Warren and Lois Green owned and operated a Western Auto Store in
Mount Vernon, Alabama.
On Warren's 40th birthday, December 1, 1977, they were murdered
during an armed robbery of their store. They were forced into a back
room at gunpoint, bound back to back with extension cords and shot
in the head at point blank range. They left behind one daughter who
was sixteen years old at the time of their murders.
Freddie Lee Wright was found guilty of the robbery and of their
murders in 1979 and sentenced to die in Alabama's electric chair. He
along with three other accomplices were on their way to rob another
store when they decided to stop in Mount Vernon to purchase tape to
repair a rip in the seat of their car. They made the decision to rob
this store instead of going on to the other town.
His admitted accomplices, Roger McQueen, Percy Craig and Reginald
Tinsley, all testified that Wright fired the fatal shots. All 3
subsequently were convicted of murder.
Craig and Tinsley served their time and are now believed to be
living in the Mobile area. McQueen is serving time in a federal
prison on an unrelated kidnapping conviction.
Wright's first trial ended in a hung jury. Doris Lacey Lambert,
Wright's former girlfriend and the mother of his child, testified at
the second trial that Wright admitted the murders to her just after
they were committed. Years later, McQueen recanted his testimony.
Warren and Lois Green owned and operated a
Western Auto Store in Mount Vernon, Alabama, a small town located
approximately 30 miles north of Mobile.
On December 1, 1977, (Warren's 40th birthday)
they were murdered during a robbery of their store. They were forced
into a back room, bound back to back with extension cords and shot
in the head at point blank range.
Warren was pronounced dead at the
scene and Lois died about two hours later at a local hospital. They
left behind one daughter who was sixteen years old at the time of
Freddie Lee Wright was found guilty of the
robbery and of their murders in 1979 and sentenced to die in
Alabama's electric chair.
He along with three other accomplices were on
their way to another town 30 miles north of Mount Vernon to rob a
store there when they stopped along the way at the Western Auto to
purchase tape to repair a rip in the seat of their car.
the decision to rob this store instead of going on to the other town.
One of the items stolen was Warren's new Seiko watch his wife and
daughter had given him the night before for his birthday. It was
recovered at a pawn shop in Mobile.
Freddie Lee Wright (Alabama)
On March 3, 2000, the State of Alabama, with the
acquiescence of the federal government, executed Freddie Lee Wright
in the electric chair. The state and federal governments failed to
ensure Wright's right to a fair and impartial trial, free of racial
discrimination. The unfair and racially discriminatory trial
resulted in Wright's execution.
Warren and Lois Green, a white couple, were shot
and killed during an armed robbery at their Western Auto Store in
Mount Vernon, Alabama. A woman entering the store later identified
Theodore Otis Roberts as one of the robbers and he was arrested.
state identified a handgun belonging to Roberts as the murder weapon.
Months later, charges against Roberts were dropped and four other
black men, including Freddie Lee Wright, were indicted in the case.
Wright's three co-defendants named him as the shooter in the robbery,
and he was tried and convicted of armed robbery and murder.
Wright's first trial ended in a mistrial with
eleven out of twelve jurors voting to acquit. - No physical evidence
linked Wright to the crime. - Wright's co-defendants testified
against him in exchange for receiving lesser sentences.
Two of those
co-defendants later recanted. One named another man as the killer. -
The man who was originally arrested for the crime was never tried,
even though his gun was identified as the murder weapon. - Key
exculpatory evidence was suppressed by the prosecution. - The
prosecution in Wright's second trial excluded all African-American
persons from serving on the jury. - The detective who did much of
the state's investigation admitted in court that he "bullshits his
witnesses to get confessions" and that he lied to one of the co-defendants
toward this end. - Two state Supreme Court justices voted to stay
Wright's execution finding clear and convincing evidence of his
It took two trials to convict Freddie Lee Wright.
The first trial, with a mixed-race jury, voted eleven to one in
favor of acquittal, resulting in a mistrial. An all-white jury
convicted him of armed robbery and capital murder in the second
The prosecution in Wright's first trial relied on
the testimony of two of his co-defendants. One later recanted his
testimony, saying the prosecutor threatened him with the electric
chair if he did not name Wright as the shooter.
The other later
provided a written affidavit saying that he, too, was pressured by
the prosecution to name Wright. This second co-defendant named
another man as the killer. In exchange for their testimony, both men
were allowed to plead guilty to lesser charges.
One received a ten-year
sentence and the other was permitted to serve his Alabama sentence
concurrently with a sentence he had for another crime in Mississippi.
The third man received a 25-year sentence but was later paroled. In
spite of these witnesses' testimony at trial, a mixed-race jury
voted eleven-to-one to acquit Wright of all charges, resulting in a
The same witnesses the state used to convict Freddie
Wright were later deemed to be non-credible witnesses when they
admitted that they had only fingered Wright to avoid the death
Wright's second trial took place before an all-white
jury. The state's new witness was Doris Lambert, Wright's former
girlfriend and the mother of their child. She claimed Wright had
confessed his guilt to her, although in his first trial she had
planned to testify for him, and was never called to the stand.
prosecution suppressed Lambert's history of drug addiction and
mental illness. Also, Lambert reportedly received help regaining
custody of her children in exchange for her testimony against Wright.
Wright's lawyer claimed he had been unable to locate a key alibi
witness, an insurance agent, with whom Wright did business shortly
before the murders. The jury discounted the testimony of Wright's
friends, who were with him in a club at the time of the murders.
Wright was found guilty of capital murder and sentenced to death.
Wright's attorney continued to represent him in
the appeals process, even after claims of ineffective representation
were raised. Wright's attorney was subsequently disbarred.
District Attorney acknowledged that he should have disclosed
evidence about Doris Lambert's psychiatric history and about deals
made with Wright's co-defendants. In the course of denying Wright's
habeas corpus petition, the U.S. District Court was critical of the
The court also wrote that "numerous imperfections
in the state court proceedings were revealed," that "some of these
imperfections like the state's failure to disclose certain
exculpatory materials - do not in any way deserve the blessing of
However, it believed that a federal court was not the
proper forum in which to re-try the case, so it denied relief and
the Eleventh Circuit Court of Appeals affirmed. The Eleventh Circuit
found that virtually all of these claims were procedurally barred
from review because they had not first been presented to the state
Two Alabama Supreme Court Justices voted to stay Wright's
execution citing evidence that "his conviction resulted from a lack
of a fair trial" and "the likelihood that we are sending an innocent
man to his death." Wright was, nevertheless, executed on schedule.
Freddie Lee Wright was convicted despite
compelling evidence of his innocence and overwhelming evidence that
he failed to receive a fair and impartial trial, free from racial
The State of Alabama withheld information from
defense lawyers. It failed to provide Wright with competent legal
representation. It excluded all African-American persons from the
jury in order to secure a conviction - a practice later found to be
an unconstitutional form of racial discrimination. (Batson v.
Kentucky) Nonetheless, both state and federal courts, including the
U.S. Supreme Court, upheld both Wright's conviction and his death
CCADP - Freddie Wright Homepage
SUMMARY OF FACTS RELATING TO MY INNOCENCE
TO WHOM IT MAY CONCERN WITH PROFOUND EXPRESSION
OF MY REGARD.
I am a Alabama death row inmate that has nearly
run the complete appellate gauntlet and am in dire need of any and
all intervention. I have no doubt that because of recently
publicized events in regards to death row inmates being found
innocent of the crimes they have spent many years on death row for,
the internet has been consumed by request such as my own.
attempt on my part to distinguish my case, from the many others
innocent death row inmates now being housed throughout the United
States would be futile. I can only stress, that because my case/appeals
have reached the 11th Circuit Court of appeals and the overwhelming
demands for your type of assistance, my options have run out.
Below I have briefly summarize the facts relating
to my innocence each and everyone can be verified in their totality
. . .
(1). I was convicted of murder and robbery at a
local Western Auto Store, two individuals were killed. Stock was
removed from the store by the assailants. Several of the stolen
items were eventually recovered. Another person Theodore Robinson
was subsequently arrested and charged with these crimes.
(2). Ms. Charlene Tilton, at the time of the
crime was the girlfriend of Mr. Robinson. Ms. Tilton gave a
statement to Det. Stroh, which lead to Robinson's arrest, a weapon
was discovered subsequent test of projectiles removed from the
victims and test fired from the weapon by the Alabama Department of
Forensic Science resulted in a "match".
(3). Ms. Mary Johnson, a patron of the local
Western Auto Store was leaving the store as a man later identified
as Mr. Robinson was entering. Ms. Johnson notices four (4), men in
an automobile later identified as being owned by Robinson at the
front entrance, a short period of time before the discovery of the
victims. (a). Ms. Johnson, was summoned to testify at Mr. Robinson's
preliminary hearing where she confirmed under oath the above. (b).
Ms. Johnson has never testified to the above facts at any stage of
my trials or hearing to this date.
(4). An individual whose name is unknown to
myself, but was identified by the investigating officers as being in
possession of items removed from the crime scene, identified
Robinson as the person from whom he received the stolen goods.
Inquiry into the investigative file will result in the accurate name
of this individual.
(5). Roger McQueen and Percey Craig, initially
implicated me as the shooter in this crime. Prior to trial both
attempted to recanttheir statements. Their attempts were met with
the threat of prosecution of this capital offense, which led them to
again implicate me as an member of the ones who robbed the store.
(6). A third accomplice Mr. Regintal Tinsley,
initially implicated me in this crime, but prior to trial on his own
volition requested to give a statement to my trial counsel
exonerating me of any involvement in this crime, before the
prosecution had the chance to convince him otherwise.
(7). Additionally Mr. McQueen, stated under oath
that we first met in the month of February 1978, some three (3)
months after the crime occurred, making our participation in this
crime together impossible.
(8). Ms. Doris Lambert, a former girlfriend of
mine testified that during a June 1977 confession to her Catholic
Priest stating that I confessed my involvement in this crime. The
murder/robbery occurred six (6), months after her confession making
her statement an obvious lie.
(9). The trial court judge issued an order for
the exclusion of any and all testimony relating to Mr. Otis Theodore
Robinson and his involvement in this crime. Which hindered my
defense and the presentation of exculpatory evidence.
All of the above was requested vis motion of
discovery by the defense counsel, but the prosecution and/or person
having control and custody of these facts, either by act or lack of
action failed to disclose the information which has lead to the
technical exclusion otherwise known as procedural barring of
evidence of my "actual innocence".
I am in desperately need of any and all help, if
there is any additional information needed please do not hesitate to
contact me. It's clear if I don't get help I am going' to lose my
life, I await your response...
Sincerely, Freddie Lee Wright
Freddie's PENPAL REQUEST !
My name is Freddie Lee Wright, #Z-389, I am
African-American, presently incarcerated on Alabama death row, since
July 5, 1979. At the present time my future is looking pretty bleak,
but I am still very much hopeful that things will change and my life
won't end here by my being put to death. I am now down to my last
two rounds of appeals. I hope my present situation won't keep any
one from writing. I really need some one I can relate to doing
whatever time I have left. I am 47 years old, born April 29, 1951,
dark brown complexion, weight 229. Home town Mobile, Alabama. I am
open-minded, with a good sense of humor, I am also sincere. My life
may be ending but I still have a lot to offer through friendship in
the way of touching others heart and minds, to enlighten them about
myself and my many walks in life. I am interested in hearing from
any one who is sincere, open-minded and down to earth. Age, sex,
race or religion doesn't matter. Freddie Lee Wright
Running Out Of Time
By Freddie Lee Wright
My name is Freddie Lee Wright. I
have spent the past 20 years fighting for my life here on Alabama's
Death Row. My last appeal for a rehearing in the United States Circuit
Court (11th Circuit) was denied. I now have until July 20 to file my
final appeal to the United States Supreme Court. If the Supreme Court
lets stand the ruling from the 11th Circuit, my appeals will become
final and I will have no chance to prove my innocence.
I am accused of committing two
murders during a robbery. I was said to have been the trigger man of a
four-man robbery team. It took the State of Alabama two separate
trials to convict me of these murders I did not commit. The first
trial was held before a mixed jury-- seven whites and seven blacks --
and ended in a mistrial. After the two alternate jurors were excused,
a vote of 11-1 for acquittal was returned, causing a mistrial. The one
juror, a white female who held out voting to convict and causing the
mistrial, admitted several years later in an interview with my
appellate attorneys that she did not believe I was guilty, but she
felt "someone must be severely punished for such a senseless crime,"
and I was "the only one left that could receive the level of
punishment deserved" so she held out causing the mistrial.
The second trial was presented to an
all-white jury and the State put on one additional witness, then
suppressed her mental health records. I was convicted and sentenced to
die in Alabama's electric chair.
Now I will go back to mid-November
1977 and tell you my story. I am a native of Mobile, AL and had
returned there to find an apartment for my fiancée, Hazel Craig, and
our two daughters (one eight, the other just over a year) who were
then living in Long Beach, California. In Mobile, a friend of mine,
Reginald Tinsley, whom I had known for 5 or 6 years and with whom I
had worked on several jobs, introduced me to Percy Craig (no relation
to my fiancée) and Roger McQueen. I met those two men during the week
of Thanksgiving, 1977, and, on Thanksgiving Day, Roger McQueen and
Percy Craig came over to my sister's home in Craig's car to invite me
back to Craig's house for Thanksgiving dinner. I accepted the dinner
McQueen and I then drove to Prichard,
Alabama, to pick up my ex-girlfriend, Doris Lacey Lambert (mother of
my 29 month-old son), and McQueen, Doris, and I drove back to Craig's
apartment, where we had dinner with Craig and his girlfriend, Donna
Lockett. This was on Thanksgiving Day 1977 -- I believe the date was
The next time I saw Percy Craig was
on the night of November 30, 1997. He and I spent most of that night
at a local gambling house. On December 1, I spent the morning at my
sister's house with Carl Harrington and Barbara Brazelton. While I was
there, a gentleman from the insurance company arrived. I paid my
sister's insurance with part of an $80 or $86 rebate check from the
phone company. I used the rest of that check to buy an additional
insurance policy for my son. If this insurance agent could have been
the time of my trial, he could have verified that I was with him at
the time that Craig, McQueen, and the State claimed I was with the
robbery team on the way to Jackson, Alabama.
At approximately 10:00 a.m. on
December 1, 1977, Barbara, Carl, and I left my sister's house and went
to the Ebony Club, where we stayed until between 1:45 and 2:00 p.m.
Earlier that morning (before I went out to the Ebony Club with Barbara
and Carl), Craig, McQueen, and Tinsley had stopped by my sister's
Craig wanted to borrow money, and
asked if I had anything "to get high on." I gave him $25 and three "hits"
of THC. Before he left, Craig asked to borrow my gun -- a .38 caliber
Smith and Wesson revolver. I gave it to him. He was a friend of my
friend, Tinsley, and I did not question him. I had been out with Craig
the previous night gambling and I figured that Craig, McQueen, and
Tinsley were going back to the gambling house to try to win back some
of the money Craig had lost the night before.
As a point of information, I should
say that guns were a way of life for most of us, and the gambling
house was in a rough area. Everyone in there gambling would either
have his gun out on the table or on his person where it could be seen.
Because carrying a gun most of the time was our way of life, I thought
nothing of it when Craig asked to borrow my gun. I had no idea before
or after the fact that they were going to commit a robbery and double-murder.
Shortly after Carl, Barbara, and I
returned from the Club to my sister's house, Craig and Tinsley showed
up again. They said they had stopped by earlier but had left when they
found no one home. I noticed that Tinsley was extremely nervous and
agitated, but I attributed this to his probably being high. Craig did
not return my gun at that time, nor did I ask for it. I was busy
getting ready to go out to dinner, after which I would be on my way to
Tallahassee with Carl, who played for the Bishop State Community
College basketball team and was considering a transfer to FSU (Florida
State University). We were making the trip so he could talk to the FSU
Craig left Tinsley at my sister's
house when he left. Before going out to dinner, I called a cab for
Tinsley and after he left in the cab, I went with Carl, Barbara, and
Carolyn Miller, to Piccadilly Circle for dinner, then went shopping.
One of the items I bought that day (Dec. 1) was a pair of shoes for my
son.(The robbery and murder of which I was accused happened in Mt.
Vernon, Alabama, around 11:30 a.m. or 12:00 noon. This was exactly the
time I was at the Ebony Club with Carl, Barbara and Carolyn.)
After leaving the mall that evening,
Carl and I dropped Barbara and Carolyn off at their homes, then went
to Prichard, Alabama, to Doris Lambert's house for a short visit and
to drop off the shoes for my son. We then returned to my sister's
house. I borrowed several hundred dollars from her to insure that Carl
and I had money for gas, motel, food and other expenses. Carl and I
left Alabama around midnight Dec. 2nd, and arrived in Tallahassee
early Friday morning. We checked into a motel near the FSU campus.
Friday evening we attended a basketball game between Jacksonville
State University and Dillard University. My nephew played on the
Dillard Team and Carl knew several of the other players, so after the
game we went to the motel where the Dillard players were staying in to
visit with some of them.
On the afternoon we returned to
Mobile (Saturday, December 3, 1977), I visited Percy Craig at his
apartment. As I was leaving, he walked outside with me, opened the
trunk of his car, and returned my gun to me, wrapped in some sort of
cloth. When I inspected the weapon I saw that it was fully loaded with
five .38 caliber "hollow point" bullets and, from the coating of oil
on it, I saw that it appeared to have been freshly cleaned. I returned
the pistol to my shoulder holster. I failed to ask, as in retrospect I
realize I should have, why my gun had been freshly cleaned; the only
reason would be if someone had fired it.
Later that week, maybe the 4th or
5th of December, I contacted my fiancée in Long Beach, California and
told her I had found an apartment.We moved into the apartment (in the
same complex where Craig and McQueen lived) between the second week
and the end of March,1978. Six days after the December 1, 1977 robbery
and murder of Mr. and Mrs.Warren Greene, in Mt. Vernon Alabama,
Theodore Otis Roberts was charged with the crime after being
identified by Mary Johnson.
A .38 caliber, blue-steel, Smith and
Wesson revolver, identified by Roberts' girlfriend, Sharlene Tipton,
as belonging to Roberts, was recovered. Ballistics tests later
resulted in Roberts' gun being positively identified as the murder
weapon. Ms. Tipton also led police to property Roberts had allegedly
traded for drugs, but which belonged to the Western Auto Store. All
this was reported to Mobile P.D. Detective Stroh and was reported in
an affidavit by Detective Stroh, but it was never presented at either
of my trials.
Ms. Mary Johnson's identification of
On the morning of the crime, as Ms.
Johnson was exiting the Mt. Vernon Western Auto Store, she "bumped
into" a man -- later identified as Roberts -- as he was coming into
the store. She also observed a light blue car in the parking lot with
one person in the front passenger seat and three people in the back
seat.When Ms. Johnson saw the news
report about the robbery and murders, she immediately called the
police with information
of what she had seen.
After Roberts was arrested, Ms.
Johnson was called back to the police department to view a "line-up."
As she was entering the police station she recognized the same blue
car she'd seen at the Western Auto Store -- a light blue Buick Riviera
with an angel hood ornament. The car belonged to Theodore Otis Roberts.
Ms. Johnson not only identified the car, she also positively
identified Roberts, first in a photo layout, then in a live police
In February, 1978, Roger McQueen was
arrested and sent to prison in Mississippi for unrelated robberies.
While at the Parchman State Prison, McQueen talked of the Mt. Vernon,
Alabama murders to another prisoner who went to the Warden with what
McQueen had told him. The Warden, in turn, contacted the Alabama
authorities. The Alabama authorities, along with the FBI, removed
McQueen from the Parchman prison grounds, took him to a motel and
interviewed him. He gave statements implicating himself, Tinsley,
Craig, and me, with me being named as the trigger man.
When at the trial the Courts were
presented with the eyewitness evidence of Ms. Johnson against Theodore
Otis Roberts, they declared that Ms. Johnson had made a mistake in her
identification "due to a striking resemblance "between Roberts and
McQueen. This opinion was reached based solely on a statement to that
effect made by Roberts' attorney. There is no evidence to show that
this man or the Courts had ever seen Roberts and McQueen at the same
time, viewed photos or other likenesses, or used any other means of
comparison to reach this conclusion -- other than its being in his
client's best interest. The only physical similarities between Roberts
and McQueen are that they are both African-American and both wore "Afros,"
a hairstyle very common among black men in the late '70s.
Some time in the early part of 1978,
I heard from Doris Lambert that she had heard a rumor that Craig,
Tinsley, McQueen and I were involved in the crime. I told Doris that
the only knowledge I had of the crime was what I'd heard on the news
reports, and that someone had been charged with it. This was the one
and only conversation I had with Doris Lambert about the murders until
after I was arrested.
I later confronted Craig and Tinsley
about the crime. Both denied any involvement, although Tinsley again
became agitated and nervous. On several occasions after that,
conversation about the crime came up, but there was never any mention
of my being involved, nor did they admit their involvement. On the
morning of July 28, 1978, Mobile police officers went to Craig's
apartment and arrested him, then came to my apartment and arrested me.
Tinsley was taken into custody later that day.
I was told by Detectives that I
could be placed at the scene of the crime based on statements given by
Craig and McQueen. This, despite the fact there was never any
eyewitness identification of me (other than Craig and McQueen claiming
I was the shooter). No fingerprints of mine were ever found at the
crime scene, and no other physical evidence linked me to this crime. A
man named Joe Nathan Berham did, however, testify that some time in
January 1978 he was given a watch by someone in the car in which he
was riding. He also admitted that it was passed to him over the seat
back, and that he couldn't say who had handed him the watch. This
watch was later recovered from a pawn shop and identified as the Seiko
brand watch belonging to Mr. Warren Greene (murder victim). Pawn shop
records indicated that it had been pawned by Berham. Still no tie to
While I was incarcerated at the
Mobile County Jail awaiting trial, I called Ms. Lambert an estimated
44 times -- once a week for the eleven months I was there. During
those conversations she repeatedly expressed her belief that I was
innocent because she knew me as a person not in the habit of lying to
her about anything, no matter how serious the situation.
After the first trial began, she
spoke to my attorney, asking if there was anything she could do to
help prove my innocence. After my attorney had this brief conversation
with Doris, he returned to the courtroom and asked me if there was
anything she could testify to that would help prove me innocent. I
told him I wasn't aware of her having any knowledge of anything
helpful other than her firm belief that I was innocent. She was never
called to testify. The trial ended in a mistrial. Shortly thereafter,
I was rescheduled for a second trial. I spoke again with Ms. Lambert,
telling her of my anticipation of an acquittal and my plans for my
life after I was acquitted.
Those plans were to take my two
daughters and fiancée back to California and get on with my life. This
plan didn't sit well with her. Ms. Lambert told her mother she would
see me dead before she saw me with another woman, and her mother
testified to that at the second trial. Doris was jealous even though
she was married to someone else and trying to get a divorce at the
time. She was also very dependent on me as a friend she could "pour
her heart out to" about anything without fear of judgment for her drug
use, and for financial support. If I went back to California, she
would lose all of this. I believe this is the reason she made the
complete turnaround from telling my attorney she believed me to be
100% innocent, before she heard my plans to move back to California,
to claiming that I had confessed to her right after the murders had
According to Lambert's testimony, I
confessed the murders to her in June 1977 -- six months before the
murders were even committed. My attorneys were not allowed to present
Ms. Lambert's mental health records. The records showed Ms. Lambert to
be "manipulative," a pathological liar, a drug addict (cocaine and THC),
had homicidal and suicidal fantasies, had borderline retardation, and
heard the voice of her father (who'd been dead since she was about 13
years old) speaking to her. The mental health records I am speaking
about are not a few remote incidents, nor are they from Ms. Lambert's
distant past. They cover the years from 1973 up to within months of
her testifying at my second trial.
Another problem with Ms. Lambert's
reliability as a witness is the fact that she was pressured by the
State. They told her that if she didn't testify, she would never
regain custody of her children. The state had removed the children
from her custody and put them in the care of her family or her husband.
Before she testified against me, she was placed in a shelter for
battered women, although she never claimed to have been battered.
At one time, she changed her mind
and refused to testify. This resulted in her being taken from the
shelter and locked up in the County Jail.
After testifying against me, full
custody of her children was restored, and the State provided services
such as transportation for her children to and from school. My fiancée,
Hazel Craig, had similar pressure applied to her.
She had gone back to California and,
after returning to visit me in jail, was detained at the jail after
visitation on a "trumped-up" charge of having left a damaged apartment
when she moved. The claims that Ms. Craig was responsible for "leaving
behind a damaged apartment" and that being the reason she was placed
in the Mobile County Jail are ludicrous.
First, all damage to the apartment
was caused by the Mobile County deputies in their search for my gun,
and the security deposit Hazel and I had paid had already been
withheld. There is just no justification for her incarceration. (The
police found my gun on the morning of my arrest, July 28, 1978, and it
was implicated in the crime.) Helen Craig was later asked about
testifying against me, but at that time she said she knew nothing and
would not testify. She was returned to the County Jail where she
remained until the first trial was declared a mistrial. She was then
During both trials, Reginald Tinsley
-- the only person to give a statement exonerating me -- had escaped
and was known to be staying in New Orleans, Louisiana. Deputies at the
county jail mentioned to me on several occasions that they were going
to New Orleans to observe Tinsley's last known address because the
State was keeping him under surveillance. They knew enough about his
whereabouts to go and arrest him in New Orleans within a few days
after I was found guilty and sentenced to death. I could be wrong, but
I think they did know exactly where he was. If he had been arrested we
could have stopped my trial until he was back in Mobile to testify on
my behalf that I wasn't with them and I didn't kill the Greens. His
testimony would have hurt the State's case.
Craig and McQueen both attempted
several times to recant their statements implicating me, but were not
allowed to do this. The District Attorney told them that if they "didn't
give us Wright" they would be charged with capital murder and would
also face the death penalty. Craig and McQueen had no choice but to
comply by continuing to implicate me. The D.A., Chris Galanos, is now
a judge in Mobile. He shouldn't have been handling my case because he
was Tinsley's attorney before he was appointed D.A.
The State was also granted its
motion to prevent any mention of Roberts' being initially charged with
the murders. The state's purpose in filing the motion to get any and
all evidence suppressed that had to do with Roberts' being initially
charged with this murder and robbery was to build a stronger case
against me. If the jury had heard all the evidence the state had
against Roberts, which was a much stronger case than the one against
me, the jury would most likely have believed that Craig and McQueen
were lying when they said I was with them and I killed the Greens
after robbing their store. If the evidence against Roberts had been
given to the jury, my acquittal would have been likely.Where are they
Percy Craig: sentenced to ten years
for his part in the above crime. Status unknown.
Roger McQueen: Given plea agreement
in which he would do no time in Alabama upon completing Mississippi
30-year sentence for unrelated robbery. Presently incarcerated in
federal prison for robbery/kidnapping committed after his release.
Tinsley: Sentenced to 25 years.
Granted parole and released. Presently residing in Mobile, AL.
The foregoing is true and correct to
the very best of my knowledge. Some of these facts do however require
me to rely on memories after spending these past 20 years on death row.
Freddie Lee Wright May 29, 1999
Freddie Lee Wright
Freddie Lee Wright, who came within one vote of
being acquitted in his 1st capital murder trial 21 years ago, only
to be convicted and condemned to die in a 2nd trial a month later,
was executed in the state's electric chair early today at Holman
Wright, 48, convicted of the murders of a popular
Mount Vernon couple in their hardware store in December 1977, was
pronounced dead at 12:11 a.m. He made no statement before his death.
Over 2 decades, Wright, a former cook and
dishwasher from Mobile, who family members said grew up on the
streets, maintained his innocence. He denied he was at the store the
day Warren Green, 40, and his wife, Lois, 37, were slain.
According to trial testimony, the Greens were each shot once in the head as
they sat tied back-to-back in a rear room of their Western Auto
store in Mount Vernon, about 30 miles north of Mobile.
Among the witnesses to Wright's execution was Kim
Green, daughter of the slain couple. Other witnesses included Wendy
Sancher Wright, the condemned man's wife, and Ryan Russell, a
private investigator who had helped Wright through the years of
Outside the prison gates, some 70 family members and
friends of the Greens gathered to show support for Kim Green and pay
their respects to her late parents. They stood in the cold in a
cordoned-off area alongside the highway that runs in front of Holman,
about a half-mile from the execution site. "One of the officers said
this is very unusual to have this many people," said Kathy Simison,
a friend of the Greens from Mount Vernon. "He said it was a
testimony to them that this many family and friends would be here."
Wright's journey through the appeals process over
the years was thwarted at every level. And in the last week, he saw
his chances of surviving Friday morning depleted one by one as
desperate appeals were turned down by the Alabama Supreme Court, the
Alabama Court of Criminal Appeals and, late Wednesday, Gov. Don
Siegelman. "It is clear to me that the death penalty is appropriate
in this case," Siegelman said in a prepared statement.
On Thursday, Wright spent time saying goodbye to
relatives, including his wife Wendy Sancher, whom he married in a
ceremony at Holman on Friday, said prison system spokesman John Hamm.
He also met with the prison chaplain, Hamm said. Just hours before
Wright's scheduled execution, McDonough had filed new appeals with
the Alabama Supreme Court and the U.S. Supreme Court, asking for
stays of execution. About 5 p.m., the state Supreme Court voted 7-2
to deny Wright's appeal.
One of the dissenters was Justice Douglas
Johnstone of Mobile, who wrote: "Whether Wright is electrocuted or
injected seems insignificant compared to the likelihood that we are
sending an innocent man to his death." At 9:30 p.m. the U.S. Supreme
Court rejected his appeal on a 5-4 vote, sealing Wright's fate.
Wright's appeals over the years had been based largely on his
lawyers argument that dying at the hands of the state in the
electric chair is cruel and unusual punishment.
In a recent telephone interview with a New York
radio station, Wright condemned capital punishment. "The death
penalty itself, it's not about justice," Wright said. "It's about
I mean, and the bad part about vengeance is, most people
believe in the system so strongly, even if it's an innocent man or
when it's been evidence presented to show the person on death row is
not the person who committed that crime. "We shouldn't have capital
punishment, period, the way the scales of justice work," Wright told
the radio audience. "I mean, it's not fair. It's not applied equally
in no form or fashion. I mean, the way our system done changed now,
a person, innocent, doesn't even matter any more."
The execution of another Alabama inmate, Robert
Lee Tarver, was blocked last month by the U.S. Supreme Court when he
challenged the state's use of the electric chair. But the court, on
a 5-4 vote, later decided not to review the matter. Alabama's last
execution was carried out Jan. 7 when David Ray Duren became the
20th person put to death in the state since it resumed executions in
Wright was convicted in Mobile County Circuit
Court of shooting the Greens on Dec. 1, 1977, apparently to
eliminate witnesses following an armed robbery. His admitted
accomplices, Roger McQueen, Percy Craig and Reginald Tinsley, all
testified that Wright fired the fatal shots.
All 3 subsequently were convicted of murder.
Craig and Tinsley served their time and are now believed to be
living in the Mobile area. McQueen is serving time in a federal
prison on an unrelated kidnapping conviction. When McQueen has
finished the kidnapping sentence, McDonough said, he will be
returned to Alabama to begin serving the murder sentence for his
part in the hardware slayings. Wright's 1st trial, before a mixed-race
jury ended with the panel unable to reach a unanimous decision. The
vote was 11 to 1 for acquittal.
At his retrial a month later, an all-white jury
convicted Wright, a black man, of capital murder and sentenced him
to death. According to court records, Doris Lacey Lambert, Wright's
former girlfriend and the mother of his child, testified at the
second trial that the day after the murders, Wright told her "he had
went out with some of his friends ... to Mount Vernon and that he
killed two people with a gun." Lambert had not testified at the
McDonough said evidence of Lambert's psychiatric
history, in possession of the Mobile County district attorney's
office during the trial, was suppressed. According to McDonough,
Lambert suffered from hallucinations, which included homicidal and
suicidal fantasies and conversations with her father, who died when
she was 7 years old.
The prosecutor in the case, Chris Galanos, who
later became a circuit judge and retired last year to go into
private practice, said last week that Lambert's testimony was key in
Early in the investigation of the murders,
another man was implicated by his girlfriend, and a gun linked to
the man was later labeled as the murder weapon by a forensic expert,
according to McDonough. But some time later, McQueen contacted
authorities from a Mississippi prison, telling them he was a
participant in the store robbery and knew who the killer was.
When Wright was arrested at his home, McDonough
said, police found a gun that was later identified by the same
forensic expert as "consistent" with the murder weapon. Wright
always denied he was at the store that day but was inconsistent in
accounting for his whereabouts. He told one investigator he was at a
basketball game when the Greens were killed. He told police he was
at a private club. A handful of witnesses at the trials corroborated
During Wright's trials, McQueen testified that
Craig told Wright to "make sure the people were taken care of"
because "the people would have identified the car." McQueen
testified that Wright was the last to leave the store and when he
returned to the car the others "asked him what took place and he
said that he had took care of both people." McQueen said he
challenged Wright to prove it and Wright handed him "2 empty
cartridges from the gun."
At a 1996 federal hearing in Mobile, however,
McQueen recanted his trial testimony and said that he had lied when
he identified Wright as the killer. McQueen looked over at Wright
from the witness stand and said: "I'm sorry, dude."
Freddie Lee Wright
Associated Press & Rick
A man convicted of shooting a couple to death
while robbing their rural hardware store in 1977 was executed in the
electric chair early Friday. Freddie Lee Wright, 48, a former
dishwasher and cook, was sentenced to death for killing Warren and
Lois Green. They were bound together with an electrical cord and
shot in the head in their store in Mount Vernon, north of Mobile.
Wright made no final statement.
He had based his final appeal on the claim that
the electric chair is inhumane, but it was rejected by the state
Supreme Court, 7-2. State officials said Wright also raised the
issue on appeal in 1985. In a 5-4 decision Thursday night, the U.S.
Supreme Court denied Wright's last chance for a stay of execution.
Wright was black and his victims were white, and his appeals also
raised the issue of racial discrimination. His lawyers said a
biracial jury voted 11-1 to acquit Wright, leading to a mistrial,
before an all-white jury convicted him.
Alabama, Georgia and Nebraska are the only states
that use the electric chair as their sole means of execution.
Florida recently amended its laws to give inmates the option of
lethal injection. Wright becomes the 2nd condemned inmate to be put
to death this year in Alabama and the 21st overal since the state
resumed capital punishment in 1983. Wright also becomes the 20th
condemned inmate to be put to death this year in the USA and the
618th overall since America resumed executions on Jan. 17, 1977.
Freddie Lee Wright
An Alabama prisoner was set for execution early
Friday for a double slaying at a rural hardware store as his
attorney introduced arguments in appeals courts against use of the
electric chair, hoping to block his death.
Freddie Lee Wright, 48, a former dishwasher and
cook from Mobile, was convicted and sentenced to death in 1979 for
the fatal shootings of Warren Green and wife Lois Green. The couple
were bound together with an electrical cord and shot in the head
during a robbery at their hardware store in Mount Vernon, north of
Mobile. Gov. Don Siegelman on Wednesday denied Wright's petition for
clemency as the case headed for the Alabama Supreme Court and then
the U.S. Supreme Court.
"It is clear to me that the death penalty is
appropriate in this case," Siegelman said in a statement. Wright was
scheduled to die at 12:01 a.m. (CDT) Friday at Holman Prison.
Wright's case has had at least 14 post-trial reviews, one of the
judges reviewing the conviction said this week in refusing to stop
Wright's attorney, Brian McDonough of New York,
took his challenge to use of the electric chair as inhumane to the
state Supreme Court on Thursday after being turned down by the
Alabama Court of Criminal Appeals. The appeal says Alabama's
electric chair, which delivers 2,000 volts, is "nearly an antique."
It claims the headgear is poorly designed and that the structure,
built in the 1920s, is now a torturous means of execution.
Assistant Attorney General Clay Crenshaw said
Thursday that the state hasn't responded to Wright's electric chair
challenge because it's procedurally barred at this point in the
case. But he said the chair is not an antique "All the electronic
equipment on the electric chair was replaced in 1991, so it's not
antiquated," Crenshaw said. He said Wright raised this issue on
appeal in 1985.
The Dec. 1, 1977 killings that put Wright on
death row came on Warren Green's 40th birthday. His wife was 37. The
Greens were survived by an only child, who planned to witness the
execution at Holman Prison with 2 uncles. Now married and a mother
of 3, daughter Kim Green testified before a legislative panel
Wednesday in opposition to use of lethal injection as an alternative
to the electric chair. "I don't feel that a convicted killer has a
right to choose what form of execution they should have," Green told
lawmakers who took no action on the lethal injection proposal.
Alabama, Georgia and Nebraska are the only states
that use the electric chair as their sole means of execution. 3 co-defendants
testified against Wright at his 2nd trial in Mobile. During his
appeal, Wright's attorney raised the issue of racial discrimination,
saying an all-white jury convicted the black man of killing the
The 1st trial ended with a mistrial with an 11-1 vote
for acquittal from the biracial jury. The accomplices later were
convicted, but only Wright received the death sentence. The store
robbery netted a stereo set, a television and a gold watch,which was
Lois Green's birthday present for her husband.
The execution of another Alabama death row inmate,
Robert Lee Tarver, was blocked last month by the U.S. Supreme Court
when he challenged the state's use of the electric chair. But the
court, on a 5-4 vote, later decided not to review the matter,
clearing the way for Wright's electrocution.
Attorneys for Wright
say that, unlike Tarver, Wright raised the challenge to the electric
chair both during his direct appeal and his federal proceedings, and
that state court rules allow it to be reviewed again based on new
evidence. Alabama's last execution was Jan. 7 when David Ray Duren
was put to death.
Freddie Lee Wright
Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
In the Supreme Court of the United States -
October Term 1999
Statement of The Case
This is a case involving the rampant suppression of
exculpatory and impeachment material which, had it been disclosed,
would have altogether crippled the states capital murder case against
Freddie Lee Wright. After a jury had voted 11 to 1 to acquit Mr
Wright at his first capital murder trial, the State suppressed key
evidence regarding the troubled psychiatric history of its main
witness at the second trial. It also suppressed evidence that someone
other than Mr. Wright had committed these murders. Finally, it
suppressed evidence that the testimony of at least one of Mr. Wright's
two co-defendants had been included by a secret arrangement in which
that co defendant would serve no time in prison for his role in these
Having secured a tainted and unreliable conviction
by suppressing this evidence throughout Mr. Wright's direct appeal and
state post conviction proceedings, the state now argues that its own
successful misconduct prevents this recently discovered evidence from
being considered by the Federal Courts. It also argues that none of
this highly exculpatory and devastating impeachment material can be
"material." What the State conveniently ignores, among other things,
is the admission by the former District Attorney who prosecuted both
of the cases against Mr. Wright that this was Brady material that
should have been turned over to the defense. As the following facts
demonstrate, no other conclusion is possible.
The Murders and the State's Case Against Theodore Otis Roberts
On December 1, 1977 a Western Auto store in Mount
Vernon, Alabama was robbed. The owners, Warren and Lois Greene, were
tied up and murdered with a .38 caliber handgun.
Just prior to the robbery, a customer named Mary
Johnson was leaving the Western Auto store when a man passed her on
his way into the store. Mrs. Johnson had a good opportunity to
observe the man, who turned out to have been the lead member of the
After the robbery was reported on the news, Mrs.
Johnson contacted the police. From a police photo spread, she
identified the man she had seen entering the store as Theodore Otis ''Beat
the WorId") Roberts. On the basis of Mrs Johnson's impartial
eyewitness identification of Roberts, he was arrested a few days later
whIle drivIng a blue car that Mrs Johnson identified as having been
parked outside the store just prior to the murders. After Roberts
was arrested, Mrs. Johnson picked him out of a lineup and later
identified him again at his preliminary hearing. Id.
The Mobile County Police then obtained a search
warrant for a .38 calibre handgun traced to Roberts. In support of
the application for a search warrant, Mobile County Detective Albert
Stroh executed a Search Affidavit (the "Stroh Affidavit") in which
Detective Stroh swore under oath that he had spoken with Robert's
girlfriend, that Roberts girlfriend had been with Roberts twenty-four
hours a day, and that Roberts' girlfriend had told Detective Stroh
that Roberts handgun was in fact the weapon used in the double murders.
A search warrant was then issued. Pursuant to
that warrant, the police recovered a .38 caliber handgun which Alabama
State toxicologist James Small subsequently identified as
positively being the murder weapon. This corroborated the
inculpatory statement which Roberts' girlfriend had made to
Detective Stroh. On the basis of this evidence -- Mrs. Johnson's
identification of Roberts and his car, the statements by Roberts'
girlfriend incriminating Roberts and the ballistic identification
of Roberts' handgun as being the murder weapon --Roberts was indicted
for the murder of the Greens and bound over for trial.
The State Suppresses the Evidence Against Roberts
In the summer of 1978, the police received
information that an inmate at Parchman State Penitentiary in
Mississippi named Roger McQueen had knowledge of the murders. The
police then interviewed McQueen in Mississippi. After having
interviewed McQueen, the police then arrested Mr. Wright as well as
two other individuals - Percy Craig and Reginald Tinsley. McQueen and
Craig eventually were to testify that McQueen (not Roberts) was the
first member of the robbery team to enter the Western Auto store.
They disclaimed any involvement by Roberts and implicated Mr. Wright
as the triggerman instead. Following these arrests, all charges
against Roberts were dropped.
Prior to Mr. Wright's trial, his defense counsel
Al Pennington, Esq. moved for and obtained a May 28, 1979 Court
Order directing the State to produce "Any material information which
the State has which tends to negative the guilt of the accused," as
well as any agreements between the State and any witnesses against Mr.
Notwithstanding the Court's Order and its
independent constitutional obligations to produce exculpatory
material, the State withheld Mrs. Johnson's identification of Roberts
as well as the Stroh affidavit from Mr. Wright. (RB - 42, 43). The
only evidence they produced was Mr. Small's earlier identification of
another unspecified handgun (Roberts' gun) as the murder weapon.
When Mr. Pennington questioned representatives of
the State as to whether they had any other evidence against Roberts,
they misled him by falsely representing that the gun was the extent of
their case against Roberts. 1(R8 - 55, 56). At no time was Mr.
Pennington ever informed of the heart of the case against Roberts,
including Mrs. Johnson's identification of him and the incriminatIng
statements which Roberts' girlfriend had made to the police.
The Initial Mistrial
The case against Mr. Wright then went to trial
before a mixed race jury in April 1979. Mr. Wright is black and the
Greens were white. It was the first capital murder trial for the
newly elected Mobile County District Attorney Chris Galanos, who had
just taken office two months earlier.
The evidence against Mr. Wright was weak.
The foundation of the State's case was the testimony of McQueen and
Craig, both of whom had criminal records and were themselves admitted
culpable participants in the robbery. (Tinsley did not testify) .
The State also introduced ballistic testimony from Mr. Small to the
effect that a handgun traced to Mr. Wright was ''consistent with'' the
murder weapon. This was far weaker than the positive identification
which Mr. Small had previously made of Roberts' handgun as being not
just "consistent with" -- but as definitely being the murder weapon.
On the basis of this evidence, the mixed race jury
voted eleven to one to acquit Mr. Wright. A mistrial was then
declared. This placed the District Attorney in an embarrassing
position. First, it had been in the awkward position of having to
dismiss the capital murder charges against Roberts. Second, after
having dismissed the charges against Roberts, it had come within one
vote of losing the case against Mr. Wright.
The Second Trial
The second trial went forward about a month later.
Having come within one vote of acquittal before a mixed race jury,
this time the State used virtually all of its preemptory challenges to
keep all blacks off of the jury at the second trial. Out of the ten
peremptory challenges exercised by the State, at least seven of the
sC!uck jurors were black and oflig a one was white. This ensured an
all white jury.
In addition to excluding all blacks from the all
white jury at the second trial, the State searched for some
new evidence that could spell the difference between victory and
defeat. This new evidence came in the form of a witness named Doris
Lacey Lambert, who ha4 not testified at the first trial.
Ms. Lambert was a former girlfriend of Mr. Wright
who had borne him a child out of wedlock before he left her for
another woman. At Mr. Wright's second trial, Ms. Lambert
testified that Mr. Wright had purportedly confessed his role in the
killings to her. The impeachment of Ms. Lambert on cross-examination
consisted of nothing more than a minor shoplifting conviction as well
as whatever jealousy she may have harbored toward Mr. Wright. Other
than Lambert, the case against Mr. Wright remained essentially the
same as at the first trial. No mention was made of Roberts, or the
evidence inculpating Roberts, at the first or second trials.
With Ms. Lambert being the only difference in
the presentation of the State's case between the first and second
trials, the all-white jury convicted Mr. Wright of capital murder at
the second trial and he was then sentenced to death.
The Suppression of Doris Lambert's Psychiatric Records
I Unknown to Mr. Wright, at the time Doris Lambert
was called to the stand, the State was in possession of impeachment
material that would have effectively destroyed her credibility had it
been produced to the defense. This consisted of five years' of
psychiatric records which the District Attorney's office had obtained
from the Mobile County Community Health Clinic where Ms. Lambert had
been receiving treatment. These psychiatric records cast severe
doubt on Ms. Lambert's mental health and her reliability as a witness.
Among other things these records reflected that:
- she suffered from auditory hallucinations, and
believed she was having conversations with a father who had been dead
since she was seven years old;
- she had been diagnosed as borderline retarded
by the professionals treating her;
- she had a history of entertaining homicidal
fantasies and suicidal ideations of her own;
- she had a history of drug use, including THC
- she had been on psychiatric medication for
- she had been described as "manipulative" by
the professional that treated her; and
In addition to suppressing evidence of Roberts'
role as the murderer and the mental instability of its key witness,
the State also concealed a secret and lenient deal between itself and
The State Suppresses An Undisclosed Deal With Roger McQueen
After Mr. Wright was convicted and sentenced to
death in July 1979, McQueen himself went to trial for the murder of
the Greens in the fall of 1979. On October 4, 1979, McQueen was
convicted of second degree murder and received a twenty-year sentence
that was to run consecutively with the thirty-year sentence for armed
robbery which he was already serving in Mississippi.
Both McQueen and Craig had testified at Mr.
Wright's trial that they intended to plead guilty to first degree
murder. Undoubtedly this testimony enhanced their credibility.
Whatever distaste the jury had for their criminal backgrounds and
their role in the murders was ameliorated by their willingness to
accept responsibility for their own actions by pleading guilty to a
first degree murder charge that carried a heavy sentence.
This facade turned out to be a lie. Three weeks
after his conviction, McQueen tiled a notice of appeal and a motion
for a new trial. In his motion for a new trial, McQueen claimed that
the State had violated a secret deal pursuant to which it would reward
his testimony against Mr. Wright by prosecuting him only for robbery,
and by promising him that any sentence he received on the robbery
conviction would run concurrently with his Mississippi sentence.
One would have expected a strong and vigorous
response from the State denying such a clandestine arrangement.
Instead, the State never refuted McQueen's allegations or opposed the
motion. Nor did a court ever rule upon the motion. Instead, less
than a month after the motion was filed, McQueen mysteriously
withdrew both his notice of appeal and his motion for a new trial for
no apparent reason.
In support of this motion McQueen proffered an
affidavit by his co-defendant Percy Craig stating not only that
McQueen had been offered this deal, but that Craig too had been
promised he would only be prosecuted for robbery in return for his own
testimony against Mr. Wright.
Thirteen years later -- in the summer of 1992
-- McQueen was released from Parchman State Prison without being
returned to Alabama to serve a day for his role in the murders of the
Greens. This was entirely consistent with what McQueen had claimed in
his motion that the State was promising him all along.
It was not until McQueen was later arrested
on unrelated federal charges, and his release from prison was
reported in the local media, that an embarrassed State of Alabama
attempted to procure his return to Alabama by claiming inexplicably
that his release from Mississippi had been a mistake and issuing a
belated detainer for his return. However, when the State was
eventually ordered in this federal habeas corpus proceeding to produce
a detainer showing that it had attempted back in 1979 to assure
McQueen's return to Alabama upon the completion of his sentence in
Mississippi, the State could not produce one.
The Impact the suppressed Evidence Would Have Had at Trial
In sum, the State's case against Mr. wright
rested largely on two pillars: (1) the combined testimony of the
coparticipants McQueen and Craig; and (2) the testimony of Doris
Lambert. Both McQueen and Craig both had criminal records and were
themselves culpable participants it the robberies. Their testimony
alone had been insufficient... for the State to obtain a conviction at
the first trial, even with the jury having been deceived into
believing that McQueen and Craig were accepting responsibility for
their actions by pleading guilty to first degree murder, instead
of being informed that McQueen (and apparently Craig as well) had
received a lenient deal in which McQueen would not serve a day in
prison in exchange for his testimony against Mr. Wright. Had this
deal been disclosed to the jury it would certainly have obliterated
whatever credibility the purportedly remorseful McQueen and Craig had.
This would have left the State's case resting upon
Doris Lambert. She had been largely unscathed during cross-examination,
with her "impeachment" consisting of nothing more than a minor shop
lifting conviction as well as her position as a disappointed former
girlfriend. Had the jury known of her five-year psychiatric history,
as well as her drug use, it would have crippled her credibility
Not orily would the suppressed Brady material
have destroyed the credibility of the key fact witnesses directly
linking Mr. Wright to the crime, but it would have presented the jury
with the following evidence against an alternative murder suspect (Theodore
Otis Roberts) : (1) the identification of an impartial eyewitness
placing Roberts and Roberts' car at the crime scene; (2) the
statement by Roberts' girlfriend to a Mobile County detective that she
was with Roberts twenty-four hours a day and that his handgun was in
fact the murder weapon; (3) ballistics evidence conclusively
establishing Roberts' handgun as the murder weapon.
The State had once considered this enough to indict
Roberts for capital murder. Certainly this would have been enough
-- when coupled with the impeachment evidence destroying the
credibility of Lambert and McQueen -- to raise more than a reasonable
doubt as to Mr. Wright's guilt.
The State Habeas Corpus proceedings
In June 1987, Mr. Wright filed a state
collateral challenge to his conviction in the Alabama state courts.
During the course of this proceeding his state postconviction counsel
obtained a copy of the preliminary hearing transcript of Mrs.
Johnson's testimony in the Roberts proceeding. This was the first
time this evidence had come into Mr. Wright's possession, and even
then it was obtained from Roberts lawyer and not from the State. Mr.
Wright then argued in the state postconviction proceeding that the
State had suppressed the transcript of Mrs. Johnson's testimony in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and that trial
counsel had been ineffective in not conducting an investigation
into the reasons, why Roberts had been indicted for the very same
murder as Mr. Wright.
The Alabama state courts rejected this
petition by finding that: (1) the transcript of Mrs. Johnson's
testimony had not been "suppressed" because information about Roberts'
case had been reported in the local newspapers (albeit seven months
before Mr. Wright was arrested); and (2) her identification of Roberts
was not "material" because it did not eliminate the possibility of.Mr.
Wright having also been present at the robbery. The courts also found
that Mr. Pennington had made a strategic decision not to investigate
why someone else 'had been indicted for the same murders as Mr. Wright
-- notwithstanding his denial that he made such a strategic decision
and the lack of any countervailing evidence that he had. The Alabama
Court of Criminal Appeals affirmed this holding, and certiorari was
denied by both the Alabama Supreme Court as well as by this Court.
The Federal District Court Habeas Corpus Proceeding
On September 15, 1994 Mr. Wright filed a petition
for a writ of habeas corpus in the Southern District of Alabama. It
was not until the federal proceeding that the remaining Brady material
was uncovered. Both the Stroh Affidavit and the secret deal between
McQueen and State were uncovered by new counsel for Mr. Wright shortly
prior to the filing of the federal habeas corpus petition. Neither of
these items had been produced by the State.
The District Court granted Mr. Wright an
evidentiary hearing, which was scheduled for October 1, 1996. Shortly
prior to that evidentiary hearing, the Mobile County District
Attorney produced its file on this matter to Mr. Wright's counsel.
Included in the materials produced by the District Attorney just prior
to the evidentiary hearing were the five years' of mental health
records for Doris Lambert. This was the first time these records were
ever produced by the State to Mr. Wright, and they were not finally
produced until seventeen years, after Mr. Wright had been tried and
sentenced to death on the basis of Ms. Lambert's testimony.
Among the witnesses called by Mr. Wright at the
federal evidentiary hearing was his trial counsel Mr. Pennington. Mr.
Pennington testified that none of the Brady material in this
case -- Mrs. Johnson's eyewitness identification of Roberts, the Stroh
Affidavit,' the secret deal with McQueen, or the mental health records
of Doris Lambert -- were ever produced to him at any time. He also
denied that he had ever made a "strategic decision" not to investigate
why someone else had been indicted for the murder of the Greens.
Far from having made a strategic decision
not to investigate why someone else had been indicted for the murders,
Mr. Pennington testified that he had questioned state law enforcement
representatives as to their evidence against Roberts and was
misleadingly assured that the gun was all they had. (One witness for
the State denied making such a statement and the other simply could
not remember) . The State never informed him of Mrs. Johnson's
eyewitness identification of Roberts or the statements by Roberts'
girlfriend to the police.
Roger McQueen also testified at the federal
evidentiary hearing. In a dramatic recantation of his trial testimony,
McQueen testified that Mr. Wright had not killed the Greens and even
apologized to Mr. Wright from the witness stand. He also testified
about the deal between himself and the State. Although the District
Court stated on the record at the hearing that McQueen was not
credible (this being the same McQueen for whose credibility the state
had vouched by calling him as a witness at both of Mr. Wright's murder
trials), the Court's subsequent written opinion contained no such-finding
and accepted McQueen's testimony that there was a secret deal between
him and the State.
The state. could not produce a single witness who
could testify that any of this material was ever turned over to the
defense. On the contrary, former District Attorney Galanos
admitted repeatedly on the stand that all of the foregoing was Brady
material that should have been disclosed to the defense (although he
denied the existence of a secret deal between the State and McQueen).
He also agreed that his office was not relieved of its Brady
obligations simply because a piece of information appeared somewhere
in the newspapers.
Notwithstanding the admission by the very
prosecutor who had tried both cases against
Mr. Wright that this was all Brady material, the District Court denied
In the course of denying the petition, the
District Court was extraordinary critical of the State's conduct.
After stating that "the apparent misfeasance, of the State in this
case raises a good deal of concern" (R4 - 71 - 15), the Court wrote in
its conclusion that "numerous imperfections in the state court
proceedings were' revealed," that "some of these imperfections -- like
the State's failure to disclose certain exculpatory materials -- do
not in any way deserve the blessing of this Court," and that "the
State should feel fortunate that it will not have to retry a case
nearly twenty years after the fact ... (Id. at 39-40).
The Eleventh Circuit Decision
The District Court had found that Mr. Wright's
Brady claims arising from the Stroh Affidavit, the Lambert mental
health records, and the McQueen agreement had been procedurally
defaulted because Mr. Wright did not raise them before the state
courts. However, the District Court properly found that the State's
suppression of these records constituted 'cause' for any procedural
default. Having found that there was "cause" for procedural default,
he nevertheless found that there was no "prejudice" to Mr. Wright
because these materials would not have been "material" under Brady
and its progeny.
At no time throughout the District Court proceeding
did the State ever deny that suppression of this material would have
constituted "'cause" for a procedural default. On appeal, however, the
State argued for the first time that the suppression of this material
did not constitute "cause" because -- even though it was indisputably
suppressed at trial -- there was no showing that the State had
prevented Mr. Wright's state postconviction counsel from discovering
this evidence during the state postconviction proceeding. The
Eleventh Circuit agreed, finding that "Wright presented no evidence
indicating that the State's postconviction counsel did anything to
suppress the above-referenced items or did anything to impeach Wright
'from learning about these items of evidence during the State
postconviction proceeding." (totally ignoring the fact that the
states failure to raise this argument before the District Court had
made it unnecessary for Mr. Wright to even attempt to make such a
showing) . (Opinion at 12). The Court also found that there was no "prejudice"
excusing any procedural default, because not a single item of this
information would have been "material" under Brady.
REASONS FOR GRANTING THE WRIT
THIS COULD SHOULD DECIDE THE QUESTION LEFT OPEN IN
STRICKLER V. GREENE, NO. 98-5864 (JUNE 17, 1999) AS TO WHETHER
THE STATE'S SUPPRESSION OF EXCULPATORY OR IMPEACHMENT EVIDENCE IS
ALONE SUFFICIENT TO CONSTITUTE "CAUSE" FOR A PROCEDURAL DEFAULT IN A
FEDERAL HABEAS CORPUS PROCEEDING
A claim that was never presented to the state
courts is procedurally barred from federal habeas corpus review unless
the petitioner can demonstrate "cause" for flis failure to raise the a
claim in the state courts as well as "actual prejudice". Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489
U.S. 255, 262 (1989); Wainwright v. Sykes, 433 u.s. 72 (1977).
This Court has defined "cause" as something "external
to the petitioner, something that cannot fairly be attributed to him."
Coleman, 501 U.S. at 753. Thus "the existence of cause. . . must
ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule." Ibid., quoting Murray
v. Carrier, 477 U.S. 478, 488 (I~986). That external factor may
consist of "a showing that the factual or legal basis for a claim was
not reasonably available to counsel . . or that "'some
interference by Officials . . . made compliance impracticable
Strickler V. Greene, No. 98-5864 (June 17,
1999), slip op. at 10 n. 24 quoting Carrier, 477 U.S. at 488.
In Strickler, this court held that a habeas corpus
petitioner had established cause for failing to raise a Brady
claim prior to a federal habeas corpus proceeding where
"(a) the prosecution withheld exculpatory
evidence; (b) petitioner reasonably relied on the prosecution's
open file policies fulfilling the prosecution's duty to disclose
such evidence; and (c) the Commonwealth confirmed petitioner's
reliance on the open file policy by asserting during state habeas
proceedings that petitioner had alteady received 'everything
known to the government.'"
· Slip op. at 32. The Court then stated that "We
need not decide in this case whether any one or two of these factors
would be · sufficient to constitute cause, since the combination of
all three surely suffices." Ibid.
That question is presented here. It is a question
of serious constitutional importance which puts the Eleventh Circuit's
decision in conflict not only with at least two other Circuits, but
with the Eleventh Circuit's own prior precedent. In Julius V.
Jones, 875 F.2d 1520 (11th Cir. 1989) [add cert.
denied), an earlier Eleventh Circuit panel had held that the
prosecutor's suppression of Brady material at trial alone
provided "cause" for a procedural default.
Defense counsel in Julius had not asked the
State for Brady material either on direct appeal or in a prior
habeas corpus proceeding, because they assumed that the District
Attorney's office had complied with the Constitution by providing all
Brady material at trial -- an expectation that should not be
considered unreasonable in our system of justice. The Eleventh
Circuit held that the State's Suppression of Brady material
constituted "cause" for any procedural default:
This Court is unwilling to hold on the facts of
this case, if the prosecutor failed to produce evidence which was
required to be produced under Brady and which failure was
unknown to defendant's counsel, the claim is procedurally barred
because defense counsel did not ferret out the violation. Defense
counsel should be able to rely on a belief that prosecutors will
comply with the Constitution and will produce Brady material on
The Seventh and Eighth Circuits have held to the
same effect. Fairchild V. Lockhart, 979 F.2d 636, 640 (8th
Cir. 1992) ("the prosecution told Fairchild's attorney, that he had
turned over his entire file, leading the attorney to believe that he
had received everything that existed. Therefore, Fairchild had cause
for not discovering this evidence earlier"); Lewis V. Lane, 832
1 They further stated that they
had onty come to suspect that this might not be true when the Alabama
Supreme Court reversed a conviction in another case because of the
failure of the same District Attorney's office to provide clearly
exculpatory materials in violation of Brady. Ex parte Womack, 547
So.2d 47 (Ala. 1988). Julius, 875 F.2d at 1525.
26 1446, 1457 (7th Cir. 1987) (". . we agree
with the district court that the conscious effort of these two state
officials deliberately to conceal crucial information relating to
petitioner's sentencing was "an objective factor external to the
defense (which impeded counsel's efforts to comply with the state's
procedural rules"). See also Amadeo V. Zant, 486 U.S. 214, 222
(1988) ("If the District Attorney's memorandum was not reasonably
discoverable because it was concealed by Putnam County officials, and
if that concealment, rather than tactical considerations, was the
reason for failure of the petitioner's lawyers to raise the jury
challenge in the trial court, then petitioner established ample
cause to excuse his procedural default under this Court's
precedents.") . Thus, the Eleventh Circuit's decision to reward the
State's own wrongdoing in this case conflicts not only with the
positions of two other Circuits, but with its own prior holding in
This Court should resolve this conflict and clarify
the law by holding that the State's suppression of Brady material at a
trial constitutes "cause" for a procedural default irrespective of
whether the particular factual circumstances of Strickler are present
Any other result would seriously undermine Brady
by allowing a prosecutor to reap the benefits of their own misconduct
as long as they can keep the evidence hidden until state
postconviction proceedings have run their course.
Recognizing the "special role" played by the
American prosecutor in the search for truth in criminal trials, this
Court reiterated in Strickler that the prosecutor "is the
representative not of an ordinary party to a controversy, but of a
sovereignty . whose interest ... in a criminal prosecution is not
that it shall win a case, but that justice shall be done."
Strickler, slip op. at 9, quoting Berger v. United States, 295
U.S. 78, 88 (1935) -- a view that is apparently not shared by the
State of Alabama in this case.
It is sheer effrontery for the State to chide
defense counsel for having trusted the State to live up to
its obligations at trial, and by not repeatedly requesting the State
to produce exculpatory and impeachment material in state
postconviction proceedings. The alternative would be to assume that
prosecutors do not obey the law or prior Court discovery orders, and
to deluge the state postconviction courts with discovery motions
seeking material that the State was already required to produce at
trial. The interests of Brady and the court system would be
ill-served by such a ruling, as this Court recognized in Strickler:
Mere speculation that some exculpatory material
may have been withheld is unlikely to establish good cause for a
discovery request on collateral review. Nor, in our opinion, should
such suspicion suffice to impose a duty on counsel to advance a
claim for which they have no evidentiary support. Proper respect for
state procedures counsels against a requirement that all possible
claims be raised in state collateral proceedings, even when no known
facts support them. The presumption, well established by "'tradition
and 'experience,' "that prosecutors have fully" 'discharged their
official duties,' "United States v. Mezzanatto, 513 U.S. 196,
210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), is inconsistent with the
novel suggestion that conscientious defense counsel have a
procedural obligation to asset constitutional error on the basis of
mere suspicion that some prosecutorial misstep may have occurred.
The consequences of the Eleventh Circuit's holding
are particularly harsh and cruel when juxtaposed against this Court's
holdings that there is no constitutional right to counsel during state
postconviction proceedings. [CITE COLEMAN]. If condemned prisoners
in state postconviction proceedings are not even entitled to a
lawyer at all, much less a constitutionally effective one, then
how can they be expected to unearth Brady material that they were
previously unable to obtain even when they did have a constitutional
right to counsel ? Imposing such a burden on a petitioner in a state
postconviction proceeding under these circumstances makes it all but
impossible for even the most shocking Brady violations to be
redressed in federal habeas corpus proceedings.
In this case the Eleventh Circuit rewarded the
State of Alabama for unconscionable derelictions of its ConstitutionaI
obligations which had earned the State a rebuke from the District
Court below. A scolding by the District Court is not enough --only a
fair consideration of the Brady claims on their merits is enough to
vindicate the bedrock Constitutional principles at stake here. A
rule that bars valid and meritorious Brady claims from being raised
simply because defendants were too trusting of a the State would
encourage prosecutorial gamesmanship and erode the continuing vitality
THE ELEVENTH CIRCUIT'S HOLDING THAT THE SUPPRESSION
OF THE PSYCHIATRIC RECORDS OF THE STATE'S KEY WITNESS, A LENIENT DEAL
WITH A CO-DEFENDANT, AND EVIDENCE THAT AN ALTERNATE SUSPECT
ACTUALLY COMMITTED THE MURDERS, WAS NOT "MATERIAL" UNDER BRADY V.
MARYLAND CONFLICTS WITH THE DECISIONS OF EVERY OTHER CIRCUIT TO
HAVE CONSIDERED THE ISSUE, AS WELL AS WITH THE ADMISSION BY THE
FORMER DISTRICT ATTORNEY WHO PROSECUTED THE CASE THAT ALL OF THIS
INFORMATION WAS BRADY MATERIAL
In addition to finding that there was no "cause"
for a procedural default, the Eleventh Circuit found that "prejudice"
did not exist because the suppressed information was not "mater}al"
under Brady. However, there is no doubt that Mr. Wright has
established "actual prejudice as a result of the violation of federal
law." Coleman, 501 U.S. at 750. While this Court has never given the
prejudice standard "precise content," United States v. Frady,
456 U.S. 152, 168 (1982), it has required a showing that the
constitutional error "worked to [the petitioner's] actual and
substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494
(1986) (quoting Frady, 456 U.S. at (emphasis in original). Such a
showing is inherent in the nature of the violation where, as here,
the underlying norm (Brady) already requires a showing of materiality,
defined as "'a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.'" Strickler V. Greene, slip op. at 9, citing Kyles
v. Whitley, 514 u.s4 419, 433-34 (1995) (quoting Bagley, 473 U.S. at
Indeed, as the Court noted in Kyles, a
determination of materiality "necessarily entails the conclusion
that the suppression must have had 'substantial and injurious
effect or influence in determining the verdict.'" Kyles, 514 U.S. at
435 (citations omitted). Where, as here, that "substantial and
injurious effect" produced a manifestly unreliable capital verdict and
death sentence, it assuredly worked to petitioner's "actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions." United States V. Frady, 456 U.S. at 170 (emphasis
Under Brady and its progeny, evidence is
material where "there is a reasonable probability that, had the
evidence been disclosed to the~ defense, the result of the proceeding
would have been different. A 'reasonable probability,' is a
probability sufficient to undermine confidence in the outcome."
U.S. v. Bagley 473 U.S. 667, 681 (1985). "The question is not
whether the defendant would more likely than not have received
a different verdict, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence." Kyles V. Whitley, 514 U.S. at 434. In determining
materiality the suppressed evidence must be "considered
collectively, not item-by-item." Id
Not only must the suppressed evidence be
viewed collectively, it must also be viewed against the backdrop in
which Mr. Wright came within one vote of acquittal at his first trial.
Kyles, 514 U.S. 419, 455 (Stevens, J., concurring) ("the fact that
the Jury was unable to reach a verdict at the conclusion of
the first trial provides strong reason to believe that the significant
errors that occurred at the second trial were prejudicial"); Woodward
v. Sargent, 806 F.2d 153, 158 (8th Cir. 1986) (fact that jury vote
was seven to five on first vote supports finding of prejudice).
In this case, the Eleventh Circuit's finding that
this unique and shocking confluence of suppressed material was not
"material" under Brady and Bagley, and thus did not constitute "prejudice"
for any procedural default, places it in sharp conflict with
virtually every court to have dealt with any one of these factors, let
alone all three at the same time.
A. The Lambert Psychiatric Records
The Eleventh Circuit held that the psychiatric
records for Doris Lambert were not material betause they would have
been inadmissible under Alabama law. This was contradicted by former
District Attorney Galanos, ;who admitted under cross-examination at
the federal evidentiary hearing that these records were Brady
material. Implicit in this telling admission is his recognition that
these records would have evisterated the credibility of his star
witness and that the Alabama state courts before whom his office
appeared every day would have permitted cross-examination on these
It is well settled in the Eleventh Circuit
that evidence of psychiatric problems on the part of a Government
witness must be disclosed to the defense under Brady. See, e.g,
United States v. Lindstrom, 698 F.2d 1154 (11th Cir.
1983); Greene Vs Wainwright, 634 F.2d 272 (5th Cir. 1981);
United States v. Partin, 493 F.2d 750 (5th Cir. 1974).
The same is true in the First, Fourth,
Fifth, and Seventh Circuits, United States V. Boyd, 55 F.3d 239
(7th Cir. 1995) (prosecution was obligated to disclose a history of
drug use by one of its witnesses); United States V. Ellender, 947 F.2d
748, 57 (5th Cir. 1991) (a letter from a psychiatrist treating a
government witness "qualifies as impeachment material and therefore
Brady required the government to disclose it"); United States V.
Devim, 918 F.2d 280 (1st Cir. 1990) (disclosure of a witness's
psychological and criminal records was required); Chavis V. State of
North Carolina, 637 F.2d 213, 220 (4th Cir. 1980) (suppression of
psychological records of a witness violated Brady where the
prosecution's case depended "entirely" upon the credibility of that
In characterizing Ms. Lambert's mental health
history as one of "depression," (Opinion at 15), the panel made no
mention whatsoever of their references to Lambert's
extensive use of cocaine and THC;
her being borderline retarded;
her "manipulative" qualities; and
the fact that she had been on psychiatric medication for years.
The Eleventh Circuit quoted McElroy's Alabama
Evidence (3d ed. 1977) as standing for the proposition that
psychiatric problems must rise to the level of "mental derangement or
insanity" before they can be used on cross-examination. However,
the Court ignored another section from that very same treatise which
was cited at oral argument and which establishes that such evidence is
admissible under Alabama law:
Mental capacity is deemed highly relevant to the
witness' ability to perceive, recall, and narrate ...
McElroy's Alabama Evidence, § 140.01(10) (3d ed.
1977). Indeed, McElroy cited the Eleventh Circuit's (and the
earlier Fifth Circuit's) decisions in Lindstrom and
Partin with approval, further demonstrating that Alabama law
would have permitted the same vigorous cross-examination as the
federal courts would have on these, mental health records.
Such cross-examination would have been
particularly admissible in Alabama because this was a capital criminal
case. According to McElroy, the Sixth Amendment requires
that "inquiry into mental defect, treatment or hospitalization
should be permitted" in criminal matters. Accord, Baker v. State,
568 So.2d 374 (Ala. Ct. Crim. App. 1990) (greater leeway should be
afforded on cross-examination where the witness is a key one for the
These Sixth Amendment protections are of
critical importance here. The right to cross-examine Lambert about
these records under Lindstrom and Partin derived not only from state
law, but from the Constitution as well. The State of Alabama could
not unilaterally abrogate Mr. Wright's Sixth Amendment right to
cross-examine a prosecution witness on her psychiatric health records,
any more than it could unilaterally preclude him from cross-examining
the State's witnesses at all. However, as a fuller reading of McElroy
makes clear, it does not purport to do so.
The Court also found material because trial
counsel "was able to call Lambert's credibility into question" on
shoplifting conviction and her jealousy toward Mr. Wright. This was
simply enough to discredit such a central witness as Doris Lambert,
who constituted the sole difference in evidence between the first
and second trials. Her psychiatric records would have raised serious
doubt not only about her bias, but about her reliability, credibility,
and her mental fitness. If she heard her dead father talking to her,
then surely no reasonable juror would trust her recollection of Mr.
Wright's alleged confession in a capital murder case.
Lambert wasn't simply a marginal witness.
She testified that Mr. Wright had confessed to the crime -- the best
evidence the State had (and the only difference between the first two
trials). Her credibility had to be attacked from every side and
without limit. Credibility battles are won or lost on the weight and
the extent of impeachment. To suggest that trial counsel could
simply have sat down as soon as he "was able to call Lambert's
credibility into question" on one or two trivial matters -- and that
this makes it alright for the State to withhold the best impeachment
material that existed -- is contrary to Brady and established
jurisprudence, as well as to any realistic notion of modern trial
Evidence Inculpating Theodore Otis Roberts
The Eleventh Circuit's holding that evidence of
someone else's guilt is not Brady material is nothing short of
shocking, in light of the well-settled body of law (beginning with
Brady itself) holding that evidence of another suspect's guilt is
classic Brady material. See, e.g., \Brady v'. Maryland, 373 U.S. at
86; Cannon v. Alabama, 558 F.2d 1211, 1215-16 (5th Cir. 1977), cert.
denied, 434 4 u.s. 1087 (1978); Jarrell V. Balk4com, 735 F.2d 1242,
1257-8 (11th Cir. 1984), cert.~denied, 471 US. 1103 (1985); Sellers V.
Estelle, 651.F.2d 1074, 1075-78 (5th dr. 1981), cert. denied, 455 U.S.
927 (1982). Even former District Attorney Galanos himself recognized
The State apparently believed that Mrs.
Johnson's identification and the statements contained in the Stroh
affidavit - along with the ballistics report of Mr. Small
positively identifying Roberts handgun as the murder weapon --
were sufficient to prove Roberts' guilt beyond a reasonable
doubt because they indicted him and had him bound over for trial.
This is corroborated by former District Attorney Galanos' on admission
during cross-examination at the federal evidentiary hearing that the
evidence against Roberts was Brady that should have been disclosed to
If this evidence was sufficient to establish
Roberts' guilt beyond a reasonable doubt, then it would certainly have
been enough to raise a reasonable doubt about Mr. Wright's guilt. See,
e.g., Ex Parte Kimberly, 463 So.2d 1109 (Ala. 1984) (government's
failure to produce statement indicating that defendant may not have
been at crime scene required reversal); Patterson v. State, 530 So.2d
886 (Ala. Crim. App. 1988) (failure to disclose another suspect
required reversal as raising a reasonable doubt) . The contrary
reasons offered by the Eleventh Circuit are in conflict with
established law and do not withstand even cursory analysis.
1. Mary Johnson's Eyewitness
Identification of Roberts Was Material Because It
Would Have Critically Undermined the Credibility of Percy Craig and
The Eleventh Circuit found that Mary
Johnson's eyewitness identification of Theodore Otis Roberts as the
lead member of the robbery team was not material because "it did
nothing to indicate that Wright was not at the crime scene, and it did
nothing to contradict Craig and McQueen's testimony that Wright was
the triggerman." (Opinion at 11). The issue is not whether or not
Mrs. Johnson could exclude Mr. Wright physically from the crime scene,
but whether she would have materially damaged the credibility of Craig
and McQueen, thereby casting doubt on Mr. Wright's guilt. It is
clear that she would have.
Had the jury believed Mrs. Johnson, and been
presented with evidence positively identifying Roberts' handgun as
the murder weapon, as well as Roberts' girlfriend's statement to the
police, then they would have had to believe that Craig and McQueen
had both heavy covering up the identity of the true killer. This would
have been by far the most powerful impeachment material against them.
While the Court stated that "the Johnson
testimony would not have impeached Craig and McQueen because they were
each impeached on several grounds..." if (Opinion at 11), this
impeachment involved nothing more than the omission of one or two
prior convictions during their direct examination, as well as minor
discrepancies between their preliminary hearing and trial testimony.
None of it went to the core of their version of events. The testimony
of Mary Johnson who would have been the sole impartial eyewitness
-- would have elevated their impeachment to an altogether different
plane. It would also have strongly pointed to Roberts himself as the
2. The Stroh Affidavit
The State also suppressed a Search Affidavit
by Detective Albert Stroh swearing that Roberts' girlfriend had
identified Roberts' gun as the murder weapon. The Court found the
Stroh Affidavit to be immaterial because
[Mr. Wright] did not call Roberts' girlfriend as a
witness at the federal evidentiary hearing. Therefore, it is
unknown exactly what she would say, and accordingly, Wright has failed
to prove that what she would say is material. A Court cannot
speculate as to what evidence the defense might have found if the
information had been disclosed....
(Opinion at 13). There is nothing to leave to
speculation. Had Roberts' girlfriend been called at Mr. Wright's
trial back in 1979, only one of two things could have happened: she
would have agreed with the statements in the Stroh Affidavit or she
would have disavowed them. If she disavowed them, then undoubtedly
Detective Stroh could have been called to the stand in rebuttal and
affirmed them (having previously sworn to their truth). Either way,
the case against Roberts would have been strengthened and the case
against Mr. Wright weakened. It does not matter what Roberts'
girlfriend would have said at a federal evidentiary hearing twenty
years later, because there is no scenario under' which her testimony
could not have helped Mr. Wright at trial in 1979.
C. The McQueen Deal
Evidence of a deal between McQueen and the State
was compelling impeachment material because it went straight to the
credibility of a key witness against Mr. Wright.
See, e.g. Giglio v. United States, 405 U.S. 150, 155
(1972) (in which the Supreme Court reversed a judgment of conviction
on the sole finding that the government's witness was promised that
he would not be prosecuted, and that this promise was not disclosed to
the jury). Seealso Demps v. Wainwright, 805 F.2d 1426,
1432 (11th Cir. 1986), cert. denied, Demps V. Dugger,
484 U.S. 873 (1987);. Ross v. Heyne, 638 F.2d 979, 986
(7th Cir. 1980) (reversal required where prosecution witness falsely
denied the existence of a deal). Former District Attorney Galanos
recognized as much, when he conceded at the federal evidentiary
hearing that such a deal would have constituted Brady material
had it existed.
Without citing any authority whatsoever, the
Eleventh Circuit then engaged in clearly erroneous appellate fact-finding
by concluding that there was no deal between Roger McQueen and the
State of Alabama -- a finding the District Court never made. On the
contrary, the District dourt implicitly assumed that a deal existed
but then proceeded to address the issue of materiality.
The Eleventh Circuit's fact-finding made no mention
of the undisputed facts that corroborate the existence of a deal,
* McQueen had gone to trial and taken a
verdict of second-degree murder;
* he then filed an appeal from that verdict as
well as a motion for a new trial premised upon the State's violation
of a deal in which he would be permitted to plead guilty to in which
he would be permitted to plead guilty to robbery and receive a
sentence concurrent with one he was already serving in Mississippi for
the same offense;
* the State never opposed the motion for a
* the appeal and the motion were mysteriously
withdrawn by McQueen a few days later with no explanation;
* in August 1992 he walked out of Parchman
State Prison a free man just as he claimed the State had promised him;
* when ordered by the Court to produce a
detainer prior to the evidentiary hearing in this matter, the State
could not locate one.
Instead, the Court focused on the fact that the
District Attorney "later had a detainer issued" on McQueen in1992
(thirteen years after one should have been issued) after his
publicized release from prison had become an embarrassment to the
State. (R8-175) The State's after-the-fact efforts to save face
following McQueen's release do not undermine the existence of the deal
back in 1979.
In addition to not mentioning a single one of these
facts, the Court erroneously characterized the deal itself.
Specifically, the Court mischaracterized the deal as one in which
McQueen would be allowed to plead guilty to second-degree murder,
which (as his docket sheet reflects) carried a sentence of twenty
years. That was not supported by one shred of the record. The
sole characterization of the deal was for McQueen to plead guilty to
robbery, a far lesser charge in whi&h he would not have to
serve a day at all. The State may have denied the existence of this
deal (a denial which the District Court never accepted as true in its
opinion), but it never suggested that there as a less lenient deal
which would have permitted McQueen to plead guilty to second degree
(as opposed to first degree) murder.
In sum, this clearly erroneous appellate
factfinding (which contravened the District Court's opinion) cannot
surmount the overwhelming jurisprudence by this Court and others that
evidence of secret, lenient deals between the State and its witnesses
go to the heart of the witnesses' credibility and should have been
disclosed under Brady and its progeny.
D. The Cumulative Effect of the suppressed Evidence
In both Kyles and Strickler, this
Court affirmed that the materiality of exculpatory and impeachment
evidence must be viewed cumulatively, and not item by item in a
vacuum. See, e.g. Strickler at 3-4 (considering the
remaining evidence presented against the petitioner at trial absent
the testimony of the witness whose credibility would have been damaged
by the suppressed material); Kyles v. Whitley, 514 U.S. at
419 (the materiality of suppressed evidence must be "considered
collectively, not item by item.") . In Kyles, this Court
reversed the decision below where there was "room to debate" whether
the court "made an assessment of the cumulative effect of the evidence.
. ." and the lower court's opinion contained a "repeated references
dismissing particular items of evidence as immaterial and so
suggesting that cumulative material was not the touchstone . . . "
In Strickler, this Court assessed the materiality
of the suppressed evidence by separately considering the remaining
evidence at trial absent the testimony of the witness whose
credibility would have been impeached by the suppressed material. This
court found that the suppressed evidence was not material only after
satisfying itself that -- based upon the remaining evidence against
the petitioner -- he had not established a reasonable probability that
the result below would have been different.
Yet this is precisely what the Eleventh Circuit did
not do in this case After spending ten pages isolating the discrete
items of Brady material into neat little compartments, and then
finding each one immaterial in and of itself, the Court simply
concluded in two cursory sentences that
Cumulatively, the Stroh Affidavit, the Lambert
evidence, and McQueen Agreement do not undermine confidence in the.
verdict. See Kyles V. Whitley, 514 U.S. 419 (1995). Most of
the items would have been inadmissible at trial and the others would
not have changed the outcome of the trial . . . · Slip op.
This attempt to reduce Kyles to an
afterthough does not withstand scrutiny. At no point did either the
Eleventh Circuit or the District Court or any other court consider
what would have happened if both Lambert and McQueen had been
thoroughly discredited at Mr.Wright's second trial, if evidence of a
ppssible deal with Craig (Lo which Craig swore in support of McQueen's
motion for a new trial) had been introduced as well, and if the jury
had further heard that Mary Johnson (the sole impartial fact witness
available) had identified Roberts and his car as having been at the
store, that Roberts' handgun had
been conclusively identified as the murder weapon (which the handgun
traced to Mr. Wright was not), and that Roberts' girlfriend
had inculpated him in the murders. The chances of Mr. Wright's not
being convicted are not only "reasonably probable" (as required by
Kyles and Strickler), but almost certain.
The Eleventh Circuit's failure to consider all of
the Brady material cumulatively, and to consider what the
State's case would have looked like had all of the suppressed
evidence come in is not only totally contrary to this Court's
holding in Kyles, but underlines the need for further guidance
from this Court as to the manner in which materiality is to be
assessed on a cumulative basis.
For the foregoing reasons, a petition for a writ
of certiorari should be granted.
Dated: July 20, 1999
169 F.3d 695
Joe Hopper, Respondent-appellee
United States Court of Appeals,
March 10, 1999
Appeal from the United States District Court for
the Southern District of Alabama.
Before BIRCH, DUBINA and BARKETT, Circuit
DUBINA, Circuit Judge:
appeals the district court's order denying
his petition for a writ of habeas corpus.
convicted and sentenced to death for the
December 1, 1977, robbery and murders of
Warren and Lois Green ("the Greens" or "the
victims"), at the Western Auto Store in Mt.
Vernon, Alabama. After reviewing the entire
record in this case, and having the benefit
of oral argument and the parties' briefs, we
affirm the judgment of the district court.
are recited verbatim from the opinion of the
Alabama Court of Criminal Appeals on direct
review of Wright's
conviction and sentence.
presented evidence that around 10:30 on the
morning of December 1, 1977, Mr. Green had
cashed checks in the amount of $900 at a
local bank and placed the money in a red
bank bag. Shortly before noon, it was
discovered that Mr. and Mrs. Green had been
tied together and shot in their Western Auto
Store in Mount Vernon.
was missing from the cash register, and a
television, a stereo component system, and
several watches were also missing from the
store. Mr. Green was not wearing the Seiko
watch he had been wearing earlier that
morning. His family had given him this watch
as a birthday present on November 30, 1977.
Lacey Lambert testified that, on the 2nd day
of December of 1977, the defendant told her
that "he had went out with some of his
friends," "Craig, Roger, and 'Gill Man,' "
to Mount Vernon and that "he killed two
people" with a gun in a Western Auto Store.
examination, Ms. Lambert admitted that she
had one child by the defendant but denied
making the statement that "before she would
see another woman have him she would see him
dead" after she learned that the defendant
was engaged to another woman. She admitted
that she had been convicted of shoplifting.
McQueen testified that he had been convicted
of armed robbery and was going to plead
guilty to first degree murder for the Mount
Vernon killings. He "considered himself a
guilty participant in this murder." McQueen
stated that he and Craig lived in the same
apartment complex in Mobile.
December 1, 1977, they took Craig's car and
picked up the defendant and Tinsley. About
one week before, at his suggestion, a
decision had been made between him and Craig
"to rob some store in Jackson." The
defendant and Tinsley learned of the plan
and agreed to go. On the way to Jackson,
they stopped in Mount Vernon to get some
tape to repair a torn seat in Craig's car.
went in the Western Auto Store to purchase
the tape. Wright
came in later armed with a gun and told Mr.
and Mrs. Green to come out from behind the
desk into a "little room."
defendant told McQueen "to go to the
register" and Tinsley entered the store.
McQueen removed the money from the register
and Tinsley, at the defendant's direction,
got some extension cord to tie up Mr. and
Mrs. Green. The defendant and Tinsley then
tied up the Greens.
defendant made several trips from the store
to Craig's car and took a T.V. set and a
stereo system. Tinsley took the watches. The
defendant also had Mr. Green's watch.
McQueen also testified that Craig told him
to "make sure the people were taken care of"
because "the people would have identified
defendant was the last one to leave the
store. When he returned to Craig's car, the
others "asked him what took place and he
said that he had took care of both peoples."
* * * "He said he had shot both peoples and
also Reginald Tinsley agreed with him
because he went back into the store the last
asked the defendant to show him the empty
cartridges if the defendant shot both people
and the defendant handed McQueen "two empty
cartridge[s] from the gun." The gun was a "nickel
plate .38 with some kind of carving handle,
a wooden handle."
testified that they left Mount Vernon and
went to Craig's sister's house where they
divided the money he had taken from the
store. The defendant gave the T.V. to Craig
and the stereo was taken to where the
defendant "stayed at." McQueen left the "bank
carrier" that he had taken at Craig's
Craig testified that he had been convicted
for "possession", forgery, and burglary. He
admitted his participation in this offense
under review as "the driver" and testified
that he intended to plead guilty to a charge
of murder. Craig substantially corroborated
testified that, when McQueen returned to the
car after having been in the store, either
Tinsley or the defendant asked him "how did
it look inside." He admitted that he asked
his three companions "if everything had been
taken care of" because "they were in and out
of the store so fast I wanted to be sure
that the people were tied up to give me
enough time to get away."
left the store, the defendant gave McQueen
"a couple of empty cartridges ... to throw
out of the window." Craig then asked if he
shot the people and the defendant said yes.
Craig testified that a couple of days after
the robbery he saw the defendant with a
Seiko watch that was subsequently identified
as having been Mr. Green's. Craig said that
the defendant gave the watch to Joe Nathan
Beckham who pawned the watch.
witnesses for the State identified the Seiko
watch. It was established that this watch
was pawned by Joe N. Beckham at Buster's
Eagle Pawn Shop in Mobile on January 16,
testimony presented by the State established
that Mr. and Mrs. Green were both shot once
in the head with a .38 caliber bullet and
that the bullet recovered from Mr. Green's
head could have been fired from a pistol
recovered directly behind the defendant's
apartment. The bullet that had killed Mrs.
Green was too mutilated to compare.
defendant was arrested at the Stone Oaks
Apartment on July 28, 1978. He was living
with Hazel Craig, who, when the deputies
asked, denied that the defendant was home.
officers searched the apartment and found
the defendant in a bedroom. Later, a .38
caliber revolver was recovered on the ground
next to an air conditioning unit at the rear
of the apartment. Although the ground was
damp, apparently from the early morning mist
or dew, the gun was "perfectly dry" and "had
what appeared to be a fine coating of lint
material on the gun itself."
Wright v. State,
494 So.2d 726, 733-35 (Ala. Crim.App.1985).
B. Procedural History
trial ended in a mistrial, but a Mobile
County Grand Jury re-indicted him for the
capital offenses of "[r]obbery or attempts
thereof, when the victim is intentionally
killed by the defendant" and "[m]urder in
the first degree wherein two or more human
beings are intentionally killed by the
defendant by one or a series of acts." See
Ala.Code § 13-11-2(a)(2) (1975) (repealed
and replaced, § 13A-5-40(a)(2)) and Ala.Code
§ 13-11-2(a)(10) (1975) (repealed and
replaced, § 13A-5-40(a)(10)). After a two-day
trial, the jury found
Wright guilty of both counts and set
his punishment at death. After a separate
sentencing hearing, the trial court imposed
the death sentence.
appeal, the Alabama Court of Criminal
Appeals reversed and remanded the case on
the authority of Beck v. Alabama, 447 U.S.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980),
and Ritter v. State, 403 So.2d 154
(Ala.1981). The Alabama Court of Criminal
Appeals denied the State's application for
rehearing and the Alabama Supreme Court then
denied the State's petition for writ of
certiorari. See Wright
v. State, 407 So.2d 565 (Ala.1981).
States Supreme Court granted the State's
petition for writ of certiorari, vacated the
judgment of the Alabama Court of Criminal
Appeals, and remanded the case to the
Alabama Court of Criminal Appeals for
reconsideration in light of Hopper v. Evans,
456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982). See Alabama v.
Wright, 457 U.S. 1114, 102 S.Ct.
2920, 73 L.Ed.2d 1325 (1982).
remand by the United States Supreme Court,
the Alabama Court of Criminal Appeals
conviction and sentence of death. See
Wright v. State,
494 So.2d 726. The Alabama Supreme Court
affirmed. See Wright
v. State, 494 So.2d 745 (Ala.1986). The
Alabama Supreme Court denied
application for rehearing and the United
States Supreme Court denied
for writ of certiorari.
Wright v. Alabama, 479 U.S. 1101, 107
S.Ct. 1331, 94 L.Ed.2d 183 (1987).
Wright filed a
petition for writ of error coram nobis in
the Mobile County Circuit Court on June 22,
1987. After conducting an evidentiary
hearing on the petition, the trial court
denied Wright coram
nobis relief. The Alabama Court of Criminal
Appeals affirmed the trial court's decision.
See Wright v.
State, 593 So.2d 111 (Ala.Crim.App.1991). On
January 31, 1992, the Alabama Supreme Court
application for writ of certiorari and the
United States Supreme Court denied
certiorari review. See
Wright v. Alabama, 506 U.S. 844, 113
S.Ct. 132, 121 L.Ed.2d 86 (1992).
Wright then filed
his federal habeas corpus petition. After
conducting an evidentiary hearing on
allegations, the district court denied
the State's failure to produce certain items
of evidence violated Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
ineffective assistance of counsel because
counsel failed to investigate another
person's arrest and indictment for the same
crime; failed to challenge the State's
alleged use of peremptory challenges to
strike all black members from the venire and
failed to raise this issue on direct appeal;
and failed to object to the admission of
misleading information in
Wright's pre-sentence investigation
a prima facie violation of Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), and whether
claims are procedurally barred because
counsel did not raise an objection at trial
under Swain v. Alabama, 380 U.S. 202, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965).
the preclusion clause in Alabama's former
Death Penalty Act unconstitutionally
prevented the instruction of a lesser
included offense in this case.
Wright is entitled
to relief on the remaining claims presented
to the district court.
STANDARDS OF REVIEW
the district court's grant or denial of
habeas corpus relief de novo. See Byrd v.
Hasty, 142 F.3d 1395, 1396 (11th Cir.1998).
"A district court's factual findings in a
habeas corpus proceeding are reviewed for
clear error." Id. at 1396. An alleged Brady
violation presents a mixed question of law
and fact, which this court reviews de novo.
See Duest v. Singletary, 967 F.2d 472, 478
review de novo the district court's
determination that Wright
is procedurally barred from raising some of
his claims in federal court and its
application of the cause and prejudice rules
to the procedural bar issues. See Lusk v.
Singletary, 112 F.3d 1103, 1105 (11th
Cir.1997), cert. denied, --- U.S. ----, 118
S.Ct. 894, 139 L.Ed.2d 880 (1998). An
ineffective assistance of counsel claim is a
mixed question of law and fact which we
review de novo. See Dobbs v. Turpin, 142
F.3d 1383, 1386 (11th Cir.1998).
A. Brady claim
that the State violated Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215,
when it withheld several crucial items of
evidence. These items include the testimony
of Mary Johnson ("Johnson") which placed
Theodore Otis Roberts ("Roberts") at the
Western Auto Store shortly before the
murders ("the Johnson testimony"); an
affidavit of Detective Stroh that declared
that Roberts's girlfriend had stated that a
handgun belonging to Roberts was the weapon
that was used to kill the Greens ("the Stroh
affidavit"); evidence that Doris Lambert,
girlfriend and witness for the State at
trial, had a history of poor mental health
and drug use ("Lambert evidence"); and
evidence that the State and Roger McQueen, a
member of the robbery team and witness for
the State, entered a secret agreement that
provided lenient treatment for McQueen if he
testified against Wright
at trial ("McQueen agreement"). The district
court found all but the Johnson testimony to
be procedurally barred from federal court
to establish a violation of Brady,
the Government possessed evidence favorable
to the defendant (including impeachment
evidence) ...; (2) that the defendant does
not possess the evidence nor could he obtain
it himself with any reasonable diligence
...; (3) that the prosecution suppressed the
favorable evidence ...; and (4) that had the
evidence been disclosed to the defense, a
reasonable probability exists that the
outcome of the proceedings would have been
States v. Meros, 866 F.2d 1304, 1308 (11th
Cir.1989) (citations omitted). For Brady
purposes, evidence is material "only if
there is a reasonable probability that, had
the evidence been disclosed to the defense,
the result of the proceeding would have been
different." United States v. Stewart, 820
F.2d 370, 374 (11th Cir.1987) (citation and
internal quotation marks omitted). "A 'reasonable
probability' is a probability sufficient to
undermine confidence in the outcome." United
States v. Bagley, 473 U.S. 667, 682, 105
S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Johnson reported to the police that she
entered the Western Auto Store shortly
before the robbery-murders. As she entered,
she observed a blue automobile with several
people in it. When she left the store, she
met a person entering, and she observed the
same blue automobile parked nearby with
three people in the back seat and one person
in the front seat. When she learned of the
murders, she gave the police a description
of the person she had seen entering the
store. She subsequently identified a
photograph of the person she saw and later
identified the same person in a police line-up.
she identified in both instances was
Roberts, who bears a striking resemblance to
Roger McQueen. The automobile Percy Craig
drove on the day of the robbery-murders was
blue. In light of this information, the
State filed charges against Roberts and Mary
Johnson testified at the preliminary hearing.
Roberts was indicted, but the State dropped
the charges after the prosecutors concluded
that Johnson had misidentified him. See
Wright v. State,
593 So.2d at 115.
Wright argued in
his error coram nobis petition that the
State suppressed the preliminary hearing
testimony of Mary Johnson in violation of
Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215. After conducting an
evidentiary hearing, the trial court
concluded that the State did not suppress
evidence pertaining to Mary Johnson's
identification of Roberts.
the Alabama Court of Criminal Appeals
affirmed, holding that the record adequately
supported the trial court's findings. The
court noted that Wright's
trial counsel was aware that the State had
charged Roberts with the crimes prior to
that the preliminary hearing in Roberts's
case was a matter of public record; and that
the local newspapers extensively reported
the substance of Johnson's testimony prior
to Wright's trial.
The court also found that the evidence was
not material. See Wright
v. State, 593 So.2d at 115-16.
district court determined that the testimony
of Al Pennington ("Pennington"),
counsel, at the federal evidentiary hearing
and the state court's factual findings
supported the conclusion that the Johnson
testimony did not violate Brady. We agree.
The State did not suppress the evidence.
Pennington testified that he knew that
Roberts had been indicted for the crime, and
he knew of Mary Johnson's existence because
he placed her on the defense's witness list.
ROA, Vol. 8, p. 83.
the Johnson testimony was not part of
Roberts's official court record, nothing
prevented Pennington from discovering the
transcript or interviewing Mary Johnson to
discern the crux of her testimony. In light
of this and the fact that the State is not
required to furnish a defendant with
exculpatory evidence that is fully available
through the exercise of due diligence, we
conclude there was no Brady violation. See
United States v. McMahon, 715 F.2d 498, 501
arguendo that the Johnson testimony was
suppressed by the State,
Wright argues that this evidence was
material because it showed that another
individual may have committed the crime and
this evidence would have raised serious
questions about the credibility of Craig and
McQueen's testimony. Thus, the evidence
could have changed the outcome of the trial.
There is one fatal flaw with
The Johnson testimony would not have changed
the outcome of the trial because it did
nothing to indicate that
Wright was not present at the crime
scene, and it did nothing to contradict
Craig and McQueen's testimony that
Wright was the
Additionally, in contrast to
the Johnson testimony would not have
impeached Craig and McQueen because they
were each impeached on several grounds and
neither one ever mentioned that Roberts was
a participant in the crime. Moreover,
mentioned Roberts to his ex-girlfriend Doris
Lambert when he implicated McQueen, Craig,
Tinsley, and himself in the murders. The
defense would have had a remote chance of
convincing the jury that Roberts was
involved in the murders.
Accordingly, the Johnson testimony had no
bearing on the essential facts that resulted
conviction, and therefore, the testimony
could not have changed the outcome of the
trial. In sum, we conclude that the Johnson
testimony was neither suppressed nor
material, and therefore, there was no Brady
2. The remaining items of evidence
district court concluded that the remaining
items of allegedly exculpatory evidence--the
Stroh affidavit, the Lambert evidence, and
the McQueen agreement--were all procedurally
defaulted because the petitioner failed to
raise these claims in the state court. The
failure to raise these claims to the state
courts is a procedural default that bars
federal habeas review of the claims. See
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977). A federal court
will consider the claims, however, if the
petitioner can show "cause and prejudice"
for his procedural default or that failure
to consider his claims will result in a
fundamental miscarriage of justice. See
Coleman v. Thompson, 501 U.S. 722, 750, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991).
district court evaluated both exceptions to
the doctrine of procedural default and found
that cause existed, but that
Wright had not
proved prejudice to overcome the procedural
default. The district court also determined
that the fundamental miscarriage of justice
exception was not applicable.
establish "cause" for a procedural default,
a petitioner must demonstrate that some
objective factor external to the defense
impeded the effort to raise the claim
properly in state court. See Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639,
91 L.Ed.2d 397 (1986). The district court
found cause to exist because the record
demonstrates that the State was in
possession of the Stroh affidavit, the
Lambert evidence, and the McQueen agreement,
and did not disclose these materials to the
district court concluded that the State
from raising these claims in the state
courts. The record does not support this
presented no evidence indicating that the
State's post-conviction counsel did anything
to suppress the above-referenced items or
did anything to impede
Wright from learning about these
items of evidence. However, the district
court's correct finding that there was no
prejudice pretermits a more lengthy
discussion on why cause was not proven by
to establish prejudice,
Wright must show that the items of
evidence were material; that is, that "had
the evidence been disclosed to the defense,
the result of the proceeding would have been
different." United States v. Bagley, 473
U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985) (Blackmun, J.).
Wright fails to make this showing.
affidavit declares that Roberts's girlfriend
stated to Detective Stroh that a handgun
belonging to Roberts was the weapon that was
used to kill the Greens during the robbery.
Even if the State had disclosed the
affidavit to the defense, it would not have
been admissible at trial because it is
hearsay. The defense easily could have
called Roberts's girlfriend to testify at
trial regarding her alleged statement to
Inadmissible evidence may be material if the
evidence would have led to admissible
evidence. See Spaziano v. Singletary, 36
F.3d 1028, 1044 (11th Cir.1994).1
Wright has failed
to show that the affidavit would have led to
admissible evidence because he did not call
Roberts's girlfriend as a witness at the
federal evidentiary hearing. Therefore, it
is unknown exactly what she would say, and
has failed to prove that what she would say
is material. A court cannot speculate as to
what evidence the defense might have found
if the information had been disclosed. Wood,
116 S.Ct. at 11.
crucial inquiry is whether there is evidence
in the record that establishes a "reasonable
probability" that the production of the
inadmissible evidence would have resulted in
a different outcome at trial. Id. at 10.
There is no such evidence in this record.
Since the evidence is not likely to have
changed the outcome of his trial,
Wright has not
shown prejudice to overcome his procedural
District Attorney's office had Doris
Lambert's mental health records but did not
give them to Wright's
lawyers. The district court found that this
evidence was not admissible under Alabama
law, and accordingly, was not material.
Wright argues that
the evidence was material because the case
against him centered upon Doris Lambert's
credibility and the evidence of her mental
health and drug use could have been used at
trial to impeach her credibility.
Alabama law, Lambert's mental health records
and reported drug use would not have been
admissible at Wright's
trial. In Alabama, a prosecutor or defense
attorney cannot use evidence of drug use to
impeach a witness unless it is shown that
the drugs affect the reliability of the
witness's testimony. See Leonard v. State,
551 So.2d 1143, 1147 (Ala.Crim.App.1989).
"[t]he credibility of a witness may be
impeached by proving mental derangement or
insanity but only if such mental incapacity
exists at the time the witness takes the
stand to testify or at the time he observed
the facts to which he has testified on
direct." Charles Gamble, McElroy's Alabama
Evidence § 141.01(1) (3d ed.1977).
no evidence that Lambert was using drugs
when she testified at
Wright's trial or when
Wright told her
that he killed the Greens. Nor is there any
evidence that Lambert was suffering any
mental incapacity when she testified or when
Wright confessed to
district court found evidence that Lambert
suffered from depression several years
before the Greens's murders, but it found no
evidence that Lambert suffered from
depression during trial or when
Wright confessed to
her. Notwithstanding the fact that Lambert
admitted to using drugs occasionally between
and trial, the district court found no
evidence that her occasional drug use
impaired her faculties. These findings are
not clearly erroneous.
even if the Lambert evidence had been
admitted at trial, the evidence would have
had little impact on the jury's perception
of her credibility. Mr. Pennington cross-examined
Lambert and elicited from her that she had
been convicted of shoplifting and that she
was Wright's former
girlfriend and had a son
Wright fathered. See Trial Transcript,
Doc. 12, Vol. 1, p. 174-75. Mr. Pennington
also questioned Lambert's mother who stated
that she told her daughter not to come to
trial and tell a "bunch of lies." Id., Vol.
2, p. 291.
Pennington was able to call Lambert's
credibility into question during his
examination. Moreover, this evidence does
not rise to the level of "mental derangement
or insanity," nor does it establish the type
of drug problem that produces an impaired
mind. See McElroy's Alabama Evidence;
Leonard, 551 So.2d at 1147. In short, the
Lambert evidence would not have been
admissible at Wright's
trial, and even if it had been admitted, it
would have had little bearing on the
credibility of her testimony. Accordingly,
we conclude that this evidence is not
Wright alleges that
the State and Roger McQueen secretly agreed
that McQueen would plead to a lesser charge
and testify against Wright
at trial. Wright
also alleges that McQueen perjured himself
at trial by testifying that he planned to
plead guilty to first degree murder instead
of second degree murder.
Wright relies on McQueen's testimony
at the federal evidentiary hearing to
support these contentions.
district court found that the McQueen
agreement could have been used to impeach
McQueen at trial; but that the potential
impact of any possible impeachment would
have been de minimis. This is true in light
of Mr. Pennington's cross-examination of
McQueen at trial. Pennington attempted to
impeach the credibility of McQueen by
eliciting from him his previous convictions
for grand larceny and arson and his
admission to the use of drugs on the day of
the robbery. McQueen even openly admitted to
being high the morning of the robbery-murders.
See Trial Transcript, Doc. 12, Vol. 1, p.
Additionally, even if the McQueen agreement
would have totally discredited McQueen, the
State still had the testimony of Craig and
Lambert, in combination with the physical
evidence, to support
Wright's conviction. Moreover, when
McQueen testified at the federal evidentiary
hearing on Wright's
behalf, the district court found that
McQueen's testimony was not credible. See
ROA, Vol. 8, p. 172.
testified at trial that he planned to plead
guilty to first degree murder and armed
robbery; however, at the federal evidentiary
hearing, the State presented testimony that
proved that McQueen, in exchange for
truthful testimony, would be prosecuted for
less than capital murder. Id. at p. 99, 185,
209. Thus, the outcome of
Wright's trial would not have been
different if McQueen had told the jury that
he planned to plead guilty to second degree
murder rather than first degree murder. Both
charges are less than capital murder charges
and do not have the same attendant sentence.
argues that the documents he introduced into
evidence at the federal evidentiary hearing
establish that the State had a secret deal
with McQueen. A review of the hearing
transcript, however, reveals that the
State's witnesses disproved the existence of
such a deal. An entry contained in McQueen's
court file shows he was convicted of second
degree murder and sentenced to 20 years
imprisonment, to run consecutive with a
sentence he was serving in Mississippi. ROA,
Vol. 8, Folder 6, Petitioner's Exh.'s 15 &
document is consistent with the testimony of
the State's witnesses who stated that
McQueen's sentence was to run consecutively
with the Mississippi sentence. ROA, Vol. 8,
p. 100, 209. Wright
still argues that prosecutors promised
McQueen that he would not have to serve his
sentence in Alabama and that he did not
serve that sentence. Id. at p. 175.
McQueen mentioned in his testimony that the
district attorney later had a detainer
issued so that he could begin serving his
sentence for his participation in the
robbery-murders. Id. This testimony and the
documentary evidence negate any claim
Wright has that the
State and McQueen had a secret deal.
cannot demonstrate prejudice to overcome his
Cumulatively, the Stroh affidavit, Lambert
evidence, and McQueen agreement do not
undermine confidence in the verdict. See
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995). Most of the
items would have been inadmissible at trial,
and the others would not have changed the
outcome of the trial. Accordingly,
Wright has not
demonstrated prejudice from his failure to
raise these claims in state court.
could consider Wright's
claims however, if they fall within the "narrow
class of cases ... implicating a fundamental
miscarriage of justice." Schlup v. Delo, 513
U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d
808 (1995) (quoting McCleskey v. Zant, 499
U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d
517 (1991) (internal quotation marks omitted)).
A fundamental miscarriage of justice occurs
"where a constitutional violation has
probably resulted in the conviction of one
who is actually innocent." Id. at 321, 115
S.Ct. 851 (quoting Murray v. Carrier, 477
U.S. at 496, 106 S.Ct. 2639) (internal
quotation marks omitted).
establish by a fair probability that no
reasonable juror would have found him guilty
in light of all the evidence which he
alleges was wrongfully suppressed. See
Schlup, 513 U.S. at 329, 115 S.Ct. 851. At
trial, the State called several witnesses
who testified extensively to
participation in the robbery-murders.
Lambert testified that
Wright confessed to killing two
people with a gun at a Western Auto Store.
admitted to his participation in the crimes
and testified that at the time of the crimes,
Wright possessed a
.38 caliber handgun. McQueen further stated
that upon entering the getaway vehicle,
Wright told the
other members of the robbery team that he
shot the Greens.
testified that after
Wright made this statement,
McQueen two expended bullet cartridges to
prove that he had killed the Greens. Craig's
testimony substantially corroborated
McQueen's. Craig further testified that
after the commission of the crimes, he saw
Wright with a gold
Seiko watch that was later identified as Mr.
Green's. The State also produced physical
evidence that linked
Wright to the robbery-murders.
that he is innocent but does not mention his
alibi defense that he proffered at trial. He
attempts to establish his innocence by
shifting the focus to Roberts.
Wright alleges that
Roberts murdered the Greens and that McQueen
and Craig are covering for Roberts by
offers no evidence to support this
contention. The allegedly suppressed items
of evidence do tend to raise some question
as to whether Roberts may have been involved
in the robbery-murders. Indeed, this
evidence originally prompted the State to
indict Roberts. Wright
must go further, however, and show that in
light of this new evidence, "no juror,
acting reasonably, would have voted to find
him guilty beyond a reasonable doubt." Id.
allegedly suppressed material does not
satisfy this standard. At the federal
evidentiary hearing, McQueen testified that
everything he previously told the police was
true except for the fact that
Wright did not
murder the Greens. McQueen makes no
reference to Roberts being present at the
robbery-murders and did not say who actually
shot the Greens. Accordingly, a reasonable
jury could find Wright
guilty of killing the Greens.
overcome his procedural default on the
remaining Brady claims.
Ineffective Assistance of Counsel claims
numerous instances of ineffective assistance
of counsel but he only raised four of them
in the state courts. The claims that
Wright did not
raise in the state courts are procedurally
defaulted, see Footman v. Singletary, 978
F.2d 1207, 1211 (11th Cir.1992), so we will
only review them if Wright
can show cause and prejudice or a
fundamental miscarriage of justice. See Agan
v. Vaughn, 119 F.3d 1538, 1548-49 (11th
Cir.1997), cert. denied, --- U.S. ----, 118
S.Ct. 1305, 140 L.Ed.2d 470 (1998).
Wright to show
cause, the procedural default "must result
from some objective factor external to the
defense that prevented [him] from raising
the claim and which cannot be fairly
attributable to his own conduct." McCoy v.
Newsome, 953 F.2d 1252, 1258 (11th Cir.1992)
(quoting Carrier, 477 U.S. at 488, 106 S.Ct.
2639). Under the prejudice prong,
Wright must show
that "the errors at trial actually and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494,
106 S.Ct. 2639).
district court found that
Wright had not demonstrated cause and
prejudice to excuse his procedural defaults.
On appeal, Wright
provides the court with no explanation or
evidence to establish cause and prejudice.
Accordingly, these remaining claims of
ineffective assistance of counsel are barred
from federal habeas review.2
district court correctly determined that
only four instances of ineffective
assistance of counsel were properly before
the court for review: (1) whether counsel
was ineffective in allegedly failing to
investigate Roberts's involvement in the
robbery-murders; (2) whether counsel was
ineffective in failing to raise a Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), objection at trial; (3)
whether counsel was ineffective for failing
to obtain a transcript of
Wright's first trial which ended in a
mistrial; and (4) whether counsel was
ineffective for failing to challenge on
direct appeal the trial court's grant of the
State's motion in limine regarding the
arrest and indictment of Roberts.
to prevail on his claim of ineffective
assistance of counsel,
Wright must show that counsel's
performance fell below an objective standard
of reasonableness, and that the deficient
performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 686,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "When
applying Strickland, we are free to dispose
of ineffectiveness claims on either of its
two grounds." Oats v. Singletary, 141 F.3d
1018, 1023 (11th Cir.1998).
Wright alleges that
his trial counsel was ineffective for
failing to investigate Roberts's alleged
involvement in the robbery-murders. On
collateral review, the state trial court
found that counsel's failure to investigate
Roberts's alleged involvement in the robbery-murders
was the result of a strategic decision based
on Pennington's skill and reputation, and
his prior knowledge that Roberts was the
focus of the police investigation of the
Greens's murders. The Alabama Court of
Criminal Appeals found that the record
supported the trial court's findings and
denied Wright any
relief on this claim. See
Wright v. State, 593 So.2d at 116-17.
The district court relied on the state
court's findings on this claim to deny
Wright any relief.
Wright argues that
the state courts and the district court
erred in finding that Pennington's failure
to investigate Roberts's alleged involvement
in the robbery-murders was the result of a
strategic choice because in both the state
coram nobis hearing and the federal
evidentiary hearing, Pennington
categorically denied that he made a
strategic decision not to investigate. ROA,
Vol. 3, Folder 3, p. 32-45; Vol. 8, p. 51.
Pennington denied making a strategic
decision not to investigate Roberts's
alleged involvement in the robbery-murders,
the record contradicts this assertion.
Pennington admitted knowing that Roberts had
been indicted for the same offense as
Wright and knowing
who had represented Roberts. ROA, Vol. 8, p.
55, 57. When asked why he did not pursue
inquiry into the State's case against
Roberts, Pennington answered, "I had other
avenues to pursue concerning the remainder
of my defense for Freddie
Wright." Id. at 57.
Pennington knew that Mary Johnson was on his
witness list because he requested that she
be. Id. at 82. He reluctantly admitted that
he knew that Mary Johnson had some tie to
Wright's case. Id.
admitted that he had to make choices in
defending a client based on factors such as
time, information, and what his client told
him. Id. Thus, Pennington admitted to the
process of making strategic decisions. "[B]ecause
ineffectiveness is a question which we must
decide, admissions of deficient performance
by attorneys are not decisive." Harris v.
Dugger, 874 F.2d 756, 761 n. 4 (11th
Cir.1989). The record persuades us that
counsel was not ineffective for failing to
investigate Roberts's alleged involvement in
Wright argues that
his counsel was ineffective for failing to
raise a Batson objection at trial and in
failing to supplement the record on appeal
with a Batson challenge. Pennington
testified at the federal evidentiary hearing
that no blacks sat on
Wright's jury and that he knew that
the State used several of its peremptory
strikes to remove black persons from the
jury. ROA, Vol. 8, p. 68. At the state coram
nobis hearing, Pennington stated that he did
not object to the State's use of its
peremptory strikes because the law was very
developed and the Alabama Supreme Court had
ruled that peremptory strikes could be used
for any reason. ROA, Vol. 3, Folder 3, p.
v. United States, 832 F.2d 561, 565 (11th
Cir.1987), we held that counsel was not
ineffective for failing to raise a Batson
objection prior to the issuance of that
case. In so holding, we stated that "[t]he
Supreme Court has held that 'Batson v.
Kentucky is an explicit and substantial
break with prior precedent,' Allen v. Hardy,
[478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d
199 (1986) ], so that 'the rule in Batson
should not be available to petitioner on
federal habeas corpus review of his
convictions.' " 832 F.2d at 565. Since
occurred before Batson,
Wright is not entitled to relief on
Batson-related claim--that counsel was
ineffective for failing to supplement the
record on appeal with a Batson challenge--is
not properly before our court for review.
Wright did not
argue this to the district court. We will
not consider claims not properly presented
to the district court and which are raised
for the first time on appeal. See Cotton v.
U.S. Pipe & Foundry Co., 856 F.2d 158, 162
only other issue of ineffective assistance
that Wright asserts
on appeal is his claim that counsel was
ineffective during the penalty phase of his
trial. This claim is procedurally defaulted.
See Footman, 978 F.2d at 1211. With regard
to the other claims of ineffective
assistance which Wright
presented in the state courts and are not
Wright does not separately address
these claims in his brief on appeal.
Wright contends at
the conclusion of his brief that he is
entitled to relief on all claims raised in
his federal habeas petition. Therefore, we
must consider the other two claims of
ineffective assistance of counsel which are
not procedurally barred from our review.
claims are whether counsel was ineffective
for failing to obtain a transcript of
trial and whether counsel was ineffective
for failing to challenge on appeal the trial
court's grant of the State's motion in
limine regarding the arrest and indictment
of Roberts. Since Wright
cannot demonstrate why his counsel's failure
to obtain a transcript of his first trial
affected the outcome of his second trial, he
is not entitled to relief on this claim.
As to his
claim that counsel should have objected on
appeal to the trial court's grant of the
State's motion in limine,
Wright fails to demonstrate how the
result of his appeal would have been
different had counsel objected. Accordingly,
Wright is not
entitled to relief on these claims of
ineffective assistance of counsel.
C. Batson claim
that the State used its peremptory strikes
in a racially discriminatory manner in
violation of Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The district court correctly determined that
defaulted this claim because he did not
raise a substantive Batson claim at trial,
or on direct appeal, or in his state coram
nobis proceeding. To excuse his procedural
must show cause and prejudice. See Weeks v.
Jones, 26 F.3d 1030, 1043 (11th Cir.1994).
Wright urges this
court to overlook his procedural default
because the Alabama courts have not
regularly and consistently applied a
procedural bar to cases where a Batson claim
was not raised on direct appeal.
Wright relies on
this court's decision in Cochran v. Herring,
43 F.3d 1404 (11th Cir.), modified on reh'g,
61 F.3d 20 (1995), to support his contention.
In Cochran, this court found that "where the
trial took place pre-Batson, a properly made
Swain claim made in a pre-trial motion is
treated as a timely made Batson objection
for the purpose of preserving the Batson
issue for appeal." 43 F.3d at 1409 n. 7.
noted that the Alabama Supreme Court in Ex
parte Floyd, 571 So.2d 1234 (Ala.1990),
allowed a defendant to raise a Batson claim
in a postconviction motion because he had
raised a Swain objection at trial. Cochran
was identically situated to Floyd, and we
concluded that the Alabama state courts had
applied its procedural rules inconsistently
when it allowed Floyd to proceed with his
Batson claim but denied Cochran that right.
Wright's case does
share some similarities with Cochran's--both
cases were tried pre-Batson and Batson was
decided while their direct appeals were
pending--there is one fatal flaw in
on Cochran: Wright
never made a Swain objection. His counsel
even conceded at the federal evidentiary
hearing that there was no Swain claim
presented to the district court. ROA, Vol.
8, p. 75-76.
Wright's case is
more similar to State v. Tarver, 629 So.2d
14, 18-19 (Ala.Crim.App.1993), in which the
Alabama Court of Criminal Appeals held that
Tarver was procedurally barred from raising
a Batson claim in a post-conviction hearing
because Tarver did not preserve the claim
for appellate review by making a Swain
objection at trial (Batson was decided while
the case was on direct appeal). As such,
defaulted his substantive Batson claim.
encourages this court to overlook his
procedural default of his Batson claim by
arguing that the state courts addressed the
merits of the Batson claim. Although
that he did not expressly raise in state
court an independent Batson claim, he
contends that the state court heard
testimony on this claim and ruled on the
underlying merits of the claim.
Wright relies on a
portion of the trial court's order denying
his coram nobis petition.
Wright overlooks the preceding
paragraph of the order in which the trial
court stated that "[t]he petitioner
recognizes that he cannot raise a claim
under Batson ... for the first time in this
proceeding...." ROA, Tab 43 at 33.
court then discussed the claim of
ineffective assistance of counsel for
failing to raise a Batson claim.
Additionally, there is no mention of a
substantive Batson claim in his brief on
appeal from the denial of his error coram
nobis petition, and the Alabama Court of
Criminal Appeals does not mention a
substantive Batson claim in its opinion. See
Wright v. State,
593 So.2d 111.
record demonstrates, the state courts never
addressed a substantive Batson claim.
cannot demonstrate cause and prejudice to
excuse his procedural default for failing to
raise a substantive Batson claim to the
state courts, and therefore, we will not
consider the merits of the claim.
D. The Preclusion Clause claim
Wright was tried
and convicted, the Alabama Death Penalty Act
contained a preclusion clause which
prohibited the jury in capital cases from
convicting the defendant of a lesser
included offense. In Beck v. Alabama, 447
U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980), the Supreme Court struck down this
clause as unconstitutional.
Hopper v. Evans, 456 U.S. 605, 102 S.Ct.
2049, 72 L.Ed.2d 367 (1982), the Supreme
Court held that a defendant convicted under
Alabama's 1975 Death Penalty Act was
entitled to a new trial if evidence
presented at trial suggests that the trial
court could have charged a lesser included
offense or if the defendant suggests a
plausible alternative theory that was not
contradicted by his own testimony at trial.
courts held that Wright's
own testimony contradicted this claim that
the court should have charged a lesser
included offense because he called an alibi
witness. The state courts concluded that
there was no evidence presented at trial
upon which a conviction of a lesser included
offense could have been based. The district
court agreed and so do we.
that the state courts and the federal
district court erred in finding that there
was no evidence to support a charge of a
lesser included offense. The two items upon
which Wright relies
for this assertion are Lambert's testimony
that "they" had killed the Greens, not "he,"
and testimony of the State's ballistics
expert who conceded that he had previously
identified another handgun as the murder
claims that this evidence would have
permitted the jury to convict him of a
lesser included offense under the theory
that he was present at the crime but he was
not the triggerman.
on Lambert's use of the pronoun "they" does
not support his argument that the jury
should have been instructed on lesser
offenses. This reliance ignores the bulk of
Lambert's testimony in which she stated that
Wright told her
that he killed two people in a Western Auto
Store. Her testimony was clarified by
questioning from the State. See Trial
Transcript, p. 166.
Lambert's one-time incorrect usage of the
pronoun "they" does not support a lesser
offense charge. Second,
Wright does not provide the court
with any reason why the testimony from the
State's ballistics expert should support a
lesser charge instruction. It appears, at
most, to support Wright's
that if not for the preclusion clause, he
could have presented an alternative
plausible claim that he was a member of the
robbery team but not the triggerman.
Although Wright did
not testify, he presented a witness, Carl
Harrington, who stated that he was with
Wright the morning
of the robbery-murders. This alibi defense
negates any "plausible claim" that the
defendant could have still been a member of
the robbery team, but not the triggerman, so
Wright was not
entitled to a lesser included offense
instruction. See Alldredge v. State, 431
So.2d 1358, 1361 (Ala.Crim.App.1983) (alibi
defense inconsistent with lesser included
Wright cannot show
that the preclusion clause prevented him
from asserting a lesser included offense
defense. See Hopper, 456 U.S. at 613-14, 102
S.Ct. 2049; see also Ritter v. Smith, 726
F.2d 1505 (11th Cir.1984). Thus,
Wright cannot show
that he was prejudiced by the existence of
the preclusion clause.
E. Remaining claims
Wright asserts on
appeal that he is entitled to relief on the
remaining issues raised in his federal
habeas petition. Most of his claims are
procedurally defaulted because they were not
presented in the state courts.3
Several other issues were considered by the
Alabama Court of Criminal Appeals and found
to be procedurally barred under state
procedural rules. See
Wright v. State, 593 So.2d at 118-19.
claims are barred from federal review unless
Wright provides the
court with evidence demonstrating cause and
prejudice to overcome these procedural
defaults. Johnson v. Singletary, 938 F.2d
1166, 1174-75 (11th Cir.1991).
Wright has failed
to do so; therefore, we will not consider
these claims on the merits.
foregoing reasons, we affirm the judgment of
the district court denying habeas relief to
In Wood v. Bartholomew,
516 U.S. 1, 116 S.Ct. 7, 10, 133 L.Ed.2d 1
(1995), the Supreme Court considered the
question whether inadmissible evidence may
be material under Brady. In that case, the
Supreme Court reviewed a holding of the
Ninth Circuit Court of Appeals that an
inadmissible polygraph test was material
under Brady because the polygraph results
may have led defense counsel to additional
information which may have been used at
trial. In reversing, the Court did not
declare that admissibility was a
precondition to materiality. The Court
proceeded to sift through the record and,
after examining the possible effects that
the undisclosed polygraph results would have
had on the outcome of the trial, concluded
that the information was not material. 116
S.Ct. at 10-11. The Court reiterated the
traditional Brady standard that evidence is
material "only where there exists a
reasonable probability that had the evidence
been disclosed the result at trial would
have been different." Id. at 10. Thus, the
Court did not hold that admissibility of
undisclosed evidence is a prerequisite to
materiality. Accordingly, Wood does not
conflict with our decision in Spaziano
These claims were
presented in Wright's
federal habeas petition and delineated as
ineffective assistance for (1) failing to
adequately investigate and prepare for trial;
(2) failing to compel disclosure of all
evidence relating to the handgun the
ballistics expert had previously identified;
(3) failing to adequately challenge and
otherwise establish the systematic under-representation
of blacks, women and other cognizable groups
in the jury pool; (4) failing to object to
improper voir dire questioning; (5) failing
to cross-examine Craig, McQueen or Detective
Tillman as to any deals between Craig or
McQueen and the State; (6) failing to
cross-examine Lambert regarding any deals
she received from the State; (7) failing to
seek a continuance or mistrial so he could
testify regarding his prior conversation
with Lambert and to obtain testimony from
Tinsley; (8) failing to call other alibi
witnesses at trial; (9) failing to object to
numerous improper jury instructions; (10)
failing to bring to the court's attention
the fact that Craig's former girlfriend
stated that Craig told her that he and
McQueen committed the murders; (11) failing
to object to repeated improper and leading
questioning by the prosecutor, irrelevant
and prejudicial testimony, improperly
stipulating to the expert qualifications of
witnesses, and failing to object to improper
comments by the trial judge; (12)
ineffective assistance at sentencing; and
(13) ineffective assistance on appeal
did challenge the trial court's refusal to
give certain requested jury instructions in
his federal habeas petition and on direct
appeal. The Alabama Court of Criminal
Appeals addressed this issue and found it to
be without merit. See
Wright v. State, 494 So.2d at 732.
Our review of the record leads us to the