Dill v. Allen

• Citation: 488 F.3d 1344
• Decision Date: 13 June 2007
• Docket Number: No. 05-12330.,05-12330.
• Parties: Jimmy DILL, Petitioner-Appellant v. Richard F. ALLEN, Commissioner Alabama Department of Corrections, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

488 F.3d 1344

Jimmy DILL, Petitioner-Appellant v. Richard F. ALLEN, Commissioner Alabama Department of Corrections, Respondent-Appellee

No. 05-12330.

United States Court of Appeals, Eleventh Circuit.

June 13, 2007.

John R. Benn (Court-Appointed), John R. Benn & Associates, Sheffield, AL, Thomas J. Saunders (Court-Appointed), Law Office of Thomas J. Saunders, Baltimore, MD, for Dill.

Kevin Christopher Newsom, Beth Jackson Hughes, Montgomery, AL, for Allen.

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

Before EDMONDSON, Chief Judge, and TJOFLAT and HULL, Circuit Judges.

TJOFLAT, Circuit Judge:

Petitioner, Jimmy Dill,¹ is an Alabama prisoner on death row due to his conviction for the 1988 fatal shooting of Leon Shaw in Birmingham. On March 30, 2001, he petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court denied his petition on March 31, 2004, and he now appeals. The district court granted a certificate of appealability on the question of whether petitioner's trial counsel were constitutionally ineffective in failing to uncover and present mitigating evidence during the penalty phase of petitioner's trial. We subsequently amended the certificate to include the question of whether counsel were constitutionally ineffective in failing to develop and present evidence that the shooting was not the cause of Shaw's death. We find no error in the district court's response to these questions and therefore affirm its denial of habeas corpus relief.

I.

Petitioner was indicted for capital murder in the Circuit Court of Jefferson County, Alabama on December 9, 1988. At arraignment, the court appointed Louis Wilkinson ("Wilkinson") to represent petitioner, who was indigent.² At some point during the pretrial proceedings, the parties engaged in plea negotiations. The State offered to take the death penalty off the table if petitioner would plead guilty to "straight murder" and agree to a sentence of life imprisonment with the possibility of parole.³ Petitioner rejected the State's offer, insisting that he was innocent on the theory that an unknown third party had shot the victim. The case thus proceeded to trial.

A.

The trial began on May 24, 1989, and lasted three days.⁴ The Alabama Court of Criminal Appeals, affirming petitioner's conviction and death sentence, set forth the salient facts as established in the State's case-in-chief during the guilt phase of the trial:

[T]he victim, Leon Shaw, drove to Terry Dill's house on the afternoon of February 8, [1988]. Shaw was not supposed to be driving because he was serving time at the Federal Work Release Center for a drug violation. Shaw was, however, allowed to leave the center to go to work. He operated the Rose Boutique, which he owned with his wife, Junatha Shaw. Terry Dill left the house and got in the car with Shaw. [Petitioner] was in the front seat with Shaw. Shaw told Terry Dill that [petitioner] wanted to buy drugs from Shaw.

The testimony reveals that Terry Dill was a former cocaine addict who had sold cocaine with Shaw for four years. Shaw would pay Terry Dill to bring him customers.

Shaw, Dill, and [petitioner] ran into Jacqueline Ball and Freddie Carter near a church on 85th Street. Shaw was still driving the car and Terry Dill was sitting in the backseat behind him. [Petitioner] was still in the front passenger seat. Apparently, Shaw and [petitioner] got out of the car. Shaw talked to Jacqueline Ball, and [petitioner] talked to Freddie Carter. Shaw was carrying a black pouch in which he normally kept cocaine and money. Shaw had at least $200 in his hand.

After Ball and Carter left, [petitioner] asked Shaw if he would give him some cocaine until he could get the money to pay for it. Shaw refused. They left for Druid Hills, where the work release center was located, because Shaw had to sign in at the center. When they got to Druid Hills, Shaw's beeper went off. They all got out of the car and Shaw made a telephone call. They went to the Curb Market and Shaw bought wine coolers. Shaw had a "folded wad of money." When they left the store, Shaw had everyone in the car switch places so that the people at the center would not see him driving. Terry Dill was now driving and [petitioner] was in the backseat. Terry Dill drove to the center.

[Petitioner] again asked Shaw for cocaine. Shaw told him that he would give him the cocaine when [petitioner] got some money. He also showed [petitioner] a half ounce of cocaine. [Petitioner] asked for cocaine again when they pulled up to the center. Shaw went to the building. He pulled a "big wad of money" out of his pocket. There was so much money that it could not be rolled up. He told the case manager at the center that he had just left the Rose Boutique and was going to make a deposit.

While Shaw was inside the center, [petitioner] said to Terry Dill, "You don't believe I'll rob him or shoot him." [Petitioner] continued to talk about killing Shaw. When Shaw got back in the car, [petitioner] said that he would shoot Shaw if he did not give him some cocaine. After they drove off, there was a gunshot. Blood spurted onto Terry Dill. [Petitioner] had a small automatic pistol, approximately .25 or .22 caliber. [Petitioner] told Terry Dill to be quiet and keep driving. [Petitioner] pulled the trigger as if he was going to shoot Shaw again. They eventually stopped in an alley. [Petitioner] searched Shaw and took the money and cocaine. [Petitioner] then got a rag and started wiping fingerprints off of the car. Terry Dill ran away. [Petitioner] also ran away. Terry Dill called his girlfriend to pick him up. He went home later that evening.

Dill v. State, 600 So.2d 343, 350 (Ala.Crim. App.1991) (record citations omitted).

The court then related petitioner's version of what took place, summarizing the statement that petitioner gave the police on February 18, 1988, which the State introduced into evidence.⁵

[Petitioner] stated that he and Terry Dill were with Shaw and that they drove to North Birmingham. Terry Dill was driving the car, Shaw was on the front passenger seat, and [petitioner] was in the backseat behind Terry Dill. [Petitioner] stated that Shaw's door opened and that he heard a shot from behind Shaw. [Petitioner] was then asked how Shaw was shot from behind without the window being shot out of the car. [Petitioner] then stated that Shaw was actually getting into the car when someone ran up to Shaw's door. [Petitioner] stated that he heard a gunshot. He and Terry Dill got out and ran. [Petitioner] then stated that after hearing the shot, they drove off and a car followed them. They drove to an alley, jumped out of the car, and ran away. [Petitioner] stated that Shaw had some cocaine in a black bag but he did not see any money.

Id. at 351.

A woman who lived near the site of the shooting saw the car in the alley, watched the two men leave the scene, and summoned the police, who, upon finding Shaw and realizing that he was bleeding profusely, called for an ambulance. The court described what took place thereafter, including the circumstances that led to Shaw's death:

Shaw was taken to the [University Hospital of Birmingham] where emergency brain surgery was performed. The bullet entered the left, back side of his brain. Shaw was unconscious. He had abnormal movement in his extremities which indicates that the brain is functioning extremely abnormally. Both a feeding tube and breathing tube were inserted. He was discharged from the hospital on April 26, [1988], because there was nothing more the hospital could do for him. Shaw could not function independently and required round-the-clock care. Shaw eventually pulled the feeding tube out.⁶ However, his doctor said he would not replace the tube since he could eat and drink by mouth. Shaw was readmitted to the hospital on October 31, [1988]. He never regained consciousness and died on November 22, [1988]. Shaw's doctors testified that he died of complications from a gunshot wound to the head.

Forensic evidence revealed that the bullet removed from Shaw's head was consistent with a .22 caliber projectile. The characteristics of the wound were consistent with a contact gunshot wound.

Id. at 350-51.

B.

After the State rested its case, petitioner moved the court for a judgment of acquittal. The court denied the motion.⁷ In closing argument to the jury, the prosecutor contended that the forensic evidence, which indicated that the fatal shot had been fired from the back seat of the car, corroborated Terry Dill's explanation of how the shooting occurred. Wilkinson, in rebuttal,⁸ disagreed: "[Petitioner] was consistent in one thing, that an unknown black male that Shaw had stopped to talk to shot Shaw. He said that [in his post-arrest statement to the police]. And that fits in very well with the facts, physical and otherwise, and just as well as anything Terry Dill said."⁹

The jury found petitioner guilty as charged.¹⁰ After a brief recess, the jury returned for the penalty phase of the trial.¹¹ The State put on one witness in its case, parole officer Carl Michael Newman. Newman testified that petitioner had two Alabama felony convictions and was on parole at the time Shaw was shot.¹² The defense likewise presented one witness, petitioner. His testimony was brief. Petitioner indicated that he had a thirteen-month old child, a common-law wife, had worked a number of jobs, and attended nursing school while on parole.

In its closing argument to the jury, the State argued that the evidence (introduced during both the guilt and penalty phases of trial) established three aggravating circumstances: the offense had been committed by a person (1) who was under a sentence of imprisonment; (2) who had been previously convicted of a felony involving the use or threat of violence to the person; and (3) who, at the time of the murder, was engaged in...