Cade v. Haley

• Decision Date: 17 August 2000
• Docket Number: No. 99-6052,99-6052
• Citation: 222 F.3d 1298
• Parties: (11th Cir. 2000) Clyde CADE, Petitioner-Appellant, v. Michael HALEY, Commissioner of the Alabama Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1298

222 F.3d 1298 (11th Cir. 2000)

Clyde CADE, Petitioner-Appellant, v. Michael HALEY, Commissioner of the Alabama Department of Corrections, Respondent-Appellee.

No. 99-6052.

United States Court of Appeals, Eleventh Circuit.

Aug. 17, 2000.

Appeal from the United States District Court for the Middle District of Alabama. (94-01137-CV-A-S), W. Harold Albritton, III, Chief Judge.

Before COX, BIRCH and BLACK, Circuit Judges.

COX, Circuit Judge:

Clyde Cade, an Alabama inmate under a death sentence for murder, appeals the district court's denial of relief on his 28 U.S.C. § 2254 petition. We affirm.

I. Background

Cade was originally convicted and sentenced to death in 1978. His conviction was vacated by the United States Supreme Court because at the time the Alabama death-sentencing procedure did not comply with the Eighth Amendment. See Cade v. State, 375 So.2d 802 (Ala.Crim.App.1978), aff'd, 375 So.2d 828 (Ala.1979), vacated, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980). After Alabama changed that procedure, see Beck v. State, 396 So.2d 645 (Ala.1980), Cade was again tried, convicted, and sentenced to death in 1982, see Cade v. State, 521 So.2d 80 (Ala.Crim.App.1986), aff'd, 521 So.2d 85 (Ala.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 153 (1988).

Cade's conviction is based on events that took place in 1977. Late in the afternoon on August 3, Cade shot the sheriff of Geneva County, Alabama three times.¹ Sheriff Sizemore had responded to a domestic disturbance call reporting that Cade was threatening his girlfriend and her sister. Diane Butts, the sister, testified that when Sizemore called Cade over to his car, Cade responded by saying, "You ain't taking me nowhere." (State R.1-P2 at 114.)² He did, however, walk to the car. After Sizemore talked with Cade and patted him down, Butts heard Cade say "I ain't going to jail." (State R.1-P2 at 116.) A struggle then ensued, during which Cade wrestled Sizemore's gun away from him. After the Sheriff hopped back into the car to get away, Cade shot him three times. The coroner testified that the shots had killed Sizemore and forensic analysis indicated that the offending bullets came from a gun with Cade's fingerprints. Various witnesses testified to indications that Cade had been drinking, but they disagreed over how much. Cade took the stand in his own defense and testified that he had been threatened on several occasions by Sizemore. He also confirmed that he had been drinking on the day of the homicide and claimed that although he could remember the struggle, he could not recall anything about the shooting itself.

The jury rejected Cade's voluntary-intoxication defense, found him guilty, and recommended the death penalty. The trial judge, after holding a bench hearing and reviewing a presentence investigation report (PSI), sentenced Cade to death.³ The court found two aggravating factors: first, that Cade murdered Sheriff Sizemore while "he was performing an official or job related act of arresting Clyde Cade," and second, that Cade committed the murder "for the purpose of avoiding or preventing a lawful arrest." (State R.2-P14 at 433.) The court also rejected three statutory mitigators: whether Cade was "under extreme duress," "had the capacity to appreciate the criminality of his conduct ... [and] conform his conduct to the requirements of law," or was "under the influence of extreme mental or emotional disturbance." (State R.2-P14 at 435.)⁴ The court stated that it weighed the aggravating and mitigating circumstances against each other.

As previously noted, Cade's conviction was affirmed on direct appeal. Cade collaterally attacked his conviction under the procedure then established by Ala. Temp. R.Crim. P. 20. Cade's state-court petition included, in relevant part, a Sixth Amendment claim of ineffective assistance of counsel at the sentencing phase alleging failure to adequately investigate, prepare, and present mitigating evidence, and a due process claim alleging that the evidence supporting the two aggravating factors was insufficient. The petition did not include a claim that the trial court gave insufficient consideration to mitigating factors-an omission of importance to this appeal. After an evidentiary hearing, the court denied Cade's petition, concluding that the sentencing-phase ineffective-assistance claim lacked merit, and that the insufficiency-of-the-evidence claim relating to the aggravators had already been decided against Cade on direct appeal. The Alabama Court of Criminal Appeals affirmed. See Cade v. State, 629 So.2d 38 (Ala.Crim.App.), cert. denied (Ala.1993).

Cade then filed the instant federal petition which, after amendment, asserts twenty-three claims. Included among the claims are ineffective assistance of counsel at the sentencing stage and two claims alleging insufficient consideration of and findings regarding mitigation. The petition does not include a claim that the evidence supporting aggravating factors was insufficient. The district court handled the petition in a two-step process, referring to a magistrate judge for report and recommendation the question of which among Cade's claims were procedurally defaulted and the question of which among any undefaulted claims warranted an evidentiary hearing.

In his brief to the magistrate judge, Cade conceded procedural default of his two claims asserting insufficient treatment of mitigation, but also argued that the default was excused under Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). As part of the argument necessary to support his Sawyer theory, Cade reasserted a contention he had pursued as a claim in state court but had not raised in his federal petition: that the evidence substantiating the aggravating factors supporting his sentence had been insufficient. He later amended his federal petition to explicitly include this contention as a separate claim.

The magistrate judge recommended an evidentiary hearing on the claim Cade asserted of ineffective assistance of counsel at the sentencing stage because the state-court evidentiary hearing neither resolved the merits of the factual dispute underlying the claim nor produced a record supporting the state court's fact finding. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (articulating these two criteria, among others, as grounds requiring a federal evidentiary hearing to find facts regarding claims about which a state court has already held a hearing), overruled in part on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Treating a determination on the merits of the newly added claim regarding aggravation as essential to deciding whether the two claims regarding mitigation were procedurally defaulted, the magistrate judge also relabeled the two mitigation claims as a single claim that Cade's sentencing hearing was an unconstitutional "sham," (R.2-42 at 33), and concluded that that "claim" should be considered on the merits without an evidentiary hearing if the district court found the claim regarding the aggravators to have sufficient merit.

The district court adopted the magistrate judge's recommendation on all of these points and conducted a three-day eviden- tiary hearing to find facts regarding the ineffective-assistance-at-the-sentencing-phase claim. After additional briefing, the district court denied relief. On the ineffective-assistance claim, it concluded that Cade had shown neither that his counsel had performed deficiently nor that he was prejudiced by any deficient performance that might have occurred. The district court also concluded that the procedural default of the claims that the trial judge failed to sufficiently consider and make findings regarding mitigating factors was not excused under Sawyer, and in the alternative, that Cade was not due relief on those claims on their merits.

On appeal, Cade challenges only the district court's decisions on the ineffective-assistance-at-sentencing and insufficient-treatment-of-mitigators claims.

II. Contentions of the Parties on Appeal

Cade makes two arguments. He first contends that his trial counsel was ineffective for failing to investigate and present various mitigating evidence, including expert opinions regarding his history of mental illness and the opinions of family, friends, or community acquaintances regarding not only his history of mental problems, but also his character and generally difficult, impoverished background. His second contention is that the trial judge constitutionally erred by giving mitigating factors insufficient consideration in sentencing. Although he admits that this latter claim is procedurally defaulted and that he cannot show cause for the default, Cade argues that the default is nevertheless excused under Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) because, but for constitutional error in the sentencing process, no reasonable jury would have found him eligible for the death penalty.⁵

III. Ineffective Assistance of Counsel at the Sentencing Stage

A petitioner pursuing an ineffective-assistance claim under Strickland v. Washington⁶ must show both that "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. at 2064, and "a reasonable probability [defined as one 'sufficient to undermine confidence in the outcome'] that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068. In an Alabama case arising from acts committed in 1977, this means casting doubt on both the jury's decision to "fix the punishment at death" and the trial judge's decision to uphold it. See supra note 3. Both the former prong, deficient-performance, and the latter, prejudice, present mixed questions of law and fact reviewed de novo on appeal. See id. at 698, 104 S.Ct. at 2070....