Arthur v. Allen, No. 03-14304.
| Citation | 452 F.3d 1234 |
| Decision Date | 21 June 2006 |
| Docket Number | No. 03-14304. |
| Parties | Thomas D. ARTHUR, Petitioner-Appellant, v. Richard F. ALLEN, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Suhana S. Han, Sullivan & Cromwell, LLP, Theresa Marie Trzaskoma, Brune & Richard, LLP, New York City, for Arthur.
J. Clayton Crenshaw, Montgomery, AL, for Allen.
Appeal from the United States District Court for the Northern District of Alabama.
Before BIRCH, BLACK and BARKETT, Circuit Judges.
An Alabama jury found petitioner Thomas D. Arthur ("Arthur") guilty of capital murder and recommended that he be sentenced to death. After exhausting his state court remedies, Arthur filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court denied Arthur's habeas petition, but granted a certificate of appealability ("COA") on four issues. After a thorough review of the record, and having the benefit of oral argument and the parties' briefs, we AFFIRM the district court's judgment denying Arthur habeas relief.
On 1 February 1982, at 9:12 A.M., police officers were called to the residence of Mary Jewel "Judy" Wicker ("Wicker") and Troy Wicker ("Troy") in Muscle Shoals, Alabama. The officers found Troy murdered in his bed; his wife, Wicker, lying on the floor with traces of blood on her face; and her sister, Teresa Rowland ("Rowland"), kneeling beside her. R1-22, Exh. Vol. 6 at 315-16. The investigators found four .22 caliber expended cartridge cases on the bed. An autopsy revealed that Troy's death was caused by a close range wound through his right eye from a .22 caliber long rifle bullet which severed his brain stem.
Wicker told the investigators that, after she had dropped her children off at school, she had returned to find an African American man in her home. She said that the man raped her, knocked her unconscious, and shot Troy. Wicker was subsequently charged and convicted of murdering Troy to collect insurance proceeds, and was sentenced to life imprisonment. See Wicker v. State, 433 So.2d 1190 (Ala.Crim.App. 1983). Some time after Wicker's conviction, the prosecuting district attorney appeared before the parole board to inquire about the possibility of an early release in exchange for Wicker's testimony against Arthur. Wicker's daughter, Tina Jenkins, retained attorney Gary Alverson to appear at this meeting on her behalf. Alverson was later hired as a state prosecutor.
In 1991, during Arthur's trial for Troy's murder, Alverson represented the state and Wicker testified as the prosecution's main witness. She explained that she had known Arthur since they were both young and worked at Tidwell Homes. She revealed that she, Rowland, and Rowland's boyfriend, Theron McKinney ("McKinney") had discussed killing Troy beginning in early 1981. R1-22, Exh. Vol. 9 at 747-48. Wicker explained that Troy was physically violent with her, and that Rowland and Troy often argued when Troy threatened to turn Rowland in to the police for the arson on her home which he had committed for her. Wicker recalled that she received a telephone call from Arthur in November 1981 in which he told her that he had been "hired to do the job . . . [to] kill [her] husband." Id. at 748-51. She saw him the next week and began a sexual relationship with him. At that time, Arthur was residing at the Decatur Work Release Center and was assigned to work at Reagin Mobile Homes.
Wicker testified that she knew that the murder was to take place on 1 February 1982, and that she had agreed to tell the police that her home was burglarized and that her husband was murdered by an African American man. She explained that, on the day of the murder, she met Rowland and Arthur at the airport. She stated that Arthur, who had been drinking and was carrying a gun and a garbage bag, had painted his face black and put on an Afro wig and black gloves. She testified that Arthur got into her car and, while driving him to her house, she urged him not to kill Troy. She stated that, after they arrived at her house, she heard a shot and that Arthur then struck her, knocked out several of her teeth, and lacerated her lip. Wicker admitted that, after she collected $90,000 in insurance proceeds from Troy's death, she paid Arthur $10,000, paid Rowland $6,000, and gave McKinney jewelry and a car for their assistance in the murder. She also admitted that she continued her relationship with Arthur after the murder.
Wicker's testimony was corroborated by other witnesses and evidence. Muscle Shoals Police Sergeant Eddie Lang testified that, while he was working at a school crossing about 7:40 A.M. on 1 February, he observed Wicker driving east toward the airport and, about 10 minutes later, returning toward her house. He did not see anyone in the car with her during either trip. The work release facility's records for the day of the murder showed that Arthur had signed out of work release at 6:00 A.M. and had not returned until 7:50 P.M. Joel Reagin, the owner of Reagin Mobile Homes, was unable to say whether Arthur was at work on the day of the murder. He remembered, however, having seen Wicker and Arthur together at Reagin Mobile Homes while Arthur was working there.
Patricia Yarborough Green, a waitress at Cher's Lounge, testified that, on 31 January 1981, the day before the murder, Arthur asked her to send a friend to purchase.22 caliber Mini-Mag long rifle bullets for him and gave her $10 for the purchase. She said that, while they were waiting for the friend to return with the bullets, Arthur told her that they would be used to kill someone. She gave the bullets to Arthur when she received them. Debra Lynn Phillips Tynes, the manager of Cher's, went to lunch with Arthur on the day of the murder. While they were out, Arthur drove to a bridge over the Tennessee River, stopped the car, and dropped a black garbage bag into the river. She said that he explained to her that he wanted to get rid of some old memories. On the day of the murder, Wicker's automobile was found in the parking lot at Northwest Junior College in Tuscumbia, Alabama. Inside the car, officers found Wicker's purse and an Afro wig; the inside of the wig contained no human hairs.
In March 1982, officials at the work release center discovered a discrepancy between the amount of time that Arthur had logged as being at work and the amount of money that he had been paid for that work, and transferred him to the county jail pending investigation. After he left the work release center, his personal belongings at the work release center were inventoried and a Reagin Mobile Homes envelope containing $2000 was discovered.
In April 1982, Arthur was interviewed by a Muscle Shoals Police Department detective and denied knowing anything about Troy's homicide or knowing Wicker or Rowland. When the officer confronted Arthur with contrary information, Arthur asked to see an attorney and refused to make any further comments.
Arthur was indicted and charged with intentionally murdering Troy by shooting him with a pistol after having been convicted of second degree murder in violation of Ala.Code § 13A-5-40(a)(13) (1975). He was convicted and sentenced to death in 1982. Arthur v. State, 472 So.2d 650, 654 (Ala.Crim.App.1984) ("Arthur I"). The Alabama Supreme Court reversed this conviction, holding that the details of Arthur's prior second-degree murder conviction were improperly admitted at trial under the identity exception to the general exclusionary rule, In re Arthur, 472 So.2d 665, 668-70 (Ala.1985) ("Arthur II"), and the Alabama Court of Criminal Appeals remanded the case for a new trial, Arthur v. State, 472 So.2d 670 (Ala.Crim.App.1985) ("Arthur III").
Arthur's second trial occurred in 1987. He was again convicted, and sentenced to death. On appeal, the Alabama Court of Criminal Appeals reversed this conviction, holding that the admission of Arthur's statement to a police officer roughly two weeks after he had asserted his right to remain silent constituted plain error because Arthur did not initiate the conversation and there was no evidence that he had been given access to an attorney following his assertion of his right to remain silent. Arthur v. State, 575 So.2d 1165, 1171-75 (Ala.Crim.App.1990) ("Arthur IV"). The State of Alabama's petition for writ of certiorari was denied. In re Arthur, 575 So.2d 1191 (Ala.1991) (per curiam) ("Arthur V").
In December 1991, Arthur was tried again. Before the trial began, Arthur advised the court that he was concerned about the attorneys who had been appointed to represent him. R1-22, Exh. Vol. 5 at Trial Transcript 15-24. He explained that, after the reversal of his second trial in 1990, he did not hear from his appointed counsel, William Del Grosso ("Del Grosso") or any other attorney until July 1991. In July 1991, he received visits at the prison from both attorney Harold Walden and from Del Grosso. Walden indicated that Del Grosso would be serving as lead counsel. During his meetings with Walden and Del Grosso, Arthur requested that they move for the appointment of an investigator because there were "many aspects of this case" that had never been investigated. Id. at 16-18. Arthur explained that he attempted to communicate with Del Grosso through at least thirteen letters and at least forty telephone calls, but did not receive a response. Finally, in November 1991, less than one month before the trial was to begin, Arthur was contacted by an investigator. The investigator told Arthur that it was physically impossible to conduct the investigation that he had requested before the trial was scheduled to begin.
Because of his concerns about Del Grosso's representation of him, Arthur requested leave to participate as counsel during the trial. The trial court permitted Arthur to act as "co-counsel" with his appointed...
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