711 Fed.Appx. 900 (11th Cir. 2017), 15-10881, Waldrop v. Commissioner, Alabama Department of Corrections

Docket Nº:15-10881
Citation:711 Fed.Appx. 900
Opinion Judge:PER CURIAM:
Party Name:Bobby Wayne WALDROP, Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Attorney General, State of Alabama, Warden, Respondents-Appellees.
Attorney:Randall S. Susskind, Bryan A. Stevenson, Aaryn M. Urell, Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner-Appellant James Clayton Crenshaw, Andrew Lynn Brasher, Alabama Attorney General’s Office, Montgomery, AL, for Respondents-Appellees
Judge Panel:Before MARCUS, MARTIN, and JORDAN, Circuit Judges. MARTIN, Circuit Judge, concurring in the judgment:
Case Date:September 26, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 900

711 Fed.Appx. 900 (11th Cir. 2017)

Bobby Wayne WALDROP, Petitioner-Appellant,


COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Attorney General, State of Alabama, Warden, Respondents-Appellees.

No. 15-10881

United States Court of Appeals, Eleventh Circuit

September 26, 2017

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Middle District of Alabama, D.C. Docket No. 3:08-cv-00515-WKW-TFM,

Randall S. Susskind, Bryan A. Stevenson, Aaryn M. Urell, Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner-Appellant

James Clayton Crenshaw, Andrew Lynn Brasher, Alabama Attorney General’s Office, Montgomery, AL, for Respondents-Appellees

Before MARCUS, MARTIN, and JORDAN, Circuit Judges.



In 1998, Bobby Waldrop stabbed his grandparents to death. An Alabama jury convicted him of three counts of capital murder, and the trial court sentenced him to death over the jury’s recommendation of life imprisonment. Mr. Waldrop’s direct state appeals and state postconviction collateral challenges proved unsuccessful. This is Mr. Waldrop’s appeal from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

We address three issues: whether Mr. Waldrop was denied effective assistance of counsel at sentencing; whether the trial court took Mr. Waldrop’s race into account when it decided to impose the death penalty; and whether the trial court violated Mr. Waldrop’s Sixth Amendment right to a trial by jury when it rejected the jury’s 10-2 recommendation of life imprisonment and imposed a sentence of death. Following a review of the record, and with the benefit of oral argument, we affirm the district court’s denial of habeas relief.


To place Mr. Waldrop’s claims in context, we begin with the facts and procedural history.


Mr. Waldrop was born to a 14-year-old mother who often left him for days and weeks at a time. He spent much of his childhood with his maternal grandparents, Sherrell and Irene Prestridge. By all accounts, Mr. Waldrop loved the Prestridges and they loved him. When Mr. Waldrop was 19, he and his wife Clara lived in the Prestridges’ home. By then, both Sherrell and Irene had become ill and disabled. Sherrell had heart issues, hip problems, and difficulty walking. Irene was blind and bedridden. Because of their infirmities, the Prestridges had converted the living room of their home into a bedroom equipped with two hospital beds.

On April 5, 1998, Mr. Waldrop and Clara left the Prestridges’ home and checked into a hotel, where Mr. Waldrop smoked an undetermined amount of crack cocaine. Later that evening, the couple returned to the Prestridges’ home, planning to steal money to buy more drugs. Soon after the couple arrived, Mr. Waldrop and his grandfather Sherrell began arguing about

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money. Mr. Waldrop then retrieved a knife and stabbed Sherrell 43 times, killing him, while his grandmother Irene begged him to stop. As Sherrell died, Irene told her husband that she loved him and would see him in heaven. After Mr. Waldrop killed Sherrell, he went outside and removed gloves from the trunk of his car. He returned to the house and instructed Clara to kill Irene. Clara cut and stabbed Irene twice, but she could not finish what she started. Mr. Waldrop then took the knife from Clara and stabbed his grandmother 38 times. Before she died, Irene told Mr. Waldrop that she loved him.

After the murders, Mr. Waldrop went into the bathroom and cleaned off the blood. He instructed Clara to take Sherrell’s wallet, and she did so. Mr. Waldrop changed out of his clothes and put them, along with the knife, in a plastic bag which he threw into a river. Then, Mr. Waldrop and Clara used the money in Sherrell’s wallet to buy more crack cocaine. They were arrested later that day, and both of them confessed to killing Sherrell and Irene.


The State of Alabama charged Mr. Waldrop with three counts of capital murder. During the guilt phase of the trial, defense counsel presented the testimony of several witnesses, including Mr. Waldrop’s mother and a neuropharmacologist. We summarize the pertinent testimony below.

Mr. Waldrop’s mother, Shirley Irelan, testified that she was only 14 years old when she gave birth to Mr. Waldrop, and that the Prestridges raised him because she "didn’t know how to take care of a baby, and the father was not really responsible either." She also testified that Mr. Waldrop had been affected by his parents’ divorce, and that she noticed he had a substance-abuse problem when he was 16.

Dr. Randall Tackett, a professor of neuropharmacology and toxicology, testified about the effects of crack cocaine addiction. He explained that crack cocaine is a "reinforcing drug" that creates "such a craving that it becomes almost the number one thing in a person’s life." He explained that he had examined Mr. Waldrop’s statement to the police, the video tape of the crime scene, and other reports and witness statements. He opined that Mr. Waldrop was a cocaine addict who had killed his grandparents because he was desperate to "get out of the craving stage" and "get the necessary funds to buy the drug." Cocaine addiction, he said, is a disease that would have affected Mr. Waldrop’s ability to form the intent to kill. On cross-examination, however, he admitted that he had never examined Mr. Waldrop.

During his guilt phase closing argument, Mr. Waldrop’s counsel argued that the jury should find Mr. Waldrop guilty only of felony murder because his addiction to crack cocaine negated the intent necessary for capital murder. Counsel used Dr. Tackett’s testimony to explain that an addict chooses drugs "above family, chooses it above religion and morals, his brothers, his sisters, his grandparents— cocaine is everything." The jury found Mr. Waldrop guilty on all three counts of capital murder— i.e., two counts of capital murder during a robbery in the first degree, in violation of Ala. Code § 13A-5-40(a)(2), and one count of capital murder of two or more persons pursuant to a common scheme, in violation of Ala. Code § 13A-5-40(a)(10).


The penalty phase began immediately after the jury returned its guilty verdict and lasted four hours. The state presented no additional evidence. Mr. Waldrop testified on his own behalf, and he also presented

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the testimony of Dr. Tackett and the county sheriff.

Mr. Waldrop explained that in December of 1997 he began using crack cocaine, heroin, and methamphetamine on a near-daily basis. He told the jury that he committed the crimes because of the drugs he was using: "I love my grandparents very much and at that time I was on these drugs— I mean I was not— I wasn’t the person that I am now. I mean, it was like this was all I cared about. I didn’t care about my family. I didn’t care about my wife. I didn’t care if I hurt myself or anybody else."

Dr. Tackett reiterated that he believed Mr. Waldrop was addicted to cocaine and that the addiction is akin to a disease that "changes ... the brain chemistry" and "produce[s] abnormal behaviors." He also explained that crack cocaine would exacerbate the emotional issues that someone with Mr. Waldrop’s background would have. Lastly, the county sheriff testified that Mr. Waldrop had not caused any problems while he was incarcerated pending trial.

After the penalty-phase hearing, the jury recommended a sentence of life imprisonment by a 10-2 vote. Following the jury’s recommendation, the trial court scheduled a final sentencing hearing where it heard the parties’ arguments on the aggravating and mitigating circumstances. Neither party presented new evidence at the hearing.

The state argued that a death sentence was warranted because the aggravating circumstances outweighed the mitigating circumstances. It asserted that the jury had already found one statutory aggravating circumstance— that the murders were committed during a robbery— when it convicted Mr. Waldrop of capital murder during a robbery in the first degree, and that made death the appropriate sentence. The state also argued, as a second statutory aggravating circumstance, that a death sentence was warranted because the murders were "especially heinous, atrocious, or cruel."

Defense counsel argued that four statutory mitigating factors applied: (1) Mr. Waldrop had a relatively minor criminal record; (2) he committed the murders while under the influence of extreme mental or emotional disturbance; (3) his capacity to conform his conduct to the requirements of law was substantially impaired; and (4) he was only 19 at the time of the crimes. Mr. Waldrop’s counsel also relied on a number of non-statutory mitigating factors— that Mr. Waldrop was from a broken home, was remorseful, had a good work record, and had behaved well while incarcerated— to support his argument against a sentence of death.

In its sentencing order, the trial court found that the state had proven both statutory aggravating circumstances: the murders were committed during a robbery, and they were especially heinous, atrocious, or cruel. The trial court generally found that Mr. Waldrop had established the four statutory mitigating circumstances, but accorded those circumstances almost no weight. See, e.g., R-68 at 5 (explaining that it was giving no "real weight" to Mr. Waldrop’s lack of "significant history of prior criminal activity" ), at 8 ("The [defendant’s age] is not due to be given a great deal of weight." ). With respect to the non-statutory mitigating circumstances, the trial court found that Mr. Waldrop was not...

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