Ray v. Ala. Dep't of Corr.

• Decision Date: 06 January 2016
• Docket Number: No. 13–15673.,13–15673.
• Citation: 809 F.3d 1202
• Parties: Domineque RAY, Petitioner–Appellant, v. ALABAMA DEPARTMENT OF CORRECTIONS, Commissioner, Alabama Department of Corrections, Attorney General, State of Alabama, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

809 F.3d 1202

Domineque RAY, Petitioner–Appellant,

v.ALABAMA DEPARTMENT OF CORRECTIONS, Commissioner, Alabama Department of Corrections, Attorney General, State of Alabama, Respondents–Appellees.

No. 13–15673.

United States Court of Appeals, Eleventh Circuit.

Jan. 6, 2016.

Peter Michael Racher, Josh S. Tatum, Theresa M. Willard, Plews Shadley Racher & Braun, LLP, Indianapolis, IN, for Petitioner–Appellant.

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

Before MARCUS, WILSON, and MARTIN, Circuit Judges.

WILSON, Circuit Judge:

Alabama death row inmate Domineque Ray appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Ray was convicted of capital murder in the course of first-degree rape and first-degree robbery. The appeal before us concerns whether Ray's counsel was ineffective during the penalty phase of his trial by not investigating and presenting readily available mitigating evidence regarding his traumatizing childhood, mental deficiencies, and steroid abuse

.

I

In September 2007, Ray was indicted and charged with capital murder in the death of fifteen-year-old Tiffany Harville, whose remains were found in Selma, Alabama.

The trial court made the following findings of fact concerning the offense:

On or about August 16, 1995, Lawrence Milton was operating a tractor and bushhog just off County Road 62 in Dallas County, Alabama. As Mr. Milton went about his duties bushhogging the field, he discovered the skeletal remains of Tiffany Harville, who had been missing since on or about July 15, 1995.

Tiffany Harville was 15 years of age at the time of her death. Mary Coleman, Tiffany's mother, described the last time she [had] communicated with her daughter, Tiffany, in July 1995. Mrs. Coleman stated that she, Mrs. Coleman, was leaving town for the evening to attend a Union Workshop. She left Tiffany approximately $6 spending money. Upon Mrs. Coleman's return to Selma on Sunday afternoon, she discovered that her daughter had not been seen since 8:00 p.m. Saturday night. Mrs. Coleman described the efforts made to locate Tiffany, and further reported that the Defendant, Dominique Ray, came to her house to offer his assistance and share Mrs. Coleman's concern for her missing daughter. She testified that the Defendant offered to distribute fliers, and at one time, offered reward money to locate Tiffany. On two other occasions before Tiffany's body was discovered, the Defendant called Mrs. Coleman on the phone to make a general inquiry as to Mrs. Coleman's condition.

The investigation into the death of Tiffany Harville continued for several months. There were numerous leads and suspects, and at one time an individual was arrested and held without bond for the murder of Tiffany Harville. Finally, the codefendant in this case, Marcus D. Owden, came forward and gave the police a full accounting of the events and circumstances surrounding the death of Tiffany Harville. Owden testified at [t]rial against the Defendant Ray that it was their intent to form a mob or a gang, and that they had intended to find Tiffany Harville for the purpose of having sex with her. Owden stated that he did not know Tiffany, but that Ray did and that it was Ray's idea to go and get Tiffany. Owden testified that they had talked about having sex with her before they went to her house to get her. On the evening of July 15, 1995,¹ Owden and Ray picked Tiffany up and proceeded to take her to [the] Sardis community located in Dallas County, Alabama, on or near Highway 41. Owden stated that they had decided they were going to ask her for sex first, and if that didn't work, that they would take it. He described during his testimony how he and the Defendant Ray [had] had sex with her and how she [had] pleaded for help.

Owden testified that Ray cut her throat and that he, Owden, cut her as well. He then described that they took part of her clothing along with her purse, which contained $6 or $7.

In addition to the testimony of Marcus D. Owden, the State offered into evidence the statement of the Defendant, Dominique Ray. In his statement, he admits to his role in the rape and murder of Tiffany Harville, yet attempts to establish Owden as the primary perpetrator.

Dr. Lauridson, the State Medical Examiner with the Alabama Department of Forensic Sciences, described 12 defects in the skull which were consistent with stab-like defects. He [wa]s unable to testify with regard to soft tissue wounds

, due to the decomposition of the body.

Ray v. State, 809 So.2d 875, 879–80 (Ala.Crim.App.2001) (internal quotation marks omitted) (alterations and footnote in the original).

Initially, Alston Keith and George Jones were appointed to represent Ray. The parties jointly requested that Ray receive a mental health examination, which the trial court allowed. Dr. Ronan, a staff psychologist with the State of Alabama's Department of Mental Health and Mental Retardation, performed a mental health examination of Ray and reported Ray was competent to stand trial. Ray declined a favorable plea offer and reportedly told counsel he knew witnesses of help to his case, but he refused to provide counsel with their names or anticipated testimony. Upon Keith and Jones's request, the court relieved them of the representation and appointed William Whatley and Juliana Taylor to represent Ray.²

After a two-day trial, the jury returned a unanimous guilty verdict, convicting Ray of both Count 1 (murder during the commission of rape, first degree) and Count 2 (murder during the commission of robbery, first degree). In preparation for the penalty phase, Ray and his mother, Gladys, provided defense counsel with a list of people to contact, but counsel's efforts proved largely unsuccessful. Some potential witnesses refused to answer their doors, while at least one other answered and stated: "I'm not coming [to court]. And if I come, you don't want to hear what I have got to say [about Ray]." Ray told counsel that his brother, Europe, was "not available and not around and not in the picture," and forbade them from contacting the mother of his child. Whatley and Taylor made no attempt to contact either Europe or the mother of Ray's child. During the penalty phase before the jury, Whatley and Taylor presented only Gladys as a witness. The court also conducted a separate sentencing hearing, at which defense counsel presented eight witnesses to speak to Ray's nonviolent nature; seven of these witnesses recommended Ray receive a life sentence without parole rather than the death penalty.

The court entered an order sentencing Ray to death. The Sentencing Order stated that the Government proved beyond a reasonable doubt the following aggravating factors: Ray had been previously convicted of another capital offense (murder of the Mabin brothers); Ray committed the Harville murder in the course of or while attempting to commit first degree rape; and Ray committed the Harville murder in the course of or while attempting to commit first degree robbery. Further, the sole statutory mitigating factor was Ray's age at the time of the offense (nineteen years old) and the only non-statutory mitigating factors were evidence of Ray's "unfortunate family life"; character evidence reflecting his helpfulness to others and easygoing behavior; that he had a child; good behavior during incarceration; and testimony from witnesses that he deserved life without parole. After weighing the aggravating factors and mitigating circumstances, the court concluded that the facts warranted the death penalty.

Ray directly appealed his conviction and sentence, but the Alabama Court of Criminal Appeals affirmed and both the Alabama Supreme Court and the United States Supreme Court denied a writ of certiorari. Ray then filed a Rule 32 petition to collaterally attack his conviction. New counsel represented Ray in these state post-conviction proceedings, and argued, inter alia, that Ray received ineffective assistance of counsel at the penalty phase of his trial. The state trial court held an extensive post-conviction evidentiary hearing at which it received testimony from Ray's family members, including Europe; Whatley and Taylor, Ray's trial counsel; multiple mental health professionals; and a social worker. These witnesses presented disturbing testimony concerning Ray's childhood and mental health. In particular, Europe testified to the physical and sexual abuse he and his brother suffered as children; their abandonment in Chicago; Ray's depression, alcoholism, and suicide attempts; and the violence they witnessed against their mother. Whatley and Taylor explained that they never requested public health or school records, and, separately, that they declined to pursue a mental health or steroid abuse

defense based only on their own observations of Ray and Dr. Ronan's report, rather than arranging for additional testing or evaluation. See

Ray v. State, 80 So.3d 965, 969, 989, 997 (Ala.Crim.App.2011). After considering this additional evidence, the state trial court wrote a 107–page order denying Ray's petition in its entirety. Specifically, the court explained: "[G]iven the brutal nature of the facts surrounding Tiffany Harville's murder, the Court finds that there is no reasonable probability that more details about Ray's home life would have caused a different result in the jury's recommendation at the penalty phase of trial. This Court can affirmatively state that if the evidence presented by Ray at his evidentiary hearing had been presented during the penalty phase of trial it would not have changed this Court's determination that the aggravating circumstances outweighed the mitigating circumstances."³

Id. at 985 (citation omitted) (quoting the state trial court). Citing this particular portion of the order, the Alabama Court of Criminal Appeals affirmed. See

id. The Alabama Supreme Court once more denied a writ of certiorari.

Ray filed a timely petition for a writ of...