Giles v. Culliver, Case No. CV-06-S-348-S

• Decision Date: 03 April 2013
• Docket Number: Case No. CV-06-S-348-S
• Parties: ARTHUR LEE GILES, Petitioner, v. GRANT CULLIVER, Warden, Respondent.
• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama

ARTHUR LEE GILES, Petitioner,

v.GRANT CULLIVER, Warden, Respondent.

Case No. CV-06-S-348-S

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: April 3, 2013

MEMORANDUM OPINION

This opinion addresses the petition filed by Arthur Lee Giles pursuant to 28 U.S.C. § 2254, seeking relief in the nature of habeas corpus from his state court conviction for capital murder and resulting death sentence. The case presents an unusually lengthy state court history. The petitioner was initially charged and convicted in the Circuit Court of Blount County, Alabama in 1979, for the double murder of Willene and Carl Nelson in the course of a robbery committed during the early morning hours of November 10, 1978.¹ He was sentenced to death by electrocution. The original proceedings were conducted under Alabama's previous death-penalty statute, Alabama Code § 13-11-2(a)(10) (1975).² On direct appeal, theconviction and sentence were overturned on the authority of Beck v. Alabama, 447 U.S. 625 (1980), and Giles was granted a new trial. See Giles v. State, 405 So. 2d 50 (Ala. Crim. App. 1981). His second trial, conducted in 1982, in compliance with the opinion of the Alabama Supreme Court in Beck v. State, 396 So. 2d 645 (Ala. 1980), also resulted in a conviction for capital murder and a sentence of death by electrocution. The second conviction was affirmed, but the Alabama Supreme Court set aside Giles's sentence of death and ordered a new sentencing hearing. See Giles v. State, 554 So. 2d 1073 (Ala. Crim. App. 1984), rev'd in part sub nom. Ex parte Giles, 554 So. 2d 1089 (Ala. 1987). Venue was changed in 1991 to Morgan County. After considerable deliberations, the Morgan County jury empaneled to conduct the new sentencing hearing informed the court that it had "reached an impasse" and was unable to reach a unanimous verdict. Eleven jurors voted to recommend the death penalty, and one voted for life imprisonment without parole.

The judge then questioned the jurors, individually, whether further deliberations would be fruitless. Concluding that further deliberations would not produce a unanimous verdict, the judge dismissed the jury. That result represented a de facto recommendation of life without the possibility of parole, as [the Alabama Supreme Court] interpreted §§ 13-11-1 to -9 in Beck v. State[, 396 So. 2d 645 (Ala. 1980)]. However,at a subsequent sentencing hearing, the trial judge sentenced Giles to death.

Ex parte Giles, 632 So. 2d 577, 578-79 (Ala. 1993) (alterations supplied).³

Unlike the course of his case on direct appeal from both his 1979 and 1982 convictions and sentences, Giles's post-conviction litigation proceeded in a more routine manner. He filed a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in the Circuit Court of Blount County, Alabama during February of 1996. Following a hearing, that court entered a 138-page opinion denying relief on August 14, 2000. See id. at 970. The Alabama Court of Criminal Appeals affirmed on April 30, 2004, and the Alabama Supreme Court denied certiorari review on February 18, 2005. See Ex parte Giles, 906 So. 2d 991 (Ala. 2005). This action followed.

As indicated by the following table of contents, this opinion will first review the conduct for which petitioner was convicted in 1982 (his second trial) and his subsequent re-sentencing in 1991 (his third sentencing), as well as the pertinent procedural history that led to the habeas petition filed in this court. After a briefdiscussion of procedural preconditions to habeas relief, this court will address each of petitioner's claimed grounds for relief.

Table of Contents

I. THE OFFENSE CONDUCT — 1982 CONVICTION........................12

II. SENTENCING ORDER— 1991 RE-SENTENCING.........................13

III. PROCEDURAL HISTORY..............................................19

A. State Court Direct Review..........................................19

B. State Court Collateral Review.......................................21

IV. INTRODUCTION TO THE DISCUSSION OF PETITIONER'S SUBSTANTIVE CLAIMS: The Scope of Federal Habeas Review...............................27

A. Exhaustion of State Court Remedies: The First Condition Precedent to Federal Habeas Review ............................................. 27

B. The Procedural Default Doctrine: The Second Condition Precedent to Federal Habeas Review............................................. 29

1. General Principles........................................... 29

2. Overcoming Procedural Defaults............................... 32

a. The "Cause and Prejudice" Standard......................33

b. The "Fundamental Miscarriage of Justice" Standard.........39

C. Selected Exhaustion and Procedural Default Issues Pertinent to Giles's Habeas Claims.............................................39

D. The Statutory Overlay: The Effect of the Antiterrorism and Effective Death Penalty Act of 1996 on Federal Habeas Review.....................50

1. The Meaning of § 2254(d)(1)[a]'s "Contrary To" Clause............54

2. The Meaning of § 2254(d)(1)[b]'s "Unreasonable Application" Clause....................................................563. Evaluating Factual Determinations of State Courts Under §§ 2254(d)(2) and (e)(1) .................58

E. The Burden of Proof and Heightened Pleading Requirements for Habeas Petitions.................................................. 59

F. Introduction to Ineffective Assistance of Counsel Claims................ 65

1. The Performance Prong....................................... 66

2. The Prejudice Prong......................................... 70

3. The Deference Accorded State Court Findings of Historical Fact When Evaluating Ineffective Assistance of Counsel Claims...........72

V. DISCUSSION OF CLAIMS.............................................. 72

A. Claims Arising Out of the 1982 Guilt-Phase Trial......................72

1. The Capital Murder Conviction Was Obtained Under Unconstitutional Alabama Death Penalty Law.....................73

a. The Alabama Supreme Court Illegally Re-wrote the State's Death Penalty Law After Beck v. Alabama and Improperly Gave the Law Retroactive Effect.....................................73

2. Denial of a Fair Trial By Impartial Judge and Jury................. 83

a. The Trial Court Improperly Refused to Change Venue; Counsel Ineffective for Failing to Adequately Research and Prepare Motions or Obtain Change of Venue................83

(i). The Trial Court Improperly Refused to Change Venue.. . 83

(ii). Counsel Ineffective for Failing to Adequately Research Pretrial Motions or Obtain Change of Venue....................................... 92

b. Trial Judge Improperly Refused to Recuse..................93

c. Jury Selection Method Was Unconstitutional and Underrepresented Blacks...............................97

d. Counsel Ineffective for Failing to Challenge State'sRemoval of Sole Black Juror............................100

e. Counsel Ineffective for Failing to Voir Dire On Racial Bias.. . . 101

f. Trial Court Failed to Excuse Jurors Who Knew of Giles's Prior Conviction and Death Sentence; Counsel Ineffective for Failing to Secure a Fair and Impartial Jury..............105

(i). Trial Court Failed to Excuse Jurors Who Knew of Giles's Prior Conviction and Death Sentence.........105

(ii). Counsel Ineffective for Failing to Secure a Fair and Impartial Jury........................112

g. Trial Court Failed to Remove Prospective Juror Doris Layfield For Cause....................................114

h. Giles Was Prejudiced By Presence of Co-Defendant Aaron Jones in the Courtroom................................ 114

3. Petitioner Was Denied Effective Assistance of Counsel.............117

a. Guilt Phase Trial Counsel Ineffective for Failing to Present a Mental Health Defense......................... 117

b. Counsel Were Ineffective for Failing to Challenge State's Competency Exam and Failing to Investigate Mental Health Issues..............................................119

c. Counsel Ineffective for Failing to Investigate Carl Nelson's Drug Dealing to Arthur Giles............................120

d. Counsel Ineffective for Failing to Investigate Giles's PCP Use and Present Expert Testimony on its Impact............122

e. Counsel Ineffective for Failing to Investigate the Issues Self-Defense of and Intoxication and Seek a Jury Instruction On Manslaughter..................................... 151

f. Counsel Ineffective for Abandoning Defense and Conceding Guilt...................................... 157

4. Petitioner's Conviction Was Tainted by Prosecutorial Misconduct. ... 158a. Double Murder Indictment Obtained by False and Misleading Testimony that Willene Nelson's Death Was Caused by her Gunshot Wound ..................................... 158

b. Prosecutor's Voir Dire Comment About Appeal Diminished Juror Responsibility................................... 161

c. State Suppressed Evidence that Petitioner Repeatedly Invoked his Miranda Rights While Interrogation Continued .......................................... 163

d. State Suppressed Exculpatory Evidence of Carl Nelson's Recent Drug Prosecution and an "Anonymous Informer"......166

e. State Suppressed Evidence of "Marijuana Theory" for Crime .............................................. 171

f. State Suppressed Analysis of Co-Defendant Jones's Bloody Clothes................................173

g. State Presented Misleading Testimony on Bloody Clothes and Trial Court Erred In Refusing to Declare Mistrial........ 174

h. State Suppressed Witness Statements that Giles Was Innocent of Willene Nelson's Stabbing Death............... 176

i. Counsel Ineffective for Failing to Review Previous Witness Testimony........................................... 185

j. State Suppressed Exculpatory Evidence Despite Defense Requests.....................................185

k. State Presented Inconsistent Prosecutions of Co-Defendants Giles and Jones...................................... 186

l. State Improperly Argued

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