Windsor v. Dunn

• Decision Date: 23 October 2020
• Docket Number: Case No.: 4:10-cv-2223-AKK
• Parties: HARVEY WINDSOR, Petitioner, v. JEFFERSON S. DUNN, Commissioner of the Alabama Department of Corrections, et al., Respondents.
• Court: U.S. District Court — Northern District of Alabama

HARVEY WINDSOR, Petitioner, v. JEFFERSON S. DUNN,Commissioner of the Alabama Department of Corrections, et al., Respondents.

Case No.: 4:10-cv-2223-AKK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION

October 23, 2020

MEMORANDUM OPINION

Harvey Windsor has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. See generally Doc. 16.¹ Windsor challenges his 1992 capital conviction and death sentence in the Circuit Court of St. Clair County, Alabama for the murder of Rayford Howard, alleging that a variety of constitutional violations require a reversal of his conviction and sentence. After careful consideration, the court disagrees and finds that Windsor's petition is due to be denied.

I.

A.

On June 8, 1992, a St. Clair County jury convicted Windsor of capital murder. See Windsor v. State (Windsor I (ACCA)), 683 So. 2d 1013, 1014 (Ala. Crim. App. 1993), rev'd, 683 So. 2d 1021 (Ala. 1994). The jury found that on February 25, 1988, Windsor intentionally killed Mr. Howard during a robbery at Mr. Howard's convenience store.² The guilty determination triggered a penalty-phase hearing under Alabama law. Windsor I (ACCA), 683 So. 2d at 1014. After the penalty hearing, a unanimous jury recommended that Windsor receive a death sentence. Id. The trial court accepted the jury's penalty finding and sentenced Windsor to death. Id.³ As documented in the sentencing order, the court determined that "the only aggravating circumstance relied upon by the State of Alabama [wa]s circumstance (4) of Section 13A-5-49." Vol. 21, Tab 69 at 25-28. The court determined "beyonda reasonable doubt that the capital offense of which [Windsor] was convicted was committed while [Windsor] was an accomplice in the commission of, or attempt to commit, or flight after committing, or attempting to commit robbery." Id. The court considered the mitigating evidence about which Windsor's mother testified and found "that the aggravating circumstance . . . outweigh[ed] the mitigating circumstances . . . , and the mitigating circumstances did not outweigh the aggravating circumstance found." Id.

B.

The ACCA summarized the evidence supporting the capital conviction:

The evidence presented by the state tended to show that on February 25, 1988, [Mr.] Howard in St. Clair County and [Mr.] Pepper in Colbert County were robbed and murdered. The appellant and Lavon Guthrie were charged with the offenses. This appeal concerns only the robbery and murder of [Mr.] Howard.

On February 25, at approximately 2:00 p.m., [Mr.] Howard was found dead in his store in St. Clair County. He died as a result of a shotgun blast to the chest. Money had been taken from the store's cash register and the victim's pants pockets had been emptied. A witness saw someone carrying a "sawed-off shotgun" leave the victim's store, open the breech and reload the gun, and get into a black sports car.

On this same day, the appellant and Guthrie were seen in St. Clair County travelling together in a black Ford Mustang automobile with gold stripes and the word "boss" written in gold on the sides. At approximately 1:00 p.m. that day, the appellant and Guthrie had visited Sammie Sue Wilson Osborn at her house. Ms. Osborn's house was located approximately five miles from [Mr.] Howard's store.

The automobile in which the appellant was riding was seen later that afternoon travelling at a high rate speed in Marshall County and in Lawrence County. The automobile was also seen at Tommy's Store, a convenience store, in Lawrence County. An occupant of the car discarded two Budweiser beer cans in the parking lot of Tommy's Store.

The automobile was also seen at approximately 8:00 p.m. at a store in Colbert County. The attendant at the Colbert County store, Randal Earl Pepper, was killed by a shotgun blast to the head. The appellant was identified as the person running from the store and getting into the automobile. When the appellant was arrested, he had in his possession a .25 automatic pistol that had belonged to Mr. Pepper.

The automobile in which the appellant and Guthrie were travelling had been stolen on February 23, 1988, from Connie's Quick Stop convenience store in Tiftonia, Tennessee. The automobile was recovered on February 26, at Tiftonia Baptist Church, two-tenths of a mile from Connie's Quick Stop. Guthrie's sister's house was located between Connie's Quick Stop and the Tiftonia Baptist Church.

When the automobile was searched, the following items were recovered: a ring of keys, a receipt from Parisian department store, a .20 gauge shotgun shell, and cigarette butts. One of the keys on the recovered ring opened a padlock that secured the rear door of Howard's Store. The Parisian receipt was for a suit that Mr. Howard had purchased for his wife. The .20 gauge shotgun shell had been fired from the same gun as a shell that was recovered outside Howard's store. The appellant's fingerprint was found on one of the cigarette butts.

Additionally, Guthrie's fingerprints were found on Mr. Howard's driver's license, which was recovered, along with his wallet and its contents, beside the road a few miles from his store. Guthrie's fingerprints were also found on one of the Budweiser beer cans that was left at Tommy's Store in Lawrence County.

Windsor v. State (Windsor II (ACCA)), 683 So. 2d 1027, 1030 (Ala. Crim. App. 1994) (footnote omitted).

On appeal, the ACCA found that the circuit court clerk's practice of excusing prospective jurors without judicial involvement and an improper prosecutorial remark about Windsor's failure to testify denied Windsor a fair trial and reversed his conviction. Windsor I (ACCA), 683 So. 2d at 1016-19. The State sought review of the ACCA's decision, and the Alabama Supreme Court reversed. Windsor v. State (Windsor I), 683 So. 2d 1021, 1027 (Ala. 1994). The Court found no evidence that the circuit court clerk's role in the jury selection process had harmed Windsor constitutionally or prejudiced him under Alabama law. Windsor I, 683 So. 2d at 1024, 1027. Evaluating the prosecutor's comment under the previously adopted Eleventh Circuit Court of Appeals Fifth Amendment standard, the Court found no reversible error. Id. at 1024.

On remand, the ACCA affirmed the conviction and sentence. Windsor II (ACCA), 683 So. 2d at 1041. Windsor appealed, and the Alabama Supreme Court affirmed. Windsor v. State (Windsor II), 683 So. 2d 1042, 1062 (Ala. 1996). The Supreme Court denied Windsor's petition for a writ of certiorari. Windsor v. Alabama, 520 U.S. 1171 (1997).

C.

On April 1, 1998, Windsor sought collateral review by filing an Alabama Criminal Procedure Rule 32 petition in St. Clair County Circuit Court. Windsor v. State (Windsor Rule 32), 89 So. 3d 805, 808 (Ala. Crim. App. 2009). On November 18, 1998, the Rule 32 court dismissed some of Windsor's claims as procedurally barred and gave him thirty days to amend the petition consistent with the specificity requirement of Rule 32.6(b). Windsor Rule 32, 89 So. 3d at 808-09. Windsor amended his petition and the Rule 32 court dismissed some claims on August 17, 1999 and set the pending claims for an evidentiary hearing. Id. at 809. After a continuance and a case reassignment, a new judge dismissed Windsor's remaining Rule 32 claims on February 17, 2006, without a hearing. Id. The ACCA affirmed in 2009. Id. at 826.

Windsor appealed, and the Alabama Supreme Court affirmed the ACCA except for an unaddressed ineffective assistance of counsel claim. Windsor Rule 32, 89 So. 3d at 826-27. Windsor argued that his trial counsel should have objected when the prosecutor told the jury members that they could "ignore the[] mitigating circumstances" during the penalty phase. Id. at 827 (internal quotation marks omitted) (alternation supplied). On remand, the ACCA found that the prosecutor'sremark about mitigation did not unfairly prejudice Windsor and affirmed the dismissal of the Rule 32 petition. Id. at 830.

D.

On August 17, 2010, Windsor filed a § 2254 petition in this court. Doc. 1. Windsor moved for, and this court granted, a stay pending the completion of the state collateral review process. Docs. 3, 8. After the Alabama Supreme Court denied Windsor's petition for writ of certiorari in 2012, this court lifted the stay, and Windsor amended his § 2254 petition. Docs. 12, 13, 16. The Respondents filed an answer and brief, docs. 25, 26, and Windsor replied, doc. 28.

II.

"The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). Consequently, this court may only review questions of federal constitutional and statutory law in a habeas action. Claims that turn solely upon state law principles fall outside the ambit of this court's authority to provide relief under § 2254. Alston v. Dep't of Corr., 610 F.3d 1318, 1326 (11th Cir. 2010). Before evaluating Windsor's claims, the court reviews several principles common to habeas proceedings.

A.

A habeas petitioner must present his federal claims to the state court and exhaust the state remedies available before seeking relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666 (2005). Exhaustion ensures that state courts have the first opportunity to address and, if necessary, correct federal issues affecting the validity of state court convictions. As the Eleventh Circuit has explained:

In general, a federal court may not grant habeas corpus relief to a state prisoner who has not exhausted his available state remedies. . . .

Exhaustion of state remedies requires that the state prisoner "fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404

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