Magwood v. Culliver
| Decision Date | 23 January 2009 |
| Docket Number | No. 07-12208.,07-12208. |
| Citation | 555 F.3d 968 |
| Parties | Billy Joe MAGWOOD, Petitioner-Appellee, Cross-Appellant, v. Grantt CULLIVER, Warden, Richard F. Allen, Commissioner, Alabama Departments of Corrections, Troy King, Attorney General of Alabama, Respondents-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Corey Landon Maze, Atty. Gen., Beth Jackson Hughes, Montgomery, AL, for Respondents-Appellants, Cross-Appellees.
Marguerite Del Valle and James A Power, Jr. (Court-Appointed), Power Del Valle, LLP, New York City, for Magwood.
Appeals from the United States District Court for the Middle District of Alabama.
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
Grantt Culliver, Richard F. Allen and Troy King (the State) appeal the district court's partial grant of Alabama death-row inmate Billy Joe Magwood's 28 U.S.C. § 2254 habeas corpus petition on Magwood's fair-warning claim1 and ineffective assistance of counsel based on the fairwarning claim. Magwood cross-appeals the partial denial of his petition, raising the multiple issues as discussed in section III. B. of this opinion. After review, we affirm in part and reverse in part and render judgment in favor of the State.
The facts of Magwood's offense are not in dispute. They are set forth in an opinion by the Alabama Court of Criminal Appeals, as follows:
Thomas Weeks, a Coffee County Deputy Sheriff, testified he was employed as the county jailer on March 1, 1979, under Coffee County Sheriff Neil Grantham. The witness stated he observed [Magwood], whom he recognized as a former jail inmate, sitting in a car parked in Sheriff Grantham's parking space at approximately 6:45 a.m. Shortly before 7:00 a.m., he observed Sheriff Grantham drive up and park his vehicle. He got out of the automobile, walked to some garbage cans and deposited a trash bag, and then walked towards the jail door. [Magwood] got out of his automobile with something in his hand and met Sheriff Grantham at the rear of the car. At that point, Deputy Weeks heard three gunshots and saw Sheriff Grantham fall. The witness then turned back into the jail and obtained a gun. He observed [Magwood] get back into his car and saw that he held a pistol in his hand. He exchanged fire with [Magwood] as he drove away. Deputy Weeks then went over to where Sheriff Grantham lay on the ground and observed that the Sheriff's face was blue and that he appeared not to be breathing, having apparently been hit in the face and neck. Deputy Weeks stated he observed no one else in the area at the time the Sheriff was killed.
Magwood murdered Sheriff Grantham on March 1, 1979. Magwood was convicted and sentenced to death for the murder on June 2, 1981. On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Magwood's conviction and death sentence. Magwood v. State, 426 So.2d 918 (Ala. Crim.App.1982), aff'd, 426 So.2d 929 (Ala. 1983). The United States Supreme Court denied Magwood's petition for writ of certiorari. Magwood v. Alabama, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).
On July 13, 1983, Magwood filed a petition for writ of error coram nobis in the Circuit Court of Coffee County. This petition was denied and on March 20, 1984, the Alabama Court of Criminal Appeals affirmed the denial of the coram nobis petition. Magwood v. State, 449 So.2d 1267 (Ala.Crim.App.1984). A motion for out-of time appeal was denied by the Alabama Supreme Court on June 5, 1984. Ex parte Magwood, 453 So.2d 1349 (Ala.1984).
Magwood then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama. On March 26, 1985, the district court upheld Magwood's conviction but conditionally granted the writ as to the sentence, based on the failure of the sentencing court to find two mitigating circumstances. Magwood v. Smith, 608 F.Supp. 218 (M.D.Ala.1985). This Court affirmed the district court's decision. Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986).
A resentencing hearing was conducted on September 17, 1986. On October 2, 1986, the Alabama trial court, after considering the additional mitigating circumstances as ordered by the federal district court, again sentenced Magwood to death. The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Magwood's resentencing. Magwood v. State, 548 So.2d 512 (Ala.Crim.App.), aff'd, 548 So.2d 516 (Ala.1988). The United States Supreme Court denied Magwood's petition for writ of certiorari. Magwood v. Alabama, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989).
Magwood filed an application in this Court for permission to file a second habeas corpus petition in the district court challenging his conviction, which we denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir.1997). Magwood filed a second habeas petition challenging his resentencing on April 23, 1997. The district court granted Magwood's habeas petition on his fairwarning claim and ineffective assistance of counsel based on the fair-warning claim and vacated Magwood's death sentence. The district court denied relief on all other claims. Magwood v. Culliver, 481 F.Supp.2d 1262 (M.D.Ala.2007).
The State appeals as of right the two issues on which the district court granted relief. The district court granted a certificate of appealability as to all of the issues Magwood cross-appeals.
Magwood filed this habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and AEDPA applies to this appeal. Under AEDPA, "[a] federal court may not grant a petition for a writ of habeas corpus to a state prisoner on any claim that has been adjudicated on the merits in state court unless the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." Clark v. Crosby, 335 F.3d 1303, 1308 (11th Cir.2003). A federal court's review is further restricted by 28 U.S.C. § 2254(e), which provides " a determination of a factual issue made by a State court shall be presumed to be correct" and places the burden on the petitioner to rebut the presumption of correctness "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
The State asserts the district court erred when it granted relief on Magwood's claim that the retroactive application of the judicial rule in Ex parte Kyzer, 399 So.2d 330 (Ala.1981), deprived Magwood of due process of law because the claim is precluded under 28 U.S.C. § 2244(b) as successive.2
A review of Alabama's death penalty laws at the time of Magwood's offense and Ex parte Kyzer will be helpful in the analysis of Magwood's fair-warning claim.
Magwood committed the crime on March 1, 1979. At that time, Alabama's death penalty statute provided in Alabama Code § 13-11-2(a)(5) (1975):
(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:
(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard.
Alabama Code § 13-11-4 (1975), entitled "Determination of sentence by court; court not bound by punishment fixed by jury" provided:
Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. If the court imposes a sentence of death, it shall set forth in writing as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:
(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death . . . .
Alabama Code § 13-11-6 (1975), did not have a corresponding aggravating circumstance to the crime for which Magwood was convicted, namely the murder of a law enforcement officer. Additionally, the resentencing court specifically found that Magwood's crime did not qualify him for any of the listed aggravating circumstances enumerated in Alabama Code § 13-11-6 (1975).
Thus, although Magwood's conviction under Alabama Code § 13-11-2(a)(5) (1975), forced the jury to fix the punishment at death, the judge could nonetheless sentence Magwood to life imprisonment without parole. Magwood asserts that under Alabama Code § 13-11-4 (1975), he should have been sentenced to life imprisonment, as § 13-11-4 (1975) requires there be an aggravating circumstance listed in § 13-11-6 (1975). Magwood did not have an aggravating circumstance listed in § 13-11-6 (1975), to correspond with his crime.
In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court found fault with the Alabama death penalty scheme because it failed to allow a jury in a...
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