Powell v. Allen

• Decision Date: 08 April 2010
• Docket Number: No. 08-16784.,08-16784.
• Citation: 602 F.3d 1263
• Parties: Eddie D. POWELL, Petitioner-Appellant, v. Richard ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

602 F.3d 1263

Eddie D. POWELL, Petitioner-Appellant,
v.
Richard ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.

No. 08-16784.

United States Court of Appeals, Eleventh Circuit.

April 8, 2010.

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Matt D. Schulz, Kacey Leigh Keeton, Christine A. Freeman, Fed. Pub. Defenders, Montgomery, AL, for Powell.

Beth Jackson Hughes, Montgomery, AL for Allen.

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Eddie Powell was convicted of capital murder on June 16, 1998. In accordance with the 11-1 jury recommendation, on August 27, 1998, the trial judge sentenced him to death.¹ Powell appealed his conviction and sentence to Alabama's criminal appellate court and, when both were affirmed, Powell v. State, 796 So.2d 404 (Ala.Crim.App.1999), to the Alabama Supreme Court, which also affirmed, Ex parte Powell, 796 So.2d 434 (Ala.2001). Powell then filed a petition for a writ of certiorari with the Supreme Court of the United States, which denied the writ. Powell v. Alabama, 534 U.S. 904, 122 S.Ct. 236, 151 L.Ed.2d 170 (2001).

Powell began his state habeas process by filing, pro se, a petition under Rule 32 of the Alabama Rules of Criminal Procedure for relief from judgment in September, 2002. After his initial petition was dismissed as improperly plead, Powell filed, again pro se, an amended petition in November, 2003. Powell then obtained post-conviction counsel and, on the day of his status conference, filed a second amended petition in December, 2003 through counsel. In May, 2004, on the same date as Powell's Rule 32.8 pre-hearing conference, Powell filed a third amended petition. The state judge, in July, 2004, (1) denied Powell's petition and request for evidentiary hearings; (2) found every claim except one in Powell's second amended petition to be time-barred, and (3) struck Powell's third amended petition. Powell then requested permission to amend the petition for the fourth time, and the court denied the request. The appellate court overturned the Rule 32 court's decision to the extent it found the second amended petition time-barred, but affirmed the Rule 32 court's merits holdings (which included the denial of any evidentiary hearings). The Alabama Supreme Court quashed the petition for a writ of certiorari without an opinion.

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Powell then filed in federal court for a writ of habeas corpus and applicable evidentiary hearings, under 28 U.S.C. § 2254. The district court denied both. We granted Powell a certificate of appealability on the following nine issues:

1. Whether Powell is mentally retarded such that his execution is prohibited by the Eighth Amendment.

2. Whether the trial court improperly refused to instruct Powell's jury on the lesser included offense of felony murder.

3. Whether Powell received ineffective assistance of counsel during his penalty phase due to counsel's failure to adequately investigate and present effective mitigation evidence.

4. Whether Powell's trial counsel were ineffective for failing to investigate and present additional evidence of voluntary intoxication based on drug use during Powell's trial.

5. Whether the State presented false DNA evidence in Powell's trial.

6. Whether the process employed to create Powell's venire violated his Sixth Amendment right to a venire comprised of a fair cross-section of the community.

7. Whether the method for selecting Powell's grand jury foreperson violated the Equal Protection Clause.

8. Whether Powell made a prima facie case of racial discrimination during jury selection.

9. Whether the trial court violated Powell's right to question jurors on the issue of race by asking, in a racially-charged capital case, only one question to the entire jury pool regarding racial attitudes.

APPLICABLE STANDARDS OF REVIEW

We review the district court's conclusions on legal questions and mixed questions of law and fact de novo and its factual findings for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir.2009). However, our review of the Alabama habeas court's decision² is limited by the terms of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under AEDPA, we accord a presumption of correctness to a state court's factual findings. § 2254(e)(1) ("A determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). We therefore grant habeas relief to a petitioner challenging a state court's factual findings only in those cases where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). See Wiggins v. Smith, 539 U.S. 510, 527-28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

AEDPA similarly constrains our review of legal questions decided on the merits in state court. Under the statute,

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we cannot grant habeas relief "with respect to any claim that was adjudicated on the merits in State court proceedings" unless

The adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

§ 2254(d). The Supreme Court has further explained the requirements of § 2254(d) as follows:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 413, 120 S.Ct. 1495. When, however, a claim is properly presented to the state court, but the state court does not adjudicate it on the merits, we review de novo. Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009).

If a petitioner fails to "properly" present his claim to the state court—by exhausting his claims and complying with the applicable state procedure—prior to bringing his federal habeas claim then AEDPA typically bars us from reviewing the claim. Exhaustion requires that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see § 2254(b),(c). That is, to properly exhaust a claim, the petitioner must "fairly present " every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 350-51, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (quotation omitted).

In the process of exhausting a claim, the petitioner must comply with all "independent and adequate" state procedures, else the petitioner will have procedurally defaulted on that claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999); 28 U.S.C. § 2254(b),(c). Where a petitioner has not "properly presented his claims to the state courts," he will have "procedurally defaulted his claims" in federal court. O'Sullivan, 526 U.S. at 848, 119 S.Ct. 1728. To determine whether a state court's procedural ruling constitutes an independent and adequate state rule of decision, this Court has set forth the following three-part test: (1) the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim; (2) the state court's decision must rest solidly on state law grounds, and may not be "intertwined with an interpretation of federal law"; and (3) the state procedural rule must not be applied in an arbitrary or unprecedented fashion. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001) (citations omitted). We review de novo the district court's determination that a claim has been procedurally

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defaulted. See Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir.2008) (citation omitted).

DISCUSSION

I. CONVICTION ISSUES

We turn first to the five claims Powell makes pertaining to jury issues during trial. As to these claims, we find no reversible error for the following reasons.

First, the method by which Powell's judge selected his grand jury foreperson does not make out a prima facie violation of the Equal Protection Clause. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). To make out a prima facie violation, a defendant must show, among other things, that the applicable racial group was underrepresented relative to its proportion of the population as a whole. See Valle v. Sec. for Dept. of Corrections, 459 F.3d 1206, 1215-16 (11th Cir.2006) (prima facie case requires "comparing the proportion of the group in the total population to the proportion of the group chosen to serve as grand jurors over a significant period of time." (citing Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977))). Before Powell's judge,³ however, African-Americans...