living with ten people in a two-bedroom apartment; that his mother
was a sexual abuse victim and long-term drug addict who prostituted herself for
drugs; that McNabb had no contact with his father during his formative years
because his father was in prison; that McNabb was very attached to his
grandmother, the only stable influence in his life, who moved away when he was
14 years old; and that his mother had a relationship with a drug dealer who enlisted
McNabb to deal drugs for him.
In his state post-conviction petition, McNabb argued that his trial counsel
performed deficiently because they did not investigate his family life and social
history, did not locate and interview family members, teachers, and social workers
who knew him, and did not request any health or education records. In rejecting
his claim, the state circuit court reasoned as follows:
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This claim is dismissed because McNabb has not met his burden of pleading with specificity. Ala. R. Crim. P. 32.6(b). Although McNabb alleges that his trial counsel were ineffective for failing to investigate mitigation evidence, he has not alleged in his petition any mitigation evidence that trial counsel should have uncovered. . . . In fact, at the September 30, 2005, hearing held on the State’s motion to dismiss McNabb’s petition, his counsel admitted that he does not know whether trial counsel investigated any mitigation evidence or to what extent they may have investigated claims. Furthermore, McNabb has not named any witness that counsel should have called in the penalty phase. Nor has he pleaded what those witnesses’ testimony would be or pleaded how it would have affected the outcome of that phase of the trial. Additionally, McNabb has not pleaded what specific records were not obtained by trial counsel, what information is contained in those records, or how their contents would have affected the outcome of the penalty phase. Finally, McNabb has not named any “medical or mental health expert,” that should have been called to testify or stated what their testimony would have been had they been called to testify. Thus, McNabb has utterly failed to satisfy Rule 32.6(b)’s requirement of full factual pleading, and this claim is summarily dismissed. [R. Vol. 27, Tab R-61, p. 21‒22 (internal citations omitted).] The ACCA affirmed
the circuit court’s order dismissing McNabb’s Rule 32 post-conviction petition on
this ground.
Furthermore, the state court adjudicated McNabb’s claim that his trial
counsel failed to present valuable, readily-available, mitigation evidence at his
sentencing proceeding. The state circuit court first dismissed the claim because it
found no material issue of law or fact to exist that would entitle McNabb to relief.
[Id., p. 23 (citing Ala. R. Crim. P. 32.7(d).] The state court then found that the
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information McNabb alleged his family members or former teachers could have
provided to the jury were, in fact, presented through his own testimony.
Specifically, the court stated:
McNabb testified that he was addicted to cocaine at the time of the murder and that he had been addicted to cocaine for one to two years prior to the murder. (R. 2184) He thoroughly and vividly described his drug use and his uses progression to addiction. (R. 2196‒98) He testified that his mother had been addicted to drugs for as long as he could remember, and he began using drugs when he was fourteen or fifteen years old. (R. 2185) McNabb testified that he lived in Gibbs Village with his grandmother, mother, siblings, aunts, and cousins. (R. 2186) He informed the jury that there were nine to ten people living in the two- bedroom apartment in Gibbs Village. (R. 2186) McNabb informed the jury that his father was in prison during his childhood. (R. 2189) He also testified that his paternal family would take him to visit his father in prison when he was a child. (R. 2189) McNabb thoroughly explained to the jury that his mother was rarely around, that she received welfare checks, and that she probably wasted the welfare money on drugs. (R. 2186‒87) He also explain[ed] that as a child he would find his mother in various crack houses. (R. 2186‒87) McNabb further testified that his mother did not provide for the family and that she spent all of the money that she received on drugs. (R. 2186‒87, 2193) Through his testimony, McNabb informed the jury that he, himself, had to provide for the family, using the money he earned from selling drugs to buy food for his siblings and to buy drugs to feed his own habit. (R. 2193‒94) [R. Vol. 27, Tab R-61, p. 23‒24.]
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The state circuit court further noted that McNabb explained to the jury that
his family was evicted from their government subsidized home because Keith
Chainey, who had moved into their apartment after McNabb’s grandmother moved
to Florida, was selling drugs from their apartment. After their eviction, McNabb’s
mother and siblings moved into Chainey’s apartment, but Chainey did not allow
McNabb to live with them. Thus, McNabb moved often, living with different
family members, including his father. McNabb also informed the jury about his
emotional and educational difficulties in school, and that he quit school while in
the ninth grade. McNabb testified to numerous encounters with law enforcement,
and how one encounter led the county court to order that he attend a rehabilitation
program similar to boot camp.
The state circuit court then concluded by stating: Clearly, both this Court and the jury were well aware that McNabb experienced a deprived childhood. McNabb thoroughly informed this Court and the jury of the mitigation evidence that he now alleges his trial counsel were ineffective for failing to present. Furthermore, this Court found to exist the non-statutory mitigation evidence that McNabb now claims was not presented, balanced that information with the aggravating circumstances, and found that the aggravating circumstances far outweighed the mitigation circumstances in his case. [Id. at 25.] On appeal, the ACCA affirmed, noting that the record indicated that the very
mitigating evidence McNabb contended was not presented to the jury was, in fact, 18 Case: 12-13535 Date Filed: 08/28/2013 Page: 19 of 34
before the jury via McNabb’s own testimony during the guilt phase. McNabb, 991
So. 2d at 331‒32. The ACCA also noted that the record showed that the trial court
instructed the jury at the penalty phase to consider not only the evidence presented
at the sentencing phase, but also any evidence presented during the guilt phase that
was relevant to the existence of any aggravating or mitigating circumstance. Id. at
331. In addition, the ACCA commented that the trial court instructed the jury on a
number of mitigating circumstances, and defense counsel stated during closing
argument that McNabb’s cocaine usage and deprived childhood were mitigating
factors that outweighed the aggravating circumstances. Id. at 331‒32.
On federal habeas review, the district court first found that the state courts’
adjudication of this claim of ineffective assistance of counsel was neither contrary
to, nor an unreasonable application of, Strickland because McNabb failed to plead
the claim with specificity and failed to show how his attorneys’ deficient
investigation into his background prejudiced him. The district court then found
that the state courts’ adjudication was reasonable in light of the evidence presented
to the state courts. The district court noted that there is no clearly established
federal law holding that counsel’s failure to present evidence during the penalty
phase that was offered at the guilt phase establishes deficient performance.
Moreover, the district court found that the state trial court weighed the three
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statutory aggravating circumstances with the non-statutory mitigating
circumstances and found that the aggravating circumstances outweighed the
mitigating ones. On appeal, the ACCA independently weighed the two and
concurred with the trial court.
The district court properly denied relief to McNabb on this claim. The state
courts reasonably rejected the claims of ineffective assistance of counsel because,
first, McNabb failed to plead specific facts to support his claim. The ACCA
affirmed on appeal, and this adjudication is a ruling on the merits. See Borden v.
Allen, 646 F.3d 785, 815 (11th Cir. 2011) (reviewing claims under AEDPA
deference because state court “plainly utilized Rule 32.6(b) as a tool with which to
address the merits” of the petitioner’s claims), cert. denied, 132 S. Ct. 1910 (2012).
Second, even if McNabb pled specific facts to demonstrate that his counsel
performed deficiently, he cannot satisfy the prejudice prong of Strickland.
McNabb failed to plead any specific facts or provide any specific names or
information about his horrific childhood that would mitigate his sentence, or in
other words, that would have lessened his culpability for the crimes. See Price v.
Allen, 679 F.3d 1315, 1325 (11th Cir. 2012) (finding that the allegations in
petitioner’s Rule 32 petition regarding the evidence that his friends, family
members, and school records would have revealed was “too general and
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conclusory to be able to say that there is a reasonable probability that this evidence
would have changed the outcome of the petitioner’s sentencing.”), cert. denied,
133 S. Ct. 1493 (2013). Moreover, the mitigation evidence McNabb contends
should have been presented during the penalty phase was provided during the guilt
phase via his own testimony; thus, this evidence would have been cumulative. See,
e.g., Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1409 (2011) (finding no
reasonable probability that the additional evidence presented in state habeas
proceeding would have changed jury’s verdict because the “new” evidence largely
duplicated the mitigation evidence at trial); Wong v. Belmontes, 558 U.S. 15, 22,
130 S. Ct. 383, 387 (2009) (finding no prejudice in part where portion of the
evidence “was merely cumulative of the humanizing evidence” that defendant
presented at trial); Holsey, 694 F.3d at 1271 (“The cumulative nature of [the
mitigating] evidence weakens its usefulness to [the capital habeas petitioner] on the
prejudice inquiry.”); Rose v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011) (“[A]
petitioner cannot satisfy the prejudice prong of the Strickland test with evidence
that is merely cumulative of evidence already presented at trial.”). Hence,
McNabb cannot demonstrate prejudice.
Additionally, the trial court found the existence of three aggravating
circumstances: (1) McNabb knowingly created a great risk of death to many
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persons, pursuant to Alabama Code § 13A-5-49(3); (2) the capital offense was
committed for the purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody, pursuant to Alabama Code § 13A-5-49(5); and (3) the capital
offense was committed to disrupt or hinder the lawful exercise of any government
function or the enforcement of laws, pursuant to Alabama Code § 13A-5-49(7).
After considering these aggravating circumstances, and the non-statutory
mitigating evidence that McNabb presented during his guilt phase, the trial court
found that the aggravating circumstances outweighed the mitigating circumstances
and sentenced McNabb to death. In light of the nature of his crimes and the
specific findings of the trial court and McNabb’s own testimony about his deprived
childhood, we conclude that there is no reasonable probability that the presentation
of further, mainly cumulative, evidence regarding McNabb’s horrific home life
would have changed the outcome of his sentence. Accordingly, the district court
properly denied relief on this claim, and we affirm its judgment with respect to this
issue.
C. Lethal injection
McNabb contends that the district court erred in dismissing his claim that
Alabama’s lethal injection protocol is unconstitutional. He asserts that because his
claim challenges the entire method of execution—an ineffective first drug or
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improper administration of a first drug in a three-drug protocol would violate the
constitution—the district court erred in dismissing his claim because it determined
that the claim was more properly cognizable in a 42 U.S.C. § 1983 action. His
contention fails.
Issues sounding in habeas are mutually exclusive from those sounding in a
§ 1983 action. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“An
inmate convicted and sentenced under state law may seek federal relief under two
primary avenues:” a petition for habeas corpus or a complaint under 42 U.S.C.
§ 1983.). “The line of demarcation between a § 1983 civil rights action and a
§ 2254 habeas claim is based on the effect of the claim on the inmate’s conviction
and/or sentence.” Id. A claim is properly raised under § 1983 when “an inmate
challenges the circumstances of his confinement but not the validity of his
conviction and/or sentence.” Id. (internal quotation marks omitted). By contrast,
“habeas corpus law exists to provide a prisoner an avenue to attack the fact or
duration of physical imprisonment and to obtain immediate or speedier release.”
Valle v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1267 (11th Cir. 2011), cert.
denied, 132 S. Ct. 73 (2011).
Usually, an inmate who challenges a state’s method of execution is attacking
the means by which the State intends to execute him, which is a circumstance of
23 Case: 12-13535 Date Filed: 08/28/2013 Page: 24 of 34
his confinement. It is not an attack on the validity of his conviction and/or
sentence. For that reason, “[a] § 1983 lawsuit, not a habeas proceeding, is the
proper way to challenge lethal injection procedures.” Tompkins v. Sec’y, Dep’t of
Corr., 557 F.3d 1257, 1261 (11th Cir. 2009). Hence, we conclude that the district
court did not err in dismissing McNabb’s lethal injection challenge in his federal
habeas petition. That avenue of relief is still available to him in a § 1983 action.
D. District court’s application of AEDPA standard of review
McNabb challenges the district court’s resolution of three of his claims
alleging that his counsel were ineffective at the penalty phase of his trial and one of
his claims alleging that his counsel were ineffective at the guilt phase of his trial.
In particular, McNabb claims that the district court should not have applied
AEDPA’s deferential standard of review in disposing of these claims because the
state courts did not adjudicate these claims on the merits. He requests that this
court vacate the district court’s order and remand the case with directions that the
district court conduct a de novo review of these claims.1
1. Mitigation expert
1 We have disposed of one of these claims—that counsel were ineffective in failing to investigate potential mitigation evidence. The other claims are: (1) that his counsel were ineffective for failing to obtain a mitigation expert; (2) that his counsel failed to present an effective closing argument at the penalty phase; and (3) that his counsel were ineffective for failing to procure appropriate expert witnesses to challenge the State’s guilt phase case against him. 24 Case: 12-13535 Date Filed: 08/28/2013 Page: 25 of 34
McNabb asserts that the district court erred in denying him relief, under the
deferential standard of review, on his claim that his counsel were ineffective for
failing to secure the services of a mitigation expert. He contends that because the
state court did not adjudicate this claim on the merits, the district court should have
reviewed the claim de novo. We agree with the district court, however, and find no
error in its deferential review of this claim.
The state circuit court dismissed this specific claim, holding that McNabb
failed to plead any specific facts to support it and, thus, failed to comply with the
requirements of Rule 32.6(b) of the Alabama Rules of Criminal Procedure. Then,
the state circuit court made an alternative ruling. It dismissed the claim because no
material issue of fact or law existed that entitled McNabb to relief. [R. Vol. 27,
Tab R-61, p. 17.] The court found that “McNabb, himself, thoroughly testified
regarding the mitigation evidence to which he now claims a mitigation expert
should have testified. Further, trial counsel did hire an expert, John Holbrook, who
testified directly to the defense’s claim of cocaine paranoia.” [Id.] The court
concluded that any further testimony regarding McNabb’s deprived childhood and
addictions would have been cumulative, and that counsel cannot be deemed
ineffective for failing to present cumulative evidence. [Id.] In affirming the state
25 Case: 12-13535 Date Filed: 08/28/2013 Page: 26 of 34
trial court’s denial of this particular claim, the ACCA adopted the trial court’s
findings. See McNabb, 991 So. 2d at 321‒23, 327‒28.
The district court properly conducted a deferential review and correctly
determined that the state courts’ merits adjudication of this claim was neither
contrary to, nor an unreasonable application of, clearly established Supreme Court
precedent. As the district court noted, there is no clearly established federal law
holding that trial counsel’s performance is deficient when counsel fails to repeat
evidence at the penalty phase that has already been offered at the guilt phase.
Moreover, contrary to McNabb’s contention, counsel did hire an expert who
testified regarding McNabb’s defense of cocaine paranoia. The fact that this expert
was not a mitigation expert and did not opine on specific mitigating factors does
not, by itself, demonstrate that McNabb’s trial counsel were deficient in failing to
procure such a particular expert. McNabb cannot meet his burden of showing that
counsel’s failure to hire a mitigation expert fell below an objective standard of
professional reasonableness and that, but for this failure to hire a mitigation expert,
the result of McNabb’s trial would have been different. Accordingly, we affirm
the district court’s judgment as to this claim.
2. Closing argument at penalty stage
26 Case: 12-13535 Date Filed: 08/28/2013 Page: 27 of 34
McNabb contends that the district court erred in conducting a deferential
review of his claim that the attorney who presented the closing argument at the
penalty phase of his trial was ineffective. Finding that the state courts conducted a
merits adjudication of this particular claim, the district court determined that its
adjudication was neither contrary to, nor an unreasonable application of, clearly
established federal law. The district court did not err.
The state circuit court reviewed McNabb’s post-conviction claim alleging
that his counsel was ineffective in the penalty-phase closing argument and
dismissed it because McNabb failed to plead any specific facts to support it. [R.
Vol. 27, Tab R-61, p. 26‒27.] Alternatively, the court found that in light of the
overwhelming evidence presented by the State and “the cold-blooded manner in
which McNabb murdered Officer Gordon, trial counsel’s closing argument was not
only coherent, but effective.” [Id.] The state court noted that during the closing
argument, trial counsel argued several mitigating circumstances that surrounded
the crime, such as McNabb’s use of, and addiction to, cocaine and McNabb’s
difficult childhood. Additionally, the state court noted that trial counsel thoroughly
argued that the State had not met its burden of proving beyond a reasonable doubt
any of the three proffered aggravating circumstances. On review, the ACCA stated
that McNabb did not present any argument on appeal in support of this particular
27 Case: 12-13535 Date Filed: 08/28/2013 Page: 28 of 34
claim, but did address the claim on the merits. See McNabb, 991 So. 2d at 327‒29.
The ACCA adopted the state circuit court’s findings and affirmed its judgment. Id.
The district court correctly found that the state courts’ merits adjudication of
this claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. McNabb cannot meet his burden of showing that his
counsel performed deficiently and that this deficient performance prejudiced him.
Considering the overwhelming evidence the State presented against McNabb, trial
counsel provided an effective closing argument highlighting McNabb’s deprived
childhood, lack of parental influence, cocaine addiction, and absence of past
violence, in an attempt to save McNabb’s life. Under AEDPA, we cannot say that
this closing argument was objectively unreasonable. Accordingly, we affirm the
district court’s judgment as to this claim.
3. Expert witnesses at guilt stage
McNabb contends that the district court erred in denying relief, under the
deferential standard of review, on his claim that counsel were ineffective for failing
to procure an appropriate expert witness to testify on his behalf at the guilt phase of
his trial. Specifically, McNabb claims that his counsel were deficient for not
obtaining the assistance of a forensic social worker to conduct an extensive social
history and background to cull relevant information about his childhood. On
28 Case: 12-13535 Date Filed: 08/28/2013 Page: 29 of 34
review, the district court determined that the state courts made an adjudication on
the merits of this claim, and under its deferential review, denied relief on this
claim. The district court did not err.
On post-conviction review, the state circuit court dismissed the claim,
finding that McNabb failed to plead any specific facts to support it. [R. Vol. 27,
Tab R-61, p. 14.] The state court noted that McNabb did not plead the name of
any forensic social worker who would have testified at trial, and that McNabb did
not state specifically what evidence the forensic social worker would have
uncovered. The state court further noted that McNabb did not allege how the
employment of a forensic social worker would have changed or enhanced the
defense’s trial strategy. [Id.]
The state court also dismissed the claim because there was no material issue
of law or fact that would have entitled McNabb to relief, citing Alabama Rule of
Criminal Procedure 32.7(d). It found “that the information McNabb alleges a
forensic social worker would have uncovered—‘a childhood that included drug
addiction, violence and abandonment’—was known by trial counsel and presented
at trial.” [Id. at 15.] Thus, it reasoned that there was “no probability, much less a
reasonable probability, that discovering the same information from two different
sources would have enhanced trial counsels’ ability ‘to make important decisions
29 Case: 12-13535 Date Filed: 08/28/2013 Page: 30 of 34
about the defense strategy’ as McNabb claims.” [Id.] The court further found that
any testimony by a forensic social worker about McNabb’s deprived childhood
would have been cumulative to McNabb’s own testimony. The ACCA affirmed
the state circuit court’s denial of post-conviction relief, adopting the circuit court’s
findings as part of its opinion. See McNabb, 991 So. 2d at 321‒22, 327‒28.
The district court correctly determined that the state courts’ merits
adjudication of McNabb’s claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. The district court noted that Dr.
Holbrook, a Professor of Pharmacology at Mercer University, whose specialty was
psychopharmacology, testified immediately after McNabb and buttressed
McNabb’s testimony regarding his cocaine use and the extreme fear it caused him
during the crime. [R. Vol. 16, Tab R-12, p. 2312.] After highlighting much of Dr.
Holbrook’s testimony, the district court found that the doctor was a strong witness
in support of McNabb’s cocaine-paranoia defense. The district court then
addressed McNabb’s claim that counsel were also ineffective because they did not
call Dr. Stanley Brodsky, who actually examined McNabb, to testify. The district
court found that, without McNabb presenting any evidence to the contrary, his trial
counsel had a reason for not calling Dr. Brodsky to testify. Regardless, the district
court concluded that any information Dr. Brodsky would have provided would
30 Case: 12-13535 Date Filed: 08/28/2013 Page: 31 of 34
have been cumulative to the information already presented to the jury. As such,
we conclude that McNabb was not prejudiced by his counsel’s alleged deficiency
for failing to call Dr. Brodsky to testify.
The district court did not err in denying relief to McNabb on this claim of
ineffective assistance of counsel. Accordingly, we affirm its judgment as to this
claim.
V. CONCLUSION The district court correctly determined that McNabb was not entitled to
relief on his federal habeas petition. Accordingly, we affirm its judgment denying
McNabb’s § 2254 petition for habeas relief and his Rule 59(e) motion to alter or
amend the judgment.
AFFIRMED.
31 Case: 12-13535 Date Filed: 08/28/2013 Page: 32 of 34
JORDAN, Circuit Judge, concurring.
I concur in all of the court’s opinion except for the portion addressing Mr.
McNabb’s due process claim. As to that claim, I agree that reversal is not
warranted, but for different reasons.
Our cases have long held that certain procedural due process violations, such
as the flat-out denial of the right to be heard on a material issue, can never be
harmless. See Republic Nat’l Bank of Dallas v. Crippen, 224 F.2d 565, 566 (5th
Cir. 1955) (reversing district court’s refusal, in bankruptcy proceeding, to allow
creditor to present testimony on its proof of claim for costs and fees: “The right to
be heard on their claims was a constitutional right and the denial of that right to
them was the denial of due process which is never harmless error.”); Parker v.
Williams, 862 F.2d 1471, 1481–82 (11th Cir. 1989) (vacating jury verdict in favor
of plaintiff in action under 42 U.S.C. § 1983 because district court, through
incorrect application of collateral estoppel, had precluded defendant from
presenting evidence on whether rape occurred: “[P]rocedural due process is an
absolute right protected by our Constitution, and an opportunity to be heard on an
issue is an essential element of procedural due process. The denial of an
opportunity to litigate can never be harmless error. A party must have his day in
court.”), overruled on other grounds by Turquitt v. Jefferson Cnty., 137 F.3d 1285,
32 Case: 12-13535 Date Filed: 08/28/2013 Page: 33 of 34
1292 (11th Cir. 1998) (en banc). Although the Supreme Court has applied harmless
error analysis to a different type of procedural due process violation—the
consideration of ex parte evidence following an adversarial evidentiary hearing—
in Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 303–04
(2007), it is not clear to me that Brentwood Academy has undermined cases like
Crippen and Williams to the point of abrogation. See generally United States v.
Weeks, 711 F.3d 1255, 1260 (11th Cir. 2013) (explaining that a published panel
decision is binding unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or the circuit sitting en banc).
It is true, as the court explains, that the rules governing habeas corpus cases
do not expressly require a separate round of merits briefing by the parties. But the
fact that those rules do not mandate such adversarial briefing does not answer
whether the failure to permit such briefing in a case like this one violates the Due
Process Clause. It is inconceivable to me that a district court could rule on the
merits of a complicated habeas corpus petition in a capital case without allowing
the parties to articulate their views on the claims presented. After all, notice and an
opportunity to be heard “are among the most important procedural mechanisms for
purposes of avoiding erroneous deprivations.” Wilkinson v. Austin, 545 U.S. 209,
226 (2005). I can only imagine how the State of Alabama would have reacted if
33 Case: 12-13535 Date Filed: 08/28/2013 Page: 34 of 34
the district court, instead of denying relief to Mr. McNabb, had granted his habeas
corpus petition without permitting briefing on the merits. I would confidently
wager a fair amount of money that the State would have been indignant (and
rightly so) because it had lost without being heard, and that it would have sought
reversal on that ground here.
Having said this, the district court’s adjudication of the merits without
allowing the additional briefing contemplated by the magistrate judge’s order did
not deprive Mr. McNabb of his constitutional right to procedural due process. Mr.
McNabb filed an 83-page habeas corpus petition in which he laid out the factual
and legal bases for each of his claims, and in response the State filed an 89-page
answer. These pleadings—which contained detailed factual recitations, presented
legal arguments, and cited to the relevant legal authorities—in essence functioned
like legal briefs or memoranda, and fully presented the parties’ contentions. Mr.
McNabb, in short, was heard on his claims, and so was the State.