Borden v. Allen

• Decision Date: 12 July 2011
• Docket Number: No. 09–14322.,09–14322.
• Citation: 23 Fla. L. Weekly Fed. C 110,646 F.3d 785
• Parties: Jeffery Lynn BORDEN, Petitioner–Appellant,v.Richard F. ALLEN, Commissioner Alabama Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

646 F.3d 785

23 Fla. L. Weekly Fed. C 110

Jeffery Lynn BORDEN, Petitioner–Appellant,

v.Richard F. ALLEN, Commissioner Alabama Department of Corrections, Respondent–Appellee.

No. 09–14322.

United States Court of Appeals, Eleventh Circuit.

July 12, 2011.

Alfred F. Smith, Jr. (Court–Appointed), Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, AL, Michael J. Bleck (Court–Appointed), Mark S. Olson (Court–Appointed), Oppenheimer, Wolff & Donnelly, LLP, Minneapolis, MN, 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 TJOFLAT, WILSON and BLACK, Circuit Judges.TJOFLAT, Circuit Judge:

Jeffery Lynn Borden is a death row inmate in the Alabama prison system; he was convicted of capital murder in the Circuit Court of Jefferson County, Alabama, in September 1995. He seeks a writ of habeas corpus vacating his death sentence on the ground that his attorneys rendered ineffective assistance of counsel during the penalty phase of his murder trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.¹ To obtain the writ, Borden must establish that the decision of the Alabama Court of Criminal Appeals denying his ineffective assistance of counsel claims “(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The United States District Court for the Northern District of Alabama held that it was not and denied the writ. After reviewing the record that was before the Court of Criminal Appeals and considering the arguments of the parties' counsel—both in their briefs to this court and in oral argument—we conclude that Borden has established neither point. We explain why Borden is not entitled habeas corpus relief after recounting the facts that led to his conviction and the reasons why the Court of Criminal Appeals rejected his claim that his attorneys' performance in the penalty phase of his trial was constitutionally deficient.

I.

On December 24, 1993, Cheryl Borden and her father, Roland Dean Harris, were murdered during a family holiday gathering. The facts relating to the crime are not in material dispute:

The evidence tended to show that on Christmas Eve of 1993, there was a large family gathering at the home of Juanita and Roland Harris in Gardendale. At around 6:45 p.m., [Borden], who was married to but legally separated from the Harris's daughter, Cheryl Borden, arrived at the Harris's residence with his and Cheryl's three children. The children, who had continued to live with their mother in Gardendale after her separation from [Borden], had spent the previous week visiting [Borden] in Huntsville—where [Borden] was then residing. [Borden] was to return the children to Gardendale in time to spend Christmas with their mother. When the children arrived at their grandparents' house, their grandfather, Roland Harris, came outside to help unload their clothes and Christmas gifts from [Borden]'s car. Shortly thereafter, the children's mother, Cheryl Borden, arrived at her parents' house and began to help her children move some of their things from [Borden]'s car to her car. In front of the children, [Borden] then took out [a] .380 caliber semiautomatic pistol and shot Cheryl Borden in the back of her head. Cheryl fell to the ground. Her father, Roland Harris, who was also present in the front yard, began to run toward the front door of the house yelling for someone to telephone 911. [Borden] chased Harris and fired several shots toward him and in the direction of the house. Harris made it into the house as [Borden] continued to shoot at him from the yard. One of the bullets fired from [Borden]'s gun struck and shattered a glass storm door at the front entrance of the house. Once inside the house, Harris collapsed on the floor. At some point during the shooting, a bullet had struck Harris in his back. As [Borden] shot at Harris, the three children ran through the garage of the residence and came into the house through a back entrance, screaming that their father had shot their mother and that she was dead. Several other family members were inside the house during the incident and scrambled to take cover from the gunfire.

Cheryl Borden and her father, Roland Harris, were transported to a local hospital, where they died later that evening. [Borden] was arrested and charged with their murders.

The pistol used in the shooting incident was recovered at the crime scene. Testimony at trial indicated that the pistol held a total of eight rounds of ammunition and that when it was recovered, it contained one unfired cartridge. There was evidence that at least some of the bullets fired by [Borden] entered the living area of the house.

Borden v. State, 711 So.2d 498, 500–01 (Ala.Crim.App.1997) (footnote omitted).

A.

On May 6, 1994, a Jefferson County grand jury returned an indictment charging Borden with two counts of capital murder for the deaths of Cheryl Borden and Roland Harris. Count I of the indictment charged Borden with the capital offense 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). Count II charged Borden with the capital offense of “[m]urder committed by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim is in a dwelling.” Id. § 13A–5–40(a)(16).

Judge Michael W. McCormick presided over the jury trial in the Circuit Court of Jefferson County, and Borden was represented by two court-appointed attorneys, J. Massey Relfe, Jr., and Michael Shores,² both of Birmingham, Alabama. Following voir dire and jury selection, the trial began on September 12, 1995.

At the guilt phase of the trial³ Borden pled the affirmative defense of not guilty by reason of mental disease or defect.⁴ Borden's counsel sought to shift the focus away from the facts of the crime to Borden's mental capacity from the outset. In his opening statement, defense counsel conceded that “[t]here's not going to be a whole lot of dispute about the underlying facts in this case” and quickly turned the jury's attention to a watershed event in Borden's life: a severe 1977 automobile accident in which he suffered closed-head trauma and that left him comatose for four days. Continuing, counsel discussed Borden's “bizarre behavior patterns” as “what the doctors, I think, would call depressive patterns with psychotic features that culminated in 1981 with a suicide attempt when Jeff was rehospitalized.” Counsel walked the jury through Borden's storied mental health history, replete with hospitalizations, suicide attempts, and medications designed to address mental health issues. He culminated this history by stating, “Over the course of this time that we've just talked about Jeff has been hospitalized a total of eight times particularly for mental problems .... He's placed on seven different medications ....” Importantly, counsel indicated that the jury would hear from several witnesses, including Borden's mother and expert medical witnesses who had evaluated Borden, and that the jury would be able to examine medical records to “find out what the doctors were saying then about Jeff's mental problems.”

Following the close of the State's case in chief,⁵ the defense first called Borden's mother, Eloise Borden (“Mrs. Borden”), to the stand. Mrs. Borden testified that as a child and young man Borden did not experience any problems that were “out of the ordinary,” save “some depression” following his brother's death in 1971—when Borden was eleven years old. Defense counsel then shifted his attention to Borden's 1977 automobile accident. Mrs. Borden testified that her son was unconscious for four days following the accident, and that once he regained consciousness he was “not aware of everything that was going on around him.” Apparently seeking to establish the accident as a turning point for Borden's psychological profile, counsel asked Mrs. Borden about Borden's behavioral changes following the accident. Mrs. Borden noted a change in sleep patterns as well as depression, stating that “[h]e was just, you know, a different—total change.”

Mrs. Borden further testified that her son's psychological problems reached such a point that she and her husband took him to a hospital in 1981, at which point he was diagnosed as “severely depressed” and placed on “a bunch of” medication. She spoke further of injuries Borden suffered throughout the 1980s, one of which ultimately required neck surgery in November 1992. When asked if Borden was “exhibiting any or beginning to exhibit any other bizarre behaviors,” Mrs. Borden replied, “He was seeing things that weren't there. People were after him. They were after his family to hurt them.” She discussed his twelve-day placement in a “secure facility” in July 1992 at Brookwood Hospital under the supervision of a Dr. L.E. Shehi, and his return to that facility in October of the same year. She spoke of his re-hospitalization—this time in Tennessee—after “he overdosed again” by taking 250 extra-strength Tylenol and 100 ibuprofen. Moreover, Mrs. Borden told the jury that Borden had been subjected to nine “shock treatments” at the Centennial Medical Center in the summer of 1993.⁶

On cross-examination, the State focused on Borden's spotty work record. Most importantly for our analysis, the prosecutor asked Mrs. Borden whether “the medical doctor who knows the most about Jeff, who saw him most frequently [from late 1992 until late 1993] is Dr. Shehi; is that right?” She answered affirmatively.

The defense next called Dr. J. Wesley Libb, a clinical psychologist working at the...