Whatley v. Dunn

• Docket Number: CIV. ACT. 1:19-cv-938-TFM-N
• Decision Date: 31 August 2022
• Parties: DONALD DWAYNE WHATLEY, Petitioner, v. JEFFERSON D. DUNN, Commissioner, Alabama Department of Corrections Respondent.
• Court: U.S. District Court — Southern District of Alabama

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DONALD DWAYNE WHATLEY, Petitioner, v. JEFFERSON D. DUNN, Commissioner, Alabama Department of Corrections Respondent.

CIV. ACT. No. 1:19-cv-938-TFM-N

United States District Court, S.D. Alabama, Southern Division

August 31, 2022

MEMORANDUM OPINION AND ORDER

TERRY F. MOORER UNITED STATES DISTRICT JUDGE

Petitioner Donald Whatley, a state prisoner currently in the custody of the Alabama Department of Corrections, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C § 2254. Whatley challenges the validity of his 2008 conviction for capital murder in the Circuit Court of Mobile County, Alabama. This matter is now before the Court on Whatley's petition (Doc. 9), Respondent's Answer (Doc. 17), and the briefs, responses, and exhibits filed by the parties, including the 35-volume record of state-court proceedings. (See Docs. 2, 20). Following a thorough review of the petition and record, the undersigned finds that an evidentiary hearing is not warranted on the issues.^[1] For the reasons set forth below, the Court finds that Petitioner Whatley's petition for writ of habeas corpus is DENIED in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2006, Petitioner Whatley was indicted by the Mobile County, Alabama Grand Jury of capital murder in violation of ALA. CODE § 31A-5-40(a)(2) (“Murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.”). (Doc. 2-25). After entering a plea of not guilty to the charges, a jury trial was held in the Circuit Court of Mobile County, Alabama in November 2008, where Whatley was represented by court appointed attorneys Gregory Hughes and Lee Hale, Jr. (Doc. 2-1 at 2, 15-16). The facts of this case are summarized as follows:^[2]

On the morning of December 29, 2003, Kenneth McCall, an employee of Austal Crosby Joint Venture, went to his work site under a bridge in Mobile and discovered the victim's body lying on the ground near the entrance gate to the work site. He telephoned emergency 911. The state medical examiner, Dr. Kathleen Enstice, testified that Patel died of “multiple traumatic injuries” that included numerous injuries to his head, neck, sternum, and shoulder. Dr. Enstice testified that the injuries to his face were consistent with a beating, that the injury to his neck was consistent with strangulation, and that the injuries to his upper body were consistent with having been run over by a vehicle. Patel's pants, Dr. Enstice said, were around his neck. Cigarette butts were found near the victim's body. DNA testing on one of the cigarettes matched Whatley's DNA.

Testimony also established that Patel had been at Gabriel's, a bar in downtown Mobile, on the evening of December 28, 2003, with another male. Joseph Jones testified that he saw Patel drive up to Gabriel's and approach Whatley, who had been standing outside the bar. The two then went inside the bar together. On January 4, 2004, Patel's vehicle was discovered partially submerged in a large mud hole off Theodore Dawes Road. The vehicle had been set on fire. Sam Stevens of the Mobile Fire Department testified that he found an ignitable liquid behind the driver's seat in the vehicle. Sharee Wells of the Alabama Department of Forensic Sciences testified that the substance on the floor of the vehicle was gasoline.

Officer Steve Thrower, an investigator with the district attorney's office in Beaumont, Texas, testified that on August 4, 2006, Whatley was at the police station in Texas when Whatley told him that he had committed a murder in Mobile, Alabama, and wanted to confess. Officer Thrower read the following statement Whatley made to him:

“I know I don't have to talk to anyone about this and no one from the police department or from the [district attorney's] office is making me do this. I fully understand that Alabama can seek the death penalty against me but the Lord had put it on my heart to tell what I did so I'm going to tell it.

Back in 2003 around December 29th I killed a man by the name of Pete Patel. I'm not sure what the proper spelling of his name is and I think Pete was just a nickname. But he was a man of Indian descent that owned a small motel by the name of the Budget Inn in Mobile, Alabama. On the night the murder happened, I had gone to a local gay bar there in Mobile by the name of Gabriel's to look for someone to rob. It was there that I first met Pete. We made small talk and he hit on me for sex. I agreed to go with him and we left the bar in his car. I don't remember what time it was but it was pretty late. To the best of my knowledge I think his car was a light green Honda. Pete was driving when we left the bar and we went to the Africatown Cochran Bridge. When we got there we got out of the car and sat on the hood. I smoked a cigarette. We were talking and he put his hand on my leg. That just freaked me out so I hit him with my fist. It knocked him down so I got up on top of him and hit him a couple of more times and then I started choking him. I thought at that point he was dead. So I took his pants off of him but he started moaning. When he did that I jumped in his car and ran over his head a couple of times. The driver's side front tire was the tire that ran over him. I then took off in his car. I stopped about a quarter to three-eighths of a mile down the road and went through his pants. I got a couple of hundred dollars out of his wallet and threw his pants out. I took off again but just a short distance down the road I threw his wallet out. I went and bought some crack with the money I got. I then drove his car to Theodore Alabama and burned it. I started the fire with some gas I bought at a convenience store. The police never talked to me about the crime until 2005 when my DNA connected me to the crime scene. I don't think they had enough to charge me because I was never charged and I never admitted anything to them. I would have never, if I had not been all messed up on alcohol. I'm very sorry for what I did to this man. I hope that by my confessing to what I have done will ease the pain of some of his family.”

The jury convicted Whatley of murdering Patel during the course of a robbery. A separate penalty phase hearing was held. At the sentencing hearing, Whatley asserted that he should be sentenced to life imprisonment without the possibility of parole for the following reasons: since he murdered Patel he had turned his life over to Christ; he grew up in a dysfunctional family marked by violence and abuse; he had a history of poly-substance abuse; he was depressed; and his substance abuse had affected his actions on the night of the murder. The jury, by a vote of 10 to 2, recommended that Whatley be sentenced to death. After the jury returned its verdict, Whatley made the following statement:

“Ladies and gentlemen of the jury, I see that few of y'all are upset. Please don't let it weigh so much on y'all. I done a very terrible thing. Just, if you believe in God, pray. Don't let it weigh on y'all so much because I'm the one that's messed up. I'm the one that done wrong. I'm man enough to admit it. And the only way that I can get through something like this is by the Lord's strength.”

The circuit court then held a sentencing hearing and found the existence of three aggravating circumstances: (1) that Whatley had previously been convicted of a crime of violence or threat of violence, § 13A-5-49(2), Ala. Code 1975; (2) that the murder was committed while Whatley was engaged in the commission of a robbery, § 13A-5-49(4), Ala. Code 1975; and (3) that the murder was especially heinous, atrocious, or cruel as compared to other capital murders, § 13A-5-49(8), Ala. Code 1975. The court then followed the jury's recommendation and sentenced Whatley to death.

Whatley v. State, 146 So.3d 437, 449-51 (Ala.Crim.App.2010) (internal record citations omitted); see also Vol. 8-12, Tab-16-26, R. 898-1401; Tab-39, R. 1737. Through representation of appellate counsel, Whatley timely appealed his conviction and sentence and exhausted his state court post-conviction remedies.^[3] On November 7, 2019, Whatley timely filed the instant petition for federal habeas relief, challenging his 2008 conviction for capital murder.^[4] (Docs. 1, 9).

II. GROUNDS FOR RELIEF

In his petition for habeas relief, Whatley raises the following grounds for relief:^[5]

1. The prosecution used peremptory strikes in a race conscious manner in violation of Batson v. Kentucky and its progeny and clearly established United States Supreme Court Precedent.

2. Trial Counsel provided Ineffective Assistance:

a. During the Guilt Phase.

b. During Penalty Phase:

i. Trial counsel failed to investigate and present critical mitigating evidence.

ii. Trial counsel inadequately presented the mitigating evidence that they did uncover.

iii. The Court of Criminal Appeals' finding that counsel's performance cannot be deficient if they presented any mitigating evidence is contrary to and an unreasonable application of United States Supreme Court precedent iv. The Court of Criminal Appeals' finding that counsel had no independent duty to identify mitigation witnesses is contrary to and an unreasonable application of United States Supreme Court precedent.

v. The Court of Criminal Appeals' finding that counsel's penalty phase performance was the result of reasonable strategic decisions is contrary to and an unreasonable application of United States Supreme Court precedent.

3. The trial court's failure to find and consider mitigating circumstances violated clearly established United States Supreme Court precedent.

4. The trial court's reliance on future dangerousness as a non-statutory aggravating circumstance in sentencing Whatley to death violated clearly established United States

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