Gavin v. Comm'r, Ala. Dep't of Corr.

• Decision Date: 14 July 2022
• Docket Number: 20-11271
• Parties: Keith Edmund GAVIN, Petitioner-Appellee, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

40 F.4th 1247

Keith Edmund GAVIN, Petitioner-Appellee,

v.COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellant.

No. 20-11271

United States Court of Appeals, Eleventh Circuit.

Filed July 14, 2022

Steven Joseph Horowitz, Neil H. Conrad, Rachel R. Goldberg, Jennifer Martin Wheeler, Sidley Austin, LLP, Chicago, IL, Melanie E. Walker, DLA Piper LLP (US), Los Angeles, CA, John DeForest Watson, III, Grant A. Premo, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Petitioner-Appellee.

Beth Jackson Hughes, Edmund Gerard LaCour, Jr., Thomas Alexander Wilson, Alabama Attorney General's Office, Montgomery, AL, for Respondent-Appellant.

Before Jordan, Branch, and Luck, Circuit Judges.

BRANCH, Circuit Judge:

Keith Gavin is an Alabama prisoner serving two death sentences and a term of life imprisonment following his 1999 jury convictions on two counts of capital murder and one count of attempted murder. After pursuing a direct appeal and postconviction relief in the Alabama state courts, Gavin filed a federal habeas petition under 28 U.S.C. § 2254, alleging, in relevant part, that his counsel rendered constitutionally ineffective assistance during the penalty phase and that the jurors engaged in premature deliberations before the penalty phase in violation of his constitutional right to a fair trial. The district court denied relief on Gavin's juror misconduct claim, but it concluded that the state court's determination that counsel was not ineffective was an unreasonable application of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, the district court conditionally granted Gavin habeas relief on his ineffective-assistance claim, unless Alabama initiated new sentencing proceedings within 90 days of the order.

The Commissioner of the Alabama Department of Corrections ("Alabama") appeals the grant of habeas relief. Gavin cross-appeals, arguing that the district court correctly granted habeas relief on his ineffective-assistance claim. In the alternative, he argues that habeas relief is warranted on his juror misconduct claim.

After review and with the benefit of oral argument, we reverse the district court's decision granting habeas relief on Gavin's ineffective-assistance claim because the state court's determination that counsel was not ineffective during the penalty phase was not contrary to, or based on an unreasonable application of, Strickland . As for Gavin's cross-appeal, we affirm the denial of habeas relief for the juror misconduct claim.

I. Background

A. The Guilt Phase of Trial

In 1998, an Alabama grand jury indicted Gavin on two counts of capital murder in connection with the murder of William Clayton, Jr., and one count of attempted murder in connection with shooting at a law enforcement officer. Gavin v. State , 891 So. 2d 907, 926 (Ala. Ct. Crim. App. 2003). The murder of Clayton constituted two capital counts because (1) it was committed during the course of a robbery in the first degree, and (2) Gavin had been convicted of another murder within the previous 20 years.¹ See Ala. Code § 13A-5-40(a)(2), (13) (1975). Attorneys H. Bayne Smith and John H. Ufford, II, were appointed to represent Gavin at trial.

At Gavin's November 1999 trial, the evidence established that the victim, Clayton, was a courier driver for Corporate Express Delivery Systems, Inc. Gavin , 891 So. 2d at 927. On the evening of March 6, 1998, after completing his deliveries, Clayton stopped at a Regions Bank to use an ATM. Id. Eyewitnesses, including Gavin's cousin, Dewayne Meeks,² testified that Gavin approached Clayton's van parked outside the bank, shot Clayton, got into the van, and then drove off. Id.

An investigator with the local district attorney's office heard about the shooting over the radio and witnessed the van matching the description pass him. Id. at 928. He pursued the van. Id. When he turned on his emergency lights, the van stopped in the middle of the road, the driver got out, turned toward the investigator, and began shooting before running off into the woods. Id. The investigator discovered Clayton in the van, barely alive, and called for an ambulance, but Clayton was pronounced dead upon arrival at the hospital. Id. at 929. The investigator identified Gavin as the person who shot at him. Id.

Within minutes of the investigator's encounter with Gavin, other law enforcement officers arrived on the scene and searched the woods. Id. Gavin was discovered in the woods and attempted to flee, but he stopped when an officer fired a warning shot. Id. Without prompting from the officers, Gavin stated, "I hadn't shot anybody and I don't have a gun." Id. The gun was found several days later near the woods, and ballistics confirmed that bullets found in the victim and the van had been fired from the gun. Id. at 930. The jury found Gavin guilty on all counts.

B. The Penalty Phase

At the penalty phase before the jury,³ the State offered three aggravating circumstances: (1) that Gavin was previously convicted of another felony involving the use or threat of violence to a person (his prior Illinois murder conviction); (2) that Gavin committed the murder during the commission of a robbery; and (3) that he committed the murder while under a sentence of imprisonment for another crime.⁴ In support, the State called Gavin's parole officer as a witness, who testified that Gavin was released from prison for his 1982 Illinois murder conviction at the end of December 1997 and was on parole when he murdered Clayton.

Gavin called two witnesses during the penalty phase—minister S.J. Johnson and Gavin's mother.⁵

Johnson testified that he met Gavin approximately 20 months earlier, shortly after Gavin was arrested and requested that someone from the church come and speak with him. Johnson had visited Gavin weekly for about an hour each time for the past 20 months. Johnson explained that, initially, Gavin had "an attitude that he was blaming everybody except [himself]" for his circumstances and things that had happened. But as time went on, Gavin "stopped blaming others so much and he began to see where he should take some responsibility." In Johnson's opinion, Gavin now accepted responsibility for his actions, had shown a desire "to do God's will," and "was sincerely trying to make changes in his life." Johnson expressed that if Gavin were given life imprisonment instead of a death sentence, Gavin had "the potential to cultivate a deeper relationship with God and [Johnson] fe[lt] that there [was] hope for [Gavin] if he's given time and opportunity." Johnson pleaded for the jury to show Gavin mercy.⁶ Finally, Johnson expressed his sympathy to Clayton's family for their loss.

Gavin's mother, Annette, testified that Gavin was the second of eleven living children. She was a Jehovah's witness, and she raised Gavin with a religious foundation. She stated that Gavin was always concerned about other people and concerned with "what was fair." And that "[h]e loves justice, he really does." She pleaded for mercy, asking the jury to spare Gavin's life, explaining that

I really feel ... that knowing how he views things, that he really has the ability to live as he should live because he has taken up that course, you know, because he had to, he had to see it, he sees it now. And so if he's given the opportunity, he could help others. He could really be a great source of help to others and to our Creator.

In closing argument, the State emphasized the details of the 1982 Illinois murder and that Gavin showed no mercy then or when he committed the Alabama murder. The State maintained that the death penalty was the appropriate sentence for Gavin's actions.

Gavin's counsel argued that the two murders, although terrible and unforgiveable, did "not represent the sum total of Keith Gavin's life nor even the majority of it. They represent just what they are. A few brief moments of anger that were expressed in a terrible way." He urged the jury to consider Gavin's family and the fact that his family still supported him during the trial, and that Gavin requested to speak with a religious advisor after he was arrested—factors which pointed to redeeming qualities in Gavin. He then emphasized that death is irrevocable and urged the jury to grant Gavin mercy.

Following deliberations, the jury returned a non-binding 10 to 2 advisory verdict, recommending the death penalty for the two capital counts.⁷ Gavin , 891 So. 2d at 926–27.

At the separate sentencing hearing, the trial judge found the three aggravating circumstances proffered by the State: (1) that the murder was committed while Gavin was under a sentence of imprisonment; (2) that Gavin was previously convicted of another felony involving the use of violence to the person—the 1982 Illinois murder; and (3) that "the capital offense was committed while the defendant was engaged in the commission of or attempt to commit robbery." The court found that no statutory mitigating circumstances existed.⁸ As for non-statutory mitigation,⁹ the trial court noted that it had considered sentencing consultant John David Sturman's memorandum on behalf of Gavin.¹⁰ The trial court explained that:

In that memorandum, the defendant's mother is reported to have described the defendant's life as influenced by or subject to a combination of drugs and gang violence while living in a Chicago housing project. The defendant's mother also testified at the sentence hearing conducted before the jury. The defendant's attorney has advised the Court, however, that the defendant denies ever having a drug problem. At the sentence hearing conducted before the jury, the Court heard testimony of Reverend [S].J. Johnson who spoke eloquently on behalf of the defendant as a result of his frequent meetings with the defendant over the many months of the defendant's incarceration. Reverend Johnson opines that the defendant has concern and sympathy for the victim's family, and that the defendant is capable of a closer

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