Fortenberry v. Haley
| Citation | 297 F.3d 1213 |
| Decision Date | 17 July 2002 |
| Docket Number | No. 01-12553.,01-12553. |
| Parties | Thomas J. FORTENBERRY, Petitioner-Appellant, v. Michael W. HALEY, Commissioner, Alabama Department of Corrections, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Edwin L. Klett and David W. Snyder (Court-Appointed), Pittsburgh, PA, for Petitioner-Appellant.
Beth Jackson Hughes, Montgomery, AL, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
Thomas Fortenberry, an Alabama prisoner under sentence of death, appeals the denial of his petition for a writ of habeas corpus. The district court rejected eighteen constitutional claims, seven of them on the merits and the remaining eleven because of procedural default. The district court granted a Certificate of Appealability ("COA") with respect to all issues, three of which Fortenberry raises here. Fortenberry argues (1) that the prosecution used its peremptory challenges to discriminate unconstitutionally on the basis of race; (2) that the trial court's "heinous, atrocious and cruel" instruction to the jury was unconstitutional; and (3) that defense counsel rendered ineffective assistance at the guilt and penalty phases of Fortenberry's trial. For the reasons set forth below, we AFFIRM.
On August 25, 1984, four people were shot and killed at the Guest Service Station in Attalla, Alabama. The victims were Ronald Guest, Wilbur T. Nelson, Bobby Payne, and Nancy Payne. In late March 1985, a local resident found a pistol on the bank of Black Creek, in nearby Alabama City. Ballistic evidence showed that the pistol had been used to commit the Guest murders. Because the pistol was found without grips, it was impossible to lift any fingerprints from it; however, the police were able to trace it to a gun repair business that was partly owned by Fortenberry's father and a man named Jerry Gable. In addition, the sheriff's office obtained statements from three people who had seen the pistol in Fortenberry's possession shortly before the Guest murders. Based on this evidence, officers went to Fortenberry's home on May 2, 1985, and brought him to the courthouse for questioning. They arrived at the courthouse at about 6:45 p.m. Fortenberry signed a waiver of rights form. Officers questioned Fortenberry about the pistol used in the four murders at the Guest Service Station, and Fortenberry admitted taking it from his father and Gable. At around midnight, Fortenberry showed the investigators where he said he had disposed of the pistol, which was the same spot where it had been found. Then, over the next two days, Fortenberry provided several inconsistent accounts of what had happened at the Guest Service station. We describe these statements in some detail here because they were central to the prosecution's case against Fortenberry, and because he now claims that he is innocent of the murders.
On May 3, at about 12:50 a.m., Fortenberry made a taped statement in which he explained that, on the day of the murders, he was riding in his brother's green Chevrolet truck with the stolen pistol, when he came upon a man named Harvey Underwood and "this other guy" in the woods. Fortenberry stated that the "other guy" was "passed out," and that Underwood was drinking beer and smoking marijuana. Fortenberry stated that he and Underwood decided to ride together to Albertville, but that they stopped at the Guest Service Station on the way because they had run out of beer. Fortenberry stated that, while they were at the station, he sat in the truck while Underwood robbed the station and committed the murders. Fortenberry said that he returned Underwood to the place where he had met him and that Underwood kept the gun until Fortenberry got it from him a few days later and threw it into Black Creek. He said he never told the police because he was frightened of Underwood.
On the same day at 5:25 p.m., Fortenberry made a written statement in which he contravened his taped statement. This time Fortenberry explained that he had gone to the Guest Service Station on the evening of the murders, intending to steal money for gambling. After he took some money from Nelson, he went outside, and Guest and Bobby Payne walked in front of him. Fortenberry stated that he shot the two men, and went back in the station and shot Nelson. Then he came back outside and saw Nancy Payne running up the hill, and shot her. Fortenberry explained that he left with $240 of stolen money, threw the gun away, and went to a pool hall to provide himself an alibi. He also declared that his earlier statement blaming the murders on Harvey Underwood was false.
On the following day, May 4, Fortenberry gave a sworn statement before a court reporter in which he provided a third, more detailed account. Fortenberry now explained that on the day of the murders he had gone looking for a place to rob for gambling money, when he came upon the Guest Service Station. He pulled up in front of the station in his brother's green and white Chevrolet truck, went in, pulled his gun on Nelson and demanded money. He also held his gun on Bobby Payne, who had just driven up to the station and come inside during the course of the robbery. Another car pulled up, Fortenberry said, and Guest opened the station door to enter. Fortenberry hid his gun from Guest, but Guest turned away and left after Nelson whispered something to him. Fortenberry then got money from Nelson and was leaving when Bobby Payne followed him out of the store. Guest then came up beside him and said "Tommy, put down the gun." Fortenberry said that he panicked and ordered Bobby Payne to give him money, whereupon Payne said Fortenberry would have to kill him to get his money. Fortenberry then shot Bobby Payne and Guest, and went back inside the station and shot Nelson. Then, Fortenberry explained, he went back out to his truck, saw a woman running, and shot her. Fortenberry stated that he got into his truck and drove northbound for a while until he came to a turnaround and then headed back toward Attalla. Fortenberry said that he took $240 from Nelson, but nothing from anyone else. He drove out to an area near the Black Creek, threw the gun into the woods, and went to a pool hall in order to establish an alibi. Fortenberry repeated that his earlier story that Underwood had committed the murders was false.
Fortenberry was indicted under the Alabama Death Penalty Act for two counts of "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct," Ala.Code § 13A-5-40 (a)(10) (1975), and "[m]urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant," Ala.Code § 13A-5-40(a)(2)(1975). The court appointed Stephen Harrison to represent Fortenberry at trial, and Walden Buttram to assist him. Neither Harrison nor Buttram had previously tried a capital case. Fortenberry pleaded "not guilty," and the case went to trial.1
At trial, Fortenberry testified that he had not committed the murders. Fortenberry said that he was driving through the woods one evening and came upon "the fire place where everybody partied at." He stated that he had the pistol under his car. He saw Underwood drinking beer and another man who was "passed out." Fortenberry stated that he noticed that a truck was parked there, but he did not know if it was Underwood's. Fortenberry testified that he had tried to sell the gun to Underwood. Underwood said he could not afford it, but that he knew some "boys" in Albertville who might want to buy it. Underwood then proposed that he and Fortenberry go to Albertville together in Fortenberry's car to meet the potential buyers. Fortenberry testified that he declined to drive, protesting that he did not have a spare tire, so Underwood then suggested that they take the truck parked nearby.
Fortenberry testified that he and Underwood were on their way to see the potential gun buyers when they stopped for beer at the Guest Service Station. Fortenberry went in and purchased some beer, and then walked out as Underwood started going through the store's cooler. Fortenberry was in the truck when Guest pulled up and started to go into the store. Nelson stopped Guest at the door, however, and Guest returned to his car. Fortenberry testified that he then got out of the truck and walked back into the service station, where he saw Underwood threatening Nelson with a knife. Underwood instructed him to get back in the truck, which he did, and Guest then backed his car and reentered the service station. At this point Bobby and Nancy Payne arrived, and Bobby Payne went into the service station. At some point, Fortenberry said, Underwood returned to the truck and exchanged his knife for the murder weapon.
Fortenberry testified that the three men were in the station for a minute, after which Guest walked back out to his car and bent over inside of it. Fortenberry said a woman then got out of Guest's car and "ran up the back of the store," and Guest started walking back to the station. Fortenberry then heard a shot, and saw Underwood exiting the store, followed by Bobby Payne, who was shouting at him. Payne walked in front of Underwood, and Guest came up on the other side of him. Fortenberry testified that Bobby Payne then started calling Underwood names and cursing him. Underwood asked Payne to shut up and said he was leaving. When Bobby Payne then told Underwood that he would have to wait for the police, Underwood shot him and Mike Guest. Then, when Nancy Payne ran toward the woods, Underwood shot her. Fortenberry testified that they then returned to the woods where Fortenberry's car was parked. Underwood instructed him to throw the gun in Black Creek, which Fortenberry did. Fortenberry testified that Underwood warned him not to tell anyone about the...
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