654 F.3d 1204 (11th Cir. 2011), 09-13267, Loggins v. Thomas

Docket Nº:09-13267.
Citation:654 F.3d 1204
Opinion Judge:CARNES, Circuit Judge:
Party Name:Kenneth LOGGINS, Petitioner-Appellant, v. Kim T. THOMAS, Interim Commissioner, Alabama Dept. of Corrections, the Attorney General of the State of Alabama, Luther Strange, Respondents-Appellees.
Attorney:Julia Tarver-Mason Wood, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Martin Flumenbaum, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City, for Appellant. John C. Neiman, Jr., John J. Davis, Office of the Attorney General, Montgomery, AL, for Appellees.
Judge Panel:Before CARNES, ANDERSON and FARRIS,[*] Circuit Judges.
Case Date:September 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1204

654 F.3d 1204 (11th Cir. 2011)

Kenneth LOGGINS, Petitioner-Appellant,

v.

Kim T. THOMAS, Interim Commissioner, Alabama Dept. of Corrections, the Attorney General of the State of Alabama, Luther Strange, Respondents-Appellees.

No. 09-13267.

United States Court of Appeals, Eleventh Circuit.

September 7, 2011

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[Copyrighted Material Omitted]

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Julia Tarver-Mason Wood, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Martin Flumenbaum, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City, for Appellant.

John C. Neiman, Jr., John J. Davis, Office of the Attorney General, Montgomery, AL, for Appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, ANDERSON and FARRIS,[*] Circuit Judges.

CARNES, Circuit Judge:

Kenneth Loggins was convicted and sentenced to death in 1995 for the sadistic and brutal murder of Vickie Deblieux. Because he was seventeen years old when he committed the murder, the state courts eventually set aside his death sentence based on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that it was unconstitutional to execute anyone who was under eighteen years of age at the time of the crime,

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id. at 578-79, 125 S.Ct. at 1200. See Loggins v. State, No. CR-04-1567 (Ala.Crim.App. Dec. 8, 2005) (order remanding to trial court for resentencing). Loggins was resentenced to life imprisonment without parole, see Loggins v. State, No. CR-04-1567, 978 So.2d 72 (Ala.Crim.App. Apr. 21, 2006) (unpublished memorandum opinion), which was the next most severe penalty Alabama law provided for the crime that he had committed, see Ala.Code §§ 13A-5-39, 13A-5-45. Having escaped the death penalty Loggins now seeks to escape his life without parole sentence, contending that it, too, is an unconstitutional penalty for him because he was not yet eighteen years old at the time he committed the murder.

I.

On the night of February 21, 1994, a friend dropped Vickie Deblieux off on Interstate 59 near Chattanooga, Tennessee. She intended to hitchhike to her mother's home in West Monroe, Louisiana, and had telephoned her mother to let her know that she was coming. Deblieux made it as far south as Jefferson County, Alabama. Unfortunately for her, Kenneth Loggins and three of his friends were also out that night, drinking beer and using drugs. They spotted Deblieux at an interstate exit in Jefferson County.

Promising to take her to Louisiana, Loggins and the other men lured Deblieux into their car and then drove her to a remote wooded area on the pretense of picking up another vehicle. When she protested being taken there, Loggins assured her that everything was okay. Of course, it wasn't. Once they arrived in the wooded area where the truck was located and got out of the car, Loggins and the three other men began drinking again. One of them hit Deblieux in the head with a beer bottle. She tried to run away, but they tackled her. As she lay on the ground, Loggins and the other men kicked Deblieux all over her body, over and over again. When they realized that she was still alive despite the vicious beating they had inflicted on her, Loggins stood on her throat until she gurgled up blood. She finally said " Okay, I'll party." Then she died.

Loggins and the other men threw Deblieux's body into the back of their pickup truck, and drove to Bald Rock Mountain in adjacent St. Clair County, Alabama. Once there, they removed all of Deblieux's clothes. After playing with her naked corpse for awhile, they tossed it over the side of a cliff. Loggins and the others then left and went to a car wash in a nearby town. There they washed the blood out of the truck and rummaged through Deblieux's luggage before scattering it in the woods near the car wash.

Later that night, Loggins and two of the other men returned to Bald Rock Mountain and defiled Deblieux's body. They cut off her fingers, and they removed one of her teeth, and they cut out her left lung. According to Loggins, that was not all that they did. He later bragged to some friends that he and one of the other men had removed part of Deblieux's heart, taken a bite out of it, and " spit it into her face." Loggins' desecration of his innocent victim's body was consistent with some of his other behavior: he was involved with a " skinhead group," he sometimes slept in a cemetery, and he carried around a black notebook in which he indicated his fascination with death, dying, and " Satan worship."

The morning after the murder Loggins' girlfriend and another woman were looking for him. They found him and two of his friends asleep in a pickup truck in the parking lot of a fast food restaurant. All three men were covered in blood and mud. When asked what they had been doing, Loggins replied that they " had killed a dog or something that was chasing [his] truck."

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On February 26, 1994, a group of hikers on Bald Rock Mountain discovered Deblieux's mutilated body and called the police. The body was taken to the medical examiner's office, where a full autopsy was conducted. The autopsy revealed that Deblieux's face was covered with lacerations, every bone in her face was fractured at least once, almost every bone in her skull was fractured, a tooth was missing, her left eye was collapsed, her right eye had hemorrhaged, there were two large incisions in her chest, her left lung had been removed, she had 180 post-mortem stab wounds, and all of her fingers and both thumbs had been cut off.

In the weeks following the murder, when Loggins and the other three murderers " seem[ed] bored," they " would kind of jokingly say let's go pick up a hitchhiker" and allude to other facts of their crime. A member of the group showed a friend of his one of Deblieux's severed fingers, which he had been keeping in a ziplock bag. That led to the arrest of all four of those who had participated in Deblieux's murder.

II.

This is Loggins' appeal from the district court's denial of his 28 U.S.C. § 2254 petition seeking relief from the life without parole sentence, which was eventually imposed on him after he was convicted for the crime of murder during the course of a kidnapping in the first degree, in violation of Alabama Code § 13A-5-40(a)(1). Loggins presses three claims concerning his sentence, but before we address them we have to address two preliminary matters. The first one is whether those three claims are procedurally barred. The second one is whether the three claims were, in the language of the habeas statute, " adjudicated on the merits in State court proceedings" and thus are subject to the deferential standard of review prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(d). Both questions implicate the complicated procedural history of this case, which we will need to set out in some detail, especially to answer the second question.

A.

On August 5, 1994, a grand jury in Jefferson County, Alabama, indicted Loggins on two counts of capital murder. Loggins v. State, 771 So.2d 1070, 1074 (Ala.Crim.App.1999). Count I charged him under Alabama Code § 13A-5-40(a)(1) with the capital offense of murder committed during the course of a kidnapping. Loggins, 771 So.2d at 1074. Count II charged him under Alabama Code § 13A-5-40(a)(2) with the capital offense of murder committed during the course of a robbery. A jury found Loggins guilty of capital murder, as charged in Count I. Loggins, 771 So.2d at 1074. The jury did not find him guilty of capital murder as charged in Count II, but instead on that count it convicted him of the lesser included offense of intentional but non-capital murder under Alabama Code § 13A-6-2(a)(1). Loggins, 771 So.2d at 1074. The jury voted 10 to 2 to recommend that Loggins be sentenced to death for his conviction under Count I. Id. Agreeing with the jury's recommendation, the trial court sentenced Loggins to death for his conviction under Count I. It also sentenced him to life in prison (with parole eligibility) for his conviction on the lesser included offense of non-capital murder under Count II. Id.

Four years later the Alabama Court of Criminal Appeals affirmed Loggins' capital murder conviction and death sentence under Count I, but the Court vacated his conviction and life sentence for intentional murder under Count II because it was for the same conduct that was being punished under Count I. Id. at 1092-93. On June

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2, 2000, the Alabama Supreme Court affirmed the decision of the Court of Criminal Appeals. Ex parte Loggins, 771 So.2d 1093 (2000). That concluded Loggins' direct appeal of his capital conviction and sentence.

On August 29, 2001, Loggins filed in the state trial court a timely " Petition for Relief from Judgment" under Rule 32 of the Alabama Rules of Criminal Procedure. In that petition he raised numerous claims, including some for ineffective assistance of counsel and one claim that imposing the death penalty on a person who was seventeen years old at the time of his crime violated " the Treaty and International Law Obligations of the United States and the State of Alabama." After the State filed a response, the trial court summarily denied Loggins' Rule 32 petition on December 10, 2001.

At this point the procedural history becomes somewhat convoluted. In May 2002, some six months after his Rule 32 petition had been denied, Loggins filed a motion with the trial court asking it to vacate and then reissue its December 10, 2001 order denying his petition. Loggins v. State, 910 So.2d 146, 148 (Ala.Crim.App.2005). Loggins' motion claimed that he had been unaware that his Rule 32 petition had been denied until the State notified him of the fact in May 2002, which was too late for him to file a timely appeal of the denial order. Id. The trial court granted Loggins' motion on May 28, 2002. On that same date it...

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