McNabb v. Comm'r Ala. Dep't of Corr.

• Decision Date: 28 August 2013
• Docket Number: No. 12–13535.,12–13535.
• Citation: 727 F.3d 1334
• Parties: Torrey Twane McNABB, Petitioner–Appellant, v. COMMISSIONER ALABAMA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

727 F.3d 1334

Torrey Twane McNABB, Petitioner–Appellant,

v.COMMISSIONER ALABAMA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 12–13535.

United States Court of Appeals, Eleventh Circuit.

Aug. 28, 2013.

John Anthony Palombi and Christine A. Freeman, Federal Defender Program, Inc., Montgomery, AL, for Petitioner–Appellant.

Henry M. Johnson and John Cowles Neiman, Jr., Attorney General's Office, Montgomery, AL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. 2:08–cv–00683–MEF–SRW.

Before TJOFLAT, DUBINA and JORDAN, Circuit Judges.

DUBINA, Circuit Judge:

Petitioner, Torrey Twane McNabb, is currently serving a death sentence following his convictions for two counts of capital murder in connection with the murder of a Montgomery, Alabama, police officer. After unsuccessful state appeals and post-conviction proceedings, McNabb filed a federal habeas petition pursuant to 28 U.S.C. § 2254. The federal district court denied McNabb relief and also denied his motion to alter or amend the final judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. However, the district court did grant McNabb's petition for a certificate of appealability (“COA”) on the issues that he raised in his Rule 59(e) motion. Upon review of the record, including the briefs of the parties, and having the benefit of oral argument, we affirm the district court's judgment denying McNabb's federal habeas petition and his Rule 59(e) motion.

I. BACKGROUNDFacts

At trial, the State presented the testimony of numerous witnesses who were near the intersection of Rosa Parks Avenue and National Avenue in Montgomery, Alabama, on September 24, 1997, the day McNabb shot and killed Officer Anderson Gordon. Sanford Sharpe, a bail bondsman, testified that he was attempting to locate McNabb pursuant to a capias warrant because McNabb had failed to appear for two court appearances relating to charges of receiving stolen property and possession of a controlled substance. [R. Vol. 13 p. 1759–Vol. 14 p. 1857.] On this fateful day, Sharpe located McNabb sitting in an automobile parked on the street outside his grandmother's residence. Sharpe attempted to pull his truck in front of McNabb's vehicle to block McNabb, but McNabb sped away when he saw Sharpe. While pursuing McNabb, Sharpe saw McNabb run past a stop sign and strike another vehicle. As Sharpe approached the accident, McNabb got out of his vehicle, pulled a gun, and began shooting at Sharpe. Sharpe began to speed from the scene and telephoned 911. When he returned to the scene of the vehicle accident, Sharpe parked next to a Montgomery police patrol car and saw that the officer in the patrol car had been shot several times.

Annie Gamble testified that she was driving on Rosa Parks Avenue when a white vehicle ran a stop sign and struck her car. [R. Vol. 14, p. 1858?1889.] She stated that a man, whom she later identified as McNabb, exited the white vehicle and waved a gun in her direction. Gamble pleaded with him not to shoot her. She saw a red truck drive by and McNabb began shooting at it. After the truck disappeared from sight, Gamble testified that McNabb walked to the patrol car with his gun hidden from the officer's view. She noticed that “some words were passed” between McNabb and the officer, and when McNabb reached the rear of the patrol car, he began firing into the car. [ Id. at 1871.] When the officer attempted to return fire, Gamble stated that McNabb fled, running behind a nearby church.

Christopher Best testified that he was walking toward the Beulah Baptist Church at the time of the vehicle accident involving McNabb and Gamble. [R. Vol. 14, p. 1894–1910.] He saw McNabb exit the white vehicle and begin shooting at a red truck that was driving down National Avenue. When Best heard the first shot, he ran behind the church for cover and later heard several gunshots in rapid succession. He then heard Gamble screaming for someone to call 911 so he entered the church and asked someone to call emergency. When he returned to the intersection, a crowd had gathered, and he noticed that both the front and back windows on the driver's side of the police car had been shot and were no longer intact.

The State also presented the testimony of Michael Johnson, who lived in a residence located at the intersection where the crime occurred. [ Id. at 1911?1928.] Johnson testified that he heard what he thought were firecracker explosions about the time of the vehicle accident and looked out his front window. [ Id. at 1912?13.] From there, Johnson saw a Montgomery police patrol car stop in front of the church. He then saw a young black male, wearing dark-colored shorts and no shirt, approach the patrol car, holding a gun behind his back. After the police officer rolled down his window and spoke to the young man, the man opened fire on the officer “out of the blue.” [ Id. at 1915.] Johnson testified that when the young man first fired at the police officer, he did not see a weapon in the hands of the police officer. Jeffrey Dyson testified that he was working on the cable near the corner of the intersection and saw the two wrecked vehicles. [ Id. at 1928? 1941.] He noticed a man with green shorts and no shirt walk toward a Montgomery police patrol car with his hands behind his back. Dyson testified that he returned to work at this point, but almost immediately, heard gunshots. When he turned around, Dyson saw the man shooting at the officer in the patrol car. [ Id. at 1931.] John Reynolds testified that he was working behind Beulah Baptist Church on the day in question when he heard what sounded like a vehicle collision at the roadway intersection. [ Id. at 1942?1945.] He then heard gunshots, ran for cover, then heard more gunshots, and saw a man wearing green shorts and no shirt run behind the church and “scale the fence.” [ Id. at 1943.] Reynolds saw the man drop a gun on the ground, but he picked it up before he climbed the fence. The man then ran toward a ditch behind the church.

Corporal E.B. White testified that he received a call about a shooting at the intersection of Rosa Parks Avenue and National Avenue on September 24, 1997. [R. Vol. 14, p. 1947–1956.] He saw Corporal Gordon “slumped over in the seat,” and he tried to revive him, but was unsuccessful. [ Id. at 1949–50.] Officer Perkins testified that he responded to the emergency call regarding the gunshots and met Officer Danny Jackson at the Beulah Baptist Church. [R. Vol. 14, p. 1985–Vol. 15 p. 2011.] While they surveyed the area around the ditch, a man who was in the vicinity alerted the officers to McNabb's hiding place in the ditch. At that point, McNabb stood up in the ditch and fired at Officer Perkins one time. Officer Jackson returned fire, wounding McNabb.

Procedural History

A grand jury indicted McNabb for the capital offense of murdering Montgomery County Police Officer Anderson Gordon, in violation of Alabama Code § 13A–5–40(a)(5) (1975) (murder of police officer on duty), and for the capital offense of murdering Officer Gordon while he was sitting in his patrol car, in violation of Alabama Code § 13A–5–40(a)(17) (1975) (murder committed by or through the use of a deadly weapon while the victim is in a vehicle). In separate indictments, the grand jury indicted McNabb for the offense of attempted murder of Montgomery County Police Officer William Perkins and the attempted murder of Sanford Sharpe, violations of Alabama Code § 13A–4–2 (1975). The trial court consolidated the charges for trial.

At trial, McNabb admitted that he shot and killed Officer Gordon and that he had fired at Sharpe and Officer Perkins. However, he asserted two somewhat conflicting defenses. As to the charge of attempted murder of Sanford Sharpe, McNabb asserted that he acted in self-defense. As to both capital murder charges and both attempted murder charges, McNabb asserted that he did not have the intent to kill when he shot Officer Gordon and shot at the other two men because he had ingested so much cocaine on the morning of the shootings that he was in a cocaine-induced state of paranoia that left him unaware of his actions.

The jury found McNabb guilty of all charges. After a penalty phase proceeding, the jury recommended, by a vote of ten to two, that McNabb be sentenced to death. The trial court followed the jury's recommendation and imposed a death sentence. On direct appeal, the Alabama Court of Criminal Appeals (“ACCA”) affirmed McNabb's convictions but remanded the case to the trial court with instructions that the trial court make corrections to its sentencing order. McNabb v. State, 887 So.2d 929, 989 (Ala.Crim.App.2001). On return from remand, the ACCA affirmed McNabb's convictions and sentence.

While McNabb's case was pending in the ACCA on his application for rehearing, the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). At the ACCA's request, the parties filed supplemental briefs addressing the effect, if any, of this decision upon McNabb's sentence. The ACCA denied McNabb's application for rehearing, finding that his death sentence did not violate Ring. The Alabama Supreme Court affirmed his convictions and death sentence, Ex parte McNabb, 887 So.2d 998 (Ala.2004), and the United States Supreme Court denied his petition for certiorari review, McNabb v. Alabama, 543 U.S. 1005, 125 S.Ct. 606, 160 L.Ed.2d 466 (2004).

McNabb filed a petition for post-conviction relief, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The state circuit court summarily dismissed his petition for post-conviction relief, and the ACCA affirmed. McNabb v. State, 991 So.2d 313, 335–36 (Ala.Crim.App.2007). The Alabama Supreme Court denied the petition for certiorari. Ex parte McNabb, 991 So.2d 336 (Ala.2008). Thereafter, McNabb filed a federal petition for writ of habeas corpus, which the...