Grayson v. King, 05-15725.

• Decision Date: 18 August 2006
• Docket Number: No. 05-15725.,05-15725.
• Citation: 460 F.3d 1328
• Parties: Darrell GRAYSON, Petitioner-Appellant, v. Troy KING, Attorney General for the State of Alabama, in his official capacity, Robert E. Owens, Jr., District Attorney for Shelby County, in his official capacity, Shelby County District Attorney Office, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

460 F.3d 1328

Darrell GRAYSON, Petitioner-Appellant, v. Troy KING, Attorney General for the State of Alabama, in his official capacity, Robert E. Owens, Jr., District Attorney for Shelby County, in his official capacity, Shelby County District Attorney Office, Respondents-Appellees.

No. 05-15725.

United States Court of Appeals, Eleventh Circuit.

August 18, 2006.

COPYRIGHT MATERIAL OMITTED

David Boies, Christopher M. Green, Ian Dumain, Brian Kohn, Boies, Schiller & Flexner, LLP, Armonk, NY, Peter Neufeld, Vanessa Potkin, Innocence Project, Benjamin N. Cardozo Sch. of Law, New York City, for Grayson.

Kevin Christopher Newsom, Montgomery, AL, for Respondents-Appellees.

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

Before ANDERSON, BIRCH and HULL, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Darrell Grayson, an Alabama prisoner sentenced to death in state court, appeals the dismissal of his 42 U.S.C. § 1983 action seeking post-habeas access to biological evidence presented at his capital murder trial so that he can subject the evidence to DNA testing. After review and oral argument, we affirm.

I. BACKGROUND

A. Offense Conduct

In June 1982, Grayson was convicted of the murder of an elderly widow, Mrs. Annie Laura Orr. The facts of the crime, as found by the state court judge who sentenced Grayson and recounted by this Court in Grayson's previous federal habeas appeal, are as follows:

Mrs. Annie Laura Orr was an eighty-six (86) year old widow who lived alone in her house in Montevallo, Alabama. At the time of her death, she stood about five feet three inches tall, and weighted [sic] some one-hundred seventeen pounds. Her granddaughter visited her during the day of December 23rd, 1980, and found her appearing to be in good health, ambulatory, and in possession of her mental faculties. Her personal physician, Dr. Lewis Kirkland described her as being in good health for a woman of her age.

During the evening hours of December 23rd, 1980, the Defendant Darrell Grayson, Co-defendant Victor Kennedy, and two other individuals, met at Kennedy's residence, also in Montevallo, and a short distance from that of Mrs. Orr. They drank wine and played cards. Sometime shortly after midnight, and after the other individuals had gone, Kennedy and Grayson left Kennedy's house on foot, walking in the direction of Mrs. Orr's house. They were armed with a .38 Caliber handgun, which belonged to Kennedy. They decided to burglarize Mrs. Orr's residence in order to get some money. They had previously discussed such a burglary, that Mrs. Orr was elderly, and where she kept her money.

They entered the Orr house during the very early morning hours of December 24th, 1980, through a rear basement door. They then proceeded through the dirt basement, up several steps, and into the main living portion of the house near Mrs. Orr's bedroom. The Defendants used a flashlight to illuminate their way.

Once inside the living portion of the house they entered Mrs. Orr's bedroom where she was apparently sleeping. They subdued and beat her, striking her in the head with a blunt instrument and breaking several of her ribs. Darrell Grayson then placed a pillowcase over her head and wrapped two relatively long lengths of masking tape very tightly around her head so that when they were finished he[r] head then appeared to be that of a mummy. They then proceeded to look for money and other valuables.

When apparently they could not find a significant amount of cash, the[y] began threatening Mrs. Orr by beating her further, threatening to drown her, and firing two shots from Kennedy's pistol, into her bedroom block and wall. Also during their assault, they raped Mrs. Orr repeatedly. Darrell Grayson said he didn't want to rape Mrs. Orr but that he did so twice. Mrs. Orr lived through the assault of being raped, beaten, threatened, unable to see or adequately breathe, and begging her assailants not to hurt her but to take the money and leave, for a considerable period of time. She then died.

Grayson v. Thompson, 257 F.3d 1194, 1197-98 (11th Cir.2001).

On the morning of December 24, 1980, Mrs. Orr's son discovered her dead body in her home in Montevallo, Alabama, and called law enforcement officers. Id. at 1198. The officers discovered a trail of playing cards leading from Mrs. Orr's home to the home of Victor Kennedy, a known burglar. Id. Knowing that Kennedy and Grayson had been seen together the previous night, officers began looking for Grayson on the afternoon of December 24, 1980, and discovered him "squatting in the bushes" in a wooded area near his home. Id. Following his arrest, Grayson confessed. Id. Officers also discovered Mrs. Orr's wedding rings in Grayson's wallet and obtained physical evidence from Grayson that linked Grayson to the crime. Id. Grayson was taken into custody. Id.

B. Grayson's Confessions

After waiving his Miranda rights, Grayson gave officers a series of statements. Id. at 1198-99. When interviewed by Sergeant John Pratt and Chief Troy Kirkland, Grayson told the officers that he had performed yard work for Mrs. Orr in the past, was familiar with her house, and had entered her home with Kennedy in the early morning of December 24, awakening Mrs. Orr. Id. at 1199. Grayson admitted that they had repeatedly raped Mrs. Orr while searching her house for valuables. Id. Grayson and Kennedy took the money and valuables they found, left Mrs. Orr on her bed, and left the house. Id.

Within thirty minutes of this interview, Grayson again waived his Miranda rights and confessed to the officers again. Id. This time, the officers tape-recorded the confession. Id. Grayson again admitted that he had worked for Mrs. Orr in the past and knew the house, but claimed that the burglary and rape were Kennedy's ideas. Id. Grayson also claimed that he and Kennedy had consumed several gallons of wine the evening of the crime. Id.

Two days later, Grayson again waived his Miranda rights and gave another recorded statement to Captain Reed Smith. Id. This time, Grayson explained that he and Kennedy had been planning for a couple of weeks to rob Mrs. Orr to get money for Christmas. Id. They selected Mrs. Orr as a target because Grayson had worked for her and knew where she kept money. Id. Grayson also stated that Mrs. Orr had begged them to take her money and not hurt her. Id. Grayson taped a pillowcase over Mrs. Orr's face to prevent her from recognizing him, and after that, he could not understand what she was saying. Id. Grayson stated that both he and Kennedy raped Mrs. Orr repeatedly and unsuccessfully searched for money and other valuables. Id. at 1200. Grayson admitted that at one point he had taken Mrs. Orr to the bathroom and then returned her to the bedroom, where he raped her again, but he could not remember why he took her to the bathroom or what happened there. Id. Grayson explained that Kennedy urged him to leave the house while he was raping Mrs. Orr, and Grayson left Mrs. Orr on her bed with the pillowcase taped over her head and face as he left the house. Id.

C. Evidence at Trial

Grayson was tried for capital murder during a burglary. At trial, the officers described the crime scene, the physical evidence, including the playing cards that led to Kennedy's house, and the circumstances leading to Grayson's arrest. Id. at 1201. The officers also recounted their discovery of Mrs. Orr's wedding rings in Grayson's wallet and the bloody shirt belonging to Grayson in the woods near his home. Id. at 1198, 1201. The transcripts of Grayson's confessions were admitted into evidence. Id.

The State additionally presented expert testimony about the crime scene. For example, the State's trace evidence expert testified about the comparison of hairs recovered from the crime scene and hairs taken from Grayson and Kennedy. Id. at 1202. The expert explained that several hairs recovered at the crime scene had "negroid" characteristics consistent with Grayson's and Kennedy's hair and inconsistent with the victim's, but that the hairs were too small to allow an individual comparison of them with Grayson's and Kennedy's samples. Id. The expert also testified that a hair recovered from Grayson's sock following his arrest was consistent with the victim's head hair and inconsistent with Grayson's, but the expert could not opine as to whether the hair was the victim's. Id.

The State's fingerprint expert testified that the latent fingerprints lifted from Mrs. Orr's home and on evidence were insufficient to allow analysis. Id. at 1201-02. The State's ballistics expert testified that the two bullets found in the wall between Mrs. Orr's bedroom and bathroom and on the floor in her bedroom were of the .38 caliber size and were fired from the same weapon, likely a Smith and Wesson revolver. Id. at 1202. The expert further testified that the hole in a shattered clock in Mrs. Orr's home also was consistent with a .38 bullet. Id. However, on cross-examination, the ballistics expert testified that the police had not given him a gun that matched up with the bullets. Id. at 1203.

The State's serology expert testified that bloodstains found on a pillowcase and a bed spread in Mrs. Orr's bedroom could not be typed; nor could urine and semen stains found on a bed sheet recovered from Mrs. Orr's bathroom. Id. at 1202.¹ The expert also testified that the bloodstains on Grayson's shirt recovered from the woods near his house were type O and could have come from either Mrs. Orr or Kennedy, both of whom were type O, but could not have come from Grayson, who is type B. Id. The serology expert testified that a large blood and semen stain on Mrs. Orr's nightgown was type B, which was consistent with Grayson's blood.² Id.

D. Grayson's Trial Testimony

At trial, Grayson testified on his own behalf. Defense counsel walked Grayson through the events of the night of the murder, starting with Grayson's and Kennedy's alcohol consumption....