Barksdale v. Dunn, CASE NO. 3:08-CV-327-WKW [WO]

• Decision Date: 21 December 2018
• Docket Number: CASE NO. 3:08-CV-327-WKW [WO]
• Parties: TONY BARKSDALE, AIS No. 0000z611, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Alabama

TONY BARKSDALE, AIS No. 0000z611, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

CASE NO. 3:08-CV-327-WKW [WO]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

December 21, 2018

MEMORANDUM OPINION AND ORDER

Petitioner Tony Barksdale filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his November 1996 Tallapoosa County conviction for capital murder and sentence of death. For the reasons set forth below, Petitioner is not entitled to either habeas corpus relief or a Certificate of Appealability.¹

I. BACKGROUND

A. The Offense and Aftermath

Late on the afternoon of December 1, 1995, Petitioner Tony Barksdale fatally shot 19-year-old Julie Rhodes twice - one in the face and once in the back. That fact has never been in genuine dispute. The circumstances under which Petitioner twice shot his victim, however, were actively contested and litigated fully during Petitioner's November 1996 capital murder trial.

The Alabama Court of Criminal Appeals' opinion affirming Petitioner's conviction and sentence of death includes the following description of the relevant circumstances surrounding Petitioner's fatal shooting of Julie Rhodes, which quotes extensively from the trial court's Sentencing Order²:

On Thursday night [November 30, 1995], [Tony] Barksdale, [Jonathan David] Garrison, and [Kevin] Hilburn were together in the Guntersville area. Barksdale wanted to go to Alexander City, so very early Friday morning they stole a car in Guntersville and headed for Alexander City. About seven o'clock in the morning they wrecked the car near Sylacauga, but were able to obtain a ride from someone in the neighborhood, who took them to Alexander City.³ Throughout most ofthe day, they visited or came in contact with persons with whom Barksdale was acquainted, and asked several of them to take them to Guntersville.⁴ No one would. During that afternoon, they made many attempts to flag down vehicles belonging to strangers, but few would stop.⁵ Finally one person gave them a ride as far as a local shopping center.⁶ They approached several people without success. One acquaintance testified that Barksdale said he would "jack" somebody to get back to Guntersville.⁷ Several others testified to seeing him witha gun.⁸ Barksdale had the gun when the three left Guntersville, and he was the only one armed. Barksdale told the other two that he would shoot someone in order to get a ride back to Guntersville, and he would rather shoot one than two.⁹

The victim, 19-year-old Julie Rhodes, worked at a store in the shopping center. As she was returning in her old Maxima automobile from her supper break to the parking area, Barksdale flagged her down and the three of them got in the car with the victim.¹⁰ Barksdale wasseated in the backseat. He gave Julie directions to drive in the neighborhood, and to turn into a "dead-end" street and stop.¹¹ Garrison and Hilburn got out and ran behind a nearby shed.¹² The Maxima moved along the street past several houses, turned into a driveway, backed out, and came back down the street.¹³ Two shots were fired by Barksdale and the car stopped.¹⁴ Barksdale pushed Julie out of the car and told Garrison and Hilburn to get in.¹⁵ They went to some place in Alexander City and disposed of somethings that were in the car and then drove back to Guntersville.¹⁶ Barksdale still had the gun anddisplayed it to several people. All of them were arrested several days later and the automobile and pistol were recovered.¹⁷

Desperately seeking help and trying to escape, Julie managed to get to some nearby houses.¹⁸ Someone heard her screams and she was discovered lying in the yard of a house, bleeding profusely.¹⁹ Medics were called and she was transported to a local hospital for emergency treatment and then transported by helicopter to Birmingham²⁰ She wasdead on arrival in Birmingham.²¹ She was shot once in the face and once in the back. She was bleeding to death and went into shock.²² She was fearful and was trying to escape her assailant and expressed several times to various people, including medical personnel, that she was going to die.²³ She was correct.

Barksdale v. State, 788 So. 2d 898, 901-02 (Ala. Crim. App. 2000), cert. denied, 788 So. 2d 915 (Ala. 2000), cert. denied, 532 U.S. 1055 (2001) (Footnotes added).

B. Indictment

On February 9, 1996, a Tallapoosa County grand jury indicted Petitioner and David Garrison on three counts of capital murder, i.e., three different theories concerning the fatal shooting of Julie Rhodes.²⁴

C. The Fate of Petitioner's Co-Defendants

Although arrested with Petitioner and Garrison, by the time of Petitioner's capital murder trial Kevin Hilburn was deceased.²⁵ Shortly before the start of their joint capital murder trial, Petitioner's co-defendant Garrison accepted a plea bargain, entered a guilty plea to a lesser charge of murder, and received a life sentence withthe possibility of parole.²⁶ As part of his plea bargain, Garrison agreed to testify against Petitioner.²⁷

D. Guilt-Innocence Phase of Trial

Jury selection in Petitioner's capital murder trial commenced on November 11, 1996.²⁸ The guilt-innocence phase of Petitioner's capital murder trial began November 20, 1996.²⁹

1. Prosecution's Evidence

In addition to the testimony summarized above in Section I.A., the prosecution presented and the jury heard testimony from (1) Julie's co-workers and grandmother about the events of the evening in question,³⁰ (2) a person who saw her vehicle driving erratically just prior to the fatal shooting,³¹ (3) two people who werein the neighborhood where Julie was shot who heard gunfire,³² (4) the law enforcement officer who took custody of Julie's bloody clothing at the hospital in Alexander City where she was initially treated,³³ (5) forensic scientists who examined the physical evidence recovered during the investigation of Julie's fatalshooting,³⁴ including the weapon that fired the fatal shots,³⁵ (6) law enforcement officers who examined, photographed, and recovered a spent bullet and multiplebloodstains from the area near the intersection in Alexander City where Julie's fatal shooting took place,³⁶ and (7) a number of Petitioner's acquaintances with whom Petitioner had conversations about his gun and the fatal shooting in Alexander City,³⁷ including the young man to whom Petitioner gave the gun Petitioner used tofatally shoot Julie Rhodes.³⁸ Numerous witnesses in the Guntersville and Albertville areas testified they observed Petitioner, Garrison, and Hilburn in Julie Rhodes's Nissan Maxima and heard Petitioner and his companions claim ownership of the vehicle in the hours and days after her fatal shooting.³⁹

A surgeon who treated Julie in the emergency room and operated on her at the hospital in Alexander City testified regarding her injuries and his surgical team's efforts to stabilize her prior to her transport to Birmingham.⁴⁰ The forensic pathologist who conducted Julie's autopsy testified regarding the nature of her wounds and her cause of death.⁴¹

A previous owner of the pistol Petitioner used to fatally shoot Julie Rhodes testified that he bought the gun new and it jammed the first time he fired it. He had repeated problems with the mechanism that pulls the spent shell casing out of the chamber after firing. The clip that holds the retainer on the side would slide out and also cause the gun to jam, The gun's safety also moved back and forth when the gun was fired repeatedly. He traded the gun in to a dealer in 1992. He had no idea what had happened to the gun in the intervening years but, after examining it on the stand at Petitioner's trial, it was apparent that "someone has done extensive work on it." The gun now had a new grip. The gun was a single action semi-automatic that had to be cocked the first time before it would fire, i.e., if you fire it twice, you have to pull the trigger twice. He told police he had never experienced any type of accidental discharge of the weapon.⁴²

The law enforcement officer who interviewed Petitioner on December 4, 1995 identified an audio tape recording of that interview that was played in open court for the jury as part of the prosecution's case-in-chief.⁴³ As recorded by the court reporter, Petitioner's recorded statement included the following exchanges:

INVESTIGATOR RIDDLE: What can you tell me about that? In your own words, explain to me what happened, okay?

MR. BARKSDALE: Well, we was stuck up at a mall. They was having a parade. She had pulled up. I asked her if she could give us a ride to one of my friend's houses. And while we was driving, she said she had to be at work. I said that she could drop us off close to where my friend's house was at. I had already had the gun on me. One of my friends had gave me a gun earlier that day. I didn't want her to be scared. I didn't want to be walking down the street with a loaded pistol.

INVESTIGATOR RIDDLE: Un, huh.

MR. BARKSDALE: I was trying to empty the chamber. As I went to empty the chamber, it got stuck. The gun went off. It went off twice. It went boom. I did it the first time. I did it like this and it went boom.

INVESTIGATOR RIDDLE: Did you know you hit her the first time?

MR. BARKSDALE: The first time when it went off, I heard her screaming. Then when it went off the second time, that is when she looked back at me. I saw blood in her mouth. I went into shock myself. I thought naw, naw I couldn't have done this. This couldn't be happening. I got out of the car. I jumped out of the driver's seat . . . . I mean, I jumped out of the passenger's seat and got in the driver's seat. I pulled around the corner where Kevin and Dave was at. They hadalready got out of the car. Before I got out of the car, I wanted to make sure it was unloaded and that there wouldn't none in the chamber. That was my first time really ever having an automatic pistol. So, it got jammed and went off. When it went off the first time, I don't

...