Ann Thomas JACKSON
Number of victims: 2
Date of murder: 1966 / February 28, 1981
Date of birth: 1949
Victim profile: Her boyfriend
/ Bonnie Mae Walker
Method of murder:
Stabbing with knife
Location: Tuscaloosa, Alabama, USA
Sentenced to 12 years for second degree murder in 1966,
she was paroled in 1970. Sentenced to death in 1981, her sentence
was commuted to life on appeal
of Tuscaloosa, AL., killed two victims in 1966 and 1981. She slashed
her boyfriend with a razor, and then stabbed a female bartender. She
received 12 years for second degree murder in 1966, she was paroled in
1970. Condemned in 1981, her sentence was commuted to life on appeal.
Court of Criminal Appeals of Alabama
January 10, 1984
PATRICIA ANN THOMAS JACKSON, ALIAS
Appeal from Tuscaloosa Circuit Court
Rehearing denied March 20, 1984
Before Harris, Judge. All the Judges concur.
The opinion of the court was delivered by: Harris
Patricia Anne Thomas Jackson was indicted and tried
for the capital murder of Bonnie Walker, whom she stabbed once through
the heart. Ms. Jackson, the appellant herein, was indicted, pursuant
to § 13A-5-31(a)(13), Code of Alabama 1975, for "murder committed by a
defendant who has been convicted of murder in the first or second
degree in the 20 years preceding the crime." The trial was conducted
in compliance with the standards and procedures outlined in Beck v.
State, 396 So. 2d 645 (Ala. 1980). The jury returned a verdict
of "guilty as charged in the indictment," and, after a separate
sentencing-phase hearing, fixed appellant's punishment at death. The
trial court, after its separate sentencing-phase hearing and in
accordance with the jury's verdict, sentenced the appellant to death
It is undisputed that on February 28, 1981, shortly
after 1:00 p.m., the appellant stabbed Bonnie Walker once through the
heart and that Ms. Walker died as a result of this wound. The facts
and circumstances surrounding the stabbing incident, however, were,
somewhat, in dispute.
Charlotte Archibald testified that she was visiting
the victim, Bonnie Walker, on the day of the stabbing and witnessed an
argument between the appellant and the victim. Ms. Archibald
originally heard the appellant talking loudly and cursing in front of
Sallie B. Hollifield's house, next door to the duplex in which the
victim lived. Ms. Archibald went to the victim's screen door to look
outside to see what was "going on" next door. The appellant walked
over in front of the victim's residence and began hollering inside to
the victim. The appellant and the victim then engaged in a heated
argument through the victim's screen door. Ms. Archibald prevented any
physical contact at that time by holding the screen door, thereby
preventing entry by the appellant and preventing the victim from going
outside at appellant's request. The appellant then, apparently, left
After the appellant had disappeared Ms. Archibald
left the victim's duplex, entered her van, which was parked in the
victim's front yard, and prepared to leave. She was unable to leave
because other automobiles had her "blocked in." As she sat in her van
she witnessed a second confrontation between the victim and the
appellant. They were on the victim's porch arguing with each other and
calling each other names. The appellant dared the victim to insult
appellant's mother, and, after the victim refused to do so, the
appellant hit the victim in the chest with a closed fist. Ms.
Archibald did not realize at that time that the appellant had stabbed
the victim. She saw the appellant run away and saw the victim
disappear inside her residence. The victim quickly reappeared with a
knife in her hand. Ms. Archibald then saw the blood all over the
victim's blouse and ran to assist her. The victim exclaimed, "That
bitch has cut me."
On cross-examination Ms. Archibald admitted that
she could not say for certain when the victim was stabbed, but did see
the appellant "whop" the victim in the chest with a closed fist. Ms.
Archibald further stated that the victim did not have a knife until
after the appellant had disappeared, that the victim did not have a
knife when the appellant stabbed her.
Pelma Smith lived in the adjoining residence in the
same duplex as the victim. He arrived home during the middle of the
argument between the appellant and the victim. He testified that the
appellant was the aggressor in the argument while the victim was
trying to stop it. He witnessed the appellant reach in her purse as
she approached the victim. He saw her "cup" a knife in her hand with
the blade concealed on the underside of her arm. When the victim, at
appellant's insistence, would not insult appellant's mother, the
appellant stepped forward and stabbed her in the chest.
According to Smith, the victim was unarmed when the
appellant stabbed her. Immediately after the stabbing, the appellant
ran off the porch and stated "I told you I'll kill you." The victim
went inside. Smith heard the victim in the kitchen and saw her return
to her porch with a butcher knife. He also heard her say that the
appellant had stabbed her.
On cross-examination Smith stated that he did not
warn the victim about appellant's knife because he was afraid the
appellant might have attacked him, too.
Jimmy Little saw the appellant at Sallie B.
Hollifield's house before her argument with the victim. The appellant
was upset and mad before she left Hollifield's house. Little saw the
appellant walk over to the victim's home and start "bamming" on the
door. He heard the appellant "cussing" the victim for being too slow
in coming to the door. He witnessed part of the argument, and at one
point pulled the appellant off the victim's porch in an attempt to
stop it. When his efforts to stop the argument failed, he went back
over to, and went inside, Hollifield's house. Little did not witness
the stabbing, but he did hear the victim exclaim that the appellant
had stabbed her.
Appellant's defense at trial was self-defense. She
testified that she went to the victim's residence to purchase some
whiskey from the victim. The victim invited her inside, where the
victim agreed, initially, to sell her some whiskey. According to the
appellant, the victim suddenly changed her mind, began cussing, and
told the appellant to leave her home. Before the appellant could
leave, Ms. Archibald drew a pistol and began cursing, also. The
appellant then told Ms. Archibald that she, the appellant, could "cut"
Ms. Archibald before Ms. Archibald could shoot the appellant. At this
point, according to the appellant, "Bonnie [the victim] went to go up
with her knife... And that's when I came down with mine." The
appellant explained, however, that the knife with which she stabbed
the victim was a "steak knife" that she, the appellant, picked up off
the victim's night table when Ms. Archibald drew her pistol.
The appellant further explained that, after she
stabbed the victim, the victim threatened to kill her, the appellant.
Other insulting words were exchanged and the appellant left. The
appellant testified that she did not know she had inflicted a fatal
would at that time and did not know that the victim had died until the
next afternoon. She stated that when she heard about the victim's
death, and that the police were looking for her, she voluntarily went
to the police station and "turned herself in."
On cross-examination the state asked the appellant
about an incident which occurred prior to trial at a preliminary
hearing. The appellant denied that she told Calvin Winn that the
victim, Ms. Walker, was the second person she had killed and that she
was going to kill Ms. Archibald when she, the appellant, got out of
Calvin Winn, a rebuttal witness for the state and
Ms. Archibald's brother-in-law, testified that the appellant did tell
him, on the day of her preliminary hearing, that the victim was the
second person she had killed and that she intended to kill Ms.
Archibald. The appellant then presented, as witnesses, those matrons
in charge of the appellant on the day of her preliminary hearing. They
testified that, although the appellant was at the courthouse on the
day described by Winn, they did not see Winn and did not let the
appellant out of their sight. These witnesses doubted that the alleged
conversation between Winn and the appellant ever took place.
In support of the capital murder charged, the state
presented proof that the appellant had been previously convicted in
1966 of second-degree murder. The state introduced a certified copy of
a judgment entry of the conviction and presented testimony of the
prior victim's sister, who identified the appellant as the person
convicted in 1966 for the murder of her brother, Andrew Hughes.
The appellant objected at trial and argues on
appeal that her 1966 conviction was not a valid conviction because she
was not informed, at that time, by counsel or the trial court, that
she had a right to appeal the conviction. This issue has been decided
against the appellant in a recent proceeding on her petition for writ
of error coram nobis seeking relief from the 1966 conviction, and has
been affirmed by us on appeal. See, Jackson v. State, [Ms. 6 Div. 160,
November 29, 1983], So. 2d (Ala. Crim. App. 1983). The trial court's
findings at the hearing of the petition for writ of error coram nobis
are set out in detail in Jackson v. State, supra. As explained,
therein, faced in 1966 with a capital charge of first-degree murder
and in order to avoid a possible death sentence, the appellant made an
agreement to accept a sentence of twelve years' imprisonment in
exchange for what was, in effect, a plea of guilty to second-degree
murder. The trial court concluded that all parties, including the
appellant, herself, agreed to the negotiated "settlement" reached in
the 1966 case. The trial court found that appellant's testimony at the
coram nobis hearing, that she did not agree with the "settlement" in
1966 and that no one informed her of her right to appeal, was not
credible in light of other evidence. The trial court further concluded
that the appellant was adequately represented by counsel in the 1966
case, that her best interests were properly considered.
The validity of the 1966 conviction was, therefore,
upheld by the "coram nobis" trial court. On appeal we affirmed the
trial court's Conclusion that the 1966 conviction was valid. See,
Jackson v. State, supra. The appellant has presented nothing further
on this appeal, and we have found no evidence in the record, to
convince us otherwise. The prior conviction was properly proven at the
trial below, and, in fact, was admitted by the appellant on
The state's evidence, proof of the 1966 murder
conviction and the testimony from the three eyewitnesses to the
incident, was sufficient to support the jury's verdict convicting this
appellant of capital murder. Her conviction is, therefore, affirmed.
The appellant contends, for the record, that the
Alabama Supreme Court's "rewrite" of the Alabama death penalty statute
in Beck v. State, 396 So. 2d 645 (Ala. 1980), was an
unconstitutional usurpation of the legislature's power. However, she
concedes, and we agree, that this issue has been decided against her
by Clisby v. State, [Ms. 6 Div. 576, March 2, 1982], So. 2d (Ala.
Crim. App. 1982), affirmed in part, reversed in part and remanded on
other grounds, [Ms. 81-633, February 11, 1983], So. 2d (Ala. 1983),
and its progeny. See, Giles v. State, [Ms. 6 Div. 86, Jan. 10, 1984],
So. 2d (Ala. Crim. App. 1984).
The appellant further contends that the death
penalty is excessive punishment in her case. She points out that there
was only one aggravating circumstance, the § 13A-5-35(2), Code of
Alabama 1975, circumstance that "he defendant was previously convicted
of another... felony involving the use or threat of violence to the
person," which happened to be the same aggravation alleged in the
indictment. She acknowledges that the trial court found no mitigating
circumstances but argues that it should have found, pursuant to §
13A-5-36(1), Code of Alabama 1975, that she had "no significant
history of prior criminal activity." She concludes that such a finding
would have mandated a sentence of life imprisonment without parole
instead of death.
Pursuant to the mandate in Beck, supra, we have
carefully reviewed the trial court's thorough "Findings of Fact from
the Trial and the Sentence Hearings, and Sentence Order," and have
determined that the evidence fully supports its findings, in
particular, those findings concerning aggravating and mitigating
circumstances. The only aggravating circumstance was the § 13A-5-35(2)
circumstance mentioned above. Contrary to appellant's assertions,
there was no convincing evidence of any mitigating circumstances. The
appellant did have a "significant history of prior criminal activity."
In addition to the prior second-degree murder conviction from 1966,
the appellant had "one conviction of Assaulting a Police Officer, one
conviction of Resisting Arrest, seven convictions for disorderly
conduct, one conviction of malicious destruction of property, one
conviction of leaving the scene of an accident, and several traffic
infractions." See, Appendix "A". Although the appellant argued, at
trial, that the §§ 13A-5-36(2) and (6), Code of Alabama 1975,
circumstances existed, the trial court did not err in concluding that
the evidence failed to support these mitigating circumstances. There
was, likewise, no error in the trial court's Conclusion that there
were no other mitigating circumstances, statutory or otherwise.
Upon further review, we have found no errors
adversely affecting appellant's substantial rights, and have
determined that this death sentence was not imposed arbitrarily or
capriciously. Appellant's crime was properly punishable by death, and
we cannot say that her death sentence is not in line with punishment
imposed in other cases, considering both the nature and circumstances
of the offense, and the character and record of the appellant.
Appellant's conviction and death sentence are due to be and are,
All the Judges concur.
STATE OF ALABAMA, VS. PATRICIA ANN THOMAS, alias
PATRICIA JACKSON, alias PATRICIA ANNE THOMAS JACKSON, DEFENDANT.
IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA
CASE NO. CC-81-865
FINDINGS OF FACT FROM THE TRIAL AND THE SENTENCE
HEARINGS, AND SENTENCE ORDER, AS REQUIRED PURSUANT TO ALA. CODE §
13A-5-33 (SUPP. 1978)
The Defendant, Patricia Ann Thomas, alias, was
indicted, tried, and convicted of Murder in the First Degree committed
by a Defendant who has been convicted of Murder in the Second Degree
in the 20 years preceding the crime, a capital offense. Ala. Code §
13A-5-31(a)(13) (Supp. 1978). The trial was held pursuant to the
procedures required by the Alabama Code and Beck v. State, 396 So.
2d 645 (Ala. 1981) [opinion on remand, after rehearing]. After the
first stage, guilt-innocence portion of the trial, the jury found the
Defendant guilty as charged in the indictment. After the second stage,
sentence portion of the trial, the jury fixed the punishment at death.
Thereupon, the Court ordered a presentence investigation and report,
and set the third stage, non-jury sentencing hearing for December 23,
1981, at 9:00 A.M. Prior to said hearing the Court, the State, and the
Defense, were each supplied with a copy of the presentence report. See
Gardner v. Florida, 430 U.S. 349 (1977). Although both the
State and the Defense were offered the opportunity to present evidence
in the second and third stage sentence hearings, the case was
submitted on the evidence heard in the first stage, and the sentence
hearings consisted entirely of arguments of counsel, and the
The jury having returned a verdict fixing
punishment at death, and the Court having held the third stage hearing
mandated by Beck v. State, supra, the Court must weigh the aggravating
and mitigating circumstances to determine whether to refuse to accept
the death penalty as fixed by the jury or to sentence the Defendant to
death. Ala. Code § 13A-5-33 (Supp. 1978). See also Kyzer v. State,
399 So. 2d 330, 338 (Ala. 1981):
"The whole purpose of [the procedure for a sentence
hearing before the Judge] is to allow for judicial review of a
sentence of death fixed by the jury. By providing for a sentencing
hearing and by requiring the trial Judge to find at least one
aggravating circumstance, the legislature obviously intended to give
the trial Judge authority to review the finding of the jury and the
fixation of punishment at death by the jury to check any arbitrary or
capricious exercise of the power of the jury in fixing the penalty. "
[emphasis in original].
After weighing the aggravating and mitigating
circumstances, the Court is unable to find sufficient reason to refuse
to accept the death penalty as fixed by the jury, and accordingly
accepts the jury verdict and sentences the Defendant Patricia Ann
Thomas, alias, to death. Ala. Code § 13A-5-33 (Supp. 1978).
The Court finds beyond a reasonable doubt from the
evidence presented that the Defendant Patricia Ann Thomas, alias, did
in fact commit the offense of Murder in the First Degree by unlawfully
and with malice aforethought killing Bonnie Walker by stabbing her
with a knife, and further that within the 20 years preceding the
crime, to-wit, November 9, 1966, the Defendant had been convicted of
Murder in the Second Degree, as charged in the indictment. The Court
further finds beyond a reasonable doubt that at the time of the crime
of Murder in the First Degree charged in the indictment, the Defendant
previously had been convicted of a felony involving the use or threat
of violence to the person, namely Murder in the Second Degree on,
to-wit: November 9, 1966. Ala. Code § 13A-5-35(2) (Supp. 1978).
The evidence is sufficiently clear to lead to a
well-guarded and dispassionate judgment beyond a reasonable doubt that
the Defendant Patricia Ann Thomas, alias, committed the murder charged
by stabbing the deceased, Bonnie Walker, with a knife at a time when
the deceased was unarmed.
The Court has undertaken a review of the
aggravating and mitigating circumstances, and finds as follows:
Aggravating Circumstances: The State did not
attempt to raise any of the statutory aggravating circumstances set
forth in Ala. Code § 13A-5-35(1)-(8) (Supp. 1978), except for number
(2): "The Defendant was previously convicted of another capital felony
or a felony involving the use or threat of violence to the person."
That aggravating circumstance, as previously mentioned, was proven
beyond a reasonable doubt before both the jury and the trial Judge.
The Court finds that aggravating circumstance exists and, as did the
jury, further finds it sufficient to support the sentence of death.
Mitigating Circumstances: The Court will discuss
each mitigating circumstance defined by law, proffered by the defense,
or supported by the evidence.
Statutory mitigating circumstances are set forth in
Ala. Code § 13A-5-36(1)-(7) (Supp. 1978). They are:
1. "The defendant has no significant history of
prior criminal activity." This defendant does have a history of prior
criminal activity, and it is significant. The defendant was convicted
of Murder in the Second Degree in Case No. 9760-A on November 9, 1966,
and sentenced to twelve years imprisonment. The defendant has one
conviction of Assaulting a Police Officer, one conviction of Resisting
Arrest, seven convictions for disorderly conduct, one conviction of
malicious destruction of property, one conviction of leaving the scene
of an accident, and several traffic infractions. The Court finds that
this mitigating circumstance is not present in this case.
2. "The capital felony was committed while the
defendant was under the influence of extreme mental or emotional
disturbance." The defense argued this mitigating circumstance was
present because under their view of the evidence there were three
people arguing, drinking, insulting language being used, and weapons
present. The evidence, however, fails to support a finding that the
Defendant acted under the influence of extreme mental or emotional
disturbance. The victim was unarmed, and the Defendant acted
unlawfully and with malice aforethought. The Court finds that this
mitigating circumstance is not present in this case.
3-5. "The victim was a participant in the
defendant's conduct or consented to the act;" and "The Defendant was
an accomplice in the capital felony committed by another person and
his participation was relatively minor;" and "The defendant acted
under extreme duress or under the substantial domination of another
person." The defense did not argue the presence of any of these three
mitigating circumstances, and the evidence fails to support any of the
three. The Court finds that none of these three mitigating
circumstances is present in this case.
6. "The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired." The defense argued
that the defendant was an alcoholic, thus potentially raising the
issue of this mitigating circumstance. The evidence fails to show that
the defendant was impaired in any way. The Court finds that this
mitigating circumstance is not present in this case.
7. "The age of the defendant at the time of the
crime." The defendant was 33 years of age at the time of the murder
charged, and her age does not mitigate against the penalty. The Court
finds that this mitigating circumstance is not a factor in this case.
Additionally, the jury was instructed that they
could consider any aspect of the defendant's background or record and
any of the circumstances of the capital offense, and any other
mitigating circumstance offered or presented by the evidence which
mitigates against the death penalty. The Court has searched the record
for such circumstances.
The Defendant is a 33-year-old female with a poor
reputation for drinking and fighting. There is nothing in her
background or record, nor in the circumstances of the murder itself,
nor any other mitigating circumstance offered or presented which
mitigates against the death penalty set by the jury.
Therefore, the Court finds that the aggravating
circumstance that the defendant was previously convicted of a felony
involving the use of violence to the person, [§ 13A-5-35(2)], Murder
in the Second Degree exists in this case and the Court finds it
sufficient to support the sentence of death. Ala. Code § 13A-5-33(1)
(Supp. 1978). The Court finds no mitigating circumstances present.
Ala. Code § 13A-5-33(2) (Supp. 1978). Therefore, the Court finds no
reason to refuse to accept the death penalty as fixed by the jury.
Ala. Code § 13A-5-33 (Supp. 1978). The Court finds no arbitrary or
capricious exercise of the power of the jury in fixing the penalty.
Kyzer v. State, 399 So. 2d 330, 338 (Ala. 1981). The defense in
their closing remarks implied an issue of disparity in sentencing
existed, an issue normally addressed to the appellate court's
proportionality review. See Beck v. State, supra, at 664. In deference
to counsel argument, the Court merely cites Hubbard v. State, 382
So. 2d 577 (Ala. Cr. App. 1979), aff'd, 382 So. 2d 597
(Ala. 1980), the only other case brought in this county pursuant to
Ala. Code § 13A-5-31(a)(13) (Supp. 1978), which resulted in the death
penalty being imposed.
This the 28th day of December, 1981.
Joseph A. Colquitt, Circuit Judge.
Court of Criminal Appeals of Alabama
October 14, 1986
PATRICIA ANN THOMAS JACKSON
Appeal from Tuscaloosa Circuit Court
Rehearing Denied November 12, 1986; Certiorari
Denied January 30, 1987
Bowen, Presiding Judge
The opinion of the court was delivered by: Bowen
BOWEN, PRESIDING JUDGE
In 1981, Patricia Ann Thomas Jackson was convicted
for the capital murder of Bonnie Walker and sentenced to death. Her
conviction was affirmed on appeal and certiorari was denied by both
the Alabama Supreme Court and the Supreme Court of the United States.
Jackson v. State, 459 So.2d 963 (Ala.Cr.App.), affirmed, Ex
459 So.2d 969 (Ala. 1984), cert. denied,
Jackson v.. Alabama, U.S. , 105 S.Ct. 1413, 84 L.Ed.2d 796
Jackson was convicted under § 13A-5-31(a)(13), Code
of Alabama 1975, for "murder committed by a defendant who has been
convicted of murder in the first or second degree in the 20 years
preceding the crime." In 1982, while her appeal of the capital
conviction was pending, Jackson filed a petition for writ of error
coram nobis challenging her 1966 conviction for murder. The denial of
that petition was affirmed on appeal. Jackson v. State, 446 So.2d
691 (Ala.Cr.App. 1983).
In 1985, Jackson filed a petition for writ of error
coram nobis challenging her 1981 capital conviction. That petition was
denied after an evidentiary hearing. Jackson now appeals from that
Tuscaloosa County Circuit Judge Joseph A. Colquitt
presided over Jackson's capital trial and her coram nobis hearing. In
denying the petition, he issued a lengthy written order. We highly
commend Judge Colquitt for his scholarship and for the conscientious
manner with which he conducted the proceedings. In this opinion, we
quote the relevant portions of Judge Colquitt's order because his
findings are factually accurate and legally both comprehensive and
Jackson argues that her 1966 murder conviction was
improperly used as both a necessary element of the capital offense and
as an aggravating circumstance in imposing the death penalty. Judge
Colquitt found that this claim was procedurally barred from coram
nobis review because it could have been but was not raised at trial
and on direct appeal. Coram nobis is not available to review issues
which could have been raised at trial or on direct appeal. Ex parte
Ellison, 410 So.2d 130, 132 (Ala. 1982). The failure to raise
an issue which could have been raised at the original trial or on the
direct appeal bars the remedy of coram nobis review. Ex parte
Boatwright, 471 So.2d 1257, 1259 (Ala. 1985) (J. Maddox
Concurring specially); Ex parte Jacques,
409 So.2d 885, 886 (Ala. 1982); Adams v.
281 Ala. 432, 433,
203 So.2d 448 (1967); Eagen v. State,
280 Ala. 438, 441-42,
194 So.2d 842 (1967); Thomas v.. State,
280 Ala. 109, 110,
190 So.2d 542 (1966); Butler v. State,
279 Ala. 311, 313, 184 So.2d 823
(1966); Aldridge v. State,
278 Ala. 470, 474,
179 So.2d 51 (1965); Thomas v.. State,
274 Ala. 531, 532, 150 So.2d 387
(1963); Allison v. State,
273 Ala. 223, 224, 137 So.2d 761,
cert. denied, 369 U.S. 856, 82 S.Ct. 946, 8 L.Ed.2d 15
(1962); Ex parte Seals,
271 Ala. 622, 624-25, 126 So.2d 474,
cert. denied, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d
1246 (1961); Summers v. State,
366 So.2d 336, 340 (Ala.Cr.App. 1978),
cert. denied, Ex parte Summers, 366 So.2d 346 (Ala. 1979).
"A writ of error coram nobis is appropriate only
when the petitioner's claim is based on facts he or she did not know
and could not have discovered at the time of trial." Comment,
Post-Conviction Remedies in Alabama, 29 Ala.L.Rev. 617, 635 (1978).
This rule applies in capital cases involving the death sentence. Ex
parte Seals, supra; Luke v.. State, 484 So.2d 531, 532
(Ala.Cr.App. 1985). "Plainly, claims which could have been raised at
trial and on appeal are not cognizable in coram nobis. See e.g. Echols
276 Ala. 489, 164 So.2d 486
(1964)." J. L. Carroll, Post-Conviction Remedies in Alabama Capital
Cases, p. 12 (Montgomery, Ala.: The Southern Poverty Law Center,
n.d.); Dobard v. State, 455 So.2d 281, 283 (Ala.Cr.App. 1984);
Magwood v.. State, 449 So.2d 1267, 1268 (Ala.Cr.App. 1984).
Jackson contends that the rule of Keller v.. State,
380 So.2d 926 (Ala.Cr.App. 1979), cert. denied, 380 So.2d
938 (Ala. 1979), that the aggravating component of the capital
crime could not also supply an aggravating circumstance, should apply
because her conviction occurred before the decision in Ex parte Kyzer,
399 So.2d 330 (Ala. 1981), which effectively overruled Keller.
That contention was rejected in Kennedy v.. State,
472 So.2d 1092 (Ala.Cr.App. 1984),
affirmed, Ex parte Kennedy,
472 So.2d 1106, 1108-09 (Ala. 1985),
cert. denied, Kennedy v.. Alabama, U.S. , 106 S.Ct. 340, 88
L.Ed.2d 325 (1985). "he constitutional prohibition against state
enactment of ex post facto laws is, 'as its terms indicate, directed
against legislative action only, and does not reach erroneous or
inconsistent decisions by the court.'" Kennedy, 472 So.2d at 1109
(emphasis in original).
Jackson argues that under Brooks v.. Kemp, 762
F.2d 1383 (11th Cir. 1985), vacated on other grounds, Kemp v..
Brooks, U.S. , 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), several
statements made by the prosecutor at the jury sentencing phase of her
trial constitute reversible error. This claim, in its present form,
was not raised at trial, on direct appeal, or in the coram nobis
proceedings in the circuit court. A coram nobis petitioner "certainly
. . . may not raise in brief on appeal from denial of a petition
matters which he did not even allege in his petition." See McLeod v..
415 So.2d 1232 (Ala.Cr.App. 1982);
Boatwright v. State [Ms. 7 Div. 462, June 24, 1986], So.2d
Additionally, this issue is also barred from review
by coram nobis because there was no objection made to the prosecutor's
comments at the sentencing phase of the trial.
However, in the coram nobis proceeding, Jackson did
complain that her trial counsel were ineffective because they failed
to object to portions of the prosecutor's closing argument during the
jury sentencing phase of the trial. Judge Colquitt specifically
addressed this issue and found that counsel were not ineffective and
that Jackson was not prejudiced by the prosecutor's argument.
"Failure to Object to Allegedly Improper
"Petitioner raises this third allegation of
ineffective assistance in paragraph 21 of the Petition. In support of
this claim, Petitioner called Ralph Burroughs and Joel Sogol.
"At the coram nobis hearing, Petitioner specified
the following arguments as objectionable arguments to which her trial
counsel should have objected:
"1. I promise you - - and I don't mean this in any
way in a macabre fashion - - if it is necessary that she be executed
someone has to understand the severity of what is done and I will be
there and I will be a part of that because I think that's necessary
and in order to ask that I have to promise you that I will be there.
(S.R. 72-73 ['S.R.' refers to the supplemental transcript of argument
introduced at the coram nobis hearing.]).
"2. This woman has killed once; she has killed
twice. You have heard evidence that she would kill again were she
given half the chance. (S.R. 73).
"3. Ladies and gentlemen, the prison that women are
sent to is not full of murderesses. It's full of a lot of people, and
down there there're people that are down there for one year for
possession of drugs; two years for having stolen something. If you
send this woman down there and she kills again, then it is the next
jury to be asked, 'Well, is that enough?' Are you going to vote to
sentence now or will you send her back and let her kill again? (S.R.
"4. She has no more care or compassion for human
life than a reptile. (S.R. 74).
"Petitioner's trial counsel did not object to these
arguments. Both Sogol and Burroughs explained their failure to do so
as being due to their shock at the jury's guilty verdict. This
explanation is not credible. Both attorneys are experienced trial
attorneys who have had clients convicted of serious crimes and have
been surprised by verdicts before. As earlier noted, both attorneys
have experienced remorse over Petitioner's sentence and have
second-guessed essentially every decision they made in defending her.
Further, the trial court observed their demeanor at trial and they did
not appear to be shocked or dazed.
"Even if the prosecution argument was improper,
every failure to object to argument does not render a lawyer's
representation ineffective. Fleming v.. Kemp, 753 F.2d 930,
938-939 (11th Cir. 1985); Adams v. Wainwright, 709 F.2d 1443,
1446 (11th Cir. 1983). Petitioner is not entitled to error-free
representation. E.G., Engle v.. Isaac,
426 U.S. 107, 134 (1982).
"The prosecutor's reference to attending the
execution is at worst an ambiguous expression of his personal opinion
but can also fairly be characterized as stressing to the jury the
significance of their decision. A reviewing court should not 'lightly
infer' that an ambiguous argument is intended to or has its most
damaging meaning and effect. Brooks v.. Kemp, 762 F.2d 1383,
1411 (11th Cir. 1985) (en banc). Trial counsels' performance was not
deficient for failing to object to only arguably improper argument.
See, Fleming v. Kemp, 748 F.2d 1435, 1450 (11th Cir. 1984);
Hall v. Wainwright, 733 F.2d 766, 773 (11th Cir. 1984).
"Even if this argument was improper, Petitioner has
not shown that 'but for' counsels' failure to object 'the result of
the proceeding would have been different.' Strickland v. Washington,
supra, 104 S.Ct. at 2068. The Eleventh Circuit has held that the test
to determine whether prosecution argument was prejudicial is 'whether
there is a reasonable probability that, but for the arguments, the
death verdict would not have been given.' Brooks v.. Kemp, supra, 762
F.2d at 1413.
"Argument that was not prejudicial cannot have
changed the outcome of the penalty stage hearing. Any prejudicial
impact of the prosecutor's argument that he would attend Petitioner's
execution is mitigated by its brevity and ambiguity. Even if the
argument is seen as an expression of the prosecutor's personal opinion
that Petitioner should be sentenced to death, its adverse effect was
further alleviated by Petitioner's counsel's penalty stage argument in
which he emphasized that the jury had the duty and burden of deciding
punishment, (R. 70-71), and by the trial court's instructions in which
the Court explained the jury's obligation to weigh the evidence and to
decide on punishment, (R. 358-362). Thus from the record it appears
that the jury was properly apprised of its role and duty and that
Petitioner was not prejudiced by this argument.
"The prosecutor's references to Petitioner killing
again are both a fair inference from the evidence at trial and a
specific deterence argument. As such, this argument is not improper.
Brooks v.. Kemp, supra, 762 F.2d at 1411-1412; Tucker v. Kemp, 762
F.2d 1480, 1486 (11th Cir. 1985) (en banc).
"Arguing that a person who has twice committed
murder has no more compassion than a reptile is an obvious and clear
inference from the evidence. Cf., Brooks v.. Kemp, supra, 762 F.2d at
1413 (prosecution analogy of defendant to cancer an appropriate
argument). Trial counsel are not obliged to raise objections without
regard to their merits. Griffin v. Wainwright, 760 F.2d 1505
(11th Cir. 1985); Palmer v. Wainwright, 725 F.2d 1511, 1523
(11th Cir. 1984).
"Petitioner has, thus, failed to show that her
counsels' performance was deficient for failing to object to argument.
"Even if Petitioner's trial counsels' performance
was deficient, she has failed to show that she was prejudiced. As
noted above, failure to object to argument that is not prejudicial to
a defendant cannot satisfy the prejudice prong of the Strickland v.
Washington test. Deciding whether prosecution argument was prejudicial
requires consideration of such argument in light of the entire case.
Brooks v. Kemp, supra, 762 F.2d at 1413. Mitigating against prejudice
in the case at bar is the strength of the State's case, the absence of
mitigating circumstances, the fact that the jury was informed that
statements by attorneys are not facts, (R. 18), and that they were
properly instructed in their task at the penalty stage, (R. 358-362).
The prosecution argument was brief and disjointed. If it was
emotional, emotion is inescapable in deciding a matter of such
consequence. The mere fact that argument has emotional overtones does
not render it improper. Brooks v.. Kemp, supra, 762 F.2d at 1404-1405.
The cited argument did not change the outcome of the penalty stage.
Petitioner was not prejudiced by the argument itself or her counsels'
"Additionally, trial counsels' assertion that their
failure to object was harmful presents a clear example of the
second-guessing to which they have subjected their performance. A more
accurate assessment of the lack of prejudice arising from their
failure to object is Burroughs' observation that the 82nd Airborne
Division could not have kept the jury from sentencing Petitioner to
death. Petitioner is not entitled to relief on this claim."
Effective counsel does not mean errorless counsel
or counsel that objected every time he "probably should have." Adams
v.. Wainwright, 709 F.2d 1443, 1446 (11th Cir. 1983), cert.
denied, 464 U.S. 1063,
104 S.Ct. 745, 79 L.Ed.2d 203 (1984). "
court should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning." Donnelly v.. DeChristoforo,
416 U.S. 637, 647,
94 S.Ct. 1868, 1873, 40 L.Ed.2d 431
(1974). Here, as in Fleming v. Kemp, 748 F.2d 1435, 1450 (11th
Cir. 1984), cert. denied, U.S. , 106 S.Ct. 1286, 89 L.Ed.2d 593
(1986), "We have examined the comments in question and conclude that
their propriety was debatable and that objections could have backfired
on the defense. Counsel's heat-of-trial decisions not to object are
understandable here. Even in hindsight, we cannot fault them." The
prosecutor's comments were not of such nature as to render the
proceedings fundamentally unfair. At the very worst, they are
questionable, but certainly not of constitutional magnitude. Hall v.
Wainwright, 733 F.2d 766, 773 (11th Cir. 1984), cert. denied,
Wainwright v.. Hall, U.S. , 105 S.Ct. 2344, 85 L.Ed.2d 858
Even if the prosecutor's arguments were improper,
we find no reasonable probability that the jury would have recommended
a lesser punishment if the arguments had not been made. Brooks v.
Kemp, 762 F.2d at 1413 (11th Cir. 1985).
Jackson contends that her death sentence is invalid
because the trial court improperly used her prior misdemeanor
convictions to enhance her punishment in that she was not given notice
that those convictions would be used and because the record does not
show that she was represented by counsel or had waived counsel when
she was convicted of the misdemeanors.
Again, this issue, in its present form, was not
raised in the coram nobis petition or proceedings. For that reason,
this issue is barred from coram nobis review. To the extent that this
argument was raised in Jackson's contention that trial counsel were
ineffective for failing to object to the trial court's use of the
misdemeanor convictions, Judge Colquitt's findings are proper.
"Failure to Object to the Use of Uncounseled
Misdemeanor Convictions in Determining the Presence or Absence of
"Petitioner raises this first allegation of
ineffective assistance in paragraph 18 of the Petition. In support of
this claim Petitioner called Joel Sogol and Ralph Burroughs.
"In its sentencing order, the trial Court found
that the statutory mitigating circumstances, 'he defendant has no
significant history of prior criminal activity,' Code of Alabama 1975,
§ 13A-5-36(1), was not present. (R. 433) The trial court stated:
"This defendant does have a history of prior
criminal activity, and it is significant. The defendant was convicted
of Murder in the Second Degree in Case No. 9760-A on November 9, 1966,
and sentenced to 12 years imprisonment. The defendant has one
conviction of Assaulting a Police Officer, one conviction of Resisting
Arrest, seven convictions for disorderly conduct, one conviction of
malicious destruction of property, one conviction of leaving the scene
of an accident, and several traffic infractions. The Court finds that
this mitigating circumstance is not present in this case.
"(R. 433). The pre-sentence investigation report on
Petitioner contains a summary of her criminal activity matching this
recitation by the trial Court. (R. 428-429).
"Petitioner alleged that it was improper to
consider these misdemeanor convictions without proof that Petitioner
had been represented by counsel or had waived counsel, and that her
trial counsel was ineffective for failing to object to this allegedly
improper use of Petitioner's prior conviction. Petitioner asserts that
these misdemeanor convictions were used to 'enhance' her punishment.
"Without conceding that the trial Court's use of
Petitioner's prior offenses were improper [not every use of prior
convictions without proof of representation is invalid. See, Lewis v..
United States, 445 U.S. 55 (1980) (where offense of possessing
a firearm was predicated on prior felony conviction, possession
conviction was not rendered invalid because prior conviction was
uncounseled and therefore subject to collateral attack). Petitioner's
punishment was not enhanced by virtue of her criminal history in the
sense that convictions are enhanced under the DUI and habitual
offender statutes as in Petitioner's cited cases. Of course, trial
counsel's performance was not deficient for failing to object to the
proper use of her prior record] Petitioner has failed to show that she
was prejudiced by her counsels' actions. Petitioner was a convicted
murderer when she murdered Bonnie Walker. Her 1966 murder conviction
is more than adequate to rebut any suggestion that she lacked a
significant history of prior criminal activity. It is a much more
serious offense than all of the others combined. Even if Petitioner's
trial counsel had objected to and kept out any evidence of offenses
other than the 1966 murder, Petitioner would still have had a
significant criminal history. Petitioner has not met her burden of
proving that 'but for counsel's unprofessional errors, the result of
the proceeding would have been different.' Strickland v. Washington,
supra, 104 S.Ct. at 2068.
"The finding by the Court rejected a statutory
mitigating circumstance. The Court was not determining the presence of
an aggravating circumstance."
The constitution does not prohibit consideration in
sentencing of criminal activity that did not result in a conviction.
Godfrey v. State, 383 So.2d 575, 577-78 (Ala.Cr.App.), cert.
denied, Ex parte Godfrey, 383 So.2d 579 (Ala. 1980), U.S. cert.
denied, Godfrey v. Alabama, 449 U.S. 903, 101 S.Ct. 276,
66 L.Ed.2d 134 (1980). See also Alabama v.. Evans, 461 U.S. 230,
103 S.Ct. 1736, 75 L.Ed.2d 806 (1983).
"One class of information which is particularly relevant to the
sentencing decision is the defendant's previous criminal activity. In
addition to previous convictions, it is acceptable to consider
evidence of crimes for which a defendant has been indicted but not
convicted. . . . Activities for which there has been no charge filed
can be considered as well. . . . In general, the relevant inquiry for
information at sentencing is whether it is reliable." Tucker v. Kemp,
762 F.2d 1480, 1487 (11th Cir.) (citations omitted), vacated on
other grounds, U.S. , 106 S.Ct. 517, 88 L.Ed.2d 452 (1985).
Jackson argues that her trial counsels' failure to
prepare for or present any evidence at the sentencing phase of her
trial constituted ineffective assistance of counsel. Judge Colquitt
found that under Strickland v.. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
Jackson "received effective assistance of counsel at the penalty phase
of the trial."
"Petitioner's Trial Counsel
"Petitioner was represented by Ralph Burroughs and
Joel Sogol at her capital murder trial. Both were appointed to
represent her, pursuant to the standard practice in Tuscaloosa County.
"Ralph Burroughs is, and was at the time of
Petitioner's trial, the Public Defender for Tuscaloosa County,
Alabama. He has also been an Assistant District Attorney. With over 20
years experience, as both a prosecutor and defense attorney, Burroughs
has tried numerous jury trials. He had defended two post-Furman
capital cases before Petitioner's capital trial. Burroughs is
certainly one of the most experienced criminal defense attorneys in
"Joel Sogol is a former Assistant Public Defender
who is, and was at the time of Petitioner's trial, in private practice
in Tuscaloosa. At the time of Petitioner's trial, some 60 percent of
Sogol's practice was criminal defense work. Burroughs requested that
Sogol be appointed to assist him because he knew Sogol to be a
competent and experienced attorney from working with him for over four
years in the past. He also knew that Sogol was especially capable in
technical legal matters. In addition, Sogol had participated in the
defense of one post-Furman capital trial before Petitioner's. He had
some eight years trial experience at the time. He is, and was at the
time of Petitioner's trial, an experienced and competent criminal
"Both Burroughs and Sogol met with Petitioner a
number of times before her trial. In addition, employees of the Public
Defender's Office conducted an extensive investigation into the facts
surrounding the offense. Based on their prior experience at working
with each other, an informal division of labor arose with Burroughs
and the Public Defender's Office handling the factual matters and
Sogol handling the legal issues. Even so, Sogol went to the murder
scene and interviewed witnesses in the surrounding area. Petitioner's
trial counsel also sought to develop character witnesses and other
testimony favorable to the Defendant but was unable to find any.
"Petitioner's defense at trial and sentencing was
self-defense. In addition, trial counsel sought at trial, and in a
subsequent coram nobis petition, to prevent the use of Petitioner's
1966 murder conviction thus turning her case into a non-capital
"At the coram nobis hearing, both trial counsel
expressed disappointment in their performance at the penalty stage of
Petitioner's trial. Despite their disappointment, trial counsels'
performance was not deficient nor was Petitioner prejudiced by trial
counsels' performance at the penalty stage of her trial.
"Both Sogol and Burroughs are deeply opposed to
capital punishment in general and in Petitioner's case in particular.
Burroughs went so far in expressing his abhorrence to capital
punishment as to say he was ashamed to live in a state that permitted
it. Sogol stated that no case under the Alabama statute would warrant
capital punishment to him. The depth of Sogol's feeling is illustrated
by his filing a coram nobis petition in which he alleged that he was
"Burroughs' and Sogol's normal opposition to
capital punishment was heightened in the instant case because of their
relationship with the Petitioner. Sogol is closer to her than any of
his other clients. Neither attorney thought that the offense she was
charged with was so serious as to warrant death. Burroughs referred to
it as what is commonly known as a 'shothouse killing,' an apparent
indication of lesser culpability on Petitioner's part. Both Burroughs
and Sogol think it would be a tragedy if Petitioner was executed.
"Both attorneys admitted that they were
second-guessing their performance. Their concern for petitioner and
their obvious remorse over her having been sentenced to death has
clearly rendered them unable to fairly and accurately Judge their
performance. Burroughs candidly admitted that his evaluation of his
performance was due, at least in part, to his having been unsuccessful
in Petitioner's defense. That Sogol was equally influenced is apparent
from his testimony in which he repeatedly referred to any alternative
as better than what he did since he had lost. The Court, based on its
observation of both counsel at trial and the witnesses' testimony and
demeanor at the coram nobis hearing, does not consider Burroughs' and
Sogol's opinions as to their competency at the penalty stage of the
trial to be accurate and places no weight upon their opinion. Both
attorneys are well-qualified, highly competent, experienced criminal
defense attorneys. Their misgivings about their performance are not
shared by the Court."
"Failure to Present Mitigating Evidence
"Petitioner raises this ineffective assistance of
counsel claim in paragraph 26 of the Amendment to her Petition. A
hearing was held on this claim at which Petitioner presented the
testimony of Joel Sogol, Ralph Burroughs and Dennis Balske.
Petitioner's testimony did not support her claim.
"The only evidence introduced at the penalty stage
of Petitioner's trial was the stipulation that she was 33 years old.
(R. 357) Trial counsel had conducted an extensive pre-trial
investigation which included talking to Petitioner's neighbors and
talking to the Petitioner about her criminal history and personal
background. Trial counsel's investigation did not discover any
witnesses helpful to her defense at either the guilt or penalty stages
of her trial.
"Trial counsel sought but were not able to find any
witnesses who would testify to Petitioner's good character. Even if
such witnesses had been available, calling such witnesses would have
provided the prosecution with an opportunity to present Petitioner's
extensive criminal history, including a then-pending assault with
intent to murder charge.
"Trial counsel did not call Petitioner at the
penalty stage because her testimony about her life history could have
opened the door to putting her pending assault with intent to murder
case before the jury. Preventing the jury from hearing damaging
evidence is a sound basis for a strategic decision. The fact that the
jury sentenced Petitioner to death does not invalidate this decision.
"Trial counsel did not present evidence of
Petitioner's life history because they had no witnesses available to
do so. As noted above, Petitioner's testimony could have caused more
harm than good. Petitioner had also told trial counsel that she did
not want her family involved in the trial of her case. Additionally,
she had told Burroughs that her only family was her daughter and
grandchild. Burroughs would have called these witnesses if he had
thought they could help but did not. There were no other witnesses
whose testimony would have helped Petitioner.
"Both Sogol and Burroughs testified that it would
have been better for them to have presented Petitioner's life story to
the jury than to do what they did. In support of this contention,
Petitioner also called Dennis Balske who testified that such a 'social
work' approach is the only way to effectively conduct a penalty stage
defense. However, Balske has had death sentences imposed when such an
approach was taken and all three lawyers admitted they had no idea of
how such evidence would have affected Petitioner's jury. Burroughs and
Sogol both think it would have been better to take such an approach,
but clearly they think so simply because their original strategy did
not work. Petitioner, as well as her trial counsel, is engaging in
precisely the sort of 20/20 hindsight dissection of counsel's
performance which has been condemned by the United States Supreme
Court. Strickland v. Washington, supra, 104 S.Ct. at 2065-2066.
"Despite Mr. Balske's opinion, there is more than
one way to effectively represent a defendant at the penalty stage of a
capital murder trial. Strickland v.. Washington, supra, 104 S.Ct. at
2066. ('There are countless ways to provide effective assistance in
any given case.'). Trial counsel has no absolute duty to present
mitigating evidence. Mitchell v. Kemp, 762 F.2d 886, 889 (11th
Cir. 1985). Petitioner's trial counsel is not obligated to present all
conceivable mitigating evidence. E.g., Griffin v. Wainwright, 760
F.2d 1505, 1513 (11th Cir. 1985). Trial counsel's strategic
decision not to call witnesses is not subject to second-guessing.
Messer v.. Kemp, 760 F.2d 1080, 1092 (11th Cir. 1985); Soloman
v. Kemp, 735 F.2d 395, 404 (11th Cir. 1984) ('While attorneys
may disagree as to how many or what particular witnesses to call, such
is the stuff out of which trials are made.').
"Petitioner has not only failed to show that trial
counsel's performance was deficient but also has failed to prove
prejudice. As noted above, a petitioner who alleges that trial counsel
was ineffective must prove that 'but for counsel's unprofessional
errors, the result of the proceeding would have been different.'
Strickland v.. Washington, supra, 104 S.Ct. at 2068. Petitioner
presented no mitigating evidence at the coram nobis hearing. None of
the witnesses who supposedly would have been able to testify favorably
for Petitioner at trial did so at the hearing. Petitioner has not
shown that a 'social work' approach would have developed any more
mitigation than was presented at her trial. The witnesses Petitioner
did call did not know what effect such evidence would have had, even
if it had been available. Petitioner has utterly failed to show that
she was prejudiced by her attorney's performance at the penalty stage.
Petitioner is not entitled to relief on this claim."
The observation in Fleming v. Kemp, 748 F.2d at
1452, is applicable here: "Petitioner's examples of professional
dereliction dissolve away under close scrutiny, leaving at best a
handful of colorable claims. A defense attorney is not ineffective
solely because his client is sentenced to death."
Our review convinces us that the judgment of the
circuit court is due to be affirmed.
All Judges Concur.
United States Court of Appeals
42 F.3d 1350
Patricia Ann Thomas JACKSON, Petitioner-Appellee,
Tommy HERRING, Respondent-Appellant, Cross-Appellee.
Jan. 9, 1995
Rodger K. Brannum, Deputy Atty.
Gen., Andy S. Poole, Asst. Atty. Gen., Montgomery, AL, for appellant.
LaJuana S. Davis, Bryan A.
Stevenson, Alabama Capital Representation Resource Center, Montgomery,
AL, for appellee.
Appeals from the United States
District Court for the Northern District of Alabama.
Before KRAVITCH, HATCHETT and
ANDERSON, Circuit Judges.
KRAVITCH, Circuit Judge:
Patricia Ann Thomas Jackson, an
Alabama prison inmate, was convicted in 1981 of murdering a neighbor
during an argument. She was sentenced to death. After exhausting
direct appeals and collateral attacks, Jackson filed a petition for
a writ of habeas corpus in the United States District Court for the
Northern District of Alabama pursuant to 28 U.S.C. Sec. 2254 (1988),
challenging her conviction and death sentence.
The district court granted habeas
relief on the conviction and, alternatively, on the sentence.
Jackson v. Thigpen, 752 F.Supp. 1551 (N.D.Ala.1990). The court held
that the jury that convicted Jackson was unconstitutionally
comprised because the prosecution used its peremptory challenges to
exclude all blacks from service on her jury, in violation of Swain
v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Id.
at 1554-55, 1562. The court further held that Jackson overcame her
procedural default on this claim by showing that counsel was
ineffective for failing to object at trial, and by showing prejudice
from this error. The court also held that Jackson was entitled to
guilt phase relief on the alternative independent ground of her
counsels' ineffectiveness at trial for failure to object to the
prosecutor's use of peremptory strikes. Id.
The court thus granted guilt phase
habeas relief on both grounds. Id. at 1561-62. The court
additionally granted relief on Jackson's claim that her counsel was
constitutionally ineffective at sentencing phase for failing to
present any mitigating evidence. Id. at 1562. Accordingly, the court
ordered that Jackson's conviction and sentence be set aside. The
State of Alabama appeals from the district court's grant of habeas
corpus relief. Jackson cross-appeals the district court's denial of
habeas corpus relief on alternate grounds involving other asserted
constitutional violations at sentencing.
For the reasons that follow, we
REVERSE the ruling of the district court as to Jackson's substantive
claim under Swain, because Jackson has not overcome her procedural
default; we REVERSE the ruling of the district court as to
ineffective assistance of counsel at guilt phase, because this
claim, too, is defaulted; we AFFIRM the ruling of the district court
as to ineffective assistance of counsel at sentencing phase and we
AFFIRM the district court's denial of relief as to the grounds
raised on cross-appeal.
The facts of Jackson's crime have
been recounted by the decisions of the Alabama state courts, and
require only brief summary.
On February 28, 1981, in the early afternoon, Patricia Ann Thomas
Jackson stabbed Bonnie Walker during or immediately after an
argument. The confrontation apparently arose out of a dispute over
liquor that Jackson wished to purchase from Walker. At first,
Jackson yelled at and cursed Walker from the street in front of
Walker's home. A shouting match ensued, and after a brief
interruption in the argument, during which Jackson left and then
returned, the confrontation resumed. Jackson testified at trial that
Walker was at this time armed with a knife and threatening her; two
witnesses at trial, however, testified that Walker was unarmed.
After further argument, Jackson stabbed Walker in the chest. Jackson
left the scene immediately, and Walker went inside her home.
Walker quickly reappeared, covered
with blood and holding a knife, and yelled that Jackson had "cut"
her. Her friends came to her aid and led her back into her home.
Paramedics were called to the scene, but Walker's wound proved
fatal. Jackson voluntarily surrendered to the police the next day.
Because this case involves the discriminatory use of peremptory
strikes, we note that Jackson is black, as was Walker.
A Tuscaloosa County grand jury
charged Jackson by indictment with "murder committed by a defendant
who has been convicted of murder in the first or second degree in
the 20 years preceding the crime," based on her 1966 guilty plea to
second-degree murder. In the present case, Jackson was represented
at both trial and sentencing by two co-counsel, Ralph Burroughs and
Joel Sogol. The
attorneys have testified that Burroughs was to be responsible for
conducting the trial and Sogol was to assist him and prepare for any
appeal. During jury selection, the Tuscaloosa County prosecutor,
Gerald Hudson, used his 22 peremptory strikes to exclude all twelve
black people, along with ten white people, who were qualified for
jury service. The defense did not object to these strikes. On
December 16, 1981, the all-white jury returned a verdict of guilty
on that charge. On the same day, the court held a separate
sentencing phase hearing, so that the jury might recommend Jackson's
this hearing, Jackson's trial counsel presented no mitigating
evidence. The only evidence introduced was the stipulation that
Jackson was 33 years old. The jury recommended that Jackson's
punishment be set at death.
At two brief sentencing hearings
held before the court over the next week, Jackson's counsel again
declined the opportunity to present mitigating evidence. The trial
court sentenced Jackson to death by electrocution.
Jackson raised three claims on
direct appeal, none of which are raised herein. Her conviction was
affirmed on direct appeal by the Alabama Court of Criminal Appeals
and the Alabama Supreme Court. Jackson v. State, 459 So.2d 963
(Ala.Crim.App.), aff'd, Ex Parte Jackson, 459 So.2d 969 (Ala.1984),
cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).
In April 1985, Jackson filed a
petition in the trial court for writ of error coram nobis. One of
her several arguments was that her trial counsels' failure to
prepare for or present any evidence at the sentencing phase of her
trial constituted ineffective assistance of counsel.
She did not argue that her counsel was ineffective for having failed
to object to the prosecution's use of peremptories. After an
evidentiary hearing at which both Sogol and Burroughs testified, the
coram nobis court denied relief. The Alabama Court of Criminal
Appeals affirmed. Jackson v. State, 501 So.2d 542, 550-51
(Ala.Crim.App.1986), review denied, No. 86-269 (Ala.1987).
Jackson filed this petition for a
writ of habeas corpus in federal district court in 1987. For the
first time, she alleged that the prosecutor in her case
unconstitutionally and pursuant to a systematic practice used his
peremptory challenges to exclude black citizens from her petit jury,
in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13
L.Ed.2d 759 (1965), and that her counsels' ineffectiveness in
failing to object at trial constituted cause sufficient to overcome
her procedural default on this claim and that she suffered prejudice
due to her counsels' error. She also alleged for the first time that
her counsels' ineffectiveness for failing to object to the
prosecutor's use of peremptories constituted an independent ground
requiring habeas corpus relief. Further, Jackson realleged that her
counsel was constitutionally ineffective for having failed to
investigate or present mitigating evidence at the sentencing phase
of her trial. Pursuant to 28 U.S.C. Sec. 2254(a), the district court
held an evidentiary hearing on both claims.
The district court found that
Jackson had demonstrated that the prosecutor's use of peremptory
strikes to consistently exclude blacks, including at Jackson's
trial, violated Jackson's equal protection rights under Swain. 752
F.Supp. at 1554-55, 1562. As to this claim, the court further held
that Jackson had overcome her procedural default on the Swain claim
by demonstrating that her counsel was ineffective for having failed
to object at trial, and by demonstrating prejudice arising from that
error. Id. at 1559-60, 1562. The court also held that Jackson had
alleged a valid, independent claim of ineffective assistance based
on counsels' failure to object to the prosecution's use of
peremptories; the court held that this claim was not procedurally
barred, reasoning that Jackson had alleged other ineffective
assistance grounds in state court, and "[a] federal habeas
petitioner is not required to present in state court every basis for
a claim that counsel is ineffective." Id. at 1560 n. 10 and 1561-62.
The court alternatively held that Jackson's counsel was ineffective
for failing to present mitigating evidence at sentencing. Id. at
1562. In accordance with these rulings, the district court granted
habeas relief and ordered that Jackson's conviction and sentence be
set aside without prejudice.
Because Jackson's ineffective
assistance of counsel claim was asserted not only as an independent
basis of habeas relief but also as cause for failing to raise the
underlying Swain claim at trial, we must address it before reaching
the substantive Swain claim.
The district court held, with
little discussion, that Jackson's independent claim that her counsel
was ineffective for failing to raise a Swain objection at trial was
not procedurally barred. The court appears to have grounded its
holding on the conclusion that "petitioner raised the ineffective
assistance claim in her coram nobis petition, albeit on other bases.
A federal habeas petitioner is not required to present in state
court every basis for a claim that counsel is ineffective." 752
F.Supp. at 1560 n. 10 (emphasis in original) (citing Brand v. Lewis,
784 F.2d 1515 (11th Cir.1986)). The district court did not have the
benefit of our subsequent opinion in Footman v. Singletary, 978 F.2d
1207, 1211 (11th Cir.1992), in which we held that habeas petitioners
generally may not raise ineffective assistance of counsel claims
except on grounds specifically presented to the state courts. See
also Bolender v. Singletary, 16 F.3d 1547, 1556 n. 10 (11th
Cir.1994). Although Jackson raised several other claims of
ineffective assistance before the state court, she did not argue
that her counsel was ineffective for failing to object at trial to
the prosecutor's discriminatory use of peremptories. Because trial
stage ineffectiveness for failure to raise Swain was not presented
to the state courts, and a sufficient showing of cause and prejudice
was not made, we hold that Jackson's independent ineffective
assistance of counsel claim is procedurally barred.
We turn next to the more complex
issues concerning Jackson's underlying Swain claim. In Swain v.
Alabama, the Supreme Court addressed, for the first time, the
state's use of peremptory challenges in a racial context. Swain was
a black man convicted by an all-white jury in Talladega County,
Alabama, of raping a white woman. Swain alleged that the
prosecutor's use of peremptory strikes to exclude all blacks from
the petit jury violated the Equal Protection Clause. The Supreme
Court rejected his challenge, primarily because the record did not
"with any acceptable degree of clarity, show when, how often, and
under what circumstances the prosecutor alone ha[d] been responsible
for striking" blacks from petit jury panels. Id. at 224, 85 S.Ct. at
838. Swain nonetheless set up a framework for challenging a
prosecutor's use of peremptory strikes, which remained the final
word on such challenges until the Court's decision in Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), made
such claims considerably easier. Because Jackson's trial and appeal
occurred before the Batson opinion, Swain governs this court's
review of her claim. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct.
2878, 92 L.Ed.2d 199 (1986) (Batson not applied retroactively).
Jackson's venire consisted of
eighty-six persons, seventy white and sixteen black. Six whites and
four blacks were excused for cause, leaving a remaining venire of
sixty-four whites and twelve blacks. The Tuscaloosa County
prosecutor, Gerald Hudson, used his twenty-two peremptories to
remove all twelve blacks and ten whites. Jackson alleges that the
prosecution's wholesale removal of blacks from the jury was
undertaken pursuant to a pattern of discriminatory use of peremptory
strikes. The district court agreed, and found that "the standard
operating procedure of the Tuscaloosa County District Attorney's
Office at the time of petitioner's trial was to use the peremptory
challenges to strike as many blacks as possible from the venires in
cases involving serious crimes." 752 F.Supp. at 1554.
Under Swain, prosecutors are
cloaked with the presumption that they have used their peremptory
strikes for "fair and impartial" reasons. 380 U.S. at 222, 85 S.Ct.
at 837. Prosecutors may not, however, "consistently and
systematically exercise their strikes to prevent any and all Negroes
on petit jury venires from serving on the petit jury itself." Id. at
223, 85 S.Ct. at 837. As we have emphasized in the past, this
language describes an "extreme" example of illegal conduct, rather
than a "litmus test." Horton v. Zant, 941 F.2d 1449, 1454 (11th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1516, 117 L.Ed.2d
In order to overcome the
presumption that a prosecutor has exercised his peremptory strikes
for unbiased reasons, the petitioner "is not required to show that
the prosecutor always struck every black venireman offered to him
... but the facts must manifestly show an intent on the part of the
prosecutor to disenfranchise blacks from traverse juries in criminal
trials." Horton, 941 F.2d at 1454 (emphasis in original) (citing
Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467
U.S. 1256, 104 S.Ct. 3546, 3548, 82 L.Ed.2d 849, 851 (1984)). The
petitioner may fulfill her burden "either by coming forward with
statistical evidence or by using testimony from individuals who have
witnessed the prosecutor's manner of exercising his peremptory
strikes." Horton, 941 F.2d at 1454-55 (citing Willis, 720 F.2d at
1220 n. 18).
At the district court's
evidentiary hearing, Jackson presented compelling anecdotal and
statistical evidence depicting the systematic exclusion of blacks
from Tuscaloosa County juries. See 752 F.Supp. at 1554-55. The
district court found that:
[T]he standard operating procedure of the
Tuscaloosa County District Attorney's Office at the time of
petitioner's trial was to use the peremptory challenges to strike as
many blacks as possible from the venires in cases involving serious
The Tuscaloosa County prosecutors
also manipulated the trial docket in their effort to preserve the
racial purity of criminal juries. [footnote omitted] Inasmuch as
they actually set the criminal trial dockets until 1982, they
implemented a scheme in which juries with fewer black venirepersons
would be called for the serious cases.
The use of peremptory challenges
by the Tuscaloosa County District Attorney's Office effectively
resulted in the systematic exclusion of blacks from trial juries in
serious criminal cases prior to 1982. [footnote omitted] This
systematic exclusion of blacks ... occurred in cases where both the
defendant and the alleged victim were black and resulted in the
all-white jury that tried petitioner.
Overwhelming evidence supports the
district court's conclusion that the use of peremptory strikes by
the Tuscaloosa County D.A.'s office violated Swain. This evidence is
thoroughly documented in the district court's opinion. Three defense
attorneys, one former prosecutor, and most significantly, the
prosecuting attorney himself, all testified that there was
widespread and systematic misuse of peremptories by the Tuscaloosa
D.A.'s office. In
addition, the statistics presented demonstrate that at the time of
Jackson's trial, blacks were approximately two-and-one-half times
more likely to be struck than whites, and 65-70% of the Tuscaloosa
County juries underrepresented black citizens.
We have no doubt that Jackson has sufficiently proven that the
prosecution discriminatorily and pursuant to a systematic practice
employed its peremptories to exclude all blacks from her jury.
Accord Horton, 941 F.2d at 1457 (Swain claim established where
prosecutor struck blacks approximately twice as frequently as
whites); Love v. Jones, 923 F.2d 816, 820 (11th Cir.1991) (Swain
claim established where three attorneys, including trial counsel,
testified that they had observed a pattern of intentional
discrimination in prosecutor's use of peremptory strikes); Jones v.
Davis, 835 F.2d 835, 838-39 (11th Cir.1988) (Swain violation where
six defense attorneys testified that they believed the prosecutor's
office systematically struck most blacks from jury venires), cert.
denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988).
Under Alabama's "contemporaneous
objection rule," because Jackson failed to raise the Swain claim at
trial, she was thereafter precluded from raising this objection in
the state courts, whether on direct appeal or in coram nobis
proceedings. See Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir.1991)
(under Alabama law, "petitioner's failure to contemporaneously
object would have barred consideration of his Batson claim on direct
review (or otherwise) in the state courts") (citing Cochran v.
State, 548 So.2d 1062 (Ala.Crim.App.1989)); see also Jackson, 501
So.2d at 544 ("Coram nobis is not available to review issues which
could have been raised at trial or on direct appeal.") (citing Ex
Parte Ellison, 410 So.2d 130, 132 (Ala.1982)). Jackson thus
procedurally defaulted her right under Swain to challenge her
prosecutor's use of peremptory strikes.
All is not lost for Jackson,
however, if she can demonstrate cause and prejudice for her default
under the test of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct.
2497, 2506-07, 53 L.Ed.2d 594 (1977). Sykes held that when a habeas
petitioner has failed to comply with a state's contemporaneous
objection rule, a federal court may review her claim upon a showing
of cause for the procedural default and prejudice arising therefrom.
See also Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48
L.Ed.2d 149 (1976).
Jackson does not dispute that her
Swain claim is procedurally defaulted, but asserts that cause and
prejudice exist to overcome the default. She contends that her
counsels' ineffectiveness for not objecting to the peremptory
strikes constituted cause for her default, and that her trial and
sentencing were intrinsically prejudiced by the pervasive effect of
the exclusion of blacks from her jury.
In order to constitute cause
sufficient to overcome procedural default, a counsel's performance
must be constitutionally ineffective under the standards of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). See Devier v. Zant, 3 F.3d 1445, 1455 (11th Cir.1993)
(petitioner could not use ineffective assistance of counsel as cause
for procedural default because he failed to satisfy two-prong
Strickland test); Smelcher v. Attorney General of Alabama, 947 F.2d
1472, 1475 (11th Cir.1991) ("While it is true that ineffective
assistance of counsel may be the cause for a default, ... it must
first satisfy [the] two-part [Strickland ] test"). In Strickland,
the Supreme Court set forth the test for determining whether
counsel's performance "so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result." Id. 466 U.S. at 686, 104 S.Ct. at 2064.
This test has two prongs:
First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious
as to deprive defendant of a fair trial, a trial whose result is
Id. at 687, 104 S.Ct. at 2064. We
review the performance and prejudice prongs of Strickland in turn,
and for the reasons set forth below, hold that Jackson fails to show
that her counsels' deficient performance prejudiced her defense.
Jackson contends that her lead
trial counsel, Ralph Burroughs, was ineffective for not raising any
objection to the prosecutor's use of peremptory strikes despite
Burroughs's long-standing knowledge of the County's systematically
prejudicial use of peremptories. She contends that this
ineffectiveness constituted cause for her failure to raise a jury
challenge at trial. The district court agreed, and "unhesitatingly
conclude[d] ... that petitioner did not receive her constitutional
right to adequate counsel." 752 F.Supp. at 1561. Burroughs testified
at the district court evidentiary hearing that he was very aware of
the Tuscaloosa County District Attorneys' practice of using
peremptory challenges to eliminate blacks far out of proportion to
their numbers in the population. He testified that prosecutors had
admitted to this practice in their conversations with him:
Q. .... Had you had any conversations with any
assistant district attorneys prior to  or any district
attorneys prior to that time about this practice?
A. Uh, I'm--I'm sure we did. There were times
when I would sort of ridicule a district attorney ... for just going
down and striking blacks....
Q. Did they acknowledge that they did that?
Q. Did they acknowledge that they did that?
And the best thing all they knew was a rule of
thumb and strike all the blacks. Some of the oldies assistant
district attorneys I think would tell [the younger attorneys] that.
I think I have heard them say that.
Q. All right. Now you saw this very thing happen
in the trial that you tried for Patricia Jackson, is that right?
A. I, uh--I felt so, yes, sir.
Q. You in fact saw that Mr. Hudson struck every
one of the blacks on her venire?
HR 387-89. Burroughs thus knew of
the Tuscaloosa County D.A.'s Office's systematic practice of using
peremptories to disproportionately exclude blacks from petit juries.
Burroughs knew that the "rule of thumb" was to "strike all the
blacks." And he saw this rule played out in his client's murder
trial. Yet Burroughs did not raise any objection at trial to the
prosecutor's use of peremptories.
Under Strickland, a counsel's
performance is measured for "reasonableness under prevailing
professional norms." Id. at 688, 104 S.Ct. at 2065. To be effective
within the bounds set by Strickland, an attorney need not anticipate
changes in the law. See Poole v. United States, 832 F.2d 561, 565
(11th Cir.1987) (counsel not ineffective for failing to raise
Batson-type objection before Batson was decided, because Batson
standard was substantial break with Swain ), cert. denied, 488 U.S.
817, 109 S.Ct. 54, 102 L.Ed.2d 33 (1988). Similarly, counsel need
not pursue constitutional claims which he reasonably believes to be
of questionable merit. See Lancaster v. Newsome, 880 F.2d 362,
374-75 (11th Cir.1989) (counsel not ineffective for failing to
object to jury composition where he reasonably believed that method
to be constitutional, and thus made "informed, tactical decision"
not to object).
Whether, in this case, counsels'
failure to raise a Swain objection at trial fell within
professionally competent standards is a difficult question. We
initially recognize that at the time of trial, when Swain remained
the standard, it was very difficult for defendants to succeed on a
claim of unconstitutional use of peremptory strikes. See generally
Batson, 476 U.S. at 92, 106 S.Ct. at 1720 (Swain "placed on
defendants a crippling burden of proof"). In 1983, this court
acknowledged that "[w]inning Swain claims are exceedingly rare," and
that it appeared at the time that only two winning Swain claims had
been brought anywhere. Willis, 720 F.2d at 1220.
On the other hand, in Swain, "the
U.S. Supreme Court ... made clear that the intentional use of
peremptory challenges to exclude blacks from trial juries was a
violation of the Equal Protection Clause." Hollis, 941 F.2d at 1477.
Likewise, our predecessor circuit recognized as early as 1971 that
under Swain, "[s]ystematic improper striking of juries may, no less
than other prosecutorial misconduct, taint the criminal process."
United States v. Pearson, 448 F.2d 1207, 1217 (5th Cir.1971).
We rejected the Swain claim asserted in Pearson because it was based
solely on testimony and notes spanning a period of one week. Yet we
also noted that the burden under Swain, although "most difficult ...
is not insurmountable." Id. at 1218. It might be overcome, for
instance, by "checking the docket for a reasonable period of time
for the names of defendants and their attorneys, investigation as to
the race of the various defendants, the final composition of the
petit jury and the manner in which each side exercised its
peremptory challenges." Id. at 1217.
The obstacles to proving a Swain
claim at the time of Jackson's trial are obvious. Depending upon the
facts of a given case, we might well conclude that an attorney was
reasonable in strategically deciding to forego such a claim. See,
e.g., Wiley v. Puckett, 969 F.2d 86, 102 (5th Cir.1992) (counsel's
"strategic decision" to forego a Swain claim, given the "onerous
burdens required," was afforded deference); Horne v. Trickey, 895
F.2d 497, 499-500 (8th Cir.1990) (rejecting ineffective assistance
claim where appellate counsel "considered the Swain issue and
decided not to raise it since the record did not contain sufficient
evidence to support such a claim").
In this case, however, trial
counsel Burroughs was peculiarly aware of the extent and illicit
motivation of the prosecution's systematic strikes of black
venirepersons; yet he remained absolutely silent as prosecutor
Hudson struck all blacks from the venire. There is no indication in
the record that Burroughs's failure even to raise an objection to
the prosecutor's strikes was a product of any tactical forethought
and we can only speculate as to the reasons for Burroughs's silence.
Perhaps he did not believe that a Swain claim could be won. Or
perhaps he did not wish to raise the controversial specter
surrounding prosecutorial discrimination. In either circumstance,
given his knowledge of the prosecution's abuses, his failure to
object at trial and thus preserve the issue for further review was
not professionally reasonable. Cf. Hollis v. Davis, 941 F.2d 1471,
1479 (11th Cir.1991) (failure to object to unconstitutional venire
composition was unreasonable and fell below Strickland standard),
cert. denied, --- U.S. ----, 112 S.Ct. 1478, 117 L.Ed.2d 621 (1992);
Goodwin v. Balkcom, 684 F.2d 794, 805-07 (11th Cir.1982) (failure to
object to racial composition of petit jury lists unreasonable when
based on counsel's belief that he "didn't think it would be to any
avail" and his fear of "hostile social pressure had he raised a
challenge"), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d
Based on the narrow facts of this
case, we agree with the district court's conclusion that Burrough's
failure to object to the prosecutor's discriminatory use of
peremptories was "inexplicabl[e]," and neither "a studied, tactical
or strategic decision" nor "a reasonable exercise of professional
judgment." 752 F.Supp. at 1562. Cf. Government of Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir.1989) (where trial attorney ignored
defendant's instruction that she object to peremptory strikes,
"unique circumstances ... [led court] to conclude that [the] trial
attorney's failure to object to the prosecutor's use of peremptory
challenges was unreasonable under prevailing standards").
We next address whether Jackson
has satisfied the prejudice prong of the Strickland test. In making
this inquiry, we bear in mind that the prejudice prong of Strickland
is not co-terminous with the more general prejudice requirement of
Wainwright v. Sykes, under which a federal habeas petitioner must
demonstrate that the errors "worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." United States v. Frady, 456 U.S. 152,
170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in
original); Hollis, 941 F.2d at 1480. Neither is it akin to the
"harmless error" standard of Brecht v. Abrahamson, --- U.S. ----,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), under which certain types of
"structural" errors are per se prejudicial. See Vasquez v. Hillary,
474 U.S. 254, 263, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986)
("[W]hen a petit jury has been selected upon improper criteria ...
we have required reversal of the conviction because the effect of
the violation cannot be ascertained.") (citations omitted).
Rather, the Strickland test asks
whether there is "a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding 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," but "a defendant need not show that
counsel's deficient conduct more likely than not altered the outcome
in the case." Id.
In Hollis, we recognized that this
test generally applied in the context of determining whether
counsel's failure to object to an unconstitutionally constituted,
all-white jury was prejudicial, and held that "because there [was]
no transcript, we [were] unable to make the kind of judgment of
probabilities which a court often makes when called upon to decide
whether a trial error is or is not harmless." 941 F.2d at 1483. We
thus found it unfair "to hold Mr. Hollis responsible for the lack of
a transcript, [or] to assume that the transcript would have
demonstrated a state case" so strong that a constitutionally
constituted jury would probably have convicted him. Id.
Here, unlike Hollis, we have the
benefit of a complete record. Following Strickland, we must
determine whether there is a "reasonable probability" of a different
result sufficient to undermine our confidence in the outcome of this
The evidence presented at trial by
the prosecution was not overwhelming, but it was strong. Three
witnesses, Charlotte Archibald, Pelma Smith, and Jimmy Little
testified that they witnessed all or part of the events surrounding
the killing, all of which took place in and around the victim's
home. Archibald testified that she witnessed the initial
confrontation between Jackson and Walker, in which Jackson was the
aggressor. She further testified that at one point, Jackson left the
confrontation, went behind the house, and shortly returned, this
time with a knife.
She witnessed Jackson further taunt the victim, who was standing on
her own porch, and then stab her. Pelma Smith gave a similar
account, although he did not witness the very outset of the
confrontation. Smith testified that Jackson was the aggressor; that
Jackson left the scene briefly but returned; and that Jackson then
removed a knife from her purse, concealed it, approached the victim
and stabbed her.
Then, according to Smith, Jackson yelled, "I'm going to kill you" or
"I should have killed her."
Jimmy Little also testified that Jackson was the aggressor in the
argument; that she reacted angrily when he tried to intervene; that
he heard the victim scream that Jackson had stabbed her and that
Jackson then ran from the scene, smiling.
All of this evidence directly contradicted Jackson's testimony that
she stabbed Walker after Walker had instigated an argument and
pulled a knife on her.
The jury returned a verdict of
guilty as to the murder charge. It thus rejected the lesser charge
of manslaughter, which the trial judge had instructed was "killing
... prompted by a sudden heat of passion excited by sufficient legal
We would have more confidence in
the verdict had it been delivered by a constitutionally composed
jury, with both black and white members. But having conducted a
thorough review of the record, we cannot conclude there is a
"reasonable probability that, but for counsel[s'] ... errors, the
result of the proceeding would have been different." Strickland, 466
U.S. at 694, 104 S.Ct. at 2068. The jury's verdict in this case was
substantially supported by the evidence, particularly by testimony
that Jackson returned to the scene after retreating, retrieved a
knife from her purse, and then concealed it before stabbing Walker.
Moreover, the crime in this case did not have any particular racial
dimensions, which would cast doubt upon a verdict returned by a
racially unbalanced, unconstitutionally composed jury. Cf. Huffman
v. Wainwright, 651 F.2d 347, 350 (5th Cir. Unit B, 1981) (in
evaluating prejudice under Sykes exception, "this Court has looked
to see if the case had racial or sexual overtones") (citations
the victim was a black female, as is Jackson. Nothing in the record
indicates that a racially balanced jury would have been more likely
to acquit or convict of a lesser charge than was the all-white jury
in this case. As Burroughs himself noted, "the black community was
just as concerned about how their people behaved in their
neighborhood as the white people were," and "black jurors ma[k]e
very good state ... jurors."
Jackson has not fulfilled the
Strickland requirements for an ineffective assistance of counsel
claim. Thus, we need not address whether or not a defaulted
ineffective assistance of counsel claim can nevertheless constitute
cause, under Sykes, for failing to raise a second, underlying claim.
Accordingly, we reverse the district court's grant of habeas corpus
relief as to Jackson's conviction.
Jackson also raises a ground for
habeas corpus relief as to her sentence, wholly distinct from her
Swain claim. She contends that her counsel was ineffective at the
sentencing phase of the trial for failing to sufficiently
investigate or present mitigating evidence to the jury or to the
court. Specifically, she alleges that family members and friends,
among others, would have offered effective mitigating testimony had
they been sought out by her counsel.
Jackson was represented at both
trial and sentencing by co-counsel Sogol and Burroughs. Sogol
offered the primary argument at the jury portion of the sentencing
phase, and rested his presentation to the jury on three points.
First, he argued that a life sentence without parole would
sufficiently deter the defendant. Second, he asked the jury to
"consider" the volatile situation in which the killing took place.
Third, he pointed out that crimes worse than Jackson's occurred
"every day" but were punished with penalties less than death.
Sogol's co-counsel, Ralph Burroughs, then offered a very brief and
vague appeal to the jury, asking it to spare his client's life.
Neither lawyer offered any evidence regarding Jackson's personal
history or background. Counsel were virtually silent during two
subsequent sentencing hearings before the trial judge, held during
the next week.
Sogol testified at the coram nobis
hearing that he "did not in any way prepare or help prepare for any
presentation of the evidence at the sentencing hearing."
He did not, for instance, "recall meeting with [co-counsel
Burroughs] and sitting down and discussing what we were going to do
past the guilt stage."
As a result, he was unaware of a vast pool of potential mitigating
evidence, see infra, such as Jackson's family history, her enormous
personal hardships, her early pregnancy, her limited schooling, and
her employment and personal relationships.
And Sogol acknowledged, unsurprisingly, that he "[didn't] think that
[they] could have presented a worse situation than the one we did,
which was nothing.... I don't think anybody could have presented a
Burroughs was questioned at both
the coram nobis hearing and the federal habeas hearing as to his own
pre-sentencing search for mitigating evidence. His memory was
unclear as to what type of investigation he conducted into possible
mitigation. Burroughs did not recall, for instance, how many times
he met with Jackson prior to trial.
He revealed at coram nobis that he was only minimally aware of
certain potential mitigating evidence. Specifically, he testified as
I remember that [Jackson] was, I think, born in
1947 and grew up in a--well, I guess, a whorehouse, shothouse
combined and had that kind of atmosphere and had become pregnant as
a teenager, sixteen or seventeen years old ... and then the
background, educational background, I think she had--I don't
remember, but she didn't finish high school. Seventh, eighth or
tenth grade, something like that. General background history as we
CNR 88-89. Burroughs also
testified at coram nobis that he did not even remember who took this
background history, and did not recall undertaking any investigation
beyond the preliminary "social history" which his office accumulated
in every criminal case.
Burroughs did not interview anyone in Jackson's family, such as her
daughter or her sister.
Counsels' testimony indicated that
their failure to present any of this evidence was in part due to a
misunderstanding between them. Sogol testified at the state coram
nobis hearing that "[i]t was my impression and remains my impression
that the bulk of the responsibility for ... the punishment hearing
would rest with [Burroughs's] office as far as preparing and
whatever was going to be presented."
Burroughs, by contrast, testified at coram nobis that "[t]here might
have been a break in communication," and that he had expected Sogol
to "take[ ] the lead in" investigating mitigating evidence.
Similarly, he testified at the habeas hearing that he probably had
relied on Sogol to prepare mitigating evidence.
The deficiencies arising from
counsels' minimal investigation were made worse by time constraints
and other outside pressures. Counsel had only one hour to prepare
for the sentencing hearing after the jury verdict. According to
Burroughs, "[n]either one of us ever suspected that we would have to
go to the sentencing hearing that quickly."
Moreover, Burroughs repeatedly testified that he was "shocked" by
the verdict because he believed that the jury would find Jackson
guilty of manslaughter, if anything.
The coram nobis court made the
following findings of fact. First, the court recognized that "[t]he
only evidence introduced at the penalty stage ... was the
stipulation that [Jackson] was 33 years old." Jackson, 501 So.2d at
550 (quoting and incorporating trial court's findings). The court
found that this absence of mitigating evidence occurred because the
trial counsel, after an "extensive pre-trial investigation which
included talking to Petitioner's neighbors and talking to the
Petitioner about her criminal history and personal background ...
did not discover any witnesses helpful to her defense at ... [the]
penalty stage[ ] of her trial." Id. The court did not make any
factual finding, however, as to the amount or scope of the effort
aimed at developing mitigating evidence for sentencing phase
The federal habeas court's
subsequent evidentiary hearing unearthed a great wealth of
information about Jackson's life history that was not presented at
sentencing. Jackson testified that she dropped out of school in the
eighth grade because she became pregnant;
that her mother was an alcoholic who abused her on an almost daily
basis; that she
nonetheless nursed her mother through a terminal illness, shopping
for her, washing her hair, and changing her catheter;
that she assertedly was devoted to her own child, Charlsie, who
lived with her at the time;
or that the man whom she had stabbed fifteen years earlier had
abused her, and was beating her at the time of the killing.
She further testified as to her employment history, which included
washing cars, washing dishes, and cutting the liver from chickens at
Jackson's sister, Julia Lee Thomas, testified as to their close
relationship, and corroborated Jackson's own testimony about her
mother's abuse and alcoholism.
Thomas further testified that her sister was generally even-tempered
unless under the influence of alcohol, as she was the day of the
Thomas testified that the man whom Jackson had killed in 1966,
Jackson's boyfriend, did indeed have a reputation for abusing women.
Jackson testified that she would
have offered testimony at sentencing had she been asked.
Similarly, her sister, Ms. Thomas, who indicated that she loved her
sister "dearly," presumably would have testified if asked.
Also testifying at the habeas
hearing was Dr. Mary Ann Rosenzwerg, department head of the Mental
Health Section of the Student Health Center of the University of
Alabama. Dr. Rosenzwerg testified as an expert as to Jackson's
psychological makeup, based on previous psychological evaluations of
Jackson and her own interview with her. She indicated that
intelligence tests placed Jackson at the borderline range of
intelligence, above mental retardation.
Based on the testimony adduced at
this hearing and that presented on coram nobis, the district court
held that Jackson's counsel was ineffective for having failed to
prepare for the sentencing phase. The court found that "[b]etween
the time of petitioner's indictment and sentencing, her lawyers did
no work on the sentencing aspects of her case." 752 F.Supp. at 1556.
Thus, "[n]o social history of petitioner was undertaken prior to
either of the sentencing hearings [and] [n]o family members or
friends were contacted." Id. The district court therefore concluded
that sentencing stage counsel was ineffective, and that Jackson
therefore was entitled to be resentenced.
Before resolving the substantive
ineffective assistance claim, we briefly address the state's
argument, based on Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct.
1715, 118 L.Ed.2d 318 (1992), that it was error for Jackson and her
sister to testify at the district court's evidentiary hearing, as
they could have testified at the coram nobis hearing but did not. We
find this argument unavailing, as the district court in this case
was not required to presume the state coram nobis findings correct.
Whether Jackson's attorney made an
informed tactical decision regarding what evidence to put forth at
sentencing is a question of fact. Cunningham v. Zant, 928 F.2d 1006,
1016 (11th Cir.1991). The state judge found that counsel made a
"strategic decision not to call witnesses" because it "could have
opened the door to putting her pending assault with intent to murder
case before the jury." Jackson, 501 So.2d at 550 (quoting and
incorporating trial court's findings). However, the assault with
intent to murder charge was pending against Jackson's sister, not
against Jackson, a fact which counsel knew or should have known.
Although ordinarily a factual determination made by the state court
is entitled to a presumption of correctness, the statutory
presumption of correctness does not apply if "such factual
determination is not fairly supported by the record." 28 U.S.C. Sec.
2254(d)(8); Thames v. Dugger, 848 F.2d 149, 151 (11th Cir.1988);
McBride v. Sharpe, 25 F.3d 962, 972 (11th Cir.), cert. denied, ---
U.S. ----, 115 S.Ct. 489, 130 L.Ed.2d 401 (1994). We hold that
because a crucial finding of the state coram nobis court was not
fairly supported by the record, the district court appropriately
held an evidentiary hearing.
"A claim of ineffective assistance
of counsel is a mixed question of law and fact subject to plenary
review under the two-prong test" of Strickland. Cunningham v. Zant,
928 F.2d at 1016. A petitioner must show that counsel's performance
fell beneath the range of professionally competent assistance and
that the deficient performance prejudiced the defense.
In determining whether a counsel's
performance fell below professional norms, we "allow attorneys broad
discretion to represent their clients by pursuing their own
strategy." Horton, 941 F.2d at 1460-61. Thus, although a capital
defendant generally "has the right to present virtually any evidence
in mitigation at the penalty phase," Lightbourne v. Dugger, 829 F.2d
1012, 1025 (11th Cir.1987) (citations omitted), cert. denied, 488
U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988), this right exists
only insofar as her counsel reasonably deems such mitigation
evidence appropriate. See Mitchell v. Kemp, 762 F.2d 886, 889 (11th
Cir.1985) (attorney "has no absolute duty to present mitigating
character evidence"), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248,
97 L.Ed.2d 774 (1987). So long as a defendant's counsel makes a
"reasonable strategic judgment to present less than all possible
available" mitigation evidence, counsel's performance is presumed
effective. Mitchell, 762 F.2d at 889 (quoting Stanley v. Zant, 697
F.2d 955, 965 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104
S.Ct. 2667, 81 L.Ed.2d 372 (1984)); see also Middleton v. Dugger,
849 F.2d 491, 493 (11th Cir.1988) (where failure to put mitigating
evidence before the jury "was a tactical choice by trial counsel ...
such a choice must be given a strong presumption of correctness")
(citing Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th
Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d
Similarly, a counsel's decision
not to further investigate and develop mitigating evidence must be
reasonable and fall within the range of professionally competent
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In
other words, counsel has a duty to make a reasonable investigation
or to make a reasonable decision that makes particular
Strickland, 466 U.S. at 690-91,
104 S.Ct. at 2066; see also Rogers v. Zant, 13 F.3d 384, 386 (11th
The question of whether an
attorney's actions were a product of a tactical decision is an issue
of fact, and a state court's decision as to this issue is therefore
presumed correct, absent convincing evidence to the contrary. See
Horton v. Zant, 941 F.2d at 1462; see also Cunningham, 928 F.2d at
1011 ("[s]tate factual findings ... are entitled to a presumption of
correctness" by a reviewing habeas court). Nonetheless, whether an
attorney's tactical decision is a reasonable one, falling within the
range of professional competence, is an issue of law reviewed de
novo by this court. Horton, 941 F.2d at 1462; Bundy v. Wainwright,
808 F.2d 1410, 1419 (11th Cir.1987).
We agree with the district court's
conclusion that counsel did not make a reasonable "strategic
decision" to forego presenting mitigating evidence, and did not even
undertake a reasonable investigation into such evidence. Thus, even
if we defer to the state coram nobis court's finding that counsel
made a "strategic decision" to forego mitigation evidence, that
decision was not a reasonable one under this circuit's precedent.
In order for counsel to make a
professionally reasonable decision whether or not to present certain
mitigating evidence--in this case, any mitigating evidence--that
counsel must be informed of the available options. Thus, "[o]ur case
law rejects the notion that a 'strategic' decision can be reasonable
when the attorney has failed to investigate his options and make a
reasonable choice between them." Horton, 941 F.2d at 1462 (citing
King v. Strickland, 748 F.2d 1462, 1464 (11th Cir.1984)); see Blanco
v. Singletary, 943 F.2d 1477, 1502 (11th Cir.1991), cert. denied,
--- U.S. ----, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992); Harris v.
Dugger, 874 F.2d 756, 763 (11th Cir.), cert. denied, 493 U.S. 1011,
110 S.Ct. 573, 107 L.Ed.2d 568 (1989); Armstrong v. Dugger, 833 F.2d
1430 (11th Cir.1987); Tafero v. Wainwright, 796 F.2d 1314, 1320
(11th Cir.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97
L.Ed.2d 782 (1987). Although counsel need not "investigate every
evidentiary lead," he must gather enough knowledge of the potential
mitigation evidence to arrive at an "informed judgment" in making
that decision. Harris, 874 F.2d at 763.
In cases where sentencing counsel
did not conduct enough investigation to formulate an accurate life
profile of a defendant, we have held the representation beneath
professionally competent standards. See, e.g., Blanco, 943 F.2d at
1501-03 (counsel's performance deficient where his sole attempt to
procure mitigation witnesses for penalty phase was to leave messages
for the witnesses and await their responses, and he thus ultimately
conducted no interviews); Harris, 874 F.2d at 763 (counsel deficient
where he did not investigate defendant's family, scholastic,
military and employment background); Middleton, 849 F.2d at 493
(performance deficient where "trial counsel conducted almost no
background investigation, despite discussions with Middleton
concerning the existence of such mitigating evidence" as psychiatric
problems, brutal childhood, physical, sexual and drug abuse, and low
I.Q.); Armstrong, 833 F.2d at 1433-34 (performance deficient where
trial counsel's investigation of mitigating evidence was limited to
single conversation with defendant and his parents, and another
conversation with defendant's parole officer).
In this case, Burroughs had a
small amount of information regarding possible mitigating evidence
regarding Jackson's history, but he inexplicably failed to follow up
with further interviews and investigation. Had he done so, he would
have discovered substantial evidence of Jackson's personal
hardships; her brutal and abusive childhood at the hands of an
alcoholic mother; her devotion to her mother, sister, and daughter;
her lack of schooling and low intelligence; and her work history.
The "general background history" secured by Burroughs upon
undertaking the case was a far cry from a reasonable investigation
into mitigating evidence. See Middleton, 849 F.2d at 493. Sogol, on
the other hand, concededly sought absolutely no information as to
mitigating evidence, as he believed that investigation to be
The state nonetheless argues that
Jackson's counsel made a reasonable "strategic decision" not to
present mitigating evidence, based primarily on their fear that such
a presentation would open the door to a pending assault with intent
to murder charge--a charge which Burroughs later discovered involved
not Jackson, but one of her sisters.
Burroughs testified that the failure to present mitigating evidence
was at least partially influenced by the prosecution's threat to
introduce this charge, which defense counsel were informed of within
one hour before sentencing.
Burroughs also testified, however, that he recalled Jackson
informing him that her sister, not she, was the subject of that
this warning from Jackson, and without "any proof of [the charge] at
defense counsel nonetheless did not investigate whether the
purported charge was valid.
Viewed in totality, Jackson's
counsels' decision to acquiesce in the prosecutor's warnings was not
reasonable; a legal decision to forego a mitigation presentation
cannot be reasonable if it is unsupported by sufficient
investigation. Jackson's attorneys could have--should have--asked
for a continuance, to investigate their client's claim that the
charge did not pertain to her. Instead they unreasonably acquiesced
in the prosecutor's strategic warnings by presenting no mitigating
evidence. This acquiescence by Burroughs and Sogol was not a
reasonable "tactical decision" borne of reasonable preparation. Cf.
Lewis v. Lane, 832 F.2d 1446 (7th Cir.1987) (counsel was deficient
for stipulating to a prior conviction which did not exist), cert.
denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988).
In sum, as to both Sogol and
Burroughs, "[t]he ultimate decision that was reached not to call
witnesses was not a result of investigation and evaluation." Blanco,
943 F.2d at 1503. Their failure to investigate and present
mitigating evidence therefore fell below the standards of reasonably
competent legal performance guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution.
Having determined that counsels'
failure to present mitigating evidence fell below levels of
professional competence, we must determine whether prejudice arose
from this failure. The prejudice prong is satisfied where the
petitioner has demonstrated that there exists "a reasonable
probability that, but for counsel's unprofessional errors, the
result would have been different." Horton, 941 F.2d at 1463 (quoting
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
We conclude that Jackson
sufficiently demonstrates prejudice stemming from her counsels'
errors. We have found prejudice in past cases where counsel's
failure to investigate resulted in similar omissions of mitigating
evidence. See, e.g., Blanco, 943 F.2d at 1504 (prejudice arose where
counsel failed to procure a psychiatrist at sentencing to testify
that defendant had mental health problems and a very low IQ, and
suffered bouts of paranoia and depression); Harris, 874 F.2d at 763
(prejudice arose where counsel's failure to investigate led to
omission of potentially mitigating evidence concerning defendant's
family, scholastic, military and employment background); Blake v.
Kemp, 758 F.2d 523 (11th Cir.) (prejudice occurred where counsel did
not prepare or present mitigating evidence, although four friends of
defendant and defendant's mother would have offered character
testimony), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d
At the sentencing phase, counsel
could have elicited testimony from, at a minimum, Jackson and her
sister. Counsel could have presented to the jury and the court
emotional and substantial testimony of Jackson's good character and
devotion to her family despite a life of hardship and abuse.
Instead, counsel presented brief arguments
which encompassed four abbreviated points: that the goal of
deterrence would be sufficiently served by a life sentence; that the
evidence suggested that Jackson had acted in anger, in response to
"threats and words"; that far worse crimes often are punished with
sentences less than death; and that although Jackson had not chosen
her own lawyer, Mr. Burroughs was worried "whether or not [he'd]
done [his] job."
Many death penalty cases involve
murders that are carefully planned, or accompanied by torture, rape
or kidnapping. Jackson's crime, by contrast, executed with a single
plunge of a knife, apparently was borne of irrational and sudden
temper. Evidence showing the genesis of Jackson's irrational rage
through an abusive upbringing, in addition to evidence of Jackson's
good character in her relationships with her family and her
employment history, thus might well have benefitted the defense far
more than the argument presented. Accord Harris, 874 F.2d at 763-64
("[E]vidence seeking to show appellant's character as being good may
have had a greater impact on a jury deciding whether to impose the
death penalty for this crime--a burglary gone horribly awry--as
opposed to one involving murder as the intended goal....").
Because we conclude that a
reasonable probability exists that a jury hearing this evidence
would have recommended life, Jackson suffered prejudice from her
counsels' errors. We thus affirm the district court's grant of
habeas relief as to the sentence imposed.
For the foregoing reasons, we
REVERSE the ruling of the district court as to the independent claim
of ineffective assistance of counsel at the guilt phase; we REVERSE
the ruling of the district court as to Jackson's claim under Swain;
and we AFFIRM the ruling of the district court as to ineffective
assistance of counsel at the sentencing phase. The district court's
ruling is AFFIRMED in all other respects. We REMAND to the district
court for proceedings consistent with this opinion.
SEX: F RACE: B TYPE: T MOTIVE:
MO: Slashed boyfriend with razor;
stabbed female bartender.
DISPOSITION: 12 years for
second-degree, 1966 (paroled 1970); condemned 1981 (commuted to life
Michael Newton - An Encyclopedia of Modern Serial
Killers - Hunting Humans