McNair and another man went to the home of Ella Foy Riley, an elderly
widow who lived alone and occasionally hired McNair to do yard work.
When Ella came to the door, McNair asked her if he could borrow twenty
dollars. Riley told him she had no money to lend him. McNair then
asked if he could have a glass of water.
Ella invited him in, and when she
turned around McNair grabbed her by the neck and stabbed her in the
throat. When the blade of the knife broke off in Ella’s neck, McNair’s
companion retrieved another knife from the kitchen and McNair stabbed
Ella in the neck again, then strangled her for several minutes as she
bled to death.
When an officer came to his house
the next morning, McNair admitted killing Ella and later directed
officers to the place where he had dumped the purse. McNair was
originally convicted and sentenced to death.
On direct appeal, the sentence was
vacated and a new hearing ordered. The second jury recommended a
sentence of life without parole by a vote of 8-4. The court rejected
this recommendation and again sentenced McNair to death. McNair's
accomplice, Olin Grimsley, received a life sentence for first-degree
robbery for his role in the attack.
McNair v. State, 653 So.2d 320 (Ala.Cr.App. 1992) (Direct
Appeal - Reversed).
Ex parte McNair, 653 So.2d 353 (Ala. 1994) (Direct Appeal -
McNair v. State, 706 So.2d 828 (Ala. 1997) (PCR).
McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005) (Habeas).
Alabama Department of Corrections
Inmate: MCNAIR, WILLIE
Alabama executes Willie McNair
for 1990 slaying of Ella Foy Riley in Abbeville
By Tom Gordon - Birmingham News
May 14, 2009
Willie McNair, convicted of robbing, strangling and
stabbing to death a southeast Alabama woman for whom he did yard work,
died by lethal injection tonight as his victim's six children watched.
McNair, 44, did not look at victim Ella Foy Riley's
children. He also declined to pray with the prison chaplain, made no
final public statement and spent his last moments staring at the
ceiling as the injection began at 6 p.m. He was pronounced dead at
6:17 p.m. by Alabama Corrections officials.
Pat Jones and her brothers Calvin, Don, John, Bobby
and Wayne Riley wore buttons with their mother's photograph for the
execution. The buttons said "You are not forgotten." Wayne Riley, the
youngest of the sons, issued a statement afterward: "I thank God for
keeping myself, my four brothers and my sister alive and in good
health so that we were able to see justice finally done. I ask that
you pray for my family in the coming days and for the Willie McNair
family, too, for they ... have suffered for what he has done."
Wayne Riley also said: "I can forgive Willie McNair
for what he did because he paid the price with his life." Later the
six children gathered with other family members for a candle light
vigil. Participating was District Attorney Doug Valeska, who
Earlier in the day, the U.S. Supreme Court had
turned down his McNair's final sentence appeal.
Willie McNair became the fourth person executed by
the state of Alabama this year. The Abbeville man had been on Death
Row since 1991 for the May 21, 1990, slaying of Ella Foy Riley. Her
daughter, Jones, found her mother stabbed and strangled in the kitchen
of her Abbeville home. McNair had done yardwork for Riley in the past,
and other members of his family had done work for her as well.
According to a case summary, McNair and a friend,
Olin Grimsley, had been doing cocaine, wanted money to get some more,
and had asked Riley for $20. She turned them down, and was attacked
while she was getting McNair a drink of water. According to the
state's filing in the case, McNair then took Riley's purse from the
kitchen counter and he and Grimsley left the house. The next morning,
after Riley's body was found, McNair admitted killing her when
questioned by a sheriff's deputy.
The Riley children were able to witness the
execution because Gov. Bob Riley, no relation to the victim, had
signed into law a bill allowing up to six members of crime victim's
family to watch the perpetrator's execution. Before today's signing,
Alabama law allowed only two witnesses for the victim, and only two
for person to be executed.
Jones said she had written McNair a few months ago,
and that in his reply, he had expressed remorse for her mother's death.
Carolyn Glanton, McNair's youngest sister, said the family wanted her
brother, whom they called "Chubby," to be remembered as a "happy and
lovable person. "Chubby has a real good heart," Glanton said before
her brother died. "If anybody . . . really knew him, they'd know how
good a person he is."
McNair turned down breakfast this morning and
limited himself to only sodas during the day. In his will, McNair left
a check for $1.11 to one of his attorneys, Randy Susskind. McNair also
left several of his belongings to fellow Death Row inmates. He gave a
television to Robin Myers; a radio and headphones to Michael Ervin; a
Bible to Earl McGahee; and a pair of white Nikes tennis shoes to
Robert Ingram. McNair has had eight visitors during the day, including
two of sisters and two of his attorneys.
Susskind and Donald Blocker, McNair's spiritual
adviser, are the only two witnesses he has requested to watch his
execution this evening.
McNair was the fourth Death Row inmate to be
executed in Alabama this year. Another inmate, Jack Trawick, is
scheduled to die on June 11 for the murder of Stephanie Gach in
On the night of May 21, 1990, Willie McNair and
another man went to the home of Ella Foy Riley, an elderly widow who
lived alone and occasionally hired McNair to do yard work. When Ella
came to the door, McNair asked her if he could borrow twenty dollars.
Riley told him she had no money to lend him. McNair then asked if he
could have a glass of water. Ella invited him in, and when she turned
around McNair grabbed her by the neck and stabbed her in the throat.
When the blade of the knife broke off in Ella’s neck, McNair’s
companion retrieved another knife from the kitchen and McNair stabbed
Ella in the neck again. The wounds severed Ella’s carotid artery and
jugular vein. Evidence indicated that McNair also strangled Ella Rile,
who struggled for several minutes as she bled to death.
After killing Ella, McNair took her purse from the
kitchen counter and fled the scene with his companion. The pair drove
several miles down a rural road, rummaged through Ella’s purse, then
dumped it. When an officer came to his house the next morning, McNair
admitted killing Ella and was arrested. He subsequently directed
officers to the place where he had dumped Ella Riley’s purse and gave
detailed descriptions of the murder to investigators.
McNair was convicted of capital murder in the
course of a robbery on April 18, 1991. He was sentenced to death
following a 10-2 jury vote in favor of that penalty. The Alabama Court
of Criminal Appeals confirmed the conviction, but it remanded the case
for a new sentencing hearing because the sentencing judge had
improperly considered as an aggravating factor a prior conviction that
resulted from a no contest plea. The second jury recommended a
sentence of life without parole by a vote of 8-4. The court rejected
this recommendation and again sentenced McNair to death. McNair’s case
was twice remanded for correction of the sentencing order before
finally being affirmed on direct appeal. The United States Supreme
Court denied McNair’s petition for certiorari.
Alabama executes inmate for
woman’s 1990 killing
By Garry Mitchell - Chattanooga Times
Associated Press - Friday, May 15, 2009
ATMORE, Ala. — A man who spent nearly 18 years on
Alabama’s death row for the 1990 slashing death of an elderly mother
of six was executed Thursday as all the woman’s gray-haired children
watched from a witness room steps away.
Willie McNair, 44, never looked over at the
victim’s children before slipping into unconsciousness and being
pronounced dead at 6:17 p.m. after the lethal injection was
administered at Holman Prison in Atmore. He was condemned for the
death of Ella Foy Riley, a 68-year-old retired textile worker whose
throat was slashed with a pocketknife at her home May 21, 1990.
Riley’s daughter, Patricia Riley Jones, 62, of
Abbeville, and her five brothers all watched from behind a glass
partition steps away as the lethal drugs began flowing into McNair’s
body. Each of the children wore a button bearing their mother’s
photograph and the words: “You are not forgotten.” McNair had no final
statement and rejected a prison’ chaplain’s offer to share a prayer.
“It was too easy,” Riley Jones said at a post-execution
news conference. But she said she was at peace now that the death
sentence had been carried out. Jones and her brothers expressed
disappointment that McNair never looked at him in his final minutes.
“He would not face us today,” said John Riley, one of the victim’s
sons. “It took us 19 years to see this happen,” added Wayne Riley, the
youngest of the woman’s six children.
In a written statement, Wayne Riley said: “I thank
God for keeping myself and my four brothers and my sister alive and in
good health so that we were able to see justice finally done. I ask
that you pray for my family in the coming days and for the Willie
McNair family because they, too, have suffered for what he has done.”
Gov. Bob Riley, who is unrelated to the victim, had
signed a bill into law recently to allow six people from the victim’s
side and six from the inmate’s side to witness a state execution.
Previously it was two from each side. No relatives for McNair
witnessed execution, at his request. His lawyer and a spiritual
adviser were on hand.
When the curtain to the witness room opened
Thursday evening, McNair smiled and nodded in the direction of his
lawyer and spiritual adviser. Strapped to a gurney, McNair declined a
chaplain’s offer of a prayer and kept his eyes fixed on the ceiling.
McNair showed no reaction as the drugs began flowing and he slipped
into unconsciousness during a 17-minute procedure that authorities
said went as planned.
Court records show Ella Fox Riley was stabbed to
death in her Abbeville home after refusing to give $20 to McNair.
Authorities said in documents that McNair had been described as a
cocaine addict and had worked in the woman’s yard before the attack.
The blade of a pocketknife broke in the woman’s neck and McNair also
used a kitchen knife on her during a violent struggle, authorities
said. Riley’s daughter had found her mother’s body on her kitchen
McNair’s co-defendant, Olin Grimsley,
received a life sentence for first-degree robbery for his role in the
attack. McNair’s confession indicated Grimsley handed him a kitchen
knife used in the killing.
The U.S. Supreme Court refused to block the
execution of McNair earlier. His was the fourth execution in Alabama
this year and the first since April 16. There are more than 200
inmates on Alabama’s death row.
McNair’s attorneys had filed for a stay earlier
this week, citing a jury’s recommendation that he be given life
without parole. In opposing the stay, Attorney General Troy King told
the high court that McNair’s claims had already been rejected by
appeals courts or were barred from further review. Authorities also
said a judge noted the “heinous” nature of the crime in sentencing
McNair to death.
McNair v. State,
653 So.2d 320 (Ala.Cr.App. 1992) (Direct Appeal - Reversed).
Defendant was convicted of capital offense
involving murder and robbery, following jury trial in the Henry
Circuit Court, Edward Jackson, J., and he appealed. The Court of
Criminal Appeals, Bowen, J., held that: (1) no inference of racial
discrimination arose from prosecutor's striking black venire members;
(2) trial court did not err in granting state's challenges to jurors
for cause; (3) admission into evidence of gruesome and shocking
photographs and slides was proper; (4) prior conviction resulting from
nolo contendere plea was inadmissible in sentencing hearing; (5)
emotional manifestations by victim's family members did not require
new trial; and (6) prosecutor's comments and actions during closing
argument did not require new trial. Remanded with directions. Montiel,
J., filed opinion specially concurring.
Willie McNair, the appellant, was indicted and
convicted for the capital offense defined in Ala.Code 1975, §
13A-5-40(a)(2), involving the murder and robbery of 68-year-old Ella
Foy Riley. The trial judge accepted the recommendation of the jury and
sentenced the appellant to death. On this appeal from that conviction
and sentence, the appellant raises 13 issues.
The facts in this case are largely undisputed. On
the night of May 21, 1990, 68-year-old Ella Fay Riley was murdered in
the kitchen of her own home. The next day, the appellant confessed to
stabbing Mrs. Riley in the throat and taking her purse. He also took
law enforcement officers to the area where Mrs. Riley's purse had been
The appellant did not testify at trial. His defense,
as argued by defense counsel on the basis of the statements given by
the appellant, was that he was guilty of the lesser included offense
of intentional murder. According to the defense version of the facts,
the appellant, accompanied by Olin Grimsley, went to Mrs. Riley's
house to ask her to lend him some money. When she refused to do so,
the appellant, who had smoked crack cocaine a few hours before, got
angry, “lost control,” and stabbed her. The purse was taken only as an
afterthought. The essence of the appellant's defense was that,
although intentional, the murder was not committed during the course
of a robbery.
At the jury sentencing hearing, the prosecutor
proved that on August 4, 1989, in the Circuit Court of St. Lucie
County, Florida, the appellant entered a plea of nolo contendere, was
convicted of the felony charge of “strong armed robbery,” and was
sentenced to 130 days in the county jail followed by three year's
probation. R. 2363. The appellant was on probation when he killed Mrs.
Riley on May 21, 1990-nine months after his Florida conviction. This
conviction was offered to prove the aggravating circumstance that
“[t]he capital offense was committed by a person under a sentence of
imprisonment.” Ala.Code 1975, § 13A-5-49(1). By statutory definition,
a defendant is “under sentence of imprisonment” even “while on
probation or parole.” Ala.Code 1975, § 13A-5-39(7). The appellant
argues that the conviction resulting from his nolo contendere plea was
inadmissible to prove the aggravating circumstance.
In its sentencing order, the trial court considered
the nolo contendere conviction in determining the non-existence of the
mitigating circumstance that “[t]he defendant has no significant
history of prior criminal activity.” Ala.Code 1975, § 13A-5-51(1). The
State, although urging this Court to affirm the conviction on all
other grounds, suggested in its brief on appeal that the cause be
remanded for the trial court to resentence the appellant without
considering the Florida conviction to negate the mitigating
circumstance listed at § 13A-5-51(1).
We must therefore determine whether a conviction
resulting from a nolo contendere plea may be used to prove the
aggravating circumstance that “[t]he capital offense was committed by
a person under a sentence of imprisonment,” Ala.Code 1975, §
13A-5-49(1), or to negate the existence of the mitigating circumstance
that “[t]he defendant has no significant history of prior criminal
activity,” Ala.Code § 13A-5-51(1).
The current majority rule with regard to the
significance of a nolo contendere plea is stated in 2 W. LaFave and J.
Israel, Criminal Procedure § 20.4 at 637 (1984): “(1) Unlike a plea of
guilty or a conviction following a plea of not guilty, a plea of nolo
contendere may not be put in evidence in a subsequent civil action as
proof of the fact that the defendant committed the offense to which he
entered the plea; (2) Judgment following entry of a nolo contendere
plea is a conviction, and may be admitted as such in other proceedings
where the fact of conviction has legal significance (e.g., to apply
multiple offender penalty provisions, to deny or revoke a license
because of conviction, or to claim double jeopardy in a subsequent
prosecution).” (Emphasis added) (Footnotes omitted). See also Annot.,
89 A.L.R.2d 540 (1963). A nolo contendere plea is generally deemed
inadmissible in another proceeding as evidence of guilt, see 4 Wigmore
Evidence § 1066 at 81 n. 4 (Chadbourn rev. 1972), but admissible as
evidence of the historical fact of conviction, see Annot., 89 A.L.R.2d
540 at § 42.
Alabama, however, follows the minority rule that a
conviction resulting from a plea of nolo contendere is inadmissible
not only to prove the conduct underlying the conviction, but for all
other purposes. See Annot., 89 A.L.R.2d 540 at § 43. In this
jurisdiction, a conviction resting on a nolo plea is not admissible to
render a witness incompetent to testify, Fidelity-Phenix Fire Ins. Co.
of New York v. Murphy, 231 Ala. 680, 686, 166 So. 604, 609, cert.
denied, 299 U.S. 557, 57 S.Ct. 19, 81 L.Ed. 410 (1936), to impeach a
witness, Wright v. State, 38 Ala.App. 64, 68, 79 So.2d 66, 69 (1954),
cert. denied, 262 Ala. 420, 79 So.2d 74 (1955), to enhance punishment
under the Habitual Felony Offender Act, Ex parte Jenkins, 586 So.2d
176, 177 (Ala.1991); Snipes v. State, 404 So.2d 106, 108-09 (Ala.Cr.App.),
writ quashed, 404 So.2d 110 (Ala.1981), to prove that the accused
committed a similar, “signature” crime, Smith v. State, 46 Ala.App.
157, 164, 239 So.2d 230, 236 (1970), or to prove that one is
ineligible to hold public office, State ex rel. Woods v. Thrower, 272
Ala. 344, 131 So.2d 420 (1961). In fact, as this Court recognized in
Snipes v. State, “[t]he rule in Alabama is that a conviction based
upon a plea of nolo contendere is inadmissible in evidence in other
proceedings.” 404 So.2d at 109.FN1 See also Harrison v. Jones, 880
F.2d 1279, 1280 (11th Cir.1989) (wherein the court observed that a
conviction based on a plea of nolo contendere “is clearly inadmissible
for any purpose under Alabama law”) (emphasis added).
FN1. This rule, which was established in decisions
by the Alabama Supreme Court, see Thrower and Murphy, supra, was
soundly criticized, as it applied to habitual offender proceedings, by
three judges of this court in a special concurrence authored by Judge
Bookout. See Snipes v. State, 404 So.2d at 109. Despite an invitation
by Judge Bookout to do so, our Supreme Court has not changed this rule,
and it remains binding on this court. See Ala.Code 1975, § 12-3-16.
We recognize the logic of the State's argument that
the § 13A-5-49(1) aggravating circumstance does not, by its terms,
require that the appellant have been previously “convicted”; it
requires only that the appellant have been “under sentence of
imprisonment” at the time of the capital offense. By the same token,
the appellant's Florida conviction was not used to prove that the
appellant had been previously “convicted,” or to prove the conduct
underlying that “conviction.” Compare, Ala.Code 1975, § 13A-5-49(2) (“The
defendant was previously convicted of another capital offense or a
felony involving the use or threat of violence to the person”); State
v. Ramseur, 106 N.J. 123, 524 A.2d 188, 263 (1987) (prior conviction
based on plea of non vult or nolo contendere admissible to prove
aggravating factor that defendant in capital case was previously
convicted of another murder); State v. Teague, 680 S.W.2d 785, 789 (Tenn.1984),
cert. denied, 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 662 (1985)
(prior conviction based on plea of nolo contendere admissible to prove
aggravating factor that defendant in capital case was previously
convicted of a felony involving the use or threat of violence to the
Nevertheless, like the aggravating circumstance
enumerated in § 13A-5-49(1), the statutory mitigating circumstance
found in § 13A-5-51(1), that “[t]he defendant has no significant
history of prior criminal activity,” does not contain the word “conviction.”
However, our Supreme Court has construed the latter provision to mean
that only convictions can be considered in determining the existence
or nonexistence of that mitigating circumstance. Cook v. State, 369
So.2d 1251, 1257 (Ala.1978). See Hallford v. State, 548 So.2d 526, 544
(Ala.Cr.App.1988) (on rehearing), affirmed, 548 So.2d 547 (Ala.), cert.
denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989).
Because § 13A-5-49, which sets forth the
aggravating circumstances that may be considered in a death case, and
§ 13A-5-51, which outlines the statutory mitigating circumstances that
may be considered in a death case, are in pari materia, see Kelly v.
State, 273 Ala. 240, 242, 139 So.2d 326, 328 (1962), these sections
“should be construed together to ascertain the meaning and intent of
each.” McDonald's Corp. v. DeVenney, 415 So.2d 1075, 1078 (Ala.1982).
“When ascertaining legislative intent, statutes
which are in pari materia ... must be interpreted as a whole in light
of the general purpose of the statute.” Kirkland v. State, 529 So.2d
1036, 1038 (Ala.Cr.App.1988). See generally 2A N. Singer, Sutherland
on Statutory Construction, § 46.05 (5th ed. 1992). The purpose of §§
13A-5-49 and 13A-5-51 is to provide sentencing restrictions necessary
to a constitutionally valid death penalty statute. See generally Gregg
v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman
v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
We are therefore of the opinion that, because of
Alabama's minority position that a conviction resting on a plea of
nolo contendere is inadmissible for any purpose in a subsequent
proceeding, § 13A-5-49(1) should be interpreted in the same fashion as
the Supreme Court has interpreted § 13A-5-51(1). Therefore, only a
sentence of imprisonment imposed upon a conviction recognizable under
Alabama law can be considered in determining the existence or
nonexistence of this aggravating circumstance. Consequently, the
appellant is entitled to a new sentencing hearing at which evidence of
his Florida conviction will be inadmissible. * * *
At the sentence phase of the trial, the jury's vote
of 10-2 was recorded and verified by the foreperson of the jury as the
correct vote. The sentence recommendation verdict of the jury complied
with § 13A-5-46(f), and there was no error in the trial court's
refusal to poll each member of the jury following the verdict in the
penalty phase of the trial. The trial court, in response to the
appellant's motion to poll each juror, did ask the jury whether anyone
disagreed that the 10-2 vote returned was the actual vote.
For the reasons set out in Part VI of this opinion,
this cause is remanded for new sentence hearings before the jury and
before the trial court. Those hearings shall be conducted and a
transcript of those proceedings shall be filed in this Court within
120 days from the date of this opinion. If the trial judge sentences
the appellant to death, he must enter new written findings as required
by Ala.Code 1975, § 13A-5-47(d).
REMANDED WITH DIRECTIONS.
Ex parte McNair,
653 So.2d 353 (Ala. 1994) (Direct Appeal - Affirmed).
Defendant was convicted in the Circuit Court, Henry
County, No. CC-90-086, S. Edward Jackson, J., of murder and sentenced
to death. Following three remands, 653 So.2d 320, 653 So.2d 343, 653
So.2d 347, the Court of Criminal Appeals affirmed, 653 So.2d 351, and
defendant sought certiorari. The Supreme Court, Houston, J., held that:
(1) defendant did not establish Batson violations; (2) error in
allowing bailiff to testify was harmless; and (3) evidence established
that killing was especially heinous, atrocious, or cruel. Affirmed.
Maddox, J., filed specially concurring opinion.
McNair v. State,
706 So.2d 828 (Ala. 1997) (PCR).
Following affirmance of conviction for murder and
sentence of death, 653 So.2d 353, defendant sought postconviction
relief. The Circuit Court, Henry County, No. CC-90-086.60, S. Edward
Jackson, J., denied relief, and defendant appealed. The Court of
Criminal Appeals, John Patterson, Retired Appellate Judge, held that:
(1) juror's reading of Bible passages and prayer during deliberations
did not require reversal; (2) defendant did not establish
ineffectiveness of counsel; (3) sentence of death was not
disproportionate to accomplice's sentence or to the crime; (4) there
was no Brady violation; and (5) claims that were or could have been
presented at trial and on direct appeal were precluded. Affirmed.
PATTERSON, Retired Appellate Judge.
This is an appeal from the denial of a petition for
post-conviction relief, Ala.R.Crim.P. 32. On July 12, 1990, the
appellant, Willie McNair, was indicted for the capital offense of
murder committed during a robbery in the first degree or an attempt
thereof, a violation of § 13A-5-40(a)(2), Code of Alabama 1975. On
April 18, 1991, he was found guilty after a jury trial of the capital
offense charged in the indictment. The jury, by a vote of 10 to 2,
recommended a sentence of death, and on May 16, 1991, the trial court,
adopting the recommendation of the jury, sentenced the appellant to
death. On July 24, 1992, on direct appeal, we remanded the case to the
trial court for new sentencing proceedings before the jury and the
trial court because we determined that evidence of the appellant's
prior Florida conviction based upon a plea of nolo contendere had been
improperly admitted and considered in the sentencing proceedings.
McNair v. State, 653 So.2d 320 (Ala.Cr.App.1992).
On January 25-28, 1993, a new sentencing proceeding
was held before a new jury, after the appellant's motion for a change
of venue had been granted and the case had been transferred to
Montgomery County. In this proceeding, the jury recommended a sentence
of life imprisonment without the possibility of parole by a vote of
eight to four. On February 26, 1993, after a separate sentencing
hearing before the trial court, the trial court rejected the jury's
recommendation and sentenced the appellant to death. The circuit court
filed its return to remand on April 23, 1993. Finding (1) that the
trial court's new sentencing order was deficient because it did not
fully comply with the appropriate statutes and because it was
incomplete, and (2) that the record did not contain a presentence
report, we again remanded the case to the trial court on August 13,
1993, with instructions to reconsider its sentence determination; to
enter a new sentencing order, making specific written findings on the
existence or nonexistence of each statutory aggravating and mitigating
circumstance FN1 and on any additional nonstatutory mitigating
circumstance and stating the reasons if appropriate why any
aggravating circumstance or circumstances outweighed any mitigating
circumstances; and to supplement the record on appeal with the
presentence report. McNair v. State, 653 So.2d 343 (Ala.Cr.App.1993).
FN1. On second remand, we specifically ordered the
trial court to do the following: “a. In this regard, the trial court
shall enter a specific written finding concerning the mitigating
circumstance defined in § 13A-5-51(1): ‘The defendant has no
significant history of prior criminal activity.’ “b. The trial court
shall reconsider the finding of the aggravating circumstance that the
offense was ‘especially heinous, atrocious, or cruel,’ § 13A-5-49(8),
under the standard of Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981),
and determine whether this crime is one of ‘those conscienceless or
pitiless homicides which are unnecessarily torturous to the victim.’ ”
653 So.2d at 347.
The trial court, in response to our second remand,
entered an amended sentencing order on August 18, 1993, and filed a
return to our remand on August 23, 1993. This amended order only
partially complied with our remand, and we remanded the case a third
time on September 30, 1993, again instructing the trial court to enter
a proper and correct sentencing order as required by statute and by
our prior remand. McNair v. State, 653 So.2d 347 (Ala.Cr.App.1993).FN2
On October 6, 1993, the trial court entered yet another sentencing
order, and filed its return to remand on October 14, 1993. Its new
sentencing order complied with our instructions, and on January 21,
1994, we affirmed the appellant's conviction and sentence of death.
McNair v. State, 653 So.2d 351 (Ala.Cr.App.1994). The Alabama Supreme
Court affirmed the conviction and death sentence on September 2, 1994.
Ex parte McNair, 653 So.2d 353 (Ala.1994). On February 21, 1995, the
United States Supreme Court denied the appellant's petition for
certiorari review. McNair v. Alabama, 513 U.S. 1159, 115 S.Ct. 1121,
130 L.Ed.2d 1084 (1995).
FN2. On third remand, we ordered the trial court to
do the following: “1. Carefully and conscientiously examine and
reconsider its determination that death is a proper sentence in this
case and that the recommendation of the jury should be rejected. “2.
Carefully and conscientiously reweigh the aggravating and mitigating
circumstances the trial court finds applicable in this case. “3. Enter
a new, independent, self-sufficient, and complete sentencing order
which contains no reference to its prior sentencing orders. “4. Set
forth in that sentencing order specific written findings concerning
the existence or nonexistence of each aggravating circumstance
enumerated in § 13A-5-49, each mitigating circumstance offered
pursuant to § 13A-5-51, and any additional mitigating circumstances
offered pursuant to § 13A-5-52.” 653 So.2d at 350.
The appellant filed his post-conviction petition in
Henry County pursuant to Rule 32 on July 5, 1995. On July 27, 1995,
the district attorney filed a motion for summary disposition. On
August 1, 1995, the attorney general filed an answer to the petition
and a motion for partial dismissal as to those claims that he said
were procedurally barred and insufficiently pleaded. On August 3,
1995, the circuit court granted the attorney general's motion for
partial dismissal. On August 24, 1995, the appellant filed an
amendment to his petition.
On August 30, 1995, the circuit court entered an
order finding that all of the issues raised in the petition as amended
were barred, except those issues raising “ineffective assistance of
counsel, failure of the state to turn over to the defense exculpatory
evidence, and unconstitutionality of the death penalty due to [a]
pattern of racial bias in its imposition.” The order set those issues
not precluded for an evidentiary hearing. On October 24, 1995, the
appellant filed a second amendment to his petition. The amendments,
while raising a few new claims, essentially reasserted the claims
raised in the original petition. The petition and the amendments are
unverified. On November 8, 1995, an evidentiary hearing was held, and
on November 13, 1995, the circuit court entered its order denying the
On this appeal from the denial of his Rule 32
petition, the appellant raises a number of issues that were
procedurally barred from the circuit court's consideration and
consequently are barred from our review. He also raises issues
concerning the ineffectiveness of counsel, as well as other issues. We
will point out those issues that are procedurally barred and will
address all issues raised by the appellant in his brief in the order
in which they were presented.
The facts of this case are largely undisputed. On
the night of May 21, 1990, the appellant and Olin Grimsley FN3 went to
the home of Ella Foy Riley in Henry County. Ms. Riley was an elderly
widow, and she lived alone. The appellant, who had done yard work for
Ms. Riley on previous occasions, asked to borrow money from Ms. Riley,
but she refused. He then asked her if he could have a drink of water.
When Ms. Riley turned away to get the appellant a
glass of water, the appellant grabbed her from behind and began
cutting and stabbing her in the throat with his pocketknife. During
the attack, the blade of the appellant's pocketknife broke, and
Grimsley handed him a knife from Ms. Riley's kitchen, with which he
continued the assault. When Ms. Riley was released from the
appellant's grasp, she fell to the floor and died. The cause of death
was loss of blood due to the cuts to her throat and strangulation. Ms.
Riley not only received deep knife cuts to her throat, but she also
suffered numerous bruises to her throat and face, and the bony
structure of her throat was crushed.
After the attack, the appellant took Ms. Riley's
purse from the kitchen counter, and he and Grimsley left in the
appellant's automobile. A short distance away, they rummaged through
the purse and then threw the purse and its contents along the side of
the road. The following day, the appellant confessed to attacking and
stabbing Ms. Riley and to taking her purse. He also led officers to
where they had discarded Ms. Riley's purse, where it was recovered.
The appellant did not testify at trial. The theory
of his defense was that when Ms. Riley refused to lend him money, he
got angry, lost control, and stabbed her, and that he took her purse
only as an afterthought. His counsel argued that under these facts,
the appellant was guilty of the lesser included offense of murder, and
that although the murder was intentional, it was not committed during
the course of a robbery and therefore could not be punished capitally.
See McNair v. State, 653 So.2d at 322-23.
FN3. Olin Grimsley was originally indicted for the
same capital offense-murder committed during the course of a robbery.
His trial was moved from Henry County to Montgomery County. At his
first trial for the capital offense, a mistrial was declared when the
jury was unable to reach a verdict. He was then retried and was
acquitted of the capital murder charge, but was found guilty of
robbery in the first degree, § 13A-8-41. This court reversed his
robbery conviction in Grimsley v. State, 632 So.2d 547 (Ala.Cr.App.1993),
because the trial court had denied him the right to fully
cross-examine a state's witness. He was tried again on the robbery
charge and was again found guilty of robbery in the first degree and
was sentenced to life imprisonment. He appealed, and we remanded the
case so that the trial court could conduct a Batson v. Kentucky, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), hearing after
considering the Alabama Supreme Court's decision in Ex parte Thomas,
659 So.2d 3 (Ala.1994). Grimsley v. State, 678 So.2d 1194 (Ala.Cr.App.1995).
On return to remand, we affirmed the conviction and sentence on
January 19, 1996, and the Alabama Supreme Court denied certiorari
review on May 17, 1996.
At the hearing on the Rule 32 petition, the
appellant did not testify. In fact, he called only one witness, L.D.,
a member of the jury in the guilt phase of the trial, for the sole
purpose of substantiating his claim that the jury verdict was tainted
because extraneous material had been injected into the deliberation
process, i.e., reading of passages from a Bible in the jury room and
praying during deliberation. He offered four juror affidavits, from
L.D. and from three other members of the jury, that related to L.D.'s
reading aloud from his Bible and praying in the jury room during
deliberation; however, upon objection by the state, the affidavits
were not admitted into evidence. He also offered a certified copy of
his prison record, which was admitted into evidence insofar as it
pertained to his conduct in prison before his resentencing.
Aside from the claim that the jury considered
extraneous material during its deliberation, the appellant's principle
argument in his brief on appeal is that his alleged history of drug
abuse and his alleged use of crack cocaine on the day the crime was
committed created a reasonable doubt as to his ability to entertain
the specific intent to kill, and that his trial counsel were
constitutionally ineffective for failing to present “numerous
witnesses who were available and would have testified” regarding his
history of drug abuse and his use of crack cocaine on the day of the
crime. He states in his brief:
“In addition, there are serious questions about the
propriety of Mr. McNair's conviction because he did not specifically
intend to kill the victim in this case and because of his trial
counsel's ineffectiveness. Overwhelming evidence of Mr. McNair's
history of drug abuse and use of crack cocaine on the day of the crime
would have created a reasonable doubt about his ability to form the
specific intent to kill required under Alabama capital law. Because Mr.
McNair's lawyers were ineffective, however, these facts were neither
sufficiently developed nor presented to the jury or the judge.
Counsel failed to present numerous witnesses who
were available and who would have testified about Mr. McNair's history
of drug abuse and use of crack cocaine on the day of the crime.
Moreover, counsel did not obtain and present independent expert
witnesses who would have testified about Mr. McNair's drug abuse, and
how his use of crack cocaine rendered him unable to comprehend what he
was doing during the crime. Mr. McNair was severely prejudiced by
counsel's ineffectiveness because such testimony would have made it
clear to the jury that he could not have formed the specific intent to
kill and that he therefore was not guilty of capital murder.”
The appellant did not produce any witnesses or
indeed any evidence at the Rule 32 hearing to support these claims. We
note that the circuit court granted the appellant's motion requesting
funds to hire experts to assist him in preparing for his Rule 32
hearing, approving the sum of $5,000.
The circuit court found that the appellant was
precluded under Rules 32.2(a)(2) and (5) from raising the following
claims because they were raised and addressed at trial and because
they could have been but were not raised on appeal: (1) That the trial
court erred in overruling defense's motion for individual voir dire
examination and sequestration of veniremembers during voir dire; (2)
That the trial court improperly admitted into evidence the appellant's
statement and other illegally obtained evidence; (3) That he was
unduly prejudiced when the district attorney “shoved” the defense
table during his argument to the jury during the guilt phase of the
trial; and (4) That the state failed to turn over to the defense
allegedly exculpatory evidence.
The circuit court found that the appellant was
precluded under Rule 32.2(a)(2) and (4), from raising the following
claims because they were raised or addressed at trial and because they
were raised or addressed on direct appeal: (1) That the state's offer
and the trial court's admission into evidence of allegedly
inflammatory, prejudicial photographs violated the appellant's rights;
(2) That the trial court improperly denied the appellant's motion for
a change of venue; (3) That the prosecutor argued prior bad acts to
the jury based upon the appellant's nolo contendere plea in Florida;
and (4) That the prosecutor used his peremptory jury challenges in a
racially discriminatory manner.
The circuit court found that the appellant was
precluded under Rule 32.2(a)(3) and (4) from raising the following
claims because they could have been but were not raised at trial and
because they were then raised or addressed on direct appeal: (1) That
the prosecutor made improper victim impact arguments at the guilt
phase of the trial; (2) That the prosecutor allegedly poisoned the
minds of the jurors by calling the appellant “vile” names; (3) That
the prosecutor attempted to diminish the jury's role in sentencing;
and (4) That the bailiff at the appellant's trial improperly testified
for the prosecution.
The circuit court found that the appellant was
precluded under Rule 32.2(a)(3) and (5) from raising the following
claims because they could have been, but were not, raised and
addressed at trial or on appeal: (1) That the district attorney argued
that the jury's job was to convict and at the sentencing phase
exhorted the jury to return a death sentence; (2) That the district
attorney “disparaged” the appellant's rights; (3) That the trial court
improperly diminished the jury's sense of responsibility by
instructing the jury that its penalty phase verdict was merely
advisory; (4) That the appellant's death sentence is unconstitutional
because it was sought and imposed pursuant to a pattern of racial bias;
(5) That the imposition of the death penalty in this case constitutes
a disproportionate punishment under state and federal law; and (6)
That the manner of execution used by the State of Alabama constitutes
cruel and unusual punishment.
In addition to dismissing some of the above-stated
claims pursuant to the procedural bars of Rule 32.2(a), the circuit
court also dismissed some of those claims pursuant to Rule 32.6(b)
because they did not “contain a clear and specific statement of the
grounds upon which relief was sought, or a full disclosure of the
factual basis for the claim.” Those claims are: (1) That the trial
court improperly admitted into evidence the appellant's statement and
other illegally obtained evidence; (2) That the trial court improperly
denied the appellant's motion for a change of venue; (3) That the
state failed to turn over to the defense allegedly exculpatory
evidence; and (4) That the appellant's death sentence is
unconstitutional because it was sought and imposed pursuant to a
pattern of racial bias.
The appellant contends that the cumulative effect
of the alleged errors enumerated in his brief to this court violated
his rights to due process and a fair trial under the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments and entitled him to a new
trial. We do not agree. We have reviewed each and every allegation of
error, including the allegations of ineffective assistance of counsel,
and have found either that they are without merit, that the appellant
failed to prove them, or that they were barred from collateral review.
We have also reviewed all of his alleged errors collectively or as a
whole, and still find no error or violation of his rights.
After reviewing all of the issues raised by the
appellant on this appeal, we find that the judgment of the circuit
court denying his petition for post-conviction relief is due to be
The foregoing opinion was prepared by Retired
Appellate Judge John Patterson while serving on active duty status as
a judge of this court under the provisions of § 12-18-10(e), Ala. Code
1975. AFFIRMED. All Judges concur.
McNair v. Campbell,
416 F.3d 1291 (11th Cir. 2005) (Habeas).
Background: Petitioner filed for federal habeas
corpus relief after his state-court murder conviction and death
sentence were upheld on direct appeal, 653 So.2d 353, and he was
denied state postconviction relief, 706 So.2d 828. The United States
District Court for the Middle District of Alabama, No.
98-00915-CV-T-S, Myron H. Thomson, J., 307 F.Supp.2d 1277, granted
petition in part. State appealed, and petitioner cross-appealed the
denial of the petition with respect to other claims.
Holdings: The Court of Appeals, Anderson, Circuit
Judge, held that: (1) petitioner was not entitled to an evidentiary
hearing on claim of ineffective assistance of counsel; (2) state
court's denial of ineffective assistance claim was not unreasonable,
barring habeas relief on that basis; (3) claim that jurors violated
the Sixth Amendment by considering extraneous evidence during
deliberations was not fairly presented to state courts, and thus, was
procedurally barred; (4) jury's consideration of extraneous evidence,
consisting of the reading of passages from the Bible during
deliberations, did not deprive petitioner of fair trial; (5) fact that
prosecutor's proffered reason for striking juror ultimately proved
incorrect did not establish that strike was racially-motivated, for
Batson purposes; (6) proffered race-neutral reason for striking one
African-American juror was not a pretext for race discrimination; and
(7) state court's finding, that prosecutor's use of peremptory
challenges was not motivated by racial discrimination, was not an
unreasonable factual determination. Affirmed in part, and reversed in
ANDERSON, Circuit Judge:
Defendant Willie McNair was convicted in Alabama
state court and sentenced to death for the robbery and murder of Ella
Foy Riley. He received a new sentencing hearing on direct appeal and
was again sentenced to death. After his second sentence was affirmed,
McNair sought and was denied state habeas corpus relief. He then filed
a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The
district court granted the petition on the basis of ineffective
assistance of counsel at the penalty phase and denied it on all other
grounds. The State appeals the district court's grant of the petition.
McNair cross-appeals the district court's denial of the petition with
respect to his claims that (1) jurors improperly considered extraneous
evidence during the penalty phase and (2) the prosecutor engaged in
racial discrimination during jury selection in violation of McNair's
Fourteenth Amendment rights under Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons discussed below, we
reverse the district court's grant of McNair's petition on the basis
of ineffective assistance of counsel and affirm the district court's
denial of the petition on all other grounds.
I. FACTS AND PROCEDURAL BACKGROUND
On the night of May 21, 1990, Willie McNair and
another man went to the home of Ella Foy Riley, an elderly widow who
lived alone and occasionally hired McNair to do yard work. When Riley
came to the door, McNair asked her if he could borrow twenty dollars.
Riley told him she had no money to lend him.
McNair then asked if he could have a glass of water.
Riley invited him in, and when she turned around McNair grabbed her by
the neck and stabbed her in the throat. When the blade of the knife
broke off in Riley's neck, McNair's companion retrieved another knife
from the kitchen and McNair stabbed Riley in the neck again. The
wounds severed Riley's carotid artery and jugular vein.
Evidence indicated that McNair also strangled Riley,
who struggled for several minutes as she bled to death. After killing
Riley, McNair took her purse from the kitchen counter and fled the
scene with his companion. The pair drove several miles down a rural
road, rummaged through Riley's purse, then dumped it. When an officer
came to his house the next morning, McNair admitted killing Riley and
was arrested. He subsequently directed officers to the place where he
had dumped Riley's purse and gave detailed descriptions of the murder
McNair was convicted of capital murder in the
course of a robbery on April 18, 1991. He was sentenced to death
following a 10-2 jury vote in favor of that penalty. The Alabama Court
of Criminal Appeals confirmed the conviction, but it remanded the case
for a new sentencing hearing because the sentencing judge had
improperly considered as an aggravating factor a prior conviction that
resulted from a nolo contendere plea. McNair v. State, 653 So.2d 320,
327 (Ala.Crim.App.1992). The second jury recommended a sentence of
life without parole by a vote of 8-4. The court rejected this
recommendation and again sentenced McNair to death. McNair's case was
twice remanded for correction of the sentencing order before finally
being affirmed on direct appeal. McNair v. State, 653 So.2d 351 (Ala.Crim.App.1994).
The United States Supreme Court denied McNair's petition for
certiorari. McNair v. Alabama, 513 U.S. 1159, 115 S.Ct. 1121, 130 L.Ed.2d
After his unsuccessful direct appeal, McNair
petitioned for post-conviction relief pursuant to Alabama Rule of
Criminal Procedure 32 (“Rule 32”). The Henry County Circuit Court (the
“Rule 32 court”) issued an order dismissing as procedurally barred all
of McNair's claims except (1) ineffective assistance of counsel in
violation of the Sixth Amendment, (2) state failure to turn over
exculpatory evidence to the defense, and (3) the unconstitutionality
of the death penalty due to a pattern of racial bias in its
implementation. An evidentiary hearing for these claims was originally
scheduled for September 22, 1995, but it was moved to November 8, 1995
on McNair's motion. The Rule 32 court entered an order denying
McNair's petition on all grounds on November 13, 1995. Its order was
affirmed by Court of Criminal Appeals, and the Alabama Supreme Court
denied certiorari. McNair v. State, 706 So.2d 828 (Ala.Crim.App.1997).
McNair filed a federal habeas corpus petition in
the United States District Court for the Middle District of Alabama on
August 18, 1998. He alleged numerous grounds for relief, including (1)
ineffective assistance of counsel at the guilt and penalty phases of
his trial, (2) improper consideration of extraneous evidence by jurors
during the guilt phase, and (3) Batson violations by the State during
jury selection. The district court determined that several claims were
entitled to review under 28 U.S.C. § 2254, and, over the State's
objection, granted an evidentiary hearing on McNair's ineffective
assistance claims. The hearing was held on July 27-28, 2000.
On March 12, 2004, the district court granted
McNair's habeas petition with respect to the death sentence, holding
that McNair received ineffective assistance of counsel at the penalty
phase of his trial. The court denied McNair's petition on all other
grounds. The State appealed the court's decision on the ineffective
assistance issue, and McNair filed a cross-appeal with respect to his
extraneous evidence and Batson claims. Those appeals are now before
II. STANDARD OF REVIEW
We review de novo a district court's grant or
denial of a habeas corpus petition. Wright v. Hopper, 169 F.3d 695,
701 (11th Cir.1999). The district court's factual findings are
reviewed for clear error, while mixed questions of law and fact are
reviewed de novo. Id. An ineffective assistance of counsel claim is a
mixed question of law and fact subject to de novo review. Id.
Because McNair filed his federal habeas petition
after April 24, 1996, this case is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which “establishes a
highly deferential standard for reviewing state court judgments.”
Parker v. Sec'y for Dept. of Corr., 331 F.3d 764, 768 (11th Cir.2003).
Under AEDPA, a person in custody pursuant to the judgment of a state
court shall not be granted habeas relief unless the state court's
decision was (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law as determined by the Supreme Court
of the United States; or (2) ... was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Moreover, a state
court's factual determinations are presumed correct unless rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Finally, AEDPA mandates that a petitioner who
failed to develop the factual basis for a claim in state court shall
not be granted a federal evidentiary hearing absent certain
extraordinary circumstances. 28 U.S.C. § 2254(e)(2). A district
court's decision to grant or deny an evidentiary hearing is reviewed
for an abuse of discretion. Kelley v. Sec'y for Dept. of Corr., 377
F.3d 1317, 1333 (11th Cir.2004). A district court abuses its
discretion by misapplying the law or making findings of fact that are
clearly erroneous. Id.
A. Ineffective Assistance of Counsel
The district court, after holding an evidentiary
hearing, granted McNair's habeas petition on the ground that he
received ineffective assistance of counsel during the penalty phase of
his trial. Specifically, the court held that McNair's counsel was
constitutionally ineffective for presenting lay testimony about
McNair's drug use without offering additional evidence about the
effects of drug addiction and its potential mitigating effects. The
State argues that the district court erred by (1) granting McNair an
evidentiary hearing when McNair was not diligent in developing his
claim in state court; (2) not deferring to the state court's
determination on the merits as required by 28 U.S.C. § 2254(d); and
(3) finding that McNair's counsel was constitutionally ineffective
under the test laid out in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons discussed below, we
agree that the district court erred in granting McNair's petition.
We turn first to the State's argument that the
district court erred in granting McNair an evidentiary hearing. Under
AEDPA, when a federal habeas petitioner “has failed to develop the
factual basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim.”FN1 28 U.S.C. §
2254(e)(2). The Supreme Court has held that “a failure to develop the
factual basis of a claim is not established unless there is lack of
diligence, or some greater fault, attributable to the prisoner or the
prisoner's counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct.
1479, 1488, 146 L.Ed.2d 435 (2000). “Diligence,” as used in §
2254(e)(2), “depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to
investigate and pursue claims in state court.” Williams, 529 U.S. at
435, 120 S.Ct. at 1490. Accordingly, the district court should not
have granted McNair an evidentiary hearing unless he made a reasonable
attempt to investigate and pursue his ineffective assistance of
counsel claim in state court.
FN1. Section 2254(e)(2) does have two exceptions,
but neither applies in this case. For example, for the newly
discovered evidence exception to apply, “the facts underlying the
claim [on which the petitioner seeks an evidentiary hearing] must be
sufficient to establish by clear and convincing evidence that but for
the constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.” 28 U.S.C. §
2254(e)(2)(B). Because there is no doubt that McNair is guilty of the
underlying offense, the exceptions in § 2254(e)(2) are inapplicable in
In its opinion granting the evidentiary hearing,
the district court “could not conclude that [McNair] had failed to
develop the factual basis of this claim in the state proceedings,
because the state court had foreclosed [his] attempts to develop the
requisite expert testimony.” McNair v. Haley, 97 F.Supp.2d 1270, 1279
(M.D.Ala.2000). Specifically, the district court pointed to the Rule
32 court's orders (1) denying McNair funds to hire expert witnesses,
(2) denying McNair's request for on order allowing “any experts” to
visit him in prison, and (3) overruling McNair's objections to the
denial of the first two motions. Id. On the basis of these three
orders, the district court held that McNair was entitled to an
evidentiary hearing under § 2254(e)(2).
The district court's evaluation of McNair's
diligence in state court failed to discuss three crucial factors. The
first is the chronology of events before the Rule 32 court. McNair
filed his Rule 32 petition on July 5, 1995. On August 30, 1995, the
Rule 32 court dismissed numerous claims as procedurally barred and
scheduled a hearing on the ineffective assistance of counsel claim for
September 22, 1995. McNair did not file a motion for discovery until
September 8, 1995, and that motion included neither a motion for funds
for independent mental health experts nor a motion for access.
On September 19, McNair filed a motion requesting
that the scheduled hearing be changed to a pre-hearing conference. The
district court granted this motion, continuing the September 22
hearing and scheduling a status conference for that date instead. The
Rule 32 hearing was rescheduled for November 8, 1995. McNair then
waited until October 24, two weeks before the already continued
hearing, to file his motion for expert funds. His motion for expert
access was not filed until October 30, one week before the continued
hearing and almost four months after the Rule 32 petition. Given their
temporal proximity to the rescheduled hearing, granting either of
these motions almost certainly would have mandated another continuance,
as McNair acknowledged in his simultaneous filing of a motion for
continuance on October 25. However, the district court's opinion made
no mention of the belatedness of these motions.
The district court also ignored McNair's failure to
adduce any evidence in support of his ineffective assistance of
counsel claim when it was before the Rule 32 court. While the Rule 32
court's ruling on his motions for expert funds and access might have
impeded McNair's presentation of expert testimony about the effects of
drug addiction, he faced no impediment to establishing the factual
predicate underlying his claim in other ways. Aside from expert
testimony, McNair could have established that predicate by testifying
himself, or having his family members testify, about his drug abuse
and the changes in his personality and behavior that it caused.FN2
Moreover, McNair could have adduced evidence of the effects of drug
addiction by offering treatises or other literature. Although ignored
by the district court, McNair's failure to pursue these other means of
establishing the factual predicate for his claim in the Rule 32 court
is indicative of a lack of diligence.
FN2. In fact, McNair did offer such testimony when
attempting to establish his ineffective assistance of counsel claim in
his federal evidentiary hearing.
A final and very significant factor ignored by the
district court is McNair's failure to fairly present the issue of the
Rule 32 court's denial of his motions in his appeal to the Alabama
Court of Criminal Appeals. Although the statement of the case
mentioned that the Rule 32 court had denied several motions, including
those for expert funds and access,FN3 the relevant section of McNair's
brief discussing the claim that his counsel was ineffective for
failing to introduce drug addiction evidence made no mention of the
motions or their denial. The brief also never urged the Court of
Criminal Appeals to remand the case to permit the presentation of that
evidence.FN4 In light of McNair's failures in this regard, we cannot
conclude that he diligently pursued an attempt to establish the
factual basis of his ineffective assistance of counsel claim in the
Alabama Court of Criminal Appeals.
FN3. The brief failed to mention that the motions
were made shortly before the already continued hearing.
FN4. Indeed, it was not until his application for
rehearing that McNair argued to the Court of Criminal Appeals that his
Rule 32 evidentiary hearing was unfair, listing, among other reasons,
that the Rule 32 court had denied his motions for expert funds and
access. We cannot conclude that such belated presentation of the issue
to the appellate court-at a time when the State could no longer
respond, after the issues for appellate review had been joined, and
after the decision of the appellate court-constituted a diligent
pursuit of the issue on appeal or a reasonable attempt to pursue the
claim in state court.
Taken cumulatively, the facts outlined above
demonstrate that McNair was not diligent in establishing the factual
basis of his ineffective assistance of counsel claim in state court.
Because the district court ignored these crucial facts, and because of
our firm conviction in this regard, we have no difficulty concluding
that its findings with respect to diligence were clearly erroneous.
The district court therefore erred in granting McNair a federal
evidentiary hearing under 28 U.S.C. § 2254(e)(2).FN5
FN5. At oral argument, McNair argued that the state
court's denial of several discovery motions made it futile for him to
pursue his desired discovery in the Rule 32 court. McNair has waived
that argument on appeal by raising it for the first time at oral
Even if McNair had not waived the argument, our
review of the proceedings leading up to the evidentiary hearing in the
Rule 32 court persuade us that any such futility claim would fail.
McNair filed his first discovery motion on September 8, 1995, seeking
discovery of matters in the prosecution files and certain other law
enforcement, correctional, medical, and mental health records. With
particular relevance to this case, the discovery request for mental
health records at the various state facilities was granted on
September 22, 1995.
On that same date, the discovery request was also
granted with respect to medical records, law enforcement records, and
correctional records. In addition, open file discovery was granted to
McNair with respect to the prosecution files. We cannot conclude that
collateral counsel could reasonably have deemed it futile to promptly
move for funds for expert assistance or for access, just as we cannot
conclude that counsel was diligent in waiting until just one and two
weeks before the scheduled hearing to file such motions. As noted in
the text, granting of such belated motions would necessarily have
mandated another continuance, a fact virtually acknowledged in
McNair's simultaneously filed motion to continue the November 8, 1995
Finally, even if our assessment of the proceedings
in the Rule 32 court were erroneous, there still would be no excuse
for collateral counsel's failure to diligently pursue the matter in
the Court of Criminal Appeals.
We now turn to the State's argument that the
district court erred by not deferring to the state court's
determination of McNair's ineffective assistance of counsel claim.
When a claim is adjudicated on the merits in state court, AEDPA bars a
federal court from granting habeas corpus relief on that claim unless
the state court determination “was contrary to, or involved an
unreasonable application of, clearly established Federal law” or
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.”FN6 28 U.S.C. § 2254(d).
The district court declined to apply this bar,
reasoning that no state court had adjudicated McNair's ineffective
assistance of counsel claim on the merits while considering the
evidence before the district court after its evidentiary hearing.
McNair v. Campbell, 307 F.Supp.2d 1277, 1311 (M.D.Ala.2004). However,
because the district court erroneously granted the evidentiary hearing,
evidence adduced therein cannot serve as a basis for habeas relief. We
conclude that § 2254(d) applies with full force, and the district
court erred in disregarding it.
FN6. The relevant provision reads,
in full, as follows: (d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim- (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d).
Applying § 2254(d), it is clear that McNair is not
entitled to habeas relief on his ineffective assistance of counsel
claim. That the Rule 32 court and the Court of Criminal Appeals
adjudicated this claim on the merits is undisputed. It is also clear
that the decisions of those courts were not contrary to, and did not
involve an unreasonable application of, clearly established federal
law, and that they did not unreasonably determine the facts in light
of the evidence before them. Clearly established federal law mandates
that, in order to succeed on his ineffective assistance of counsel
claim, McNair would have to show that (1) his counsel's performance
failed to meet the standard of a reasonably competent attorney; and
(2) that this deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. Scrutiny of
counsel's performance is highly deferential, and the burden is on the
convicted defendant to show that counsel's performance was
unreasonable. Id. at 688-89, 104 S.Ct. at 2064-65.
Despite bearing the burden of demonstrating his
counsel's ineffectiveness, McNair adduced no evidence to support this
claim during his Rule 32 proceedings. Because McNair offered no
evidence to support his claim, the Court of Criminal Appeals was not
unreasonable in denying relief, and its adjudication is entitled to
deference under § 2254(d). The district court therefore erred in
granting McNair's habeas petition on his ineffective assistance of
FN7. Because we have held that the district court
erred in granting McNair an evidentiary hearing and in not deferring
to the state court adjudication pursuant to 28 U.S.C. § 2254(d), we
need not reach the State's argument that the district court erred in
finding McNair's counsel ineffective in light of the evidence adduced
at the federal evidentiary hearing.
B. Extraneous Evidence in the Jury Room
McNair's next claimed basis for habeas relief is
that jurors improperly considered extraneous evidence during their
deliberations in the guilt phase of his trial. Evidence shows that Les
Davis, a Christian minister who served as the foreman of McNair's jury,
brought a Bible into the jury room during deliberations, read aloud
from it, and led the other jurors in prayer. McNair now claims that
the Bible, which had not been admitted into the record, constituted
extraneous evidence and that the jurors' consideration of it violated
his Sixth Amendment right to a fair trial. The Alabama Court of
Criminal Appeals, applying state law, held that McNair was not
entitled to relief. McNair, 706 So.2d at 835-38. The district court
also denied relief on this claim. McNair, 307 F.Supp.2d at 1301-05.
McNair challenges this holding in his cross-appeal.
1. Procedural Bar
The district court began its discussion of McNair's
extraneous evidence claim by addressing the claim's procedural posture;
we shall do the same. As noted above, McNair's claim in his federal
habeas petition is that the jurors' consideration of extraneous
evidence deprived him of his right to a fair trial as guaranteed by
the Sixth Amendment to the United States Constitution. However, McNair
argued to the state court that “the jury improperly considered and
relied on extraneous evidence in violation of Alabama law.” McNair,
307 F.Supp.2d at 1301 (internal quotation omitted) (emphasis in
original). It is also clear that the Court of Criminal Appeals
addressed McNair's extraneous evidence claim solely under state law
principles. McNair, 706 So.2d at 837-38 (relying on standards set out
in Ex parte Troha, 462 So.2d 953 (Ala.1984), Ex parte Lasley, 505
So.2d 1263 (Ala.1987), and Roan v. State, 225 Ala. 428, 143 So. 454
Because McNair did not raise the federal
constitutional issue in state court, the district court held that the
issue was procedurally defaulted. McNair, 307 F.Supp.2d at 1301.
However, because the State failed to argue the procedural bar, the
district court held that the bar was waived and proceeded to consider
the merits. Id. at 1302. For the reasons discussed below, the district
court properly held that McNair had procedurally defaulted his Sixth
Amendment claim, but erred in holding that the state waived the
Habeas petitioners generally cannot raise claims in
federal court if those claims were not first exhausted in state court.
28 U.S.C. § 2254(b)(1); Kelley v. Sec'y for Dept. of Corr., 377 F.3d
at 1343. In order to be exhausted, a federal claim must be fairly
presented to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). “It is not sufficient merely
that the federal habeas petitioner has been through the state courts
... nor is it sufficient that all the facts necessary to support the
claim were before the state courts or that a somewhat similar state-law
claim was made.” Kelley, 377 F.3d at 1343-44 (citing Picard, 404 U.S.
at 275-76, 92 S.Ct. at 512 and Anderson v. Harless, 459 U.S. 4, 6, 103
S.Ct. 276, 277, 74 L.Ed.2d 3 (1982)).
Rather, in order to ensure that state courts have
the first opportunity to hear all claims, federal courts “have
required a state prisoner to present the state courts with the same
claim he urges upon the federal courts.” Picard, 404 U.S. at 275, 92
S.Ct. at 512 (citations omitted). While we do not require a verbatim
restatement of the claims brought in state court, we do require that a
petitioner presented his claims to the state court “such that a
reasonable reader would understand each claim's particular legal basis
and specific factual foundation.” Kelley, 377 F.3d at 1344-45 (citing
Picard, 404 U.S. at 277, 92 S.Ct. at 513).
While these broad principles are relatively clear,
the district court correctly noted that many courts have struggled to
pinpoint the minimum requirements that a habeas petitioner must meet
in order to exhaust his remedies. For instance, the Supreme Court
recently wrote that a petitioner wishing to raise a federal issue in
state court can do so “by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding such a
claim on federal grounds, or by simply labeling the claim ‘federal.’ ”
Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 1351, 158 L.Ed.2d
If read in a vacuum, this dicta might be thought to
create a low floor indeed for petitioners seeking to establish
exhaustion. However, we agree with the district court that this
language must be “applied with common sense and in light of the
purpose underlying the exhaustion requirement [:] ‘to afford the state
courts a meaningful opportunity to consider allegations of legal error
without interference from the federal judiciary.’ ” McNair, 315 F.Supp.2d
at 1184 (quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617,
620, 88 L.Ed.2d 598 (1986)). This is consistent with settled law
established by the Supreme Court. See Picard, 404 U.S. at 275, 92 S.Ct.
at 512 (“We emphasize that the federal claim must be fairly presented
to the state courts.”). We therefore hold that “ ‘[t]he exhaustion
doctrine requires a habeas applicant to do more than scatter some
makeshift needles in the haystack of the state court record.’ ” Kelley,
377 F.3d at 1345 (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st
With these principles in mind, we now consider the
extraneous evidence arguments that McNair presented in state court. In
his initial brief to the Court of Criminal Appeals, McNair relied
almost exclusively on state law. The section of his brief addressing
his extraneous evidence claim was captioned: “MR. MCNAIR'S JURY
IMPROPERLY CONSIDERED AND RELIED ON EXTRANEOUS EVIDENCE DURING ITS
GUILT PHASE DELIBERATIONS IN VIOLATION OF ALABAMA LAW.” All of the
substantive argument contained in that section of McNair's brief
addressed Alabama law, with the bulk of it consisting of McNair's
attempt to analogize his case to Ex parte Troha, 462 So.2d at 953. The
relevant part of the brief contained only two references to federal
law. The first was a citation to Jones v. Kemp, 706 F.Supp. 1534 (N.D.Ga.1989),
which was one of seven cases included in a string citation supporting
McNair's claim that “jurors may not consider extraneous evidence
during their deliberations and courts have consistently and repeatedly
reversed convictions where such consideration has occurred.”
The other reference to federal law came in the
closing paragraph of McNair's argument, when he wrote that the jurors'
consideration of the Bible violated his rights “protected by the Fifth,
Sixth, Eighth[,] and Fourteenth Amendments to the United States
Constitution, the Alabama Constitution[,] and Alabama law.”
Importantly, McNair never mentioned, much less argued, the federal
standard that extraneous evidence is presumptively prejudicial. FN8
See Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d
424 (1965); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450,
451, 98 L.Ed. 654 (1954); United States v. Martinez, 14 F.3d 543, 550
(11th Cir.1994) (“Prejudice is presumed the moment the defendant
establishes that extrinsic contact with the jury in fact occurred.” (internal
FN8. Jones v. Kemp, 706 F.Supp. at 1558-60, the one
federal case buried in McNair's string cite, also did not mention the
presumption of prejudice.
McNair's reliance on state law continued when he
went before the Alabama Supreme Court. His nine page petition for
certiorari on the extraneous evidence issue did not cite a single
federal case; its only mention of federal law was a repetition of the
concluding paragraph of his argument before the Court of Criminal
Appeals. His brief in support of the petition included a verbatim
restatement of the Jones v. Kemp citation and closing paragraph from
his brief to the Court of Criminal Appeals and nothing more. Again,
the presumption of prejudice that arises under federal law was never
McNair's references to federal law in his state
habeas proceedings are exactly the type of needles in the haystack
that we have previously held are insufficient to satisfy the
exhaustion requirement. See Kelley, 377 F.3d at 1344-50. McNair never
cited any United States Supreme Court or federal appellate court case
dealing with extraneous evidence, nor did he mention the presumption
of prejudice that arises under federal law when jurors consider such
Instead, he relied on state law opinions to argue a
state law claim under a state law standard, citing a lone federal
district court opinion (which itself did not mention the federal
presumption of prejudice) only as part of a string citation
illustrating various courts' holdings with respect to extraneous
evidence in the jury room. A careful review of the record makes it
clear that McNair did not fairly present his federal constitutional
claim to the state court. He therefore failed to exhaust his state
court remedies and is procedurally barred from raising his non-exhausted
federal claim in his federal habeas petition. FN9
FN9. A habeas petitioner can only evade the
exhaustion requirement by showing cause for and actual prejudice
resulting from the default or by establishing a fundamental
miscarriage of justice. Kelley, 377 F.3d at 1345 (citations omitted).
McNair clearly cannot satisfy either of these exceptions, as there is
no conceivable excusable cause for his failure to raise his Sixth
Amendment claim in state court and no fundamental miscarriage of
justice will result from its default.
While the district court correctly held that
McNair's Sixth Amendment claim is procedurally barred due to lack of
exhaustion, it went on to consider the merits of the claim after
finding that the State waived the procedural bar. McNair, 307 F.Supp.2d
at 1301-02. The district court based its waiver finding on the State's
failure to identify the Sixth Amendment issue as procedurally
defaulted in its briefs to the district court. Id. However, the
State's failure to raise exhaustion does not constitute a waiver under
AEDPA, which mandates that “[a] State shall not be deemed to have
waived the exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel, expressly waives
the requirement.” 28 U.S.C. § 2254(b)(3); see Dill v. Holt, 371 F.3d
1301, 1302 n. 1 (11th Cir.2004) (stating that AEDPA requires a court
to address exhaustion when it is not expressly waived by the State).
We have conducted a careful review of the State's briefs to this court
as well as the district court and have found no express waiver of the
FN10. At oral argument, McNair's counsel suggested
that the State expressly waived the exhaustion requirement in its
brief to this court. That is not the case. The State claimed in its
brief that McNair's Sixth Amendment extraneous evidence claim should
have been procedurally barred, and then simply repeated the district
court's holding that the State had waived the procedural bar by
failing to assert it.
Thus, the posture of this case is as follows:
McNair has failed to properly exhaust his extraneous evidence claim;
the State has not expressly waived that failure; and the claim could
no longer be brought in state court if we dismissed McNair's petition
for lack of exhaustion.FN11 The claim is therefore procedurally
barred. Kelley, 377 F.3d at 1351.
FN11. There is no question that Alabama law would
bar McNair from presently raising his Sixth Amendment extraneous
evidence claim in state court. See, e.g., Whitt v. State, 827 So.2d
869, 876 (Ala.Crim.App.2001) (holding that new claims raised in
subsequent habeas petitions are barred as successive unless the
petitioner can show cause and a miscarriage of justice). We can
therefore safely address McNair's other claims rather than remanding
the case to the district court with instructions to dismiss the
petition. Kelley, 377 F.3d at 1351.
This raises an interesting question. Section
2254(b)(3), by its own language, applies only to the exhaustion
requirement. It does not mention procedural default, which, while
related to exhaustion, is distinct. However, we are persuaded that §
2254(b)(3) applies with full force in cases such as this, where the
procedural bar arises only as a direct result of the petitioner's
failure to exhaust his state law remedies.FN12
FN12. This presents an issue of first impression in
this circuit. In Perruquet v. Briley, 390 F.3d 505, 516 (7th
Cir.2004), the Seventh Circuit listed our opinion in Nelson v.
Schofeld, 371 F.3d 768 (2004), as holding that § 2254(b)(3) applies to
a procedural bar that arises from a failure to exhaust. However, we
doubt that our opinion actually so held. The district court in Nelson
had dismissed a habeas petition as procedurally barred, and this court
did affirm. Nelson, 371 F.3d at 769, 771. In the process of affirming,
Nelson did rely upon the express waiver requirement of § 2254(b)(3) in
rejecting the petitioner's argument that the State had waived
exhaustion. Id. at 770 n. 4.
However, the Certificate of Appealability in Nelson
included only the issue of whether Nelson was required to petition the
Supreme Court of Georgia for certiorari in order to exhaust his state
remedies. Id. at 769. Neither the Certificate of Appealability nor the
discussion in the opinion addressed whether § 2254(b)(3) applies not
only to exhaustion, but also to a procedural bar that arises out of a
failure to exhaust. Thus, we doubt that Nelson definitively resolves
this issue. However, we do note that the result in Nelson is entirely
consistent with our holding today.
It is well established that when a petitioner has
failed to exhaust his claim by failing to fairly present it to the
state courts and the state court remedy is no longer available, the
failure also constitutes a procedural bar. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d
640 (1991) (citations omitted) (“[I]f the petitioner failed to exhaust
state remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred ... there is a
procedural default for purposes of federal habeas.”). In such a
situation, the Supreme Court has held that the petitioner has failed
to properly exhaust his state court remedies and therefore has
procedurally defaulted his claims. O'Sullivan v. Boerckel, 526 U.S.
838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999) (emphasizing that
the relevant inquiry is “not only whether a prisoner has exhausted his
state remedies, but also whether he has properly exhausted those
remedies, i.e., whether he has fairly presented his claims to the
state courts” (emphasis in original)).
Because § 2254(b)(3) provides that the State can
waive McNair's failure to properly exhaust his claim only by expressly
doing so, it logically follows that the resulting procedural bar,
which arises from and is dependent upon the failure to properly
exhaust, can only be waived expressly. See Franklin v. Johnson, 290
F.3d 1223, 1238 (9th Cir.2002) (O'Scannlain, J., concurring) (“There
could be no procedural bar in this case without [petitioner's] failure
... to exhaust his claim. Thus, because the State's argument is based
upon [petitioner's] failure to exhaust his claim, which, as a
byproduct, renders it procedurally barred for our purposes, I would
hold that the State did not waive this argument by failing to raise it
below.” (emphasis in original)). Thus, because the State did not
expressly waive McNair's procedural default in this case, we hold that
§ 2254(b)(3) applies and that McNair is procedurally barred from
raising his extraneous evidence claim.
In so holding, we join the Tenth Circuit, which has
repeatedly applied § 2254(b)(3) and its express waiver requirement to
procedural bars arising from a petitioner's failure to properly
exhaust his state court remedies. See Ellis v. Hargett, 302 F.3d 1182,
1189 (10th Cir.2002); Gonzales v. McKune, 279 F.3d 922, 924-25 (10th
Cir.2002) (en banc) (relying on section 2254(b)(3) and its express
waiver requirement in holding that a petitioner's unexhausted claim
was procedurally barred even though the State asserted the bar for the
first time at en banc oral argument); Hale v. Gibson, 227 F.3d 1298,
1327-28 and n. 12 (10th Cir.2000).
We also note that a number of other circuits have
discussed the issue without resolving it. See Kerns v. Ault, 408 F.3d
447, 449 n. 3 (8th Cir.2005) (implying that § 2254(b)(3) would apply
to a procedural default arising out of a petitioner's failure to
properly exhaust state court remedies, but finding an explicit waiver
by the State); Perruquet v. Briley, 390 F.3d 505, 515-16 (7th
Cir.2004) (collecting relevant cases but not resolving the issue
because the State had not actually waived the procedural bar arising
out of the petitioner's failure to exhaust). Only the Ninth Circuit,
in its opinion in Franklin, 290 F.3d at 1231, has adopted the contrary
FN13. We agree with the rationale of Judge
O'Scannlain's concurring opinion in Franklin, and we respectfully
disagree with the majority opinion which Judge O'Scannlain criticized.
We believe that the Franklin majority misplaced its reliance on the
Supreme Court's decision in O'Sullivan. As indicated in the text above,
the Court in O'Sullivan recognized the interplay of the concepts of
exhaustion and procedural bar and held that the relevant claim was
procedurally barred because of the habeas petitioner's failure to
properly exhaust the claim in the state courts. O'Sullivan, 526 U.S.
at 848, 119 S.Ct. at 1734. Indeed, the Franklin majority's approach-rigidly
limiting the exhaustion concept to situations in which the state
remedies were available at the time of the federal petition-seems to
be drawn more from Justice Stevens' dissent in O'Sullivan, 526 U.S. at
851-56, 119 S.Ct. at 1735-38 (Stevens, J., dissenting) (asserting that
the concept of exhaustion assumed the continued availability of state
remedies and criticizing the majority for focusing on exhaustion in a
context in which state remedies were no longer available). Like
Justice Stevens' dissent, the Franklin majority relies upon a
quotation from Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct.
1558, 1570 n. 28, 71 L.Ed.2d 783 (1982), suggesting that the
exhaustion concept applies only when remedies are still available at
the time of the federal petition. However, the quotation from Engle is
not only dicta, but it also fails to account for O'Sullivan's later
holding discussing the interplay of the two doctrines when the state
remedies are no longer available and recognizing the dependency of the
bar upon the failure to exhaust.
In holding that § 2254(b)(3) applies to this
particular procedural bar, we emphasize that this holding applies only
to a procedural bar that arises out of a failure to exhaust state
remedies. Such a procedural bar is to be distinguished from one that
arises, not because of a failure to exhaust, but rather because the
state court will not hear the claim due to a state procedural bar. For
example, most states require contemporaneous objections and often
decline to entertain a claim because of a failure to object. Such a
claim may well be fully exhausted, but nevertheless procedurally
barred in federal court because of the State's invocation of its bar
for failure to object. In such a case, the procedural bar in federal
court has nothing to do with exhaustion, and therefore § 2254(b)(3)
would not apply.FN14
FN14. Indeed, our own case of Romine v. Head, 253
F.3d 1349 (11th Cir.2001), is such a case. There, the relevant claim
was clearly exhausted, having been raised on direct appeal and in the
state habeas court. The latter court declined to address the claim
because it had already been addressed and decided by the Georgia
Supreme Court. Id. at 1363. The federal district court noted that
Romine had failed to preserve the issue by failing to object at trial,
but that there was no procedural bar because the Georgia Supreme Court
had decided the issue on the merits. However, this court noted that
even “if there were any procedural bar ..., the State has waived it.
The State did not assert a procedural bar to this specific claim in
the district court, and has not argued one as to it in this [c]ourt.”
Id. at 1364. Romine is distinguished from the instant case, and
provides no guidance for it, because the only possible procedural bar
there did not arise out of a failure to exhaust state remedies. Rather,
the possible bar resulted from a failure to object at trial. Indeed,
the claim was fully exhausted. We note also that the Romine panel
properly did not mention § 2254(b)(3).
Similarly, Jackson v. Johnson, 194 F.3d 641, 652 n.
35 (5th Cir.1999), declined to apply § 2254(b)(3) to a procedural bar
that did not arise from a failure to exhaust state remedies. Rather,
the default in that case arose from a failure to comply with Texas'
contemporaneous objection rule. Id. at 651-52. See also Franklin v.
Johnson, 290 F.3d at 1238-39 (O'Scannlain, J., concurring) (similarly
distinguishing Jackson v. Johnson). In short, the district court
correctly concluded that McNair's extraneous evidence claim is
procedurally barred due to lack of exhaustion, but it erred in
concluding that the State has waived the procedural bar. Accordingly,
the district court should have dismissed this claim as procedurally
2. The Merits
Even if McNair's scattered references to federal
law in his state court proceedings did satisfy the exhaustion
requirement, or even if the State had waived the procedural bar, and
we reiterate that neither is true in this case, McNair still would not
be entitled to relief on this claim. In the peculiar circumstances of
this alternative holding, we will assume arguendo, but expressly not
decide, that the claim is best reviewed de novo.FN15 However, relevant
findings of fact by the state court are still presumed correct absent
clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
FN15. If McNair's scattered references to federal
law in state court were enough to satisfy the exhaustion requirement,
then it is clear that de novo review would be appropriate. See Romine,
253 F.3d at 1365 (holding that this court applies de novo review when
a state court fails to apply federal law or an identical state law
rule to a federal claim). On the other hand, if the federal claim was
not fairly presented to the state courts, but the procedural default
was waived, the appropriate review is less clear.
Under federal law, any evidence that does not “come
from the witness stand in a public courtroom where there is full
judicial protection of the defendant's right of confrontation, of
cross-examination, and of counsel” is presumptively prejudicial.
Turner, 379 U.S. at 473, 85 S.Ct. at 550; see also Remmer, 347 U.S. at
229, 74 S.Ct. at 451; Martinez, 14 F.3d at 550. In order to give rise
to this presumption, a defendant need only demonstrate that jurors had
contact with extrinsic evidence. Martinez, 14 F.3d at 550. Once the
defendant makes this showing, the State bears the burden of rebutting
the presumption by showing that the jurors' consideration of the
extrinsic evidence was harmless to the defendant. Remmer, 347 U.S. at
229, 74 S.Ct. at 451; Martinez, 14 F.3d at 550. When evaluating
whether the State has met its burden, courts are to consider the
totality of the circumstances surrounding the introduction of the
extraneous evidence to the jury. See Remmer v. United States, 350 U.S.
377, 379, 76 S.Ct. 425, 426, 100 L.Ed. 435 (1956). Our case law
indicates that the factors to be considered include the heavy burden
on the State, the nature of the extrinsic evidence, how the evidence
reached the jury, and the strength of the State's case. Martinez, 14
F.3d at 550.
Because it is undisputed that jurors in the guilt
phase of McNair's trial considered extrinsic evidence during their
deliberations, our analysis focuses on whether the State can rebut the
resulting presumption of prejudice. We believe that three factors are
crucial to the analysis in this case: (1) the factual findings of the
state court, (2) the manner in which the evidence reached the jury,
and (3) the strength of the State's case against McNair. Each will be
discussed in turn.
McNair raised his challenge to the jury's
consideration of extraneous material during the state collateral
proceedings. Both the trial court and the Court of Criminal Appeals
carefully considered the claim on the merits pursuant to state law,
and both courts made crucial findings of fact which are relevant to
our analysis of the issue under federal law. Although McNair argued
that the foreman urged the jurors to find McNair guilty based on
passages from the Bible, the trial court rejected that argument,
finding as a fact that two passages were read and that “[n]either of
these scriptures contain material which would encourage jurors to find
a defendant guilty or to recommend the death penalty.”FN16 McNair v.
State, 706 So.2d at 837 (quoting the Rule 32 court's order).
FN16. The two Bible verses read included the
familiar Psalm 121, and Luke 6:37. The latter verse reads as follows:
“Judge not, and ye shall not be judged; condemn not and ye shall not
be condemned; forgive, and ye shall be forgiven ....” The Court of
Criminal Appeals also made several crucial findings of fact.
Confirming the Rule 32 court's finding, it found that McNair's
“assertions in his briefs ... that [Davis, the minister who served as
foreman] urged the jurors to find him guilty based on passages from
the Bible and that the jury relied on the Bible in finding him guilty
are not supported by the record.” McNair, 706 So.2d at 838. The Court
of Criminal Appeals also made crucial findings with respect to the
nature and character of the readings, their intent, and their effect
on the jury. These findings include the following: [T]he extraneous
material, i.e., reading from the Bible and praying in the jury room
during deliberations, was not of such a character or nature as to
indicate bias or corruption or misconduct that might have affected the
From the testimony at the hearing, we conclude that
the prayers and scripture readings in the jury room were intended to
encourage, and had the effect of encouraging, the jurors to take their
obligation seriously and to decide the question of guilt or innocence
based only on the evidence presented from the witness stand in open
A fair reading of [Davis's] testimony, in its
entirety, leads inescapably to the conclusion that his readings from
the Bible and prayers in the jury room ... did not encourage its
members to consider anything other than the evidence presented in the
court in arriving at a verdict. There is nothing here to suggest that
the jury did anything other than base its verdict on the evidence
presented in open court in the trial of the case. Id. at 838. These
findings of fact are of course entitled to a presumption of
correctness, unless McNair demonstrates by clear and convincing
evidence that they are erroneous. 28 U.S.C. § 2254(e)(1). McNair has
made no such showing. We thus readily conclude that the foregoing
state court findings of fact establish the relevant facts in this
case. Moreover, our own review of the record persuades us that the
state court findings are amply supported.FN17
FN17. Indeed, even if the state court findings of
fact were entitled to no deference at all, our own examination of the
evidence indicates that nothing judgmental or prejudicial was read.
Because we know the innocuous nature of the
passages that Davis read, and because we know that the passages and
prayers merely had the “effect of encouraging the jurors to take their
obligations seriously and to decide the question of guilt or innocence
based only on the evidence,” we readily conclude that the State has
easily carried its burden of rebutting the presumption of prejudice.
In addition to the innocuous nature of the
extrinsic evidence and the fact that it did not distract the jury from
basing its verdict on the evidence presented, two other factors
indicated in the case law also strongly favor the State. As the
district court noted, the extraneous evidence in this case was brought
in by a juror, and did not carry the imprimatur of the court. FN18
McNair, 307 F.Supp.2d at 1304. Additionally, the state offered
overwhelming and largely uncontested evidence of McNair's guilt.FN19
Both of these factors favor the state, and, when combined with the
state's findings of fact, readily establish that the jury's
consideration of extraneous evidence was harmless in this case.
FN18. The instant case is unlike Jones v. Kemp, 706
F.Supp. at 1560, where the jurors consulted a Bible with the express
permission of the trial judge. The instant case is also very different
from Romine, 253 F.3d at 1358-71, which addressed a related due
process issue. The challenge there was to a closing argument in which
the prosecutor urged the jurors in the sentencing phase to follow the
law of God, which the prosecutor argued mandates death for one who
kills his parents. Id. at 1368-69. Additionally, the case itself was
saturated with evidence relating to religion; the jury was sequestered
during deliberations in a Baptist church; and there was evidence that
at least one or two jurors were influenced by the prosecutor's
FN19. Because a separate jury considered the death
penalty, the extraneous evidence issue relates only to the guilt phase.
Because the state could successfully rebut the
presumption of prejudice arising from the jury's consideration of
extraneous evidence, McNair would not have been entitled to relief on
this claim even if he had properly raised it in state court. The
district court properly rejected this claim.
C. Racial Discrimination in Jury Selection
McNair's final claim is that the State's use of
peremptory challenges to strike a number of African-American potential
jurors violated his Fourteenth Amendment rights under Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). McNair
raised this claim before the Court of Criminal Appeals and the Supreme
Court of Alabama on direct appeal, and both courts denied relief. Ex
parte McNair, 653 So.2d 353, 354-58 (Ala.1994); McNair, 653 So.2d at
323. The district court, after reviewing the state court opinions and
conducting an independent review of the record, likewise denied relief
on this claim. McNair, 307 F.Supp.2d at 1293. We agree that McNair has
not made out a claim for relief under Batson.
In Batson, the United States Supreme Court
established a three-step test for evaluating claims of racial
discrimination in jury selection. The defendant must first establish a
prima facie case by producing evidence sufficient to support the
inference that the prosecutor exercised peremptory challenges on the
basis of race. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410,
162 L.Ed.2d 129 (2005); Batson, 476 U.S. at 96, 106 S.Ct. at 1723. The
burden then shifts to the State to rebut the defendant's prima facie
case by offering race-neutral explanations for its challenges. Batson,
476 U.S. at 97, 106 S.Ct. at 1723. The State's proffered explanation
at this stage need not be “persuasive or even plausible ... the issue
is the facial validity of the prosecutor's explanation.” Purkett v.
Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995)
(internal quotation omitted).
If both sides carry their burdens, it is left to
the court to determine whether the defendant has proven purposeful
discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. At this
point, “the decisive question will be whether counsel's race-neutral
explanation ... should be believed.” Hernandez v. New York, 500 U.S.
352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality
opinion). This is “a pure issue of fact, subject to review under a
deferential standard ... [and] peculiarly within a trial judge's
province.” Id. at 364-65, 111 S.Ct. at 1869 (internal quotation
omitted). Also, because this claim was decided on the merits by the
Alabama courts, McNair is not entitled to habeas relief unless he can
“demonstrate that [the] state court's finding of the absence of
purposeful discrimination was incorrect by clear and convincing
evidence ... and that the corresponding factual determination was
‘objectively unreasonable’ in light of the record.” Miller-El v.
Cockrell, 537 U.S. 322, 348, 123 S.Ct. 1029, 1045, 154 L.Ed.2d 931
(2003); see 28 U.S.C. § 2254(d)-(e); Miller-El v. Dretke, 545 U.S.
----, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005). This standard is
demanding, but not insurmountable. Miller-El, 125 S.Ct. at 2325.
McNair's trial jury was selected from a sixty-four
member venire that included eighteen African-Americans. Ex parte
McNair, 653 So.2d at 355. The prosecutor used eleven of his twenty-six
peremptory challenges to strike African-Americans; the remaining seven
African-American members of the venire served on McNair's jury.FN20 Id.
McNair argues both that the totality of the circumstances of the jury
selection process indicates a Batson violation and that three
particular strikes constituted violations. We address each of these
claims in turn.
FN20. The Supreme Court of Alabama noted that the
county from which the jury pool was drawn was approximately forty
percent black, the venire twenty-eight percent black, and the ultimate
jury fifty-eight percent black. McNair, 653 So.2d at 356. It held that
these statistics negated a finding of disparate impact and, as a part
of its totality of the circumstances analysis, that they were a
relevant factor weighing against a finding of discriminatory intent.
Id. After viewing the totality of the circumstances, we cannot
conclude that this was an unreasonable determination of the facts.
1. The Jury Selection Process as a Whole
McNair presents three arguments intended to cast
doubt on the jury selection process: (1) that the district attorney's
office that handled McNair's prosecution has a history of racial
discrimination; (2) that the prosecutor did not question ten of the
eleven stricken African-American venire members about the specific
area of concern that prompted the use of the peremptory challenge; and
(3) that the prosecutor relied on “vague and unsubstantiated notes”
from an assistant district attorney as the basis for challenging five
of the venire members.
We readily discount the latter two assertions. The
prosecutor's failure to question most of the stricken African-American
venire members about the specific concern that prompted the use of the
challenge is not very persuasive in this case. For example, it is not
likely to have been productive to question a juror about age or a
prior misdemeanor or a bad reputation. Moreover, the prosecutor also
struck white jurors without such specific questioning. With respect to
McNair's assertion that the prosecutor relied on vague and
unsubstantiated notes from his assistant, McNair fails to explain why
a prosecutor's reliance on notes and information furnished by an
assistant is any indication at all of racial bias. Furthermore, our
review of the notes does not persuade us that they were unduly vague
or unsubstantiated. Although McNair's assertion that the district
attorney's office had a history of racial discrimination is a matter
of some concern, we will consider that as part of our totality of the
circumstances analysis after discussing McNair's challenges with
respect to individual jurors.
2. The Individual Challenges
A defendant can establish a Batson violation by
demonstrating that any single strike was the result of purposeful
discrimination. Cochran v. Herring, 43 F.3d 1404, 1412 (11th
Cir.1995). In an attempt to do this, McNair argues that his
prosecutors peremptorily challenged three specific venire members in
violation of Batson. Before discussing the merits of each claim, we
note that in no instances does McNair argue that the prosecutor's
proffered reasons for the strikes were facially discriminatory. We
also note that the state trial court made a finding of fact that the
strikes were not racially motivated, and that the Alabama Supreme
Court concluded that the trial court's ruling was not clearly
erroneous. McNair, 653 So.2d at 355-56. Thus, the only question facing
this court is whether McNair can show by clear and convincing evidence
that the state court finding was erroneous.
McNair's first claim focuses on James McAllister.
The prosecutor's proffered reason for striking McAllister was that the
latter was not from Henry County. In response to a question during
voir dire, McAllister gave his address as Route 3, Box 605, which is
in Henry County, and stated that he worked in Eufala, Alabama, which
is not in Henry County. He remained silent when the trial judge asked
the entire venire if any of them resided outside of Henry County.
Finally, the notes supplied by the prosecutor's assistant suggested
that McAllister did not live in Henry County. Presented with this
information, the prosecutor reasonably could have believed that
McAllister did not live in Henry County. McAllister clearly worked in
another county, his address may have implied residence in another
county, and his silence in the face of a general question from the
trial judge, while informative, is not dispositive. Although the
prosecutor's reason for striking McAllister was based on a belief that
ultimately proved incorrect, this does not establish by clear and
convincing evidence that the state court's finding of fact was
erroneous, and McNair presents no additional evidence to support his
McNair's next claim focuses on Allen Boatwright.
The prosecutor struck Boatwright because the latter had a prior
misdemeanor conviction. McNair argues that this reason was pretextual
because the prosecutor had earlier, when asking if any venire members
or their relatives or close friends had been prosecuted by that
particular district attorney's office, stated that he was not
interested in misdemeanors. This argument is not persuasive. After
narrowing the field somewhat with his initial inquiry, the prosecutor
reasonably could have decided that, of the remaining venire members,
he would prefer those without prior criminal violations. We also note
that the prosecutor struck white venire members who had prior
misdemeanor convictions. The prosecutor's proffered reason was
plausible and race-neutral, and McNair offers no evidence to support
his claim of pretext.
The subject of McNair's third claim is David Marsh.
The prosecutor struck Marsh on the basis of a recommendation from an
assistant district attorney who knew Marsh and his apparently poor
reputation in the community. This reason is facially neutral, and
McNair offered no evidence that it was pretextual. In the absence of
any evidence that the state's proffered facially neutral reason was
pretextual, McNair cannot overcome the presumption favoring the state
3. The Totality of the Circumstances
After a careful review of the record, we cannot
conclude that the totality of the circumstances provides clear and
convincing evidence that the state court's finding of the absence of
purposeful discrimination was incorrect, nor can we conclude that the
court's corresponding factual determination was objectively
unreasonable in light of the record before the court. As noted in the
preceding discussion, McNair offers virtually no evidence to indicate
that the prosecutor's articulated legitimate reasons for the
individual strikes were pretextual. McNair's challenges in that regard
are mere speculation lacking any persuasive force.
The only argument with any force at all is McNair's
list of cases in which convictions obtained by this district
attorney's office have been reversed or criticized on the basis of
Batson. We cannot conclude that this argument can carry McNair's heavy
burden. We note initially that McNair himself admits that a
prosecutor's history of discrimination, while a relevant consideration,
is not dispositive. In addition, McNair has wholly failed to connect
any conduct criticized in the cited cases to McNair's own prosecutor,
much less his conduct in this case. Such disconnected history cannot
carry McNair's burden, especially when the prosecutor's articulated,
legitimate reasons for each strike remain virtually unimpeached.FN21
FN21. In suggesting that this court's opinion in
Cochran, 43 F.3d at 1410, implies that evidence such as that presented
by McNair can be determinative of a Batson claim, the district court
either exaggerates the evidence in the instant case, misreads Cochran,
or both. In Cochran, there was strong evidence that the prosecutor's
office had a policy of striking black venire members on the basis of
their race in effect at the time of defendant's trial. Several former
prosecutors who served at the relevant time so testified, and
Cochran's own prosecutor testified that black jurors were less
reliable, more distrustful of the police, less likely to return a
death penalty, and more likely to identify with a black defendant. Id.
Cochran's prosecutor also provided no specific non-racial reasons for
his strikes in that case. On the basis of that evidence, it was clear
that race was a determining factor in the exercise of peremptory
challenges removing seven of nine available black jurors, leaving only
one to serve, plus one alternate. As indicated in the text, the
circumstances here are very different. The State offered legitimate,
non-racial reasons for each strike, and McNair proffered virtually no
evidence indicating that the reasons were pretextual. And in this
case, the state courts found as a fact that the strikes were not
racially motivated. McNair has failed to show by clear and convincing
evidence that the finding is erroneous.
Having considered the totality of the circumstances,
and in light of the presumption enjoyed by the state court findings of
fact, 28 U.S.C. § 2254(e)(1), we cannot conclude that McNair has
rebutted the presumption of correctness by clear and convincing
evidence. Accordingly, we cannot conclude that the state court
decision was based on an unreasonable determination of facts in light
of the evidence presented to the state court, 24 U.S.C. § 2254(d)(2);
and thus, the district court correctly denied habeas corpus relief
with respect to this Batson claim.
We hold that the district court erred in granting
McNair an evidentiary hearing and in holding that he was entitled to
habeas relief on his ineffective assistance of counsel claim. The
district court's order granting habeas relief on that claim is
therefore REVERSED. We also hold that the district court erred in
failing to apply the procedural bar with respect to McNair's
extraneous evidence claim. However, we need not disturb the district
court's order on that issue, as it correctly held that McNair was not
entitled to relief on the merits. The district court also correctly
held that McNair was not entitled to relief on his Batson claims. The
district court's order denying McNair's petition with respect to his
extraneous evidence claim and Batson claims is therefore AFFIRMED.
AFFIRMED IN PART AND REVERSED IN PART.
Ella Foy Riley, 68.