The New York Times

March 21, 1992

A man who admitted hiring two men to kill his pregnant wife so that he could marry another woman was executed early today in Alabama's electric chair.

Larry Gene Heath, 40 years old, made no last attempt to appeal his death sentence for the 1981 slaying of Rebecca Heath.

Gov. Guy Hunt on Tuesday denied a request for clemency from Mr. Heath's supporters, including a group of ministers. Friends at Holman Prison called him the "Death Row Apostle" because he had claimed to have undergone a religious conversion in prison. Secret Engagement

Prosecutors said Mr. Heath, who was secretly engaged to another woman, had persuaded his 21-year-old wife, who was nine months pregnant, to cosign a $2,000 home-improvement loan. He used the loan to pay for her murder, the prosecutors said.

She was abducted from their home in Phenix City, Ala., and shot in the head. Her body was found in Georgia. The male fetus also died.

The men hired by Mr. Heath were convicted and given life sentences.

Mr. Heath was arrested four days after the killing. He pleaded guilty to murder in Georgia in February 1982 and was sentenced to life in prison.

In January 1983, a jury in Alabama convicted him of murder and a judge sentenced him to die.

Heath v. Alabama, 474 U.S. 82 (1985) is a case in which the United States Supreme Court ruled that, because of the doctrine of dual sovereignty (a consequence of federalism), the double jeopardy clause of the Fifth Amendment to the Constitution does not prohibit one state from prosecuting and punishing somebody for an act of which he had already been convicted and sentenced another state.

Background

The Fifth Amendment to the Constitution of the United States says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V.

The clause "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb" means that the government cannot re-prosecute somebody for a crime of which he or she has been found "not guilty"; likewise, the government cannot appeal against a verdict of acquittal. Fong Foo v. United States, 369 U.S. 141 (1962); see also United States v. Martin Linen Supply Co., 430 U.S. 464 (1977). However, the first ten amendments to the Constitution, known as the Bill of Rights, were originally interpreted as binding only on the Federal government; for example, the First Amendment, which guarantees freedom of religion, expressly begins with the words, "Congress shall make no law . . . ." It was not until the passage of the Fourteenth Amendment, the first section of which says, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" that any serious consideration was given to the proposition that the Bill of Rights is binding on the states. Cf. Twining v. New Jersey, 211 U.S. 78 (1908).

Since then, the decisions of the United States Supreme Court have gradually evolved so as to include most state actions within the scope of the Bill of Rights. See, e.g. Washington v. Texas, 388 U.S. 14, 18 (1967); Malloy v. Hogan, 378 U.S. 1 (1964); Stromberg v. California, 283 U.S. 359, 368 (1931). In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court held that the Fifth Amendment prohibition against double jeopardy applies to the states. Nevertheless, each U.S. state has long been considered to have its own sovereignty, which it shares with the U.S. federal government, see U.S. Const. amend. X; thus, the question of whether more than one state can punish the same individual for the same set of actions was left open.

Facts and procedural history

In 1981, the defendant, Larry Gene Heath, traveled from Alabama to Georgia, where he met with two other individuals whom he had hired to kill his wife Rebecca. Heath v. Alabama, 474 U.S. at 83-84. They returned with him to his house and, after he left the scene, they killed his wife. Id. He was arrested later that year and, on February 10, 1982, plead guilty in a Georgia court to the crime of murder, and was sentenced to life imprisonment.

Subsequently, a grand jury in Alabama, his state of residence, indicted him for the crime of murder during a kidnaping, and he entered a plea of "autrefois convict and former jeopardy under the Alabama and United States Constitutions," by which he stated that he was not eligible to be punished in Alabama because a Georgia court had already convicted and sentenced him for the same crime, and that the crime had, in fact, not taken place in Alabama. Heath, 474 U.S. at 85.

The prosecutor argued, however, that because the defendant's wife had been kidnaped in Alabama, the murder "may be punished" there. Id. On January 12, 1983, a jury in the Alabama court convicted Heath of "murder during a kidnaping in the first degree," a capital offense, Id. He was sentenced to death, and the Alabama Court of Criminal Appeals affirmed this decision on direct appeal. Heath v. State, 455 So. 2d 898 (Ala. Crim. App. 1983). The Alabama Supreme Court, after granting certiorari, affirmed the decision of the lower court as well. Ex parte Heath, 455 So.2d 905 (Ala. 1984).

The United States Supreme Court then granted certiorari to determine whether the conviction of Heath violated the precedent that had been set by an earlier case, Brown v. Ohio, 432 U.S. 161 (1977), in which the Court had held that one cannot be punished consecutively for two different offenses if the proof of both offenses is identical.

The decision of the Court

Writing for a 7-2 majority, Justice O'Connor ruled that "the dual sovereignty doctrine . . . compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause." 474 U.S. at 88. "The dual sovereignty doctrine," she wrote, "is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.' United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922)." Id.

When somebody commits a crime against the laws of two different states, then the question of whether the states constitute two different sovereigns or just one is determined by whether the state governments "draw their authority to punish the offender from distinct sources of power." Heath, 474 U.S. at 88. Answering the question, Justice O'Connor wrote that the "powers" of state governments "to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment." Id. at 89; cf. U.S. v. Wheeler, 435 U.S. 313 (1978) (applying the doctrine of dual sovereignty to the internal affairs of Native American tribes). But see Nielsen v. Oregon, 212 U.S. 315 (1909) (distinguished from Heath by the majority, 474 U.S. at 91, but cited by Justice Marshall in support of his dissent, 474 U.S. at 100).

The majority opinion concluded that by violating the laws of two different states, the defendant committed separate offenses against each state; for this reason, the Constitutional prohibition on prosecuting or convicting somebody "for the same offense" did not apply, and the Court affirmed the defendant's conviction. 474 U.S. at 94.

Dissent

Justice Marshall's dissent

Justice Marshall, in a minority opinion, sought to distinguish between the long-held principle that the Fifth Amendment does not prohibit the U.S. federal government and the state governments from separately prosecuting the same individual for the same illegal act, and the majority holding that two separate state governments can do likewise.

In his dissent, he explains that the "dual sovereignty" exception to the double jeopardy clause was designed specifically "to accommodate complementary state and federal concerns within our system of concurrent territorial jurisdictions." Heath, 474 U.S. at 95 (Marshall & Brennan, JJ., dissenting).

Furthermore, even if the reasoning of the majority was correct, the dual sovereignty doctrine must "not [be used to] legitimate the collusion between Georgia and Alabama in this case to ensure that petitioner is executed for his crime." Id. Specifically, in this case the defendant plead guilty in Georgia for the express purpose of avoiding the death penalty; then, he was put on trial in Alabama by a jury in a town where the crime was notorious, and where 75 of 82 prospective jurors were aware that Heath had already plead guilty in Georgia. The judge, rather than exclude the jurors who knew that the defendant had already plead guilty, simply asked them if they would be able to "put aside their knowledge of the prior guilty plea in order to give petitioner a fair trial in Alabama." Id. at 96. It strains credibility that the jurors could remain impartial in spite of their knowledge of the guilty plea. Id. at 97. Furthermore, given that the jurors had this knowledge, defense counsel "could do little but attempt to elicit information from prosecution witnesses tending to show that the crime was committed exclusively in Georgia", id.; any argument tending to show actual innocence would likely be disbelieved by the jury, in spite of the fact that the guilty plea in Georgia was part of a plea bargain, and some defendants, to avoid execution, may plead guilty without actually being guilty. Cf. North Carolina v. Alford, 400 U.S. 25 (1970).

Justice Marshall also comments that it would, without question, have been unconstitutional if the State of Georgia had decided to re-prosecute Heath on a capital charge because of its dissatisfaction with the life sentence that he had already received. "The only difference between this case and such a hypothetical volte-face by Georgia is that here Alabama, not Georgia, was offended by the notion that petitioner might not forfeit his life in punishment for his crime. The only reason the Court gives for permitting Alabama to go forward is that Georgia and Alabama are separate sovereigns." Heath, 474 U.S. at 97-98 (Marshall & Brennan, JJ., dissenting). He then goes on to criticize the majority for its "restrictive" interpretation of the word "offence." Id. at 98.

The only reasons why there needs to be a dual-sovereignty exception to the Fifth Amendment prohibition of double jeopardy, argues Marshall, are that

were a prosecution by a State, however zealously pursued, allowed to preclude further prosecution by the Federal Government for the same crime, an entire range of national interests could be frustrated

and that

Conversely, because "the States under our federal system have the principal responsibility for defining and prosecuting crimes," Abbate v. United States, supra, at 195, it would be inappropriate - in the absence of a specific congressional intent to pre-empt state action pursuant to the Supremacy Clause - to allow a federal prosecution to preclude state authorities from vindicating "the historic right and obligation of the States to maintain peace and order within their confines," Bartkus v. Illinois, supra, at 137.

Heath, 474 U.S. at 99 (Marshall & Brennan, JJ., dissenting). No such "interests" need to be protected when two different states are seeking to prosecute the same offense, and so the underlying reasons behind the "dual-sovereignty" exception to the prohibition against double jeopardy do not apply. Indeed, in 1909 the Supreme Court had held that in case of an incident that occurs on territory subject to the "'the one first acquiring jurisdiction of the person may prosecute the offense, and its judgment is a finality in both States, so that one convicted or acquitted in the courts of the one State cannot be prosecuted for the same offense in the courts of the other' Nielsen v. Oregon, 212 U.S. 315, 320 (1909)," Id. at 100. (The majority decision of the Court stated that the holding of Nielsen v. Oregon was applicable only to a unique set of circumstances. Heath, 474 U.S. at 91. In Nielsen v. Oregon, 212 U.S. 315 (1909), two States jointly had jurisdiction over the river that separates them from each other, and one state had prosecuted somebody for an act that was specifically permitted under the laws of the other, and the Court reversed the conviction.)

Finally, Justice Marshall points out that "Even where the power of two sovereigns to pursue separate prosecutions for the same crime has been undisputed, this Court has barred both governments from combining to do what each could not constitutionally do on its own." 474 U.S. at 102. In this case, the prosecutions in Alabama and Georgia were so inextricably linked that it was as if they were acting together as a single governmental entity. Furthermore, the interests of justice, according to Marshall, were frustrated by having the defendant plead guilty to a crime in Georgia to avoid the death penalty, only to have the guilty plea prevent him from mounting a meaningful defense to capital charges in Alabama. For these reasons, in the interests "of fundamental fairness," Justice Marshall voted against the majority decision.

Justice Brennan's dissent

Justice Brennan joined Justice Marshall in his dissent, but also wrote a separate statement (in which Justice Marshall joined), in which he indicated that the "interests" mentioned by Justice Marshall, which would justify allowing Federal and State prosecutions for the same illegal act, are not of a nature that would justify any other exception to the rule that one may not be prosecuted more than once for the same offense.

Conclusion

Subsequent history

The defendant in this case subsequently filed a petition for post-conviction relief in the Alabama state court system, and for a Federal writ of habeas corpus, both of which were denied, Heath v. State, 536 So. 2d 142 (Ala. Crim. App. 1988); Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991); he was executed on March 21, 1992.

The decision in context

455 So.2d 905, affirmed.

[ ^{Footnote 3} ] To be sure, Murphy, which bars a State from compelling a witness to give testimony that might be used against him in a federal prosecution, and Elkins, which bars the introduction in a federal prosecution of evidence illegally seized by state officers, do not necessarily undermine the basis of the rule allowing successive state and federal prosecutions. It is one thing to bar a sovereign from using certain evidence and quite another to bar it from prosecuting altogether. But these cases can be read to suggest that despite the independent sovereign status of the Federal and State Governments, courts should not be blind to the impact of combined federal-state law enforcement on an accused's constitutional rights. See Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv. L. Rev. 1538, 1547 (1967). Justice Harlan's belief that Murphy "abolished the `two sovereignties' rule," Stevens v. Marks, 383 U.S. 234, 250 (1966) (Harlan, J., concurring in part, dissenting in part), was thus well founded.

941 F.2d 1126

Aug. 26, 1991.
Rehearing and Rehearing En Banc
Denied Oct. 25, 1991.

B. Procedural History

1. The Indictments and Trial

II. ANALYSIS

A. Ineffective Assistance of Counsel on Direct Appeal4

A defendant has a right to counsel to aid in the direct appeal of his or her criminal conviction. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). This right to counsel is violated when appellate counsel is ineffective. Id.; Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.1984). This Circuit has applied the Supreme Court's test for ineffective assistance at trial, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to guide its analysis of ineffective assistance of appellate counsel claims. See Orazio v. Dugger, 876 F.2d 1508 (11th Cir.1989). Therefore, Heath must show that his appellate counsel's performance was deficient and that this performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. While Heath can demonstrate that his appellate counsel's performance was deficient, Heath is unable to show that this deficient performance prejudiced his defense.

1. The Performance Prong

Strickland held that in evaluating whether the appellate counsel's performance was deficient, counsel's performance must be evaluated for "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Courts should presume effectiveness and should avoid second-guessing with the benefit of hindsight. Id. at 689, 104 S.Ct. at 2065. Specifically, Strickland encouraged reviewing courts to allow attorneys broad discretion to represent their clients by pursuing their own strategy. However, the Court realized that merely invoking the word "strategy" to explain errors was insufficient since "particular decision[s] must be directly assessed for reasonableness [in light of] all the circumstances." Id. at 691, 104 S.Ct. at 2066.

The Supreme Court, on at least two occasions, has had an opportunity to explain the parameters of what constitutes a reasonable strategy for appellate advocates. In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the Court held that the Sixth Amendment does not require appellate advocates to raise every non-frivolous issue. The Court suggested that effective advocates "winnow out" weaker arguments even though the weaker arguments may be meritorious. Id. at 751-52, 103 S.Ct. at 3313. The Court in Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), held that an appellate advocate who reviewed the entire record, thought about various claims, and then chose to pursue thirteen claims on appeal had furnished effective appellate assistance. The Court recognized that even though a non-appealed issue might have been successful, the appellate advocacy had to be judged in its entirety.

In the case at bar, appellate counsel's performance was deficient. Heath's attorney selected only one issue to appeal, the double jeopardy claim.5 The argument section of his brief to the Court of Criminal Appeals was only six pages long. The argument section of his subsequent brief to the Alabama Supreme Court was only one page long. While we are loath to encourage attorneys to file numerous claims merely for the sake of filing claims, we also realize that in a capital appeal the attorney must raise many issues in a timely fashion or else the defendant may be procedurally barred from ever raising those issues. We also note that the quality of the one claim that was briefed was unreasonably deficient. Heath has provided affidavits from four criminal appellate attorneys with expertise in capital appeals who testified that his appellate counsel's decision to rely on only one claim was below "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. All four attorneys stated that, had they supervised this appeal, they would have forbidden the filing of these briefs. One attorney stated that in Kentucky since 1976 the average capital appeal has raised 34 issues and the brief has averaged 194 pages.

This is not a case where the attorney made a strategic decision to winnow out his less persuasive claims. Heath's attorney Roney, in his testimony during the state collateral review, did not advance any reasonable strategic reasons for raising only the double jeopardy claim. While he focused on the double jeopardy claim to the exclusion of other issues during the appeal, he admitted that even before the trial, he thought the double jeopardy issue was a losing issue. Furthermore, he explained that he did not bring the change of venue/pretrial publicity claim on appeal because he thought that Heath was guilty and that Heath would be found guilty wherever he was tried. Evidently, Roney was not aware of the fact that his client had a constitutional right to a fair trial regardless of his client's guilt. We are not willing to characterize this mistaken understanding of the law as a reasonable strategy.

The state argues that Heath's appellate counsel's performance was reasonable because he was able to convince the Supreme Court to grant certiorari. While the grant of certiorari is impressive and indicates that the issue that Heath's attorney selected is "an important question of federal law," Rules of the Supreme Court, Rule 10.1(c), this alone is not dispositive. First, we note that Heath's original appellate counsel, Roney, did not draw up the petition for certiorari. Heath obtained Professor Allen, a professor from Northwestern University School of Law, to pursue the certiorari petition after his appeal in the Supreme Court of Alabama had failed. Second, the grant of certiorari does not necessarily indicate that the position advocated by Heath has any merit, only that it is an important question. We are reluctant to conclude that the selection of an important question of federal law, to the exclusion of other issues, which was ultimately unsuccessful, is sufficient to redeem an otherwise poor appellate performance.

2. The Prejudice Prong

While we conclude that Heath's appellate counsel's performance was deficient, we cannot conclude that Heath is able to show any prejudice from this poor performance. A petitioner has satisfied the prejudice prong of Strickland when he or she can show that the appellate counsel's performance was sufficiently deficient to deprive the defendant of "a trial [or an appeal] whose result [was] reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In the context of an ineffective assistance on appeal claim, this Court in Cross v. United States, 893 F.2d 1287 (11th Cir.1990), held that in order to determine prejudice the court must first perform "a review of the merits of the [omitted or poorly presented] claim." Id. at 1290. If the Court finds that the neglected claim would have a reasonable probability of success on appeal, then according to Cross it is necessary to find "appellate counsel's performance prejudicial because it affected the outcome of the appeal." Id.

With the legal standards for prejudice in mind, Heath claims that his appellate counsel would have been successful if he had raised two claims on appeal.

a. Denial of Fair and Impartial Jury

Heath first alleges that he was denied a fair and impartial jury due to extensive and highly prejudicial pretrial publicity.6 In support of this allegation, Heath notes that local TV and newspapers extensively covered the murder, the investigations, and the assorted trials. Heath's allegations raise three related claims: first, whether the trial court erred in not striking individual jurors for cause; second, whether the publicity created inherent prejudice; and third, whether the publicity caused actual prejudice.

Heath argues that the trial court erred in failing to strike some of the jurors for cause. A prospective juror must be removed for cause if his or her views " 'would prevent or substantially impair the performance of his [or her] duties as a juror.' " Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). This Circuit has held that the question of whether a juror was in fact biased is a question of fact. See Bundy v. Dugger, 850 F.2d 1402, 1426 (11th Cir.1988). A habeas petition will be granted for a state trial court's failure to strike a juror for cause only when there is not fair support in the record for the trial court's determination that the juror was unbiased. Id. Heath discusses the fact that, of the eighty-one veniremembers, he challenged sixty-seven of them for cause (including all twelve of the eventual jurors), and the trial court granted only eight of his challenges for cause.7 However, even if a veniremember should have been struck for cause, the Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), held that there is no constitutional violation where the biased veniremember does not eventually sit on the jury. The Court in Ross held that a habeas petitioner's constitutional rights were not violated when he was forced to waste a peremptory challenge to remove a veniremember whom the court should have removed for cause. Therefore, in this habeas petition, Heath can raise only the trial court's denials of Heath's challenges for cause of those veniremembers who eventually sat on the jury.

After a close examination of the record, we conclude that there is at least "fair support" in the record for the trial court's decision to deny Heath's motions to strike each of the jurors for cause. We are unable to find a single member of the jury whose answers indicated that his or her prior knowledge or pre-dispositions would impair his or her performance as a juror. While all of the jurors had heard of the case in the media and several of them had heard that Heath had pled guilty in Georgia to the same crime,8 all of the jurors stated that they would be unbiased and that they would follow the judge's instructions. Moreover, from the skeletal nature9 of the questions and answers, we are hard pressed to find any indication of any bias against Mr. Heath. In the Bundy case, we found no error in a trial judge's refusal to strike for cause a juror who had a negative impression about the defendant, might be influenced by the defendant's lack of testimony, and was uncertain if he or she had a fixed opinion about the defendant's guilt. Bundy, 850 F.2d at 1428 (Juror No. 3). In that case, we focused on the juror's promise to follow the judge's instructions and to judge the evidence fairly. Id. In the case at hand, the jurors made the same promises, and we are unable to find anything in the record suggesting that the jurors did not intend to keep these promises.

Second, Heath argues that he received an unfair trial because the news media closely followed the crime, investigation, and trials and published distorted and prejudicial information. Heath has compiled over 100 newspaper articles and four videotapes of television newscasts. He argues that the reports resulted in an unfair trial because the articles focused on the sensational aspects of the murder. Heath claims that many of the articles were melodramatic. The articles, Heath alleges, focused on the fact that Mrs. Heath was nine months pregnant when she was murdered. The articles referred to the dead fetus by the name that Heath had said he and his wife had agreed upon, and they called the murder a double homicide. In one article, the Georgia prosecutors lamented their inability to bring charges for the death of Mrs. Heath's fetus due to the lack of a feticide statute.10 Other articles referred to Heath as a "con man." His parents and brother told the press that they thought he was possessed by the devil. Heath claims the coverage became more prejudicial following his plea of guilty. The parents of the victim told how they were upset that Heath was not sentenced to death. Several letters to the editor attacked the plea agreement. The public's reaction to the plea agreement eventually forced the prosecutor and the judge to make statements defending their actions. In the course of this outcry against the plea agreement, Alabama indicted Heath and sought his extradition for capital murder. The media reported that the Alabama trial was necessary because of Georgia's failure to seek the death penalty.

In addition, Heath complains of several sideshows that were extensively covered in the media. First, he notes that the Troup County, Georgia family court held open hearings in the custody battle between his parents and his in-laws over his son and again in the later fight to strip Heath of all of his parental rights. Both family court hearings quickly degenerated into mud slinging. Second, he notes the extensive attention that was focused on Denise Lambert's award in a beauty pageant, her reputed family connections and wealth, and the judicial system's supposed lenient treatment of her.

Heath argues that this pretrial publicity infected the venire and the jury. He notes that 93% of the venire members (75 of 81) heard about the case, 70% of the venire members (57 of 81) knew that Heath had entered a plea of guilty or was convicted in Georgia. He also notes that 83% of the actual jurors (10 of 12) knew, prior to being summoned for jury duty, that Heath's guilt had been determined in Georgia. And, Heath notes, the rest of the jurors were told of the guilty plea during voir dire.

Heath argues that the pretrial publicity deprived him of a fair trial under both an inherent prejudice and an actual prejudice analysis. Inherent prejudice occurs when the pretrial publicity "is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held." Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985). Inherent prejudice rarely occurs. Id. Our Circuit has treated the inherent prejudice analysis as a mixed question of fact and law, Coleman, 778 F.2d at 1537 n. 17, but we review the record cognizant of the fact that inherent prejudice is rarely found. Id. Even if Heath cannot show inherent prejudice, he may be able to prove that the pretrial publicity resulted in an unfair trial if he is able to show actual prejudice. Actual prejudice occurs when the prejudice actually enters the jury box and affects the jurors. Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985). This Court should look at the totality of circumstances to determine the extent of the prejudice. Id. The petitioner cannot establish actual prejudice without proving that at least one juror should have been dismissed for cause. Bundy v. Dugger, 850 F.2d 1402, 1427 (11th Cir.1988).

Heath claims that he can demonstrate inherent prejudice because he claims that he meets both the inflammatory and the saturation requirements of the inherent prejudice analysis. We disagree and hold that he has not met either prong of the inherent prejudice analysis.

We are guided by some standards to evaluate whether news coverage is allegedly inflammatory. For instance, the courts have distinguished, and deemed acceptable, any pretrial publicity which is purely factual in nature, see Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), from pretrial publicity which includes prejudicial or inflammatory commentary. See Coleman, supra. The courts are also extremely wary when the media saturates a town with highly prejudicial evidence such as inadmissible evidence, see Coleman, supra, or the defendant's confession, see Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). This highly prejudicial evidence increases the risk of a trial by the media to the exclusion of a fair trial where the rules of evidence and cross-examination govern the admission and weight of the evidence that is ultimately placed before the jury. As we recently noted in a related context, the Fourteenth Amendment incorporates the Sixth Amendment right of a defendant to be tried in "a fair trial in which the jury reaches its verdict based only on the evidence subjected to the crucible of the adversarial process." Woods v. Dugger, 923 F.2d 1454 (11th Cir.1991).

We find that the record does not support Heath's claim that the news coverage was inflammatory. The vast majority of the articles were purely factual presentations of the news about the killing. In addition, Heath is unable to cite any articles in which the media discussed highly prejudicial evidence in a manner that raises concerns about potential jurors being influenced by information not subjected to the "crucible of the adversarial process." While Heath is able to find several articles which are inflammatory (e.g., the articles about Heath being possessed by the devil) these articles are not typical of the vast majority of the articles. Moreover, Heath's claims that the press expressed outrage at his plea bargain and that the media later supported Alabama's later prosecution are not an accurate reflection of the record. Despite isolated letters-to-the-editor expressing outrage, the general tone of the media's reporting is quite restrained.11

We find against Heath for a second, independent reason. Heath has not demonstrated that the media coverage saturated the market. A petitioner must prove (1) that a substantial number of the people in the relevant community could have been exposed to some of the prejudicial media coverage, and (2) that the effects of the media saturation continued until the trial. We have, on at least one occasion, rejected an inherent prejudice claim because of a failure of proof. See Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980) (holding that the record was unclear how widely read the Birmingham News and the Post-Herald were in Blount County, Alabama in 1962). Heath has met the first portion of the saturation requirement. Heath has produced evidence that Columbus, Georgia and Phenix City, Alabama are a single media market and that the relevant television stations and local newspapers cover the entire area. Heath has also produced evidence that each of the major local media sources covered the murder and ensuing investigation equally thoroughly. However, Heath has failed to meet the second portion of the saturation requirement. Courts have recognized that in certain limited circumstances, the effect of inflammatory pretrial publicity may be lessened if the media focuses on other news in the months prior to the trial. See Patton v. Yount, supra. But see Coleman, supra (declining to apply the "cooling off" rationale when there was evidence that the local emotions continued to run deep and the "cooling off" period was marred by intense publicity immediately before the trial). The record in this case supports such a cooling off rationale. The crime occurred on August 31, 1981 and Heath was arrested four days later. In the next several weeks, the story was placed on the front page of the two local papers nearly every day. Heath pled guilty in February of 1982, and his co-defendants went to trial during the spring. Throughout this period, the case seemed to command the local news media's attention. In May of 1982, days after the final trial finished in Georgia, Alabama brought charges against Heath. The case stayed in the news until the end of May. However, from June of 1982 until the trial began in February of 1983, the case received little or no attention in the news media. On average, there were only one or two articles in the local papers each month. Moreover, in the days prior to the trial, the media mentioned the upcoming trial in only one or two short articles. Therefore, in order for Heath to prevail on this claim, he must show that the articles published prior to June of 1982 resulted in an unfair trial held eight months later. Heath is unable to show that these articles, which were, for the most part, not inflammatory, marred his trial sufficiently for us to conclude that this is one of those extremely rare cases in which we should find inherent prejudice.

Finally, Heath alleges that the publicity created actual prejudice. He notes that a large number of veniremembers heard about the crime and his plea agreement. According to Patton v. Yount, however, the question is not whether a juror remembered the case from the media. Patton, 467 U.S. at 1033, 104 S.Ct. at 2889. Rather, the Patton Court held that after examining the voir dire, the court should determine whether the jurors had fixed opinions to the extent that they were unable to judge the defendant's guilt impartially and recommend an appropriate sentence. Similarly, this Court in Bundy, supra, recognized that seating of a juror by a state court over a challenge for cause will be affirmed as long as there is fair support in the record for the court's decision. As we have already noted, all of the seated jurors denied having a fixed opinion as to Heath's guilt and they all promised to follow the judge's instructions.

Therefore, under Cross, 893 F.2d at 1290, we do not find appellate counsel's failure to bring this claim on appeal prejudicial because the claim would not have been successful if it were brought on appeal.

b. The Violation of the Privilege Against Self Incrimination

During the Georgia trial of Owens and Lumpkin, the Georgia district attorney called Heath to the stand.12 Heath invoked his Fifth Amendment right not to testify. The district attorney argued that Heath was not entitled to the protection of the Fifth Amendment because he had already pled guilty to the murder and Georgia was not going to bring any other charges against him for this crime. Heath disagreed; he argued to the court that he was entitled to the protection of the Fifth Amendment because there was a possibility that Alabama might bring charges against him for the same crime. During Heath's Alabama trial, the district attorney, over a defense objection, asked Officer Malueg, one of the investigating officers who was present when Heath testified in Georgia, about Heath's testimony during Owens' and Lumpkin's trial in Georgia. Officer Malueg testified that Heath "had refused to testify based on the fact ... that there was an implication that other charges might be filed at a later time because of the fact that his wife was abducted from--and taken from Alabama." In his closing argument to the jury, the district attorney mentioned Officer Malueg's testimony in order to prove that the kidnapping had occurred in Alabama.

We do not need to determine whether Heath's Fifth Amendment rights were violated because it is clear that any error was harmless beyond a reasonable doubt. Both parties admit that Heath's testimony was relevant only to establish that the kidnapping started in Heath's home in Russell County, Alabama. We note that there is extensive evidence supporting the state's contention that the kidnapping started in Russell County. The most important piece of evidence was Heath's extensive confession to Officer Malueg on the night of his arrest during which he admitted that the kidnapping started in his home. Moreover, some circumstantial evidence confirmed that the kidnapping started in Heath's home. The investigating officers found a crushed cigarette on Heath's kitchen floor, and Heath admitted that neither he nor his wife smoked. Also, on the morning of the kidnapping, two neighbors noticed Heath speaking with some men in a car parked down the street from Heath's house. These men were seated in a car that was seen later that morning speeding away from the wrecked car containing Mrs. Heath's body. Furthermore, the police found tire tracks leading up to the Heath house, they found a door unlocked, they found a fan blowing in Mrs. Heath's bedroom, and they found that Mrs. Heath had not worn some jewelry that she customarily wore when she left the house. The prosecutor, in his closing, emphasized each of these pieces of evidence. In light of all this evidence, we conclude that the error was harmless beyond a reasonable doubt. Because the error was harmless, the Fifth Amendment claim would not have been successful on appeal. We therefore hold that appellate counsel's failure to raise this claim was not prejudicial.

B. Subject Matter Jurisdiction

The Alabama Court of Criminal Appeals, the last state court to issue an opinion, reviewing the denial of the petition for a writ of error coram nobis, stated that Heath should have raised his subject matter jurisdiction claim on direct appeal. The court stated that this failure bars review, but then stated "[n]evertheless, we hold that Alabama did in fact have jurisdiction to prosecute this appellant." Heath v. State, 536 So.2d 142, 143-44 (Ala.Crim.App.1988). The district court below found that this holding creates a procedural bar. Heath disagrees. Heath argues that the state court recognized that a procedural bar existed, but the court chose to waive the bar and proceed to the merits. Heath notes that the use of the word "nevertheless" implies that "in spite of" the procedural bar, the court intentionally reached the merits.

In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), a state court mentioned a procedural bar and then proceeded to the merits. In order to resolve the question of whether the state court reached the merits or relied on the procedural bar, the Supreme Court adopted the plain statement rule set out in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Therefore, if a state court opinion is ambiguous about which of two grounds it relied upon, the federal courts must presume that the state court reached the merits. Harris, 489 U.S. at 263, 109 S.Ct. at 263. The Court, however, recognized that in some cases the state courts will discuss the merits as an alternative holding. The Court held that, in those cases, the federal courts should defer to the procedural bar. Id. at 254 n. 10, 109 S.Ct. at 1044 n. 10. But a state court's discussion of the merits is "an alternative holding" only if, after reading the opinion as a whole, the federal court concludes that the state court " 'clearly and expressly' state[d] that its judgment rest[ed] on a state procedural bar." Id. at 263, 109 S.Ct. at 1043. Applying the Harris test, we cannot conclude that the state court "clearly and expressly" indicated that the merits were an alternative holding, therefore we must presume that the state court reached the merits.13

2. The Merits

Heath argues that Alabama lacked subject matter jurisdiction over this offense: Heath claims that all the elements of the murder (a murderous act accompanied by a contemporaneous intent to kill, see Alabama Code § 13A-6-2(a)(1)), occurred in Georgia. The state argues that Heath was convicted of the capital crime of kidnapping/murder which is not defined in section 13A-6-2(a)(1) (murder), but at section 13A-5-40(a)(1) (capital offenses). Under the state's theory Alabama properly had jurisdiction because part of the kidnapping/murder crime occurred in Alabama.

At the outset a few things appear clear. Heath admits that Alabama can obtain jurisdiction over a kidnapping charge if the kidnapping began in Alabama, while the state admits that Alabama cannot obtain jurisdiction for a murder which occurs solely in another state. See Dolvin v. State, 391 So.2d 666, 674 (Ala.Crim.App.1979) (holding that murder is an indivisible offense and therefore only one state can properly have jurisdiction), aff'd, 391 So.2d 677 (Ala.1980).

There are two dimensions to this jurisdictional question. First, we must determine whether the state has created a murder/kidnapping crime. Second, assuming the state has created such a crime, we must determine whether the punishment of Heath for this crime violates traditional limits on state sovereignty.

Heath argues that the state has not created a crime of murder/kidnapping. Heath notes that both kidnapping and murder are separate offenses and that they are defined in the "Offenses Involving Danger to the Person" chapter of Title 13A of the Alabama Code. Heath compares the definitions of kidnapping and murder with the section of the "Punishments and Sentences" chapter which permits the death penalty to be applied to those who commit murder during a kidnapping. Heath concludes that Alabama has only a crime of murder which becomes a capital offense when the state can prove, at the sentencing hearing, that the aggravating factor of kidnapping is present. Heath claims that the mere presence of an aggravating factor is insufficient to support subject matter jurisdiction.

As a matter of Alabama state law, Heath's argument is meritless. The Alabama Criminal Code specifies that "murder by the defendant during a kidnapping" is a capital offense. See Ala.Code § 13A-5-40(a)(1). Heath's argument that the kidnapping is not an offense and is merely an aggravating factor is incorrect because, in Alabama, in death penalty cases the jury must first find the defendant to be guilty of certain capital offenses (such as murder/kidnapping), and then the defendant is sentenced during a sentencing proceeding in which the sentencer weighs the aggravating factors against the mitigating factors. See Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). Furthermore, the Supreme Court of Alabama has strongly implied that the capital offenses are indeed separate offenses, despite their codification in the chapter on Punishments and Sentences. See Ex Parte Arthur, 472 So.2d 665 (Ala.1985). In Alabama, the aggravating circumstance must be set out in the indictment, id. at 667, and must be proved beyond a reasonable doubt as a "statutory element of the crime" of capital murder during the guilt phase. Id. Thus as a matter of Alabama state law, kidnapping/murder is one offense and, as a matter of state law, Alabama has jurisdiction.14

Heath next argues that his prosecution in Alabama for a murder in Georgia offends various due process concepts which limit the territorial reach of state criminal prosecutions. Heath notes that the Supreme Court has on several occasions held that the "jurisdiction of a state is co-extensive with its territory." Manchester v. Massachusetts, 139 U.S. 240, 264, 11 S.Ct. 559, 564, 35 L.Ed. 159 (1891).

Heath's focus on the question of territorial borders obscures the nexus between this crime and the jurisdiction of Alabama. The focus should be on Justice Holmes' opinion in Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911), and its progeny. Strassheim held that Michigan properly obtained jurisdiction when the defendant never entered the state but the crime had sufficient direct repercussions within the state. The defendant in Strassheim attempted to bribe a Michigan official who was in charge of making state purchases. The Court held that when an individual's criminal acts directly violate the peace, tranquility and laws of a state, the state may prosecute that individual, even if the individual commits the act in another jurisdiction. In the case at bar, a portion of the crime of kidnapping/murder occurred in Alabama. It is undisputed that this act directly violated the peace, tranquility, and laws of Alabama. Under Strassheim the state has established a sufficient nexus to satisfy any requirement of subject matter jurisdiction.

C. Ineffective Assistance at Trial

Finally, Heath argues that he received ineffective assistance of counsel at trial.15 In order to prevail on this claim, Heath must show that his trial counsel's performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. Heath claims that his trial counsel was ineffective in both their pretrial preparations and guilt phase defense of Heath. We conclude that his counsel's pretrial preparations were deficient but that Heath is unable to show any prejudice from this performance. We also conclude that Heath is unable to show that his counsel's trial performance was either deficient or prejudicial.

1. Deficiency

Heath alleges that his trial attorneys' performance during pretrial was deficient. During the pretrial, Heath's counsel filed eight motions, none of which were longer than two and a half pages. Only the double jeopardy motion was supported by a brief. It was five and a half pages long and it was the only pretrial motion or brief to cite any legal authority. Heath also complains that counsel should have attacked the Georgia guilty plea which constrained possible defenses and that16 when his lawyers moved for a change of venue they should have filed at least some of the news articles with their motion. Heath notes that his attorneys had the articles available prior to the trial because Lambert's attorneys had assembled them for her trial. Because the state does not contend that Heath's trial counsel's performance during the pretrial was reasonable, we accept Heath's allegation that their performance was deficient.

Heath also asserts that his counsel was deficient during the guilt phase. Evidently before the trial, Heath's lawyers moved to dismiss the case because of a double jeopardy claim and in the alternative Heath's counsel moved to submit the double jeopardy question to the jury. Both arguments were rejected by the trial court. Nevertheless, in Heath's opening, counsel argued the double jeopardy theory to the jury and told them they would be instructed on double jeopardy by the judge. Counsel began his opening by telling the jury that Heath was tried in Georgia.

The prosecutor then interjected that Heath pled guilty. After a sidebar, counsel told the jury that Heath had in fact pled guilty, that he was not supposed to be in risk of the death penalty, and that the Alabama district attorney was prosecuting him despite the plea. In his closing, Heath's counsel discussed the history and the importance of the double jeopardy clause of the Fifth Amendment.17 Heath's counsel also admitted that Heath was involved in the murder of his wife, that he had pled guilty in Georgia, and that he was serving a life sentence in Georgia. Heath argues that this excessive reliance on the double jeopardy clause was unreasonable.

We find, however, that a more complete examination of the record demonstrates the reasonableness of Heath's trial attorney's tactics. Heath's two trial attorneys spent the bulk of their time during the trial and during their closings putting the state to its burden of proof on the question of whether the kidnapping started in Russell County, Alabama. At closing, they reiterated the fact that Mrs. Heath had intended to drive to Georgia on the morning of her murder, that the body was found in Georgia, and that all of the physical evidence suggested that she was shot in Georgia just prior to the staged accident. Furthermore, Heath's counsel emphasized that there was no evidence of a struggle in Heath's home, that no neighbors saw Mrs. Heath being dragged out of the house, and that the neighbors who did see Heath talking to the men in a car on the morning of the murder did not see anything that would prove a kidnapping occurred in Alabama.18

We are unprepared to label Heath's attorneys' performance below reasonable professional norms. Heath's attorneys were faced with a difficult, if not impossible task in defending Heath's innocence, and their strategy appears reasonable. Heath's attorneys would have had a hard time contesting the murder charge in light of the overwhelming physical evidence and Heath's extensive confession.

2. Prejudice

Heath has not attempted to show prejudice due to the ineffectiveness of counsel at pretrial. As the state points out, Heath has not shown that any of the pretrial motions would have succeeded if they were better prepared. Heath has also failed to show any other pretrial motions which would have succeeded if they were submitted. Moreover, after reviewing all the articles and video tapes that Heath claims his trial counsel should have submitted, we are unable to conclude that the failure of the trial court to grant a change of venue constitutes a constitutional error. Therefore, the failure to submit any support with the motion does not raise a "reasonable possibility" that, but for the ineffectiveness, the result of the motion would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

Even assuming that Heath was able to show that his attorneys' performance was deficient during the guilt phase, he is unable to show prejudice resulting from their actions. This case is similar to Magill v. Dugger, 824 F.2d 879 (11th Cir.1987). In Magill, trial counsel's performance was much more deficient because the attorney in effect conceded his client's guilt during his opening and closing arguments. This Court, however, did not find prejudice due to this action. The Magill court held that because of substantial evidence of guilt, including the defendant's confession, it was "highly unlikely that [counsel's] deficient performance affected the jury's verdict during the guilt phase." Id. at 888.

III. CONCLUSION

EDMONDSON, Circuit Judge, concurring in part and concurring in the judgment:

I join in the result and in most of what Judge Johnson has written. But I disagree with two points.

First, I cannot agree that the quality of counsel's performance can be judged much by the length of briefs or the number of issues raised. Especially in the death penalty context, too many briefs are too long; and too many lawyers raise too many issues. Effective lawyering involves the ability to discern strong arguments from weak ones and the courage to eliminate the unnecessary so that the necessary may be seen most clearly. The Supreme Court--as today's court recognizes--has never required counsel to raise every nonfrivolous argument to be effective. See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). That the custom in death penalty cases is for lawyers to file long briefs with lots of issues means little to me. This kind of "custom" does not define the standard of objective reasonableness. See Gleason v. Title Guar. Co., 300 F.2d 813 (5th Cir.1962). While compliance with custom may generally shield a lawyer from a valid claim of ineffectiveness, noncompliance should not necessarily mean he is ineffective. Not all customs are good ones, and customs can obstruct the creation of better practices. Today's court disposes of the ineffective assistance of counsel claims on lack of prejudice grounds. So, what the court says about counsel's performance is dicta: language inessential to determining the case. Still, I worry that some of the dicta sends the wrong signal to lawyers.

Second, on the subject-matter jurisdiction question (part II.B.1. of the court's opinion), I think Alabama spoke plainly enough to raise a procedural bar to federal review of the merits. The state court of appeals said this:

[A]lthough the appellant raised this issue at trial, his failure to raise it on direct appeal will now bar our review of this issue. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), writ denied, 366 So.2d 346 (Ala.1979); Dobard v. State, 455 So.2d 281 (Ala.Cr.App.1984); Dunkins v. State, 489 So.2d 603 (Ala.Cr.App.1985).

Nevertheless, we hold that Alabama did in fact have jurisdiction to prosecute this appellant for the capital offense of murder/kidnapping.

Heath v. State, 536 So.2d 142, 143 (Ala.Cr.App.1988).

The phrase "will now bar our review" seems plain to me. The state appellate court's discussion of the merits on the question of jurisdiction is just an alternative holding. See Harris v. Reed, 489 U.S. 255, 264, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989) (state court's alternative holding on merits does not negate procedural bar as adequate and independent state ground as long as state court explicitly invokes state procedural bar rule as separate basis for decision).

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