Jeffery Lynn Borden v. Richard F. Allen ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 12, 2011
JOHN LEY
No. 09-14322 CLERK
________________________
D. C. Docket No. 04-01335-CV-VEH-TMP
JEFFERY LYNN BORDEN,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner Alabama Department of
Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 12, 2011)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
TJOFLAT, Circuit Judge:
Jeffery Lynn Borden is a death row inmate in the Alabama prison system;
he was convicted of capital murder in the Circuit Court of Jefferson County,
Alabama, in September 1995. He seeks a writ of habeas corpus vacating his death
sentence on the ground that his attorneys rendered ineffective assistance of counsel
during the penalty phase of his murder trial in violation of the Sixth and Fourteenth
Amendments to the United States Constitution.1 To obtain the writ, Borden must
establish that the decision of the Alabama Court of Criminal Appeals denying his
ineffective assistance of counsel claims “(1) 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) was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). The United States District Court for the
Northern District of Alabama held that it was not and denied the writ. After
reviewing the record that was before the Court of Criminal Appeals and
1
The Sixth Amendment, which has been made applicable to the States, see Gideon v.
Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797, 9 L. Ed. 2d 799 (1963), states, in pertinent
part, “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his
defence,” U.S. Const. amend. VI. The “Assistance of Counsel” means the “effective” assistance
of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984). Borden contends that his death sentence should be vacated on additional
grounds, but those grounds are not cited in the certificate of appealability, which limits the issues
to be considered in this appeal. See 28 U.S.C. § 2253(c)(2), (3); Diaz v. Sec’y for Dep’t of
Corr., 362 F.3d 698, 702 (11th Cir. 2004) (citing Murray v. United States, 145 F.3d 1249,
1250–51 (11th Cir. 1998) (per curiam)).
2
considering the arguments of the parties’ counsel—both in their briefs to this court
and in oral argument—we conclude that Borden has established neither point. We
explain why Borden is not entitled habeas corpus relief after recounting the facts
that led to his conviction and the reasons why the Court of Criminal Appeals
rejected his claim that his attorneys’ performance in the penalty phase of his trial
was constitutionally deficient.
I.
On December 24, 1993, Cheryl Borden and her father, Roland Dean Harris,
were murdered during a family holiday gathering. The facts relating to the crime
are not in material dispute:
The evidence tended to show that on Christmas Eve of 1993,
there was a large family gathering at the home of Juanita and Roland
Harris in Gardendale. At around 6:45 p.m., [Borden], who was
married to but legally separated from the Harris’s daughter, Cheryl
Borden, arrived at the Harris’s residence with his and Cheryl’s three
children. The children, who had continued to live with their mother in
Gardendale after her separation from [Borden], had spent the previous
week visiting [Borden] in Huntsville—where [Borden] was then
residing. [Borden] was to return the children to Gardendale in time to
spend Christmas with their mother. When the children arrived at their
grandparents’ house, their grandfather, Roland Harris, came outside to
help unload their clothes and Christmas gifts from [Borden]’s car.
Shortly thereafter, the children’s mother, Cheryl Borden, arrived at
her parents’ house and began to help her children move some of their
things from [Borden]’s car to her car. In front of the children,
[Borden] then took out [a] .380 caliber semiautomatic pistol and shot
Cheryl Borden in the back of her head. Cheryl fell to the ground. Her
father, Roland Harris, who was also present in the front yard, began to
run toward the front door of the house yelling for someone to
3
telephone 911. [Borden] chased Harris and fired several shots toward
him and in the direction of the house. Harris made it into the house as
[Borden] continued to shoot at him from the yard. One of the bullets
fired from [Borden]’s gun struck and shattered a glass storm door at
the front entrance of the house. Once inside the house, Harris
collapsed on the floor. At some point during the shooting, a bullet
had struck Harris in his back. As [Borden] shot at Harris, the three
children ran through the garage of the residence and came into the
house through a back entrance, screaming that their father had shot
their mother and that she was dead. Several other family members
were inside the house during the incident and scrambled to take cover
from the gunfire.
Cheryl Borden and her father, Roland Harris, were transported
to a local hospital, where they died later that evening. [Borden] was
arrested and charged with their murders.
The pistol used in the shooting incident was recovered at the
crime scene. Testimony at trial indicated that the pistol held a total of
eight rounds of ammunition and that when it was recovered, it
contained one unfired cartridge. There was evidence that at least
some of the bullets fired by [Borden] entered the living area of the
house.
Borden v. State, 711 So. 2d 498, 500–01 (Ala. Crim. App. 1997) (footnote
omitted).
A.
On May 6, 1994, a Jefferson County grand jury returned an indictment
charging Borden with two counts of capital murder for the deaths of Cheryl Borden
and Roland Harris. Count I of the indictment charged Borden with the capital
offense of “[m]urder wherein two or more persons are murdered by the defendant
by one act or pursuant to one scheme or course of conduct.” Ala. Code § 13A-5-
40(a)(10). Count II charged Borden with the capital offense of “[m]urder
4
committed by or through the use of a deadly weapon fired or otherwise used from
outside a dwelling while the victim is in a dwelling.” Id. § 13A-5-40(a)(16).
Judge Michael W. McCormick presided over the jury trial in the Circuit
Court of Jefferson County, and Borden was represented by two court-appointed
attorneys, J. Massey Relfe, Jr., and Michael Shores,2 both of Birmingham,
Alabama. Following voir dire and jury selection, the trial began on September 12,
1995.
At the guilt phase of the trial3 Borden pled the affirmative defense of not
guilty by reason of mental disease or defect.4 Borden’s counsel sought to shift the
focus away from the facts of the crime to Borden’s mental capacity from the
2
Though both attorneys were present throughout the entire trial, Shores handled the guilt
phase, while Relfe handled the penalty phase.
3
While we ultimately focus on Borden’s counsel’s performance surrounding the penalty
phase of his trial, we discuss extensively the arguments and evidence presented at the guilt phase
because that evidence was incorporated by reference during the penalty phase.
4
Alabama law provides:
(a) It is an affirmative defense to a prosecution for any crime that, at the time of
the commission of the acts constituting the offense, the defendant, as a result of
severe mental disease or defect, was unable to appreciate the nature and quality or
wrongfulness of his acts. Mental disease or defect does not otherwise constitute a
defense.
(b) “Severe mental disease or defect” does not include an abnormality manifested
only by repeated criminal or otherwise antisocial conduct.
(c) The defendant has the burden of proving the defense of insanity by clear and
convincing evidence.
Ala. Code § 13A-3-1.
5
outset. In his opening statement, defense counsel conceded that “[t]here’s not
going to be a whole lot of dispute about the underlying facts in this case” and
quickly turned the jury’s attention to a watershed event in Borden’s life: a severe
1977 automobile accident in which he suffered closed-head trauma and that left
him comatose for four days. Continuing, counsel discussed Borden’s “bizarre
behavior patterns” as “what the doctors, I think, would call depressive patterns
with psychotic features that culminated in 1981 with a suicide attempt when Jeff
was rehospitalized.” Counsel walked the jury through Borden’s storied mental
health history, replete with hospitalizations, suicide attempts, and medications
designed to address mental health issues. He culminated this history by stating,
“Over the course of this time that we’ve just talked about Jeff has been hospitalized
a total of eight times particularly for mental problems. . . . He’s placed on seven
different medications . . . .” Importantly, counsel indicated that the jury would
hear from several witnesses, including Borden’s mother and expert medical
witnesses who had evaluated Borden, and that the jury would be able to examine
medical records to “find out what the doctors were saying then about Jeff’s mental
problems.”
Following the close of the State’s case in chief,5 the defense first called
5
The State did not present any evidence regarding Borden’s mental health during its
case in chief.
6
Borden’s mother, Eloise Borden (“Mrs. Borden”), to the stand. Mrs. Borden
testified that as a child and young man Borden did not experience any problems
that were “out of the ordinary,” save “some depression” following his brother’s
death in 1971—when Borden was eleven years old. Defense counsel then shifted
his attention to Borden’s 1977 automobile accident. Mrs. Borden testified that her
son was unconscious for four days following the accident, and that once he
regained consciousness he was “not aware of everything that was going on around
him.” Apparently seeking to establish the accident as a turning point for Borden’s
psychological profile, counsel asked Mrs. Borden about Borden’s behavioral
changes following the accident. Mrs. Borden noted a change in sleep patterns as
well as depression, stating that “[h]e was just, you know, a different—total
change.”
Mrs. Borden further testified that her son’s psychological problems reached
such a point that she and her husband took him to a hospital in 1981, at which
point he was diagnosed as “severely depressed” and placed on “a bunch of”
medication. She spoke further of injuries Borden suffered throughout the 1980s,
one of which ultimately required neck surgery in November 1992. When asked if
Borden was “exhibiting any or beginning to exhibit any other bizarre behaviors,”
Mrs. Borden replied, “He was seeing things that weren’t there. People were after
him. They were after his family to hurt them.” She discussed his twelve-day
7
placement in a “secure facility” in July 1992 at Brookwood Hospital under the
supervision of a Dr. L. E. Shehi, and his return to that facility in October of the
same year. She spoke of his re-hospitalization—this time in Tennessee—after “he
overdosed again” by taking 250 extra-strength Tylenol and 100 ibuprofen.
Moreover, Mrs. Borden told the jury that Borden had been subjected to nine
“shock treatments” at the Centennial Medical Center in the summer of 1993.6
On cross-examination, the State focused on Borden’s spotty work record.
Most importantly for our analysis, the prosecutor asked Mrs. Borden whether “the
medical doctor who knows the most about Jeff, who saw him most frequently
[from late 1992 until late 1993] is Dr. Shehi; is that right?” She answered
affirmatively.
The defense next called Dr. J. Wesley Libb, a clinical psychologist working
at the University of Alabama at Birmingham in the Department of Psychiatry. Dr.
Libb was “primarily involved in psychological assessment of in-patients within the
Center for Psychiatric Medicine.” While he had never evaluated or treated Borden
prior to the murders of Cheryl Borden and Roland Harris, he later administered a
“neuro-psychological battery of tests” as well as “general[] psychological testing.”
6
Mrs. Borden’s testimony covered a wider range of topics than just Borden’s
psychological history, but as our focus is on Borden’s ineffective assistance of counsel claim
based on counsel’s failure to investigate and present mitigating mental health evidence at the
penalty phase, we decline to discuss her testimony in its entirety. Likewise, we will not belabor
testimony or evidence not relevant to Borden’s claims now before us.
8
After an extensive description of the tests that he administered to Borden, Dr. Libb
testified that Borden “experiences likely relatively severe character logic or
personality disorder. His coping resources were really quite limited. . . . [H]e
basically had very limited ability to deal with stress, . . . a lot of difficulty in
emotional control, the ability to plan ahead and to control and manage his
behavior.” While Dr. Libb’s testing did not indicate schizophrenia or bipolar
disorder, “all the testing suggests that he does experience episodic depression.” He
added, “I could see him becoming psychotic and having psychotic-like episodes
and becoming paranoid and becoming severely depressed.” Dr. Libb opined that
“part of the picture here could also be consistent with the possibility that some of
these deficits are related to some sort of organic brain impairment as well” and that
his observations “could be” consistent with a “history of psychotic episodes.” In
sum, Dr. Libb testified that he believed that Borden “historically suffered from a
psychiatric disorder” that “was moderately severe or moderate” and “[n]ot
inconsistent with closed-head trauma.”
On cross-examination, the State sought to discredit Dr. Libb’s testimony by
undermining the ability of his testing to detect “faking.”7 After seeking to establish
that Dr. Libb’s field of expertise was incongruent with testifying regarding legal
7
For example, the prosecutor asked about one of the tests administered by Dr. Libb: “Is
there a control built into that test to prevent or inhibit faking?”
9
insanity, the prosecutor asked, “You’re not telling these ladies and gentlemen that
this defendant doesn’t know the difference between right and wrong?” The
witness replied, “No, I’m not.” On re-direct examination, Borden’s counsel
elicited that Dr. Libb was not a “professional witness” and that his findings with
regard to Borden’s mental health left open “the possibility of a more severe
psychiatric disorder” than simply a neurosis.
The defense next called Dr. Douglas Sargent, a psychiatrist with fifty years’
experience who had authored about 112 publications. Like Dr. Libb, Dr. Sargent
had not treated Borden prior to the murders, but had instead evaluated him in jail at
the request of defense counsel. After outlining his extensive credentials, Dr.
Sargent described his methodology for evaluating Borden, stating that he relied on
medical records, interviews with Borden, and discussions with those close to
Borden. Regarding the interviews, Dr. Sargent stated that he “ma[de] an
assessment of the credibility of the stories and then tr[ied] to check them out
against other sources of information to see if [he could] validate them or refute
them.”
When asked specifically, “Did you have an opinion as to what his diagnosis
was on” December 24, 1993, Dr. Sargent replied:
Yes. I believe he suffered from two conditions at that time: One,
a—an uncertainty or weakness in impulse control and some other
features which I could describe, which I would call an organic closed-
10
head injury encephalop[athy] or post-concussive syndrome. And in
addition a super imposed depressive disorder, which I call a schizo
affective disorder for reasons that I can describe, which he has had
more or less continually since at least 1981 and which flares up from
time to time requiring him to be hospitalized and for which he has
been all but continuously under treatment at one mental health center
or another.
Dr. Sargent went on to define “schizo affective disorder” as “a mood disorder—a
depression in this case, coupled with other features that suggest schizophrenia so
that you can’t say he’s either schizophrenic or depressed but is—suffers from a
disorder which is a combination of the two.” The witness described Borden as
exhibiting “signs of a delusional disorder” who had “unrealistic false beliefs of
persecution” and was “profoundly depressed” with suicidal tendencies. He
described how Borden had related to him that one of his hospitalizations occurred
as the result of grief that overcame him after beating his wife—explosive behavior
that Borden had said “was like he couldn’t help it. He couldn’t stop it. He had no
control over it.”
Dr. Sargent linked this behavior to Borden’s automobile accident, stating it
was a “symptom commonly found in people with closed-head injuries of the kind
Jeff suffered . . . called episodic discontrol.” The witness testified that Borden
exhibited a “sudden disappearance of the control mechanism . . . throughout the
record in the frequent references by one or the other psychiatrists who had seen
him in the past of his impulsive behavior.” He continued at length, discussing
11
relevant mental diseases and disorders, including “thought disorder” and “mood
congruent hallucinations and delusions.” He also discussed Dr. Libb’s report, as
he had hired Dr. Libb to examine Borden.
Following an explanation of the battery of drugs Borden had taken over the
years, Dr. Sargent was asked, “Doctor, considering your education and
experience, . . . do you have an opinion as to whether or not at the time of this
incident now, which was December the 24th, 1993, Jeff was suffering from a
mental disease or defect?” Dr. Sargent answered affirmatively, explaining, “I
believe that he was suffering from chronic schizo affective disorder partially
compensated and from a closed-head injury that I have described before.”
Following up, Borden’s counsel asked if Dr. Sargent had “an opinion as to whether
or not Jeff’s actions as—that occurred on December the 24th, 1993, were as a
result of rational behavior?” The witness replied, “No, I don’t.” He also testified
that he did not think that Borden could “appreciate the criminality” of his behavior.
He explained,
I think that he was operating under the control of a very strong
impulse that he could not control, that his behavior was
disorganized, . . . that his mood was disordered and that he was
therefore unable to . . . appreciate the criminality. I don’t even think
he thought about the criminality of the act at the time.
On cross-examination, the State sought to emphasize the lack of objectivity
inherent in the field of psychology, and walked Dr. Sargent through the medical
12
records to point out data inconsistent with his testimony.8
During re-direct examination, Dr. Sargent took up the notion that Borden
was “feigning” his mental illness, testifying,
when you have a person hospitalized eight times for mental illness
when there’s no apparent advantage to that, it’s a little hard to believe
that they would be feigning mental illness in the way that they were.
Besides the totality of his behavior and the reports of his behavior on
the part of the medical staff who are generally quite experienced
would very quickly raise the suspicion of falsification of an illness. I
don’t see any reason to believe that [] he was not as sick as they say
he was when they attended him.
Defense counsel continued, asking Dr. Sargent if any of the information brought
up by the prosecutor on cross-examination had had any effect on his opinion as to
Borden’s diagnosis. Dr. Sargent’s responded, “None whatsoever.”
Before calling his next witness, DeWayne King, a medical assistant at the
county jail, defense counsel introduced into evidence Borden’s complete relevant
medical history, which included records from ten medical and mental health
facilities.9 King then testified that Borden had been placed in the “psychiatric
block” of the jail, which included a single bunk and a camera, as a result of his
8
For example, the prosecutor asked, “[A]re you familiar with another [incident] on May
the 5th, 1993, in which he tells the nurse . . . that he’s going to be a model patient so he can get
out and put his hands around his wife’s scrawny neck and kill her?” Looking at the medical
records, he later corrected his statement, saying, “Excuse me, I said ‘kill her.’ He said ‘choke
her.’”
9
Following King’s testimony, defense counsel also introduced Borden’s medical records
from jail into evidence.
13
psychiatric history. He also discussed the medication that Borden was taking while
incarcerated. King stated that Borden was in the psychiatric block for “an awfully
long time.” The defense presented no more witnesses.
After the defense rested, the State presented testimony on rebuttal designed
to undercut Borden’s affirmative defense of not guilty by reason of mental disease
or defect. The State called Dr. C. J. Rosecrans, a certified forensic examiner and a
professor of psychiatry in the Department of Psychiatry at the University of
Alabama at Birmingham. Dr. Rosecrans was appointed by the court to determine
Borden’s competency to stand trial as well as his mental state at the time of the
commission of the offense. He described at length his methodology and
discussions with Borden, and made several statements relevant to Borden’s
defense—particularly focusing on the difference between what a psychiatrist
would deem a mental disease and what the law would consider “insanity.” Dr.
Rosecrans stated that he did “not believe [Borden] was operating under irresistible
impulse” and that a review of Dr. Libb’s and Dr. Sargent’s reports did not change
his opinion as to Borden’s mental condition at the time of the incident. Dr.
Rosecrans conceded that he would not “necessarily dispute that [Borden] may have
at some time in the past been suffering from mental illness or psychosis.”
Elaborating, Dr. Rosecrans stated, “my impression from [Borden’s] recitation of
the event at that time is that he was upset, he was angry, he was hurt, I think he was
14
irritated, I think he was emotionally distressed, but I think . . . it was not a random
activity.” He concluded with a statement that, as to “the legal question you have,”
Borden “could have restrained” and “it was not an irresistible impulse.”
On cross-examination, defense counsel focused on Dr. Rosecrans’s limited
study of Borden; the doctor had known that Borden had been admitted to a wide
variety of medical facilities, but had not received or reviewed the majority of
Borden’s medical records. Further, Dr. Rosecrans based his conclusions on an
interview lasting ninety minutes, the contents of which defense counsel inquired
about extensively. Referencing testimony given on direct examination, defense
counsel asked Dr. Rosecrans, “Are you aware that irresistible impulse is not a legal
defense in Alabama?” The witness indicated that he was not. Defense counsel
also inquired, “So you don’t determine sanity yourself, that’s for the ladies and
gentlemen of the jury?” Dr. Rosecrans replied, “Exactly so.” The prosecution
called no further rebuttal witnesses to testify regarding Borden’s mental state.
During closing argument, the State discussed the evidence that had been
presented in support of Borden’s affirmative defense. The prosecutor sought to
characterize the defense as an “excuse,” arguing that Borden had “lived a life of
excuses.” Further, he asked the jury to examine Borden’s medical records and
argued that “Dr. Sargent is the only one who says that this automobile accident has
anything to do with this defendant’s condition. The paid expert of the defense, the
15
only one.” The State conceded that Borden had suffered from depression, but that
depression alone was insufficient to find him not guilty by reason of insanity.
Rather, the prosecutor argued, this was a case of “[j]ealousy and control.”
Defense counsel directly engaged the prosecutor’s argument that Borden’s
defense was merely an “excuse”:
How do you determine whether or not it is an excuse? History is
helpful. Here’s a man who has been hospitalized eight times for, as
[the prosecutor] says, excuses. He’s using it as an excuse. Well, if
it’s an excuse, then he’s fooled eight doctors. He ought to get an
academy award because he’s the best actor that there could be. He’s
fooled eight different doctors at separate times and separate places.
Read the medical reports. There’s bad stuff in the medical reports.
We know there was bad stuff in there, and we know that you’re going
to look at that bad stuff. But the defense offers the medical reports to
you, not the State. They were admitted from the defense. . . . What he
says in there is consistent with the defect the way those doctors see it.
Not the way the doctors that testified here, but those doctors.
Defense counsel also walked the jury through testimony presented by both the
State and defense witnesses, the evidence contained within Borden’s medical
records, and the legal standard for insanity,10 reminding the jury that it was
ultimately up to them, and not the experts who testified, to determine the validity
of Borden’s defense.
10
Defense counsel misstated the standard for insanity in Alabama: “There is reasonable
doubt here as to his sanity, ladies and gentlemen. And if there’s reasonable doubt, the
appropriate verdict in this case is not guilty by reason of mental defect or disease. . . . That’s
what the law says.” The prosecutor corrected him during the State’s rebuttal, explaining that
Borden had pled an affirmative defense and therefore bore the burden of persuasion.
16
On rebuttal, the prosecutor discussed the strengths and weaknesses of the
witnesses that the jury had seen, and, in doing so, made an argument that is
relevant to Borden’s ineffective assistance of counsel claim:
And if there was a serious attempt here, folks, to give you the big
picture and all the information, we’re missing somebody, aren’t we?
The defendant’s mother said that in the year 1993 leading up to these
shootings that nobody, nobody, knew the defendant’s condition better
than Dr. Shehi. Where is he? Have you seen him? . . . And don’t you
think you’ve got a right to expect if they want to prove something to
you, they’re going to bring the person who according to the
defendant’s own mother knows more about him than anything else?
And they chose not to. And I think you can infer from that why.
The court then gave its instructions to the jury, which deliberated for
roughly three hours. On the afternoon of September 14, 1995, the jury found
Borden guilty of the capital offense charged in Count I and guilty of the lesser-
included offense of non-capital intentional murder under Count II.
B.
Shortly after the jury delivered its verdict, the sentencing phase of Borden’s
trial began.11 The State readopted all of the evidence and testimony from the guilt
11
Following a capital conviction, Alabama law requires a jury—the same jury that
convicted the defendant “unless it is impossible or impracticable to do so”—to return an
advisory verdict that recommends a sentence of either life imprisonment without parole or death.
Ala. Code § 13A-5-46. A jury recommendation of a sentence of death must be based on the vote
of at least ten of the twelve jurors, while a jury recommendation of a sentence of life without
parole requires a vote of a majority of the jurors. Id. § 13A-5-46(f). If the jury is unable to
reach an advisory verdict recommendation, then the trial court may declare a mistrial of the
sentence hearing and conduct another such hearing before a new jury. Id. § 13A-5-46(g).
Despite this jury procedure, it is the trial court that ultimately determines a defendant’s
sentence. Id. § 13A-5-47(e) (“While the jury’s recommendation concerning sentence shall be
17
stage of the trial and sought to prove one aggravating circumstance: “this defendant
at the time he fired those shots through that door created a great risk of death to a
number of people.”12 Similarly, defense counsel readopted “the evidence that you
had before you in this case in the guilt phase” and sought to prove three mitigating
circumstances: first, that Borden had no prior significant criminal history, see Ala.
Code § 13A-5-51(1); second, that “this offense was committed while [Borden] was
under the influence of extreme mental or emotional disturbance,” see id. § 13A-5-
51(2); and third, that Borden’s ability to “appreciate the criminality of his conduct
to the requirements of the law” was “substantially impaired,” see id. § 13A-5-
51(6).13
To prove its aggravating circumstance, the State called one witness at the
penalty phase: Cindy Smith, Cheryl Borden’s sister. Smith was in attendance at
the Harris household on the night of the murders and had previously testified at the
guilt phase of the trial. At the penalty phase, she testified to the location of the
given consideration, it is not binding upon the court.”).
12
The above-quoted language is how the prosecutor described the aggravating
circumstance; the precise statutory language is, “The defendant knowingly created a great risk of
death to many persons.” Ala. Code § 13A-5-49(3). In its charge to the jury, the court correctly
stated the aggravating circumstance.
13
Alabama law allows a defendant to introduce both enumerated and unenumerated
mitigating circumstances at the penalty phase of a capital trial. See Ala. Code §§ 13A-5-51, 52.
Each of the mitigating circumstances presented by Borden’s counsel is specifically enumerated.
See id. § 13A-5-51.
18
various people at the Harris’s at the time of the murders. According to her
testimony, there were around ten people in the house at the time Borden shot
Cheryl Borden and Roland Harris.
The defense presented Borden’s mother and his three sisters as witnesses at
the penalty phase of his trial. Borden’s mother testified that Borden had been
receiving disability benefits for “mental disease” and that he had been living with
her since his separation from his wife. Mrs. Borden stated that he would pace
around like “a caged animal” because he believed that “[s]omebody was always
after him.” She also relayed information about his “very poor” hygiene habits and
his inability to get any sustained sleep. Finally, she testified that Borden
“definitely” had an emotional disturbance in 1993, and that he was on heavy
medication “for the majority of 1993.” The State did not cross-examine her.
The defense next called Jennifer Borden (“Jennifer”), Borden’s nineteen-
year-old sister. Jennifer lived with her parents at the time of trial, and also had
lived in their home when Borden moved back following his separation from his
wife. Jennifer testified that Borden returned to live at home in February 1993 and
that his conduct had been “very unusual.” Elaborating, she stated that “he rarely
slept if any at all. And he would sit and just stare for hours. And he would
mumble things sometimes . . . .” She echoed Mrs. Borden’s testimony about
Borden’s belief that people were “after him,” relaying an incident in which Borden
19
had hurt himself falling off a shed and claimed that a non-existent “someone” had
thrown him off. Jennifer also testified that, to her knowledge, Borden had never
been charged with or convicted of a felony. Finally, she testified about his hospital
visits and his 1993 suicide attempt in Tennessee. The State very briefly cross-
examined Jennifer, asking her if Borden had “acted this way all the time” he lived
at home. Jennifer responded affirmatively.
The defense next called Denise Borden Purser, Borden’s older sister. Purser
testified about changes in Borden’s mental state following his 1977 accident,
recalling an incident in 1978 when Borden hallucinated, conjuring in his mind a
“big black dog” with “snarling long black teeth” and “red glowing eyes.” Next,
she testified about Borden’s behavior at a family reunion during the summer of
1993 when Borden “had just gotten out of the hospital from the shock treatments.”
She stated that he “was like a little wild man.” Asked to describe what she meant,
Purser said, “A wild man. His eyes were wild and open and all. He didn’t know
us at times. He didn’t know the people around him. He would ask repeated
questions over and over.” She also testified to his “very bad” hygiene habits, and
that, to her knowledge, he had never been charged with or convicted of a felony.
The State did not cross-examine Purser.
The defense called as its last witness Becky Taylor, Borden’s oldest sister.
In her brief testimony, Taylor recalled changes to Borden’s behavior after his car
20
accident, stating that he imagined people were after him. She also testified that she
had no knowledge of any past felony charges or convictions. Regarding his
behavior in 1993, she said, “Jeff always was pacing the floor. And he would sit
and blank stare. . . . He got to where he didn’t take baths or eat right, you know.
That’s about basically it.” The State also declined to cross-examine Taylor.
During its closing argument, the State conceded that Borden had no prior
significant history of criminal activity. With regard to mitigating circumstances
pertaining to Borden’s mental state, the State argued,
And I believe by your verdict that you’ve already rejected any severe
mental disease or defect on his part. And you’ve heard no evidence
that at the time he committed this act he was under extreme mental or
emotional disturbance or that he was severely impaired so as to be
unable to understand the criminality of his conduct.
The prosecutor concluded, “What we do have is a great risk of death to many
people versus no significant history of prior criminal activity. One to one. What is
more important is up to you.”
Defense counsel took issue with the State’s characterization of the factors to
be weighed as “[o]ne to one,” and argued that all three proposed mitigating
circumstances had been proved. He concluded with a lengthy argument about the
rationale behind the prohibition of executing the legally insane, tying in the ability
to “repent” and other religious themes. He also admonished the jury with a
reminder that “Thou shall not kill,” seemingly arguing that sentencing Borden to
21
death as opposed to life without parole would be in contravention of concepts that
“go[] back to the biblical law.”
On rebuttal, the State referred to defense counsel’s arguments based on the
Ten Commandments as “disgraceful,” stating that he “isn’t going to succeed in
shaming you or making you feel ashamed or embarrassed or guilty about
return[ing] the fair and just verdict in this case.” Notably, the State did not
emphasize that defense counsel never called Dr. Shehi or any of Borden’s treating
physicians at the penalty phase of trial.
The court gave a lengthy charge to the jury. Significantly, in its explanation
of mitigating circumstances, the court stated:
a person’s capacity to appreciate the criminality of his conduct or
conform his conduct to the requirements of law is not the same as his
ability to know right from wrong generally or to know what he is
doing at a given time or to know what he is doing is wrong. A person
may indeed know that doing the act that constitutes the capital offense
is wrong, and still not appreciate its wrongfulness because he does not
fully comprehend or is not fully sensible to what he is doing or how
wrong it is. For this mitigating circumstance to exist, the defendant’s
capacity to appreciate does not have to have been totally
obliterated. . . .
On the morning of September 15, 1995, the jury recommended that Borden be
sentenced to death by a vote of 10-2. In delivering its verdict, the jury did not
reveal which mitigating circumstances it found, if any.
On November 13, 1995, the circuit court followed the jury’s
22
recommendation and sentenced Borden to death by electrocution for the conviction
under Count I. The following day, the court sentenced him to life imprisonment
for the conviction of the lesser-included offense under Count II.
On September 26, 1996, the circuit court issued a written sentencing order
specifically identifying aggravating and mitigating circumstances found by the
court as required by Alabama Code § 13A-5-47(d). The court found one
aggravating circumstance: “The defendant knowingly created a great risk of death
to many persons.” Id. § 13A-5-49(3). In contrast, the court found two mitigating
circumstances, to wit, that the defendant had “no significant history of prior
criminal activity,” id. § 13A-5-51(1), and that “[t]he capital offense was committed
while the defendant was under the influence of extreme mental or emotional
disturbance,” id. § 13A-5-51(2). The court concluded “that the aggravating
circumstance noted above outweighs the mitigating circumstances noted and the
jury’s 10 to 2 recommendation for death is the appropriate sentence.”
C.
On direct appeal,14 the Alabama Court of Criminal Appeals affirmed
Borden’s death sentence but reversed his conviction for the intentional murder of
14
While Borden had counsel on appeal, Michael Shores and J. Massey Relfe,
Jr.—Borden’s counsel at trial—no longer represented him.
23
Roland Harris because it violated the principle of double jeopardy.15 Borden v.
State, 711 So. 2d 498, 503–04 (Ala. Crim. App. 1997). In a brief opinion, the
Supreme Court of Alabama affirmed Borden’s capital conviction and sentence of
death. Ex parte Borden, 711 So. 2d 506 (Ala. 1998). The United States Supreme
Court denied Borden’s petition for a writ of certiorari. Borden v. Alabama, 525
U.S. 845, 119 S. Ct. 113, 142 L. Ed. 2d 91 (1998).
On August 30, 1999, Borden began his attempt to obtain state post-
conviction relief by filing a Petition for Relief from Judgment Pursuant to Rule 32
of the Alabama Rules of Criminal Procedure16 in the Circuit Court of Jefferson
County. In his petition, Borden argued, inter alia, that his trial counsel had
rendered ineffective assistance of counsel at the penalty phase of his trial. The
State filed an answer to this petition on October 5, 1999. Three days later, the
State filed a pair of motions, each seeking partial dismissal of Borden’s claims.
One of the State’s motions sought dismissal of many of Borden’s
15
In short, the court held that
where, as here, the jury returns guilty verdicts for both a capital offense alleged in
one count of the indictment and the lesser included offense of intentional murder
of a capital offense alleged in another count of the indictment, and the same
murder was an element of the capital offense and the intentional murder
conviction, the trial court should enter a judgment on only one of the offenses.
Borden v. State, 711 So. 2d 498, 503 (Ala. Crim. App. 1997) (citations omitted).
16
Rule 32 of the Alabama Rules of Criminal Procedure governs available post-
conviction remedies under Alabama law.
24
claims—including his ineffective assistance of counsel claims—for failure to
comply with Rule 32.6(b) of the Alabama Rules of Criminal Procedure. This
motion requested that the court “dismiss those claims in the petition which fail to
state a claim for relief or establish any material facts which entitle Borden to
relief.” (emphasis added). Rule 32.6(b) provides:
Specificity. The petition must contain a clear and specific statement
of the grounds upon which relief is sought, including full disclosure of
the factual basis of those grounds. A bare allegation that a
constitutional right has been violated and mere conclusions of law
shall not be sufficient to warrant any further proceedings.
Ala. R. Crim. P. 32.6(b).
The State’s other motion sought dismissal of some of Borden’s
claims—claims not at issue here—under Rule 32.2(a) of the Alabama Rules of
Criminal Procedure, which precludes collateral relief for a petitioner who fails to
comply with state procedural rules.
Borden filed a response to these motions on November 1, 1999, and then, on
November 15, 1999, filed a Motion for Discovery to obtain institutional records
and files regarding his medical and mental health.
On May 15, 2000, the circuit court issued a pair of orders granting both of
the State’s motions. In the order granting the State’s motion on the ground that
Borden failed to plead his claims with sufficient specificity, the court stated that
“the following claims, as written, are foreclosed from review under Rule 32.6(b).”
25
Borden’s ineffective assistance of counsel claims were included in this dismissal.
Nonetheless, the court ruled that “Borden may, within thirty (30) days of this
Order, amend the above-cited claims to comply with the requirements of Rule
32.6(b), Ala. R. Crim. P. If Borden fails to amend his petition, the above-cited
claims are foreclosed from review by this Court.”17
In contrast, the court’s other order dismissing claims under Rule 32.2 of the
Alabama Rules of Criminal Procedure stated, “the following claims are
procedurally barred under Rule 32.2(a), Ala. R. Crim. P.” (emphasis added).
On September 20, 2000, Borden filed an amended Rule 32 petition for post-
conviction relief.18 Two days later, the court granted Borden discovery of all
pertinent records from the Alabama Department of Corrections. In addition, the
court granted Borden discovery of materials from the prosecution pertaining to its
investigation into the murders, as well as documents relating to his arrest and
prosecution.
For the purposes of our analysis, this amended Rule 32 petition (the
“Amended Rule 32 Petition” or the “Amended Petition”) is the operative pleading
in this case. See infra part II.B. In the Amended Petition, Borden presented
17
The granting of time to amend is consistent with the Alabama Rules of Criminal
Procedure. See Ala. R. Crim. P. 32.7(b) (“Amendments to pleadings may be permitted at any
stage of the proceeding prior to the entry of judgment.”).
18
The court accepted the September 20 filing despite its apparent untimeliness.
26
fourteen separate grounds for post-conviction relief. The relevant ground for relief
was entitled: “Trial Counsel Was Ineffective During the Penalty Phase of Mr.
Borden's Trial, and This Ineffectiveness Resulted in the Unjust and
Unconstitutional Imposition of the Death Penalty.” Borden laid out his claims:
54. Trial counsel was grossly ineffective at the penalty phase of
the trial, and the jury subsequently returned a 10-2 death
recommendation, which was followed by the trial court’s sentence of
death. Despite the wealth of mitigating factors – both statutorily
enumerated and nonenumerated – trial counsel called only four
witnesses, whose extremely brief testimony spans a total of only 25
pages of the transcript. Trial counsel’s deficient performance
prevented the jury and the trial court from hearing and considering an
abundance of mitigating evidence, and thus denied Mr. Borden a fair
and accurate penalty phase determination as required under the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, the Alabama Constitution, and Alabama
law. Quite simply, trial counsel abdicated its constitutionally
mandated obligation to present a defense at the most important phase
of Mr. Borden’s capital trial.
55. It is absolutely essential that trial counsel in a capital case
fully investigate the history of the client in preparation for the penalty
phase of a capital proceeding. It is constitutionally required that the
trial court and the jury consider “as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than
death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). This includes any
evidence about the defendant’s history and life that may be considered
by the jury or judge as a mitigating factor. Woodson v. North
Carolina, 428 U.S. 280 (1976). Thus, Mr. Borden was entitled to have
all aspects of his background, family life, medical history, school
records, and any other life-experience that may be considered
mitigating evidence presented to the jury and judge at the penalty
phase of his capital trial. Counsel for Mr. Borden fell far short of this
constitutionally required mandate.
56. In order to have prepared properly for the penalty phase of
27
Mr. Borden’s capital trial, counsel should have obtained complete and
accurate information relevant to Mr. Borden’s medical history,
educational history, employment and training history, family and
social history, his correctional history, and any religious or cultural
influences. See American Bar Association, Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases,
11.4.1(A)(2)(c) (adopted by the ABA house of delegates Feb. 7,
1989). Counsel in Mr. Borden’s case failed these minimum
requirements of an adequate investigation. “At the heart of effective
representation is the independent duty to investigate and prepare [the
client’s case.]” Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.
1982), cert. denied 460 U.S. 1098 (1983). Counsel is under a clear
duty to thoroughly investigate a client’s background in preparation for
a capital penalty phase, and the failure to do so precludes a finding
that the absence of a penalty phase investigation was strategic. See,
e.g., Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995) (finding
counsel ineffective for failing to request state hospital records, school
records, social service records, and failed [sic] to contact the
defendant’s sister, neighbor, or social worker); Cave v. Singletary,
971 F.2d 1513 (11th Cir. 1992) (finding that the complete failure to
investigate and prepare for the penalty phase rendered counsel’s
assistance ineffective and required a new penalty phase); Cunningham
v. Zant, 928 F.2d 1006) (11th Cir. 1991) (failure to put on evidence of
defendants [sic] disadvantaged background, the death of defendant’s
father when the defendant was six, and evidence of defendant’s mild
retardation deprived the defendant of the constitutionally mandated
individual sentence determination); Thomas v. Kemp, 796 F.2d 1322
(11th Cir. 1986), cert. denied, 479 U.S. 996 (1986) (finding
ineffective assistance of counsel where little effort was made to
investigate possible sources of mitigation evidence); Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991), cert. denied, 504 U.S. 943
(1992) (criticizing counsel who did not attempt to contact family
members or prepare for the penalty phase until the trial was underway,
and who failed to put on any mental health mitigating evidence);
Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995) (finding that the
failure of counsel to investigate family history and background of
client is inexplicable, could not be considered strategic, and required
reversal); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985) (finding a
presumption of prejudice where trial counsel made no effort to
28
prepare for the penalty phase of a capital trial); see also Douglas v.
Wainwright, 714 F.2d 1532, 1556 (11th Cir. 1983) (“Permissible trial
strategy can never include the failure to conduct a reasonably
substantial investigation.”). In this instance, effective preparation and
investigation by defense counsel would have revealed a host of
mitigating factors, which should have been presented at Mr. Borden’s
penalty phase. This failure constitutes clear ineffectiveness, cannot be
characterized as strategic, and requires that this Court reverse Mr.
Borden’s sentence of death.
57. Trial counsel failed to conduct a reasonable independent
investigation of the case, failing, among other things, to interview
adequately Mr. Borden’s family, friends and acquaintances. In
addition to failing to investigate facts available from individuals then
unknown to them, such as Mr. Borden’s friends and acquaintances,
trial counsel failed to adequately interview the witnesses of which
they were then aware. For example, trial counsel failed to sufficiently
meet with Mr. Borden’s family prior to trial, despite the fact that Mr.
Borden’s parents both possessed information that would have been
useful to Mr. Borden’s defense.
58. Had counsel contacted other people who had interacted
with Mr. Borden, they would have been able to present a complete
portrait of Mr. Borden, which would have lessened his culpability for
the crime, revealed numerous mitigating circumstances, and led the
jury to impose a lesser sentence of life without possibility of parole.
59. In addition to defense counsel’s failure to contact people
who could offer useful mitigation evidence, counsel failed to procure
many necessary records documenting Mr. Borden’s life. These records include
school records, health records, employment records, and religious records of both
Mr. Borden and his parents and siblings.
60. If counsel had obtained these records and interviewed even
a portion of the potential witnesses who were willing to testify for Mr.
Borden, counsel could have established numerous mitigating factors
that could have swayed the jury to a finding of life in prison rather
than death.
61. Trial counsel even failed to present the vast majority of the
mitigating evidence that was available to them even without an
investigation. For example, trial counsel failed to offer any of the
mitigating evidence which tended to show that Mr. Borden had not
premeditated the crime and which tended to show that at the time of
29
the crime he was acting under an extreme mental or emotional
disturbance and his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was
substantially impaired.
62. In addition, counsel was ineffective for not obtaining the
services of expert assistance for the penalty phase of the trial.
Medical experts could have explained the likely causes and
consequences of Mr. Borden’s emotional and physical problems;
without such assistance, counsel was in no position to adequately
understand or even recognize such evidence if it were encountered
during the investigation for Mr. Borden’s penalty phase.19
...
B. Trial Counsel Failed to Call Any Witnesses at All
Regarding Mr. Borden’s Mental Health.
65. During the penalty phase, trial counsel failed to call any
witnesses at all with regard to Mr. Borden’s mental health. New
testimony was needed since, as discussed more fully below, the legal
standards related to Mr. Borden’s mental health at the guilt stage are
significantly different from those at the penalty phase. Indeed, during
closing arguments of the penalty phase, trial counsel did not even
refer to the mental health testimony that had been presented during the
guilt phase of Mr. Borden’s trial.
66. As during the guilt phase, trial counsel at the penalty phase
failed to present testimonial evidence from any of Mr. Borden’s
mental health care providers.
67. Mental health testimony would have played an important
part in Mr. Borden’s mitigation case, given the reduced level of
mental health deficiency necessary to create a mitigating condition.
...
F. Trial Counsel Failed to Relate Any of the Evidence
Offered During the Mitigation Phase to the Statutory
Mitigation Requirements.
19
Footnote 3 of the Amended Petition here stated: “Of course, counsel did not even
conduct a threshold level of investigation, nor did they procure any of the records or interview
any of the friends, teachers, professional associates, and medical personnel that would have led
to information to be assessed by such experts.”
30
74. During the penalty phase, some potentially mitigatory
evidence was presented to the jury. However, trial counsel failed to
inform the jury of what this mitigation evidence was and how it
related to the statutory mitigation factors.
75. This failure hampered the jury’s ability to apply the
minimal amount of mitigating evidence offered by trial counsel to the
statutory mitigation factors.
....
(emphasis added).
On October 24, 2000, the State filed an answer to Borden’s Amended Rule
32 Petition. On that day, the State also filed a separate motion for partial dismissal
of Borden’s relevant claims under Rule 32.6(b). Borden responded to the State’s
answer on November 9, 2000, claiming that the Amended Petition sufficiently pled
his ineffective assistance of counsel claims to comply with the requirements of
Rule 32.6(b). On February 28, 2001, the circuit court dismissed Borden’s entire
Amended Petition, stating in a minute entry:
The Court having considered the pleadings of the parties and the
record of the Court grants the State’s Motion to Dismiss all of the
petitioner’s claims alleging ineffective assistance of counsel at the
guilt phase and the penalty phase of his trial on the following ground.
1. This Court tried the petitioner’s case and finds that he
has failed to meet his burden of proof regarding
allegations of ineffective assistance of counsel.
This Court has also reviewed the District Attorney’s file
provided by the State and finds no discoverable material; however, the
Court has provided the petitioner with the Grand Jury notes in their
file.
31
The petition for relief from judgment (Rule 32) is dismissed.
(emphasis added).
Borden appealed, and on March 22, 2002, the Alabama Court of Criminal
Appeals remanded the case to the circuit court, finding several deficiencies with
the circuit court’s summary dismissal of Borden’s Amended Petition. Borden v.
State, 891 So. 2d 393 (Ala. Crim. App. 2002). First, the appellate court found that
the circuit court “appears to have misapprehended Borden’s burden at the pleading
stage” when it stated that Borden had not met his “burden of proof” in his
Amended Petition. Id. at 396. Rather, the appellate court noted, Borden only had
the burden to plead under Rule 32.6(b). Id. Next, the appellate court chastised the
circuit court for “fail[ing] to adequately dispose of all of the claims Borden raised
in his amended petition.” Id. In addition to “not sufficiently address[ing] the
merits of” Borden’s ineffective assistance of counsel claims, the “trial court failed
to address any [sic] the remainder of the claims Borden raised in his petition . . . .”
Id. at 396–97. As such, the Court of Criminal Appeals remanded the case to the
circuit court, instructing it to
determine whether an evidentiary hearing should be held on any of
Borden’s claims. . . . If an evidentiary hearing is held, the trial court
shall enter specific written findings with regard to each of the claims
presented at the hearing. The trial court should submit a specific
written order addressing any claims that are dismissed without a
hearing.
32
Id. at 397 (citation omitted).
In April 2002, before the circuit court issued an order on remand, Borden
filed a second amended Rule 32 petition as well as a motion seeking to allow
licensed mental health professionals access to Borden for evaluative purposes. The
State moved to dismiss the second amended petition on the ground that the circuit
court had no jurisdiction to entertain amendments to the petition once an appeal
had been taken, arguing that “when a petitioner files a notice of appeal in the
appropriate appellate court, such as the Alabama Court of Criminal Appeals, that
act will transfer jurisdiction over the matter from the relevant circuit court to the
appellate court.” As such, the State claimed that the circuit court on remand could
only comply with the limited instructions provided by the Court of Criminal
Appeals.
On August 27, 2002, the circuit court granted the State’s motion to dismiss
Borden’s second amended Rule 32 petition. The same day, the circuit court
entered an Order on Remand denying Borden’s Amended Rule 32 petition in its
entirety.20 The court never granted Borden an evidentiary hearing. Additionally,
20
Borden accuses the circuit court, in drafting the Order on Remand, of impermissibly
adopting the State’s proposed order as its own. The Alabama Court of Criminal Appeals
addressed this issue:
[T]he trial court did not adopt the proposed order verbatim; rather, the trial court
omitted portions of the proposed order and inserted additional findings of its own.
The trial court was very familiar with the facts of the case and with the post-
33
the court did not formally rule on the request that mental health professionals be
given access to Borden.
In dismissing the entire Amended Petition in its Order on Remand, the
circuit court first divided many of Borden’s claims into two groups: “Procedurally
Barred Claims,” which were “procedurally defaulted from . . . review” under Rule
32.2 of the Alabama Rules of Criminal Procedure, and “Claims That Lack a
Sufficient Factual Basis,” which were “dismissed because they do not contain a
sufficient factual basis” under Rule 32.6(b). The claims dismissed for failure to
plead a sufficient factual basis included:
Claim II (paragraphs 55–60) – The claim that trial counsel were
ineffective because they failed to investigate mitigation;
Claim II (paragraph 62) – The claim that trial counsel were ineffective
because they failed to obtain the services of experts for the penalty
phase of the trial;
Claim II-B (paragraphs 65–67) – The claim that trial counsel were
ineffective because they failed to call any witnesses at all regarding
Borden’s mental health during the penalty phase;
...
Claim II-F (paragraphs 74–75) – The claim that trial counsel were
ineffective because they failed to relate any of the evidence offered
conviction proceedings. The record indicates that the findings of fact and the
conclusions of law contained in the final order are those of the trial court. The
adoption of the majority of the State’s proposed order does not constitute
reversible error here.
Borden v. State, No. CR-00-1379, at 3 (Ala. Crim. App. Aug 22, 2003).
34
during the penalty phase of the trial to the statutory mitigating
circumstances;
....
In addition, the court found fifteen claims that it “determine[d were] not
procedurally barred and contain[ed] a sufficient factual basis,” discussing them
separately in a section titled, “Merits of Remaining Ineffective Assistance of
Counsel Claims.” In dismissing these claims, the court generally relied on
information contained within the record to refute the allegations.21 Two of these
claims are relevant to our discussion.
In discussing Borden’s general allegation that his counsel were ineffective
during the penalty phase of his trial—contained in paragraph 54 quoted above—the
circuit court quoted the Alabama Rules of Criminal Procedure at length and
concluded, “Borden’s claims concerning his attorneys’ failure to investigate and
present mitigation are denied because Borden failed to plead these claims with
specificity. Rule 32.6(b), Ala. R. Crim. P.” Declining to stop its analysis there, the
court continued to address the merits of Borden’s claim. The court concluded that
Borden’s attorneys clearly investigated, presented, and argued
mitigating circumstances during the penalty phase of his trial.
Borden’s allegations in his amended Rule 32 petition that he failed to
find and present more unspecified evidence does not establish
deficient performance or that he was prejudiced by the actions of his
21
For example, Borden claimed that trial counsel was ineffective for failing to employ a
jury selection expert during voir dire, and the court dismissed this claim on the basis of record
evidence that Borden did in fact have the assistance of an expert during voir dire.
35
trial counsel. Because these claims are not sufficiently specific and
fail to state a claim for relief, these claims are denied. See Rule
32.7(d), Ala. R. Crim. P.
(emphasis added).
Also in the “Merits” section of the Order on Remand, the circuit court
dismissed the claim that Borden’s counsel were ineffective during the penalty
phase of his trial for failing to “present the vast majority of the mitigating evidence
that was available to them even without an investigation.” Deeming this claim
“without merit,” the court discussed the “significant amount of mitigation evidence
[produced] during the penalty phase of his capital murder trial,” including
“testimony from two doctors, a medical assistant, and four family members.”22
The court stated its belief that “Borden’s trial counsel provided enough information
to the jurors to enable them to find that Borden’s alleged mental or emotional
disturbance constituted a mitigating circumstance.” As such, the court held that
Borden had “failed to establish deficient performance” and further had “not
attempted to demonstrate that he was prejudiced by the actions of his trial counsel.
The record in this case reveals that Borden can never satisfy his burden of proof as
22
As noted above, no doctors testified during the penalty phase, but their testimony
during the guilt phase was adopted by counsel during the penalty phase for the jury’s
consideration.
36
to this claim. See Ala. R. Crim. P. 32.3. This claim is denied.”23
On August 22, 2003, the Alabama Court of Criminal Appeals affirmed the
circuit court’s Order on Remand. Borden v. State, No. CR-00-1379 (Ala. Crim.
App. Aug 22, 2003). In doing so, the appellate court issued a lengthy
Memorandum discussing its reasoning in review of the circuit court’s decisions.
The Court of Criminal Appeals began by affirming the circuit court’s dismissal of
Borden’s second amended petition, stating that it would “review only the
allegations contained in the first amended petition in our analysis of whether the
circuit court correctly found that many of the claims of ineffective assistance of
counsel were not sufficiently pleaded.” Id. at 4. Citing Rule 32.3 of the Alabama
Rules of Criminal Procedure for the proposition that state petitioners seeking post-
conviction relief bear the burden to plead facts necessary to entitle relief, the court
continued on to affirm the denial of an evidentiary hearing:
[A] Rule 32 petitioner is not automatically entitled to an evidentiary
hearing on any and all claims raised in the petition. To the contrary,
Rule 32.7(d), Ala. R. Crim. P., provides for the summary disposition
of a Rule 32 petition if the court determines that the claims in the
23
Rule 32.3, “Burden of Proof,” states:
The petitioner shall have the burden of pleading and proving by a preponderance
of the evidence the facts necessary to entitle the petitioner to relief. The state
shall have the burden of pleading any ground of preclusion, but once a ground of
preclusion has been pleaded, the petitioner shall have the burden of disproving its
existence by a preponderance of the evidence.
Ala. R. Crim. P. 32.3.
37
petition are not pleaded with sufficient specificity, in violation of Rule
32.6(b), or if the claims are precluded, pursuant to Rule 32.2, or if the
allegations fail to state a claim, or if the court determines that no
material issue of law or fact exists which would entitle the petitioner
to relief.
Id. at 5.
The Court of Criminal Appeals then proceeded to address Borden’s claims
one by one, utilizing Rule 32.6(b) to dismiss relevant claims that Borden failed to
plead with the requisite specificity. For example, in dismissing Borden’s claim
that his counsel failed to investigate and introduce mitigating evidence at the
penalty phase of his trial, the court stated:
In the allegations of the paragraphs which are set out above, Borden
made only broad, vague assertions regarding counsel’s alleged
failures, and he put forth conclusions of law and only bare allegations
that his constitutional rights had been violated. Such vague assertions
and unsupported conclusions are insufficient to withstand summary
dismissal for they failed to contain the required specificity and a full
disclosure of the factual basis. Rule 32.6(b), Ala. R. Crim. P.
Id. at 22. This language is representative of the court’s handling of Borden’s
ineffective assistance claims.
The appellate court also criticized Borden for failing “to identify even a
single name of the many ‘family, friends and acquaintances’ who, he alleged,
should have been but were not interviewed ‘adequately.’” Id. at 22–23. Later in
the Memorandum, the court explicitly cited the Strickland test for determining
ineffective assistance of counsel when discussing Borden’s claim that counsel
38
failed to present facts at the penalty phase of his trial that tended to support the
purported mitigating circumstances. The court stated, “Borden has failed to plead
this claim with sufficient specificity and has, as a result, failed to state a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984).” Id. at 29. Nowhere in the Memorandum did the court state that it was
refusing to adjudicate Borden’s relevant ineffective assistance claims due to the
operation of a state procedural rule; rather, it repeatedly stated that Borden simply
did not state a claim with sufficient factual support as required by Rule 32.6(b) to
preclude summary dismissal under Rule 32.7(d) of the Alabama Rules of Criminal
Procedure.
On November 14, 2003, Borden’s application for rehearing in the Court of
Criminal Appeals was denied without opinion, and on May 28, 2004, the Alabama
Supreme Court denied Borden’s petition for a writ of certiorari.
D.
On June 25, 2004, Borden filed a petition seeking habeas relief pursuant to
28 U.S.C. § 2254 in the United States District Court for the Northern District of
Alabama. On September 9, 2008, the district court denied Borden’s petition
without conducting an evidentiary hearing. In its Memorandum of Opinion, the
district court found that Borden had procedurally defaulted on his ineffective
assistance of counsel claims, because Rule 32.6(b) was an independent and
39
adequate state procedural rule. In addition, the district court undertook an
“Alternative Merits Consideration,” finding that
[e]ven if the state courts’ procedural default ruling . . . can be
construed as a decision on the merits, Borden cannot show that the
decision was contrary to or an unreasonable application of clearly
established federal law, nor can he show that the decision was based
upon an unreasonable determination of the facts in light of the
evidence before the state courts.24
On August 28, 2009, the district court granted Borden’s motion requesting a
Certificate of Appealability (“COA”), certifying three issues for our review:
1. Was the “specificity requirement” of Rule 32.6(b) of the Alabama
Rules of Criminal Procedure firmly established and regularly followed
by the Alabama courts at the time of petitioner’s Rule 32 proceedings,
so that it was an “adequate” basis for procedural default under federal
law?
2. Did counsel provide ineffective assistance when they failed to
interview and present as witnesses during the penalty phase of trial the
petitioner’s “treating” physicians, identified in medical and
psychological records admitted into evidence, where the records were
available to the jury and two other (non-treating) mental health
experts testified about the petitioner’s mental state during the guilt
phase of trial?
3. Can a claim of ineffective assistance of counsel be based on the
24
To justify this conclusion, the district court found that
almost all of the evidence Borden contends should have been investigated,
prepared, and presented at the penalty phase of trial was presented during the guilt
phase and was referred to at the penalty phase of trial. It is simply not true that
there was any substantial mental-illness evidence that was not presented to the
jury and available for their consideration.
(emphasis added).
40
“cumulative effect” of multiple non-prejudicial errors by counsel
when none of the individual errors themselves warrants a finding of
ineffective assistance under Strickland? 25
We address these questions in turn.
II.
A.
As a threshold matter, we must determine whether the application of Rule
32.6(b) by the Alabama courts to Borden’s ineffective assistance claims precludes
our review. See, e.g., Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “A
state court’s rejection of a petitioner’s [federal] constitutional claim on state
procedural grounds will generally preclude any subsequent federal habeas review
of that claim.” Id. (citing Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.
1990)).26 In contrast, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) dictates that a federal court deferentially review a petitioner’s claims
25
On September 21, 2009, this court granted Borden’s motion to expand the COA to
include all of his ineffective assistance of counsel claims relating to the investigation and
presentation of mitigation evidence at the penalty phase of his trial. We nonetheless quote the
original COA because his counsel’s alleged failure to present the testimony of his treating
physicians at the penalty phase of his trial constitutes the crux of Borden’s relevant Sixth
Amendment claims. We have, of course, considered all claims cognizable under the expanded
COA.
26
Of course, a state’s purported reliance on a procedural bar does not necessarily
preclude federal habeas review; a habeas petitioner may overcome a procedural default if he can
show adequate cause and actual prejudice, or, alternatively, if the failure to consider the merits
of his claim would result in a fundamental miscarriage of justice. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564–65, 115 L. Ed. 2d 640 (1991).
Because we find no procedural default here, we need not analyze these issues.
41
that a state court has “adjudicated on the merits.” 28 U.S.C. § 2254; see also infra
part II.B. The district court determined that Borden’s ineffective assistance of
counsel claims dismissed under Rule 32.6(b) were procedurally barred, a mixed
determination of fact and law that we review de novo. Judd, 250 F.3d at 1313.
Upon thorough review of Alabama law and the record in this case, we hold that the
state court summary dismissals of Borden’s constitutional claims under Rule
32.6(b) were adjudications on the merits, and are therefore not procedurally barred,
but subject to review under AEDPA.27
1.
To begin, we observe that Alabama, like several of the States, has adopted a
post-conviction scheme that closely resembles the post-conviction scheme
Congress established for the review of state court convictions under 28 U.S.C.
§ 2254 and federal court convictions under 28 U.S.C. § 2255. An extensive
comparison of the federal scheme to Alabama’s informs our final determination
27
In urging this court to affirm the district court’s ruling that adjudications under Rule
32.6(b) serve as a procedural bar, Alabama relies on the unpublished opinion in Jenkins v.
Bullard, 210 F. App’x 895 (11th Cir. 2006), which held that Rule 32.6(b) was an independent
and adequate state ground to preclude review of ineffective assistance of appellate counsel
claims. Id. at 900–01. We are unpersuaded to follow this ruling. “Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2.
Furthermore, “[t]he court may cite to [unpublished opinions] where they are specifically relevant
to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist
in the case, to ascertain the law of the case, or to establish the procedural history or facts of the
case.” 11th Cir. R. 36, I.O.P. 7. None of these considerations apply here, and we decline to
follow Jenkins, particularly where the issue has been addressed in a published opinion. See
Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010).
42
that Rule 32.6(b) summary dismissals are adjudications “on the merits.”
Beginning with the federal rules,28 Rule 2 of the Rules Governing Section
2254 Cases in the United States District Courts (the “§ 2254 Rules”) and Rule 2 of
the Rules Governing Section 2255 Proceedings in the United States District Courts
(the “§ 2255 Rules”) contain provisions very similar to those in Rule 32.6 of the
Alabama Rules of Criminal Procedure. Rule 2 of the 2254 Rules, entitled “The
Petition,” states in subsection (c):
Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
....
and in subsection (d):
Standard Form. The petition must substantially follow either the
form appended to these rules or a form prescribed by a local district-
court rule.
28 U.S.C. § 2254 Rule 2 (emphasis added).29
28
Stylistic amendments were made to the federal habeas rules, effective December 1,
2004. See, e.g., 28 U.S.C. § 2254 Rule 2 advisory committee notes (“The language of Rule 2
has been amended as part of general restyling of the rules to make them more easily understood
and to make style and terminology consistent throughout the rules. These changes are intended
to be stylistic and no substantive change is intended, except as described below.”). No
substantive changes affect our analysis. We therefore quote the current version of the rules for
the sake of clarity, despite the fact that Borden’s initial habeas petition was filed prior to
December 1, 2004.
29
Rule 2 of the § 2255 Rules is identical (except that the petition is referred to as “The
Motion” and the petitioner is “the moving party”). See 28 U.S.C. § 2255 Rule 2.
43
The “Appendix of Forms” annexed to the § 2254 Rules is prefaced with a
list of ten “Instructions.” The ninth instruction reads:
9. CAUTION: You must include in this petition all the grounds for relief
from the conviction or sentence that you challenge. And you must
state the facts that support each ground. If you fail to set forth all the
grounds in this petition, you may be barred from presenting additional
grounds at a later date.
28 U.S.C. § 2254 Appendix of Forms (emphasis in original).
The form petition set out in the Appendix provides for the presentation of
grounds for relief:
GROUND ONE: ___________________________
_________________________________________
(a) Supporting facts (Do not argue or cite law. Just state the specific
facts that support your claim.): ________________
_________________________________________
(b) If you did not exhaust your state remedies on Ground One, explain
why. ______________________________________
__________________________________________
....
Id. The form goes on to elicit the state court disposition of Ground One on direct
appeal or in post-conviction proceedings, whichever the case may be.30
The § 2254 Rules and the § 2255 Rules mandate “fact pleading” as opposed
to “notice pleading,” as authorized under Federal Rule of Civil Procedure 8(a).
30
The Appendix of Forms annexed to the § 2255 Rules contains the same “CAUTION”
instruction and sets out a form closely resembling the form petition used in § 2254 cases; the
differences between the forms simply reflect the differences inherent in §§ 2254 and 2255
proceedings. See 28 U.S.C. § 2255 Appendix of Forms.
44
Coupled with the form petition or motion, the federal rules give the petitioner or
movant ample notice of this difference. If, for example, Rule 2(c)(1) and (2) of the
§ 2254 Rules should cause a petitioner (or his counsel) to doubt what the words
“specify all grounds” and “state the facts supporting each ground” mean, the
CAUTION contained in paragraph (9) of the “Instructions” should remove such
doubt. As the Supreme Court has observed, “[h]abeas corpus petitions must meet
heightened pleading requirements, see 28 U.S.C. § 2254 Rule 2(c).” McFarland v.
Scott, 512 U.S. 849, 856, 114 S. Ct. 2568, 2572, 129 L. Ed. 2d 666 (1994).
The reason for the heightened pleading requirement—fact pleading—is
obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner
ordinarily possesses, or has access to, the evidence necessary to establish the facts
supporting his collateral claim; he necessarily became aware of them during the
course of the criminal prosecution or sometime afterwards. The evidence
supporting a claim brought under the doctrine set forth in Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), for example, may not be
available until the prosecution has run its course. The evidence supporting an
ineffective assistance of counsel claim is available following the conviction, if not
before. Whatever the claim, though, the petitioner is, or should be, aware of the
45
evidence to support the claim before bringing his petition.31
Rule 4 of the § 2254 Rules puts the petitioner on notice of what is likely to
happen if his petition fails to comply with the fact pleading requirements of Rule
2(c) and (d). “If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”32 The judge acts sua sponte.
“Federal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face, see 28 U.S.C. § 2254 Rule 4.” McFarland,
512 U.S. at 856, 114 S. Ct. at 2572. As discussed below, such a summary
dismissal by a federal court constitutes a ruling on the merits of a petitioner’s or
movant’s claims.
By comparison, Rule 32 of the Alabama Rules of Criminal Procedure
establishes essentially the same fact pleading scheme the federal district courts use
in §§ 2254 and 2255 proceedings.33 Rule 32.6(b) of Alabama’s rules,
31
Inherent in the fact pleading requirement of the federal habeas rules is the notion that a
habeas case is not a vehicle for a so-called fishing expedition via discovery, an effort to find
evidence to support a claim.
32
Rule 4(b) of the § 2255 Rules mirrors Rule 4 of the § 2254 Rules. “If it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party.” 28 U.S.C. § 2255 Rule 4(b).
33
The Rule 32 in effect at the time Borden filed the petition at issue is essentially
identical to the Rule 32 in effect today. We quote the current version.
46
“Specificity,” requires the same information the federal rules require:
The petition must contain a clear and specific statement of the grounds
upon which relief is sought, including full disclosure of the factual
basis of those grounds. A bare allegation that a constitutional right
has been violated and mere conclusions of law shall not be sufficient
to warrant any further proceedings.
Ala. R. Crim. P. 32.6(b). The petitioner must fact plead his claim. If Rule 32.6(b)
does not make this clear, Rule 32.6(a) does. Rule 32.6(a) states that “[t]he petition
should be filed by using or following the form accompanying this rule. If that
form is not used or followed, the court shall return the petition to the petitioner to
be amended to comply with the form.” Ala. R. Crim. P. 32.6(a).34
The form is like the one used in §§ 2254 and 2255 cases. It is prefaced with
instructions and the command: “READ THESE INSTRUCTIONS CAREFULLY
BEFORE YOU BEGIN PREPARING THE PETITION.” Ala. R. Crim. P. 32
Appendix. There are nine instructions. Instructions (4) and (5) are unambiguous:35
(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS
FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF
IN THIS PETITION MAY RESULT IN YOUR BEING BARRED
34
Alabama first introduced a form petition for those seeking state post-conviction relief
in 1987, appending it to Rule 20 of the Alabama Temporary Rules of Criminal Procedure, the
predecessor to the modern Rule 32. In contrast, the federal form petition attached to the § 2254
Rules was made effective in 1976. See 28 U.S.C. § 2254 Rule 2 advisory committee notes.
While we have no direct evidence as to the Alabama legislature’s intent in adopting the form, we
think it safe to infer from this chronology that Alabama lawmakers mimicked the federal post-
conviction scheme, including the form petition, in formulating Alabama’s.
35
Indeed, instructions (4) and (5) are the only instructions printed in all capital letters.
47
FROM PRESENTING IT IN A FUTURE PETITION.
(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH
GROUND FOR RELIEF AND YOU MUST BE AS SPECIFIC AS
POSSIBLE AS TO THE FACTS.
Id. The need for a complete statement of facts is reiterated in paragraph 12 of the
form. That paragraph contains a non-exhaustive list of “the possible grounds for
relief under Rule 32.” Id. The petitioner is instructed to “[c]heck the ground(s)
that apply in your case, and follow the instruction under the ground(s).” Id. Nine
grounds are listed; ground (9) is: “Denial of effective assistance of counsel.” Id.
Immediately following ground (9), the form tells the petitioner how to state his
claim(s):
If you checked this ground of relief, attach a separate sheet of paper
with this ground listed at the top of the page. On this separate sheet of
paper list each constitutional violation that you claim, whether or not
it is one of the nine listed above, and include under it each and every
fact you feel supports this claim. Be specific and give details.
Id. (emphasis added). In sum, the form petition is part of Rule 32 and should be
read in conjunction with Rule 32.6(b). That is, the above instruction—“include . . .
each and every fact you feel supports this claim” and “[b]e specific and give
details”—and Rule 32.6(b)’s instruction—make “full disclosure of the factual
basis” for a claim—are read together. Id.; Ala. R. Crim. P. 32.6(b).
Rule 32.7(d), like Rule 4 of the § 2254 Rules and the § 2255 Rules, puts the
48
petitioner on notice of what is likely to happen if his petition fails to comply with
Rule 32.6(a) and (b), because he has failed to state “every fact” that supports his
claim. Ala. R. Crim. P. 32.7(d). The court, acting sua sponte, will examine the
petition and summarily dismiss it if it fails to state a claim. If it fails to state a
claim, the court will, as it did here with regard to Borden’s first amended petition,
freely grant the petitioner leave to amend.36 See Ala. R. Crim. P. 32.7(b).
Reliance on a rule of “procedure” does not foreclose the possibility that a
court is ruling “on the merits.” The dismissal of a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6), for example, unambiguously constitutes a ruling “on
the merits.” See NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (“[T]he
36
If the petitioner is unable to state a claim within the statutory time limit because he is
unaware of the evidence that would support the claim, the Rule 32 form states, in paragraph
12.E., that he may nonetheless prosecute the claim if it meets the following requirements:
Newly discovered material facts exist which require that the conviction or sentence be
vacated by the court, because:
The facts relied upon were not known by petitioner or petitioner’s counsel at the
time of trial or sentencing or in time to file a post-trial motion pursuant to Rule
24, or in time to be included in any previous collateral proceeding, and could not
have been discovered . . . through the exercise of reasonable diligence; and
The facts are not merely cumulative of other facts that were known; and
....
If the facts had been known at the time of trial or sentencing, the result would probably
have been different; and
The facts establish that petitioner is innocent of the crime for which he was convicted
or should not have received the sentence that he did.
Ala. R. Crim. P. 32 Appendix (emphasis in original).
49
Supreme Court has clearly stated that ‘[t]he dismissal for failure to state a
claim . . . is a “judgment on the merits.”’” (quoting Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 399 n.3, 101 S. Ct. 2424, 2428 n.3, 69 L. Ed. 2d 103
(1981))). Similarly, a federal district court’s dismissal of a claim under Rule 4 of
the § 2254 Rules or the § 2255 Rules is a judgment on the merits of the claims
stated in the petition or motion—or, stated more accurately, a judgment that the
claims presented are nonmeritorious. See Granberry v. Greer, 481 U.S. 129, 135
n.7, 107 S. Ct. 1671, 1675–76 n.7, 95 L. Ed. 2d 119 (1987) (“Rule 4 authorizes a
district judge summarily to dismiss a habeas petition if ‘it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not entitled
to relief in the district court.’ . . . [T]he District Court’s dismissal of a
nonmeritorious petition under Rule 4 pretermits consideration of the issue of
nonexhaustion.”); see also Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987)
(“When ‘the applicant does not raise even a colorable federal claim,’ [Granberry,
481 U.S. at 135, 107 S. Ct.] at 1675, that is a reason for reaching the merits and
denying the petition, for this preserves judicial resources.” (emphasis added)).
A ruling by an Alabama court under Rule 32.6(b) is also a ruling on the
merits. Here, the Alabama Court of Criminal Appeals, in disposing of claims in
the Amended Petition under Rule 32.6(b), necessarily considered the sufficiency of
50
such claims, focusing in on the factors for determining whether the petition
presented a case sufficient to warrant relief under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In short, the Alabama Rules of
Criminal Procedure authorize summary dismissal of claims under Rule 32.7(d) for
failure to fact plead with sufficient specificity as required by Rule 32.6(b) and the
form petition, much as the § 2254 Rules and the § 2255 Rules permit summary
dismissal of claims under Rule 4 for failure to fact plead under Rule 2 and the
federal form petition. Because such dismissals under the federal rules constitute
rulings on the merits, we hold that a summary dismissal of a federal claim by
Alabama courts for failure to comply with Rule 32.6(b) is similarly a ruling on the
merits.
2.
Turning away from an abstract comparison of Alabama’s post-conviction
scheme to federal habeas rules, we must examine more closely the Alabama courts’
actual disposition of Borden’s relevant federal constitutional claims. Even if
adjudications under Rule 32.6(b) were not categorically “on the merits,” the
Alabama Court of Criminal Appeals’s ruling plainly shows that it did not rely on a
procedural bar in dismissing Borden’s relevant claims.
“[A] federal claimant’s procedural default precludes federal habeas
51
review . . . only if the last state court rendering a judgment in the case rests its
judgment on the procedural default.” Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct.
1038, 1043, 103 L. Ed. 2d 308 (1989) (citing Caldwell v. Mississippi, 472 U.S.
320, 327, 105 S. Ct. 2633, 2638, 86 L. Ed. 2d 231 (1985)). In Card v. Dugger, 911
F.2d 1494 (11th Cir. 1990), this court articulated a three-part inquiry for
determining whether a state court’s rejection of a federal constitutional claim on
supposed state procedural grounds will bar our subsequent review.37 Because
ambiguity often pervades state court opinions, the Supreme Court has devised a
plain statement rule: “in determining . . . whether we have jurisdiction to review a
case that is alleged to rest on adequate and independent state grounds, we merely
37
An adequate and independent state ground will bar federal review if:
First, under Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308
(1989), the last state court rendering a judgment in the case must fulfill the “plain
statement rule” of Michigan v. Long, 463 U.S. 1032, 1042 & n. 7, 103 S. Ct.
3469, 3477 & n. 7, 77 L. Ed. 2d 1201 (1983) and “clearly and expressly” state
that it is relying on waiver as a ground for rejecting the petitioner’s claim. Harris,
489 U.S. at 263, 109 S. Ct. at 1043. Second, the procedural rule relied on by the
state court must serve as an independent state law ground for denying relief, and
may not be intertwined with an interpretation of federal law. Caldwell v.
Mississippi, 472 U.S. 320, 328, 105 S. Ct. 2633, 2639, 86 L. Ed. 2d 231 (1985);
Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092, 84 L. Ed. 2d 53 (1985).
Finally, the state’s application of the procedural bar must be adequate. That is, it
must not be applied in an arbitrary or unprecedented fashion, such that it thwarts
federal court review of those who, “in justified reliance upon prior decisions, seek
vindication in state courts of their federal constitutional rights.” NAACP v.
Alabama ex rel Patterson, 357 U.S. 449, 457-58, 78 S. Ct. 1163, 1169, 2 L. Ed. 2d
1488 (1958).
Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990).
52
assume that there are no such grounds when it is not clear from the opinion itself
that the state court relied upon” such grounds. Parker v. Sec’y for Dep’t of Corr.,
331 F.3d 764, 770–71 (11th Cir. 2003) (quoting Michigan v. Long, 463 U.S. 1032,
1042, 103 S. Ct. 3469, 3477, 77 L. Ed. 2d 1201 (1983)). Further, “[w]hen a federal
claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 784–85 (2011) (citations
omitted). A review of the Alabama Court of Criminal Appeals’s disposition of the
ineffective assistance claims at issue here indicates that the court ruled on the
merits of those claims—that is, in determining that Borden failed to plead his
claims with the specificity required by Rule 32.6(b), the court considered the
underlying substance of his claims.
Here, the “last state court rendering a judgment in the case,” Harris, 489 U.S.
at 262, 109 S. Ct. at 1043, was the Court of Criminal Appeals in its August 22,
2003 Memorandum affirming the circuit court’s August 27, 2002 Order on
Remand.38 Examining the reasoning of the Alabama Court of Criminal Appeals,
38
Where the Court of Criminal Appeals does not explain its reasoning, we may
alternatively evaluate the reasoning from the Order on Remand. We may do so based on the
presumption that
53
we find ample evidence that the court did not expressly rely on a state procedural
default when it affirmed the dismissal of Borden’s relevant ineffective assistance
of counsel claims. To the contrary, as discussed in part I.C., supra, the appeals
court necessarily considered the merits of Borden’s relevant claims.
First, we note that many of Borden’s claims that are not at issue here were
explicitly deemed “procedurally defaulted” in the Order on Remand under Rule
32.2 of the Alabama Rules of Criminal Procedure.39 For example, Borden’s claim
[w]here there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest upon
the same ground. If an earlier opinion “fairly appear[s] to rest primarily on
federal law,” Coleman[ v. Thompson], 501 U.S. [722,] 740, 111 S. Ct. [2546,]
2559, [115 L. Ed. 2d 640 (1991),] we will presume that no procedural default has
been involved by a subsequent unexplained order that leaves the judgment or its
consequences in place.
Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991). This
presumption is not irrebuttable; “strong evidence can refute it.” Id. at 804, 111 S. Ct. at 2595.
No such evidence exists here.
39
Rule 32.2 is entitled “Preclusion of Remedy,” and it reads in part:
(a) Preclusion of Grounds. A petitioner will not be given relief under this rule
based upon any ground:
(1) Which may still be raised on direct appeal under the Alabama Rules of
Appellate Procedure or by post-trial motion under Rule 24; or
(2) Which was raised or addressed at trial; or
(3) Which could have been but was not raised at trial, unless the ground for relief
arises under Rule 32.1(b); or
(4) Which was raised or addressed on appeal or in any previous collateral
proceeding; or
(5) Which could have been but was not raised on appeal, unless the ground for
relief arises under Rule 32.1(b).
....
Ala. R. Crim. P. 32.2.
54
that pretrial publicity made it impossible for him to receive a fair trial was deemed
“barred from review because Borden raised [it] at trial but not on appeal.”
(emphasis added). Four other claims were dismissed by the circuit court on this
ground. Further, fourteen claims were declared “barred from review by [Borden’s]
failure to raise them at trial and then on direct appeal” under Rule 32.2(a) of the
Alabama Rules of Criminal Procedure. Borden apparently did not appeal these
claims to the Court of Criminal Appeals, which deemed them waived and declined
to review them. We note the disposition of these claims only to emphasize that the
Alabama state courts appear fully capable of utilizing adequate and independent
state procedural rules to avoid review of federal claims when they wish to do so.
In contrast, the claims that we address today were dismissed under Rule
32.6(b) because they were not pled with sufficient specificity. The claim from
Borden’s Amended Petition that hews most closely to the issue presented in the
COA is found in paragraphs 65–67 of the petition, which alleged that “Trial
Counsel Failed to Call Any Witnesses at All Regarding Mr. Borden’s Mental
Health.” See supra part I.C. The Court of Criminal Appeals addressed this claim:
The trial court correctly dismissed the allegations in Claim II.B for
failing to meet the requirements of Rule 32.6(b), Ala. R. Crim. P.
Borden failed to identify what type of mental health expert he
believed should have been presented at the sentencing phase, or how
that expert’s testimony would have differed from the testimony
presented at the guilt phase. He further presented no legal basis to
55
support his claim, only a bare conclusion that the testimony was
necessary. More is necessary to satisfy the pleading requirements of
Rule 32, Ala. R. Crim. P., and dismissal of this portion of Claim II
was proper.
We simply cannot say that the Court of Criminal Appeals clearly relied on a
procedural bar in dismissing these claims. The Court of Criminal Appeals plainly
utilized Rule 32.6(b) as a tool with which to address the merits of Borden’s claims,
as discussed in part II.A.1, supra. Given this scenario, we do what the Second
Circuit did in Green v. Travis, 414 F.3d 288, 295–96 (2d Cir. 2005); we examine
the ineffective assistance of counsel allegations that were before the Court of
Criminal Appeals under the standards set forth by AEDPA. See infra part II.B.
That is, accepting as true the facts asserted in support of Borden’s ineffective
assistance of counsel claims, did the Alabama Court of Criminal Appeals
unreasonably apply Strickland and its progeny?
3.
Moreover, the nature of Rule 32.6(b) is not a matter of first impression for
this court. In Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010), we explicitly held
that an Alabama court adjudicating Rule 32 ineffective assistance of counsel
claims necessarily considered questions of federal law, thereby rendering Rule
32—at least in the context of summary dismissals that require some assessment of
the merits of federal constitutional claims—insufficiently independent to preclude
56
federal review of state court decisions. According to the court in Powell:
The Rule 32 court, affirmed by the state appellate court, found that
[petitioner] failed to plead facts on which an ineffective assistance
claim could be based and, for that reason, denied [petitioner’s] claim
and request for an evidentiary hearing. See Boyd v. State, 913 So. 2d
1113, 1125 (Ala. Crim. App. 2003) (only when “facts are pleaded,
which, if true, entitle a petitioner to relief, [is] the petitioner then
entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P.,
to present evidence proving those alleged facts.” (citing Ala. R. Crim.
P. 32.6) (emphasis omitted)). We thus review the Rule 32 court’s
rejection of [petitioner’s] claim as a holding on the merits. Judd [v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)]; Stokes v. Anderson,
123 F.3d 858, 860 (5th Cir. 1997) (finding no procedural bar from
state court ruling on similar pleading rule because the ruling
“require[d] some evaluation, however, cursory, of the merits of a
petitioner’s claim”).
Id. at 1272–73 (emphasis added) (footnote omitted). In short, an Alabama court’s
consideration of the sufficiency of the pleadings concerning a federal constitutional
claim contained in a Rule 32 petition necessarily entails a determination on the
merits of the underlying claim; we cannot construe such a rule to be a state
procedural bar that would preclude our review. We therefore must review the
merits determination of the Court of Criminal Appeals under the deferential
standards set forth in AEDPA, discussed below.40
40
The State and Borden vigorously debate whether Rule 32 is sufficiently “firmly
established and regularly followed” to serve as an adequate state procedural rule, the application
of which would bar federal review. James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830,
1835, 80 L. Ed. 2d 346 (1984); see also Lee v. Kemna, 534 U.S. 362, 385, 122 S. Ct. 877, 890,
151 L. Ed. 2d 820 (2002). Having found that Rule 32.6(b) summary dismissals are rulings “on
the merits,” and that the Alabama Court of Criminal Appeals did not speak clearly enough to
warrant the application of a procedural bar, it is unnecessary for this court to wade into this
57
B.
AEDPA, by its plain language and as interpreted by the Supreme Court,
limits the scope of federal habeas review of state court judgments in the spirit of
furthering “comity, finality, and federalism.” Michael Williams v. Taylor, 529
U.S. 420, 436, 120 S. Ct. 1479, 1490, 146 L. Ed. 2d 435 (2000). Section 2254(d)
of Title 28 states:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
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.
28 U.S.C. § 2254(d). Before elaborating on the application of 28 U.S.C. § 2254, it
is essential to establish precisely what allegations our review covers. As this court
stated in Powell:
AEDPA limits our review to whether the state court’s determination
that [the petitioner] failed to plead sufficient facts in his Rule 32
petition to support a claim of ineffective assistance of counsel was
contrary to or an unreasonable application of Supreme Court
precedent. Thus, we look only to the allegations in [petitioner’s] Rule
debate.
58
32 petition and whether those allegations sufficiently state a claim for
ineffective assistance of counsel.
602 F.3d at 1273 (emphasis added). Logically, that court could only undertake an
“adjudication of the claim” that was presented to it; we believe that a review of a
state court adjudication on the merits in light of allegations not presented to the
state court—for example, by examining additional facts or claims presented for the
first time in a petitioner’s federal habeas petition—would insufficiently respect the
“historic and still vital relation of mutual respect and common purpose existing
between the States and the federal courts.” Michael Williams, 529 U.S. at 436, 120
S. Ct. at 1490. We therefore follow the reasoning of Powell and examine the
reasonableness of the Court of Criminal Appeals’s adjudication of Borden’s claims
based upon the allegations contained in his Amended Petition. See also Cullen v.
Pinholster, 563 U.S. ---- (2011) (slip op. at 9) (“We now hold that review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.”).
The Supreme Court has given significant guidance as to the application of
§ 2254(d)(1) in the review of state court merits adjudications. First, 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
59
materially indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362,
412–13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). Because the Court of
Criminal Appeals clearly did not reach such a conclusion, we focus our analysis on
the “unreasonable application” clause of § 2254(d)(1).
The “unreasonable application[] of clearly established Federal law” clause
within § 2254(d)(1) “permits a federal habeas court to ‘grant the writ if the state
court identifies the correct governing legal principle from th[e Supreme] Court’s
decisions but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534–35, 156 L. Ed. 2d 471
(2003) (quoting Terry Williams, 529 U.S. at 413, 120 S. Ct. at 1523). “In other
words, a federal court may grant relief when a state court has misapplied a
‘governing legal principle’ to ‘a set of facts different from those of the case in
which the principle was announced.’” Id. at 520, 123 S. Ct. at 2535 (quoting
Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144
(2003)). Importantly, for a federal habeas court to find a state court’s application
of Supreme Court precedent “unreasonable,” it is not enough that the state court’s
adjudication be only “incorrect or erroneous”; it must have been “objectively
unreasonable.” Id. at 520–21, 123 S. Ct. at 2535 (internal citations omitted).
Recently, the Supreme Court has reiterated the deferential nature of our
60
review under AEDPA in a situation analogous to Borden’s: “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664,
124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938 (2004)). Indeed, “[e]stablishing that a
state court’s application of Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Id. at 788
(citations omitted) (internal quotation marks omitted).41
III.
Our task, finally, is to evaluate whether the Court of Criminal Appeals’s
determination that Borden’s relevant ineffective assistance of counsel claims were
due to be dismissed for failure to state a claim with sufficient specificity under
Rule 32.6(b) was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
41
Moreover, it matters not for our analysis whether the Court of Criminal Appeals
resolved Borden’s claim under Strickland or under a state rule. See Early v. Packer, 537 U.S. 3,
123 S. Ct. 362, 154 L. Ed. 2d 263 (2002). Compliance with the “contrary to” language of
AEDPA “does not require citation of the [Supreme Court’s] cases—indeed, it does not even
require awareness of [those] cases, so long as neither the reasoning nor the result of the state-
court decision contradicts them.” Id. at 8, 123 S. Ct. at 365.
61
The right of a state criminal defendant to effective assistance of counsel
springs from the Sixth and Fourteenth Amendments to the United States
Constitution, and such a right has been clearly established and roundly reaffirmed
by the Supreme Court. We analyze Borden’s claim under the rubric set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and its progeny. Strickland requires us to apply a familiar two-part inquiry:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687, 104 S. Ct. at 2064. While we undertake a cursory examination of
the performance of Borden’s counsel under the “performance prong” of Strickland,
we note at the outset that we “may decline to reach the performance prong of the
ineffective assistance test if convinced that the prejudice prong cannot be
satisfied.” Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995) (citing
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). “[T]here is no reason for a court
deciding an ineffective assistance of counsel claim . . . to address both components
62
of the inquiry if the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697, 104 S. Ct. at 2069.
A.
Under Strickland’s first prong, “[t]o be found deficient, capital counsel’s
performance must be ‘outside the wide range of professionally competent
assistance.’” Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (quoting
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). To perform within constitutional
bounds, defense counsel must conduct a reasonable investigation in relation to
their representation. Id. (citing Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066).
In short, as this court stated in Powell:
[O]nly when counsels’ choices are made after a “thorough
investigation of law and facts relevant to plausible options” are those
choices “virtually unchallengeable.” [Strickland, 466 U.S.] at 691,
104 S. Ct. [at 2066]. When, however, “strategic choices [are] made
after less than complete investigation [they] are reasonable precisely
to the extent that reasonable professional judgments support the
limitations on investigation.” Id. at 690–91, 104 S. Ct. [at 2066].
Thus, at bottom, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances . . . .” Id. at 691, 104 S. Ct. [at
2066]. This means that when we assess the attorney’s decision not to
investigate, we “must consider . . . whether the known evidence would
lead a reasonable attorney to investigate further.” Wiggins v. Smith,
539 U.S. 510, 527, 123 S. Ct. 2527, [2538,] 156 L. Ed. 2d 471 (2003).
Id.
63
As discussed in part I.C, supra, Borden raised several allegations in his
Amended Rule 32 Petition regarding the performance of his counsel at the penalty
phase of his trial. With regard to the investigation undertaken in preparation for
the penalty phase, Borden claimed that his counsel “fell far short of th[e]
constitutionally required mandate” that counsel present to the judge and jury “all
aspects of his background, family life, medical history, school records, and any
other life-experience that may be considered mitigating evidence.” Citing
American Bar Association guidelines, Borden further asserted that his penalty
phase counsel failed to obtain “complete and accurate information relevant to Mr.
Borden’s medical history, educational history, employment and training history,
family and social history, his correctional history, and any religious or cultural
influences.” Additionally, Borden faulted his counsel for failing to interview
“adequately” his family, friends, acquaintances, and other potential witnesses.
Borden’s Amended Petition also addressed his counsel’s actual performance
at the penalty phase, arguing that counsel failed to present mitigating evidence that
was available even absent any investigation. Further, Borden alleged that his
counsel were constitutionally ineffective as a result of their failure to present
“testimonial evidence from any of Mr. Borden’s mental health care providers.”
Ultimately, we decline to conclusively determine whether Borden’s penalty
64
phase counsel’s investigation and preparation met the constitutionally mandated
bar for performance as set under Strickland. Certainly, an evidentiary
hearing—where counsel, Borden’s family members, treating physicians, and other
potential witnesses would testify regarding the thoroughness of the
investigation—would settle this matter decisively. But given Borden’s failure to
specifically plead any prejudice flowing from the allegedly deficient performance
as required by the Alabama Rules of Criminal Procedure, as discussed in part III.B,
infra, we need not render a final judgment on the performance of penalty phase
counsel in the preparation and investigation for Borden’s defense.
We think it important to note here that a counsel’s failure to satisfactorily
investigate potential mitigating factors does not give rise to a presumption of
prejudice.42 “[A] presumption of prejudice would be proper where counsel’s
representation was so deficient as to amount in every respect to no representation
at all.” Blake v. Kemp, 758 F.2d 523, 533 (11th Cir. 1985) (citing Adams v.
Balkcom, 688 F.2d 734, 739 n.1 (11th Cir.1982)); see also Strickland, 466 U.S. at
692, 104 S. Ct. at 2067 (“In certain Sixth Amendment contexts, prejudice is
presumed. Actual or constructive denial of the assistance of counsel altogether is
42
We address this issue because Borden, in his Amended Petition, cites Blake v. Kemp,
758 F.2d 523 (11th Cir. 1985), for the proposition that there is a “presumption of prejudice
where trial counsel made no effort to prepare for the penalty phase of a capital trial.”
65
legally presumed to result in prejudice. . . . Prejudice in these circumstances is so
likely that case-by-case inquiry into prejudice is not worth the cost.” (citations
omitted)). Nowhere did Borden plead anything close to a “constructive denial of
the assistance of counsel altogether.” And, reviewing the record, we cannot say
that Borden was so denied; his counsel at the penalty phase presented four
witnesses, each of whom provided relevant testimony in an attempt to provide
support for three potential, statutorily enumerated, mitigating circumstances. To
extend to Borden a presumption of prejudice here would be to eviscerate
Strickland’s well-worn central holding and collapse the Sixth Amendment
ineffective assistance of counsel test into a single-pronged inquiry. We decline to
do so.
As such, we must undertake an analysis of whether Borden suffered
prejudice flowing from the allegedly deficient performance of his counsel.
B.
To establish prejudice under Strickland, “[i]t is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the
proceeding.” 466 U.S. at 693, 104 S. Ct. 2067. Rather, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
66
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694, 104 S. Ct. at 2068. In Borden’s case, we must determine whether the
facts pled in his Amended Petition establish that, had his counsel conducted a
reasonable investigation and presented additional mitigating evidence, there is a
reasonable probability that the jury would have recommended—and the judge
would have imposed—a sentence of life without parole. Or, more accurately, we
must determine whether the Court of Criminal Appeals’s determination that his
Amended Petition failed to sufficiently plead such facts—in light of Alabama’s
fact pleading post-conviction regime discussed in part II.A, supra—was “contrary
to, or involved an unreasonable application of, clearly established Federal law.”
A review of the Amended Rule 32 Petition leads us to the conclusion that
Borden has not carried the burden of making this showing. A comparison of the
allegations made in the Amended Petition to the types of facts that the Supreme
Court has found sufficient to establish prejudice under Strickland in analogous
situations is instructive.
In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471
(2003), the Supreme Court granted the writ where a counsel’s failure to adequately
investigate additional mitigating evidence prejudiced the petitioner. The
“powerful” undiscovered mitigating evidence led the Court to conclude that, had it
67
been discovered and presented to the jury, there was a reasonable probability that
the result of the proceeding would have been different. Id. at 534, 123 S. Ct. at
2542–43 (citations omitted). State post-conviction proceedings in Wiggins
uncovered a brutal and tragic life for the petitioner, Wiggins:
[P]etitioner’s mother, a chronic alcoholic, frequently left Wiggins and
his siblings home alone for days, forcing them to beg for food and to
eat paint chips and garbage. Mrs. Wiggins’ abusive behavior included
beating the children for breaking into the kitchen, which she often
kept locked. She had sex with men while her children slept in the
same bed and, on one occasion, forced petitioner’s hand against a hot
stove burner—an incident that led to petitioner’s hospitalization. At
the age of six, the State placed Wiggins in foster care. Petitioner’s
first and second foster mothers abused him physically, and, as
petitioner explained to [a social worker], the father in his second
foster home repeatedly molested and raped him. At age 16, petitioner
ran away from his foster home and began living on the streets. He
returned intermittently to additional foster homes, including one in
which the foster mother’s sons allegedly gang-raped him on more than
one occasion. After leaving the foster care system, Wiggins entered a
Job Corps program and was allegedly sexually abused by his
supervisor.
Id. at 516–17, 123 S. Ct. at 2533 (internal citations omitted).
Similarly, in Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.
2d 360 (2005), the Supreme Court held that a defense counsel’s failure to make a
reasonable investigation sufficiently prejudiced the petitioner to warrant habeas
relief. The facts that defense counsel failed to uncover and present were
summarized by the Court:
68
Rompilla’s parents were both severe alcoholics who drank constantly.
His mother drank during her pregnancy with Rompilla, and he and his
brothers eventually developed serious drinking problems. His father,
who had a vicious temper, frequently beat Rompilla’s mother, leaving
her bruised and black-eyed, and bragged about his cheating on her.
His parents fought violently, and on at least one occasion his mother
stabbed his father. He was abused by his father who beat him when
he was young with his hands, fists, leather straps, belts and sticks. All
of the children lived in terror. . . . His father locked Rompilla and his
brother Richard in a small wire mesh dog pen that was filthy and
excrement filled. He had an isolated background, and was not
allowed to visit other children or to speak to anyone on the phone.
They had no indoor plumbing in the house, he slept in the attic with
no heat, and the children were not given clothes and attended school
in rags.
Id. at 391–92, 125 S. Ct. at 2468–69 (quoting Rompilla v. Horn, 355 F.3d 233, 279
(3d Cir. 2004) (dissenting opinion) (citations omitted)).
Borden’s allegations stand in stark contrast to the allegations in Wiggins and
Rompilla. Even if we assume that his counsel failed completely to investigate
additional mitigating evidence, therefore removing any of the decisions to present
or not present evidence from the safe harbor of “strategic choices” that are
“virtually unchallengeable,” see Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535, there
are simply no facts presented in the Amended Petition that would warrant a finding
of prejudice and therefore habeas relief—only “bare allegation[s] . . . and mere
conclusions of law,” Ala. R. Crim. P. 32.6(b). The following quotes from
Borden’s Amended Petition are illustrative of the level of specificity with which he
69
pled his claims in support of a finding of prejudice under Strickland: “Trial
counsel’s deficient performance prevented the jury and the trial court from hearing
and considering an abundance of mitigating evidence . . . .”; “Mr. Borden was
entitled to have all aspects of his background, family life, medical history, school
records, and any other life-experience that may be considered mitigating evidence
presented to the jury and judge at the penalty phase of his capital trial”; “effective
preparation and investigation by defense counsel would have revealed a host of
mitigating factors, which should have been presented at Mr. Borden’s penalty
phase”; “Mr. Borden’s parents both possessed information that would have been
useful to Mr. Borden’s defense”; “other people . . . would have been able to present
a complete portrait of Mr. Borden, which would have lessened his culpability for
the crime, revealed numerous mitigating circumstances, and led the jury to impose
a lesser sentence of life without possibility of parole”; a review of the records and
interviews with “potential witnesses who were willing to testify . . . could have
established numerous mitigating factors that could have swayed the jury to a
finding of life in prison rather than death”; and, with regard to the specific
allegation that counsel should have called Borden’s treating physicians at the
penalty phase, “[m]ental health testimony would have played an important part in
Mr. Borden’s mitigation case, given the reduced level of mental health deficiency
70
necessary to create a mitigating condition.”43
Considering these pleadings, we simply cannot say that the Alabama Court
of Criminal Appeals’s determination that the allegations put forth by Borden were
due to be summarily dismissed was “contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d).44 Nowhere
in his Amended Petition does Borden plead facts that would tend to show that he
was prejudiced by his counsel’s allegedly deficient performance. Indeed, we have
no substantive factual allegations that we may properly assess. It seems patent
that, at the very least, “‘fairminded jurists could disagree’ on the correctness of the
43
While our review is limited to the Amended Rule 32 Petition presented to the state
courts on collateral review, we note that Borden’s habeas petition, while more specific, does not
plead new facts that would serve to make a strong showing of prejudice. In essence, the habeas
petition summarizes evidence contained in Borden’s medical records—records which were
admitted into evidence at trial, made fully available to the jury, and discussed by experts at the
guilt phase of Borden’s trial. It also includes some new allegations, such as the claim that Mr.
Borden was “plagued by physical and mental abuse, caused by his parents, family members, and
acquaintances.” We decline to address these additional allegations.
44
We note that Borden also claimed that his counsel were constitutionally ineffective
because they failed to investigate and present evidence of his significant religious activities to
the jury at the penalty phase of his trial. This claim falls within the expanded COA. See supra
note 25. The Alabama Court of Criminal Appeals treated this claim differently than all of
Borden’s other relevant claims; rather than find it insufficiently pled, the Court of Criminal
Appeals summarily dismissed it under Rule 32.7(d) because it failed to present a material issue
of law or fact.
This dismissal was on the merits, and therefore subject to AEDPA review by this court.
Upon review of the record and the Court of Criminal Appeals’s opinion, we hold that the
dismissal of this claim was not an unreasonable application of federal law. 28 U.S.C.
§ 2254(d)(1). Because the remainder of Borden’s claims covered by the COA were dismissed
under Rule 32.6(b), and because the parties emphasized the operation of Rule 32.6(b) in their
briefs and at oral argument, we have focused our attention on Borden’s claims that were
dismissed as insufficiently pled.
71
state court’s decision.” Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 786
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140,
2149, 158 L. Ed. 2d 938 (2004)). We therefore cannot grant habeas relief. To
grant habeas here would be to open the door to habeas relief for any petitioner who
files a boilerplate, unspecific petition for collateral relief. We are convinced that
Supreme Court precedent would not support such an approach.
We are not blind to the possibility that testimony from Borden’s treating
physicians at the penalty phase of his trial could have strengthened his ability to
fully present the mitigating circumstances he sought to prove to the jury; while the
jury had access to Borden’s complete medical history and defense counsel urged
the jurors to review this history, we can imagine that hearing testimony from his
doctors could have provided a more in-depth view of Borden’s mental state over
the years. But our inquiry into Strickland prejudice requires that we find more than
a possibility that the jury could have benefitted from additional testimony that
would shed light on evidence already produced for their review. As indicated
above, it requires that there be a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland. 466 U.S. at 694, 104 S. Ct. at 2068. Viewed through the further
deferential lens of AEDPA, Borden’s allegations do not satisfy this “doubly”
72
demanding standard of review. Harrington, 131 S. Ct. at 788.
Further, our conclusion comports with the similar Eleventh Circuit case
Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010). In Powell, the Alabama state
courts applied Rule 32.6(b) to deny the petitioner’s ineffective assistance of
counsel claims brought in a petition for post-conviction relief. The petitioner,
Powell, was not granted an evidentiary hearing by either the state courts or the
federal district court. Id. at 1267–68. Regarding claims analogous to the ones we
face today—that counsel failed to sufficiently investigate and present mitigating
factors at the penalty phase—the Powell court stated:
Powell argues that his trial counsel should have obtained the
testimony of his teachers or school records, because he asserts that
“school records, military records, health records, employment records,
correctional records, and religious records of both Mr. Powell and his
parents and his siblings” were available and would have presented a
complete picture of his life. However, Powell did not allege in his
Rule 32 petition what any such records would show other than to
make the conclusory allegation that such records would have revealed
“numerous mitigating circumstances.” He does not, however, allege
what those mitigating circumstances are. As such, we cannot
conclude that the Rule 32 court’s dismissal of Powell’s ineffective
assistance claim was an unreasonable application of Strickland.
Id. at 1275. Borden’s claims are no less conclusory than those presented by the
petitioner in Powell, and, as such, we similarly cannot conclude that the Court of
Criminal Appeals’s dismissal of Borden’s claims was an unreasonable application
of clearly established federal law.
73
IV.
Finally, the COA asks that we determine whether a claim of ineffective
assistance of counsel may be based on the “cumulative effect” of multiple
non-prejudicial errors by counsel when no individual error standing alone would
warrant a finding of prejudice under Strickland. Because Borden has not
sufficiently pled facts that would establish prejudice—cumulative or
otherwise—we decline to elaborate further on the concept of “cumulative effect”
for fear of issuing an advisory opinion on a hypothetical issue.
Accordingly, the district court’s decision denying Borden’s petition for a
writ of habeas corpus is hereby
AFFIRMED.
74
WILSON, J., concurring in part, dissenting in part:
In light of Cullen v. Pinholster, — U.S. — , 131 S. Ct. 1388 (2011), I concur
in the result reached by the majority with respect to most of Borden’s claims.1 I
offer this separate opinion, however, to address two concerns regarding the Court’s
analysis.
1. Alabama Rule of Criminal Procedure 32.6(b)
The majority holds that “a summary[2 ] dismissal of a federal claim by
Alabama courts for failure to comply with Rule 32.6(b) is . . . a ruling on the
merits.” Majority Op. at 52. I disagree with that categorical approach.
To begin, I agree with the majority that, in substance, select applications of
Rule 32.6(b) in this case were essentially merits adjudications. Others, however,
were clearly not, as demonstrated by the Alabama Court of Criminal Appeals’s
language specifically disclaiming that those rulings were merit-based. Here are but
a few examples:
1
As indicated below, I believe two of Borden’s claims require remand to the district
court—the first, because it received no adjudication on the merits in state court; and the second,
because the state court’s disposition was an unreasonable application of clearly established
federal law. See notes 23 & 25, infra.
2
Courts use the label “summary” to describe both dismissals made after the pleading(s),
but without further proceedings, and dismissals (or denials) that are unaccompanied by written
explanations. Compare Majority Op. at 42–43, with Harrington v. Richter, — U.S. —, 131 S.
Ct. 770, 783 (2011). In this case, I use “summary dismissal” in the same fashion as the majority:
to refer to pleading-stage dismissals.
75
The circuit court addressed the merits of this claim,
finding that the evidence overwhelmingly established
that Borden murdered the two victims and that counsel
conceded that fact and focused on a defense of insanity
and lack of mental capacity. The trial court determined
that Borden could not demonstrate prejudice and that his
petition failed to state a claim for relief, so that summary
dismissal was appropriate. We adopt the court’s findings
of fact and conclusions of law as an alternative holding,
but find that the claim was not sufficiently pleaded and
need not have been addressed on the merits.[3]
***
Therefore, in addition to failing to plead the claim with
sufficient specificity, Borden has failed to state a claim
which would have entitled him to relief.[4]
***
Thus, the claim was subject to summary dismissal for
failure to satisfy the pleading requirements. Moreover,
as the trial court found, the claim was meritless. . . .
Summary dismissal of Claim I.L. was proper for this
additional reason.[5]
***
The claim regarding defense counsel’s argument on the
legal standard for insanity failed to satisfy the pleading
requirements of Rule 32.3 and Rule 32.6(b), Ala. R.
Crim. P., and it was due to be summarily dismissed.
Even if we had addressed the claim on the merits, we
would not have found that Borden was entitled to any
relief . . . .[6]
3
Borden v. State, No. CR-00-1379 at 9 n.3 (Ala. Crim. App. Aug. 22, 2003) (emphasis
added). For convenience, the remainder of the citations to the Court of Criminal Appeals’s
opinion will indicated by “CCA Op. at __”.
4
CCA Op. at 13 (emphasis added).
5
CCA Op. at 14 (emphasis added).
6
CCA Op. at 20 (emphasis added).
76
***
We adopt the trial court’s holding on the merits as an
alternative holding to our primary determination that the
claim was not pleaded with specificity and was due to be
dismissed.[7]
***
The trial court addressed this claim on the merits and
denied it, finding both that Borden failed to allege any
prejudice and that most of the information Borden
alleged his father would have conveyed in his testimony
was presented to the jury by other witnesses. . . . We
agree with the trial court’s analysis of this claim, and
adopt its holding as an alternative holding to our primary
determination that the claim was not sufficiently
pleaded.[8]
***
Even if the claim had not been subject to dismissal based
on inadequate pleading, summary dismissal would have
been proper because it was meritless.[ 9]
At one point, the Court of Criminal Appeals even reversed a trial-court ruling that
a particular claim “was sufficiently pleaded, but lacked merit,” deciding instead
that the claim did not, in fact, conform with Rule 32.6(b)’s specificity requirement
and was due to be dismissed on that basis. CCA Op. at 28 & n.11. Consequently,
at least with respect to a large number of its Rule 32.6(b) rulings, I believe the
Court of Criminal Appeals intended those rulings to be strictly procedural, not
7
CCA Op. at 23 n.8 (emphasis added).
8
CCA Op. at 25 (emphasis added).
9
CCA Op. at 27 (emphasis added).
77
merit-based.10
The majority rightly notes that some rules nominally categorized as
“procedural” may actually adjudicate substance, such as Federal Rule of Civil
Procedure 12(b)(6). See Majority Op. at 50. The majority takes just such a view
of Rule 32.6(b): “[T]he Alabama Court of Criminal Appeals, in disposing of claims
in the Amended Petition under Rule 32.6(b), necessarily considered the sufficiency
of such claims, focusing in on the factors for determining whether the petition
presented a case sufficient to warrant relief under Strickland v. Washington . . . .”
Majority Op. at 51. In the abstract, this proposition makes good sense.
Presumably, a “specificity” bar would hang lower than the threshold for
successfully stating a claim that would entitle the petitioner to either relief or
10
Our Seventh Circuit colleagues recently addressed a similar question in Kerr v.
Thurmer, 639 F.3d 315 (2011). Faced with a state court dismissal of a claim that was deemed
too “underdeveloped” to warrant a merits ruling, the Seventh Circuit decided that such a
dismissal was not on the merits, but was simply procedural. Id. at 326 (“[I]f the state court
issues a summary order that denies a petition for post-conviction relief and in the order it
furnishes a procedural reason for its decision . . . , then we must take the state court at its word
and treat the decision as procedural, not merits-based.”). Though I part ways with Kerr’s
additional determination that such a procedural ruling constituted an independent and adequate
state ground that precludes federal merits consideration, see Card v. Dugger, 911 F.2d 1494,
1516–17 (11th Cir. 1990) (explaining what constitutes an independent and adequate state ground
of decision); Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) (determining that a
specificity requirement such as that at issue in this case was not an “independent” state ground
barring federal habeas relief), I agree with its sentiment that we should treat state court rulings as
they were intended. See Wilson v. Workman, 577 F.3d 1284, 1293 (10th Cir. 2009) (en banc)
(“While [AEDPA] vindicates goals such as federalism and comity by affording great deference
to state court decisions, it prescribes deference only for decisions the state court has actually
made.”).
78
further proceedings. Therefore, by failing to plead his claim with sufficient
specificity under Rule 32.6(b), Borden would necessarily fail to state a claim for
relief. Unfortunately, at least as the rule was applied here, that proposition appears
not to have been reflected in practice.
Both the trial court’s Order on Remand and the Court of Criminal Appeals’s
Memorandum Opinion divided their resolutions of Borden’s claims into two
distinct camps: (1) claims that were dismissed as insufficiently pled under Rule
32.6(b); and (2) claims that were denied on the merits in light of the prevailing
legal standard set forth in Strickland.11 It was only after ruling that many of
Borden’s claims failed to conform to Rule 32.6(b)’s specificity requirement and
dismissing them accordingly that the Court of Criminal Appeals addressed
Strickland. It began a new section of its opinion with the following words:
The trial court determined that several of the claims of
ineffective assistance of counsel Borden raised in his
petition were not procedurally barred and that they
contained a sufficient factual basis to avoid summary
dismissal pursuant to Rule 32.6(b), Ala. R. Crim. P. The
court considered each of the claims and determined, for
the reasons discussed below, that the claims were due to
be denied.
CCA Op. at 32. The court then launched into a thorough summary of the legal
11
For simplicity’s sake, I leave aside a third category of dismissals: claims properly
dismissed on undisputed grounds of procedural bar, such as failure to raise certain claims on
direct appeal, etc. None of those claims are relevant to this appeal.
79
standards governing ineffective assistance claims, quoting at length from
Strickland itself and culminating in the following statement:
With these legal standards in mind, we review the merits
of the remaining allegations of ineffective assistance of
counsel.
Id. at 34 (emphasis added).
The court proceeded to do just that, analyzing Borden’s remaining claims in
ways that bore the clear hallmarks of summary, merit-based adjudications. See,
e.g., id. at 35 (“The trial court correctly determined that Borden established neither
deficient performance nor prejudice as to this claim.”). And whereas these later
rulings clearly evaluated the sufficiency of Borden’s allegations in light of
Strickland, most of those that came before—the 32.6(b) rulings—appeared to not.
Upon my initial review of this case, I took the same view as the majority.
After all, what metric would the state court use to measure the sufficiency of the
pleadings other than the substantive yardstick of Strickland? However, after
poring over the state court decisions, I was left with the distinct impression that
many of the evaluations actually made were not based on substance, but rather on
form—driven, not by the allegations’ sufficiency in relation to the governing
substantive law, but instead their conformity with some hypothetical pleading
rubric or formula.
80
For example, Borden was death-eligible only because the trial court found
the existence of a sole aggravating factor: “The defendant knowingly created a
great risk of death to many persons.” Ala. Code § 13A-5-49(3). In his Amended
Rule 32 Petition, Borden argues his penalty-phase counsel was ineffective for
failing to object when the prosecutor mischaracterized that aggravating factor for
the jury, as well as for failing to challenge that the prosecutor had, in fact, proven
the required mental state.12 See Amended Petition ¶¶ 68–69, 71–73. Borden
quoted the statutory language. Id. ¶ 71. He recited the prosecutor’s
mischaracterization of that language. Id. ¶ 72. He indicated that he believed the
mischaracterization of law “was harmful . . . because it misrepresented a lower
degree of recklessness than what is legally required. . . .” Id. ¶ 73. And he argued
that “the state never presented any evidence that Mr. Borden knew there were any
people in the house.” Id. ¶ 68. He even stated that had this factor been
successfully challenged, “the death penalty would not have even been an option for
12
At the penalty phase, the prosecutor had simply presented evidence that there were
people in the house and that they were positioned such that they may have been in harm’s way.
There was no direct evidence presented that Borden was aware of how many persons were in the
house. While arguing to the jury, the prosecutor paraphrased the aggravating factor to eliminate
the scienter requirement and imply that Borden simply had to cause a grave risk of death to “a
number of,” as opposed to “many,” people. In full, the cited comment by the prosecutor reads:
You can tell from what you’ve already heard and what you’ve seen
that when you fire a gun and .380 bullets blazing through a house that
you can easily kill more than the people that you intend to kill. You
create a grave great risk of death to a number of people.
81
the jury.” Id. ¶ 69.
Nevertheless, the Court of Criminal Appeals found that these arguments
were due to be dismissed pursuant to Rule 32.6(b)’s specificity requirement,
reasoning:
Borden failed to present a full disclosure of the factual
basis for the ground for relief. Moreover, he presented
mere conclusions based on the few facts he provided.
Because these allegations do not satisfy the pleading
requirements of Rule 32.6(b), Ala. R. Crim. P., the
allegations in Claim II.C. were properly dismissed.
CCA Op. at 26. Or:
This claim was due to be dismissed because it failed to
satisfy the specificity requirements of Rule 32.6(b), Ala.
R. Crim. P. . . . .
Borden failed to plead any facts indicating how he
was prejudiced by trial counsel’s failure to object to this
alleged mischaracterization of law. Therefore, the claim
was not pleaded with sufficient specificity and it was due
to be dismissed without further proceedings.
CCA Op. at 27. And after making these 32.6(b) rulings, the Court of Criminal
Appeals went on to conduct merits analyses, in the alternative.
I have trouble conceiving of how Borden could have been more specific than
he was, or how he could have “failed to present a full disclosure of the factual basis
for relief.” I am even more puzzled as to how the court could have believed that
Borden failed to indicate in what way he was prejudiced by counsel’s alleged
82
failure to object. The prejudice was not only explicitly pled, it was patently
obvious. This was the sole aggravating factor supporting Borden’s death sentence;
the prosecutor presented no evidence regarding an essential element; and the
prosecutor described the aggravating factor to the jury in a way that eliminated the
scienter requirement and relaxed the numerical threshold for persons threatened
with harm.13
In light of this application and many others like it, I am at a loss to explain
the operation of Rule 32.6(b).14 Under these circumstances, I simply cannot join
13
To offer another example, Borden claimed that counsel was ineffective for failing to
object to the prosecutor’s improper interjection of his personal opinion during closing argument.
He provided a legal basis for the claim, complete with citations to state and federal cases, and
then cited to two pages of the trial transcript where “the prosecutor made statements of personal
opinion concerning Mr. Borden in direct contradiction of the law, as described above.”
The Court of Criminal Appeals, however, found that this claim “was not pleaded with
sufficient specificity as required by Rule 32.6(b),” stating: “Borden cites to two pages of the
record, but he does not identify which of the prosecutor’s statements he finds objectionable. Nor
does he make a specific allegation regarding the alleged impropriety of any of the prosecutor’s
statements contained on those two pages.” CCA Op. at 15 (footnote omitted).
Borden’s claim on this front is certainly meritless. But it is incorrect to say that he has
not made “a clear and specific statement of the grounds upon which relief [was] sought.” Rule
32.6(b). Borden stated exactly why the prosecutor’s comments were allegedly improper, and he
directed the court to a specific two pages of the lengthy trial record. On those pages, there is but
one statement of personal opinion offered by the prosecutor: “When they took him off [his
medication], he got better, which I think is evidence of the fact that there wasn’t anything wrong
with him.” Trial Transcript at 1037.
14
My confusion is compounded by the fact that, so far as I am aware, summary
adjudications “on the merits” can take one of only two forms. Either the petitioner’s allegations,
as pled, are insufficient, meaning that the petitioner has failed to state a claim for relief under the
relevant standard of pleading. Or, despite the allegation’s facial sufficiency in the abstract, the
broader record forecloses any actual possibility of relief. It is worth noting that Alabama Rule of
Criminal Procedure 32.7(d)—the provision that provides for summary dismissal of claims and
enforces Rule 32.6(b)’s specificity requirement—explicitly provides for both of these merit-
based grounds for dismissal in addition to “specificity”:
83
the majority’s determination that Rule 32.6(b) dismissals categorically constitute
rulings on the merits. Specificity rulings may often subsume a substantive
evaluation of a claim’s merit in exactly the way the majority perceives. And I
agree that where the record supports such a reading, we should treat those rulings
as adjudications on the merits under AEDPA. However, if it instead appears that a
rule is being applied procedurally, simply to object to a defect in form that does not
preclude the possibility that the petitioner has in fact asserted the substance of a
colorable federal claim, it simply cannot be credited as a ruling on the merits. See
Childers v. Floyd, — F.3d —, No. 08-15590, slip op. at 63–65 (June 2, 2011) (en
banc) (Wilson, J., concurring in the judgment); Wilson v. Workman, 577 F.3d
1284, 1293 (10th Cir. 2009) (en banc) (“To be entitled to deference under AEDPA,
the state court must similarly decide the ‘substance’ of the claim, which means to
‘apply the controlling legal principles to the facts bearing upon [his] constitutional
claim.’” (alteration in original) (quoting Picard v. Connor, 404 U.S. 270, 277, 92 S.
(d) Summary Disposition. If the court determines that the petition is
not sufficiently specific, or is precluded, or fails to state a claim, or
that no material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would be
served by any further proceedings, the court may either dismiss the
petition or grant leave to file an amended petition. Leave to amend
shall be freely granted. Otherwise, the court shall direct that the
proceedings continue and set a date for hearing.
Rule 32.7(d) (emphasis added). Considering Rule 32.6(b) rulings as being “on the merits,”
therefore, creates surplusage within Alabama’s statutory scheme.
84
Ct. 509 (1971))).15
“Whatever springes the State may set for those who are endeavoring to
assert rights that the State confers, the assertion of federal rights, when plainly and
reasonably made, is not to be defeated under the name of local practice.” Davis v.
Wechsler, 263 U.S. 22, 24, 44 S. Ct. 13 (1923). I am concerned that many of the
Rule 32.6(b) dismissals run afoul of that admonition. And because there were
clear, merit-based alternative rulings for the bulk of those claims at issue in this
appeal, I would rely on those rulings to satisfy AEDPA’s prerequisites and avoid
today’s unnecessary and problematic decision regarding the status of Rule
32.6(b).16
15
Wilson is instructive here. In that case, the full Tenth Circuit decided that prior state
court adjudications of petitioners’ claims were not “on the merits” because petitioners were
denied evidentiary hearings under a state “procedural” rule that, while substantive, enforced a
pleading burden that was unclear and different than that which would have been enforced in
federal court. 577 F.3d at 1290–93. The rule enforced, Oklahoma Appellate Rule 3.11(B)(3)(b),
provided for evidentiary hearings in cases where counsel was alleged to have provide ineffective
assistance for failing to present mitigating evidence only if the petitioner can show “by clear and
convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize
or identify the complained-of evidence.” The prior panel opinion, the result of which was
upheld en banc, rejected an argument by the dissent that Rule 3.11 necessarily resolved the
merits of the federal constitutional claim: “Although the interplay of these two standards—one
more demanding, one less demanding, than the federal—is not clear, we cannot conclude that
when the state court denies an evidentiary hearing under Rule 3.11 it has necessarily decided that
the federal standard was not satisfied.” Wilson v. Sirmons, 536 F.3d 1064, 1081 (10th Cir.
2008).
16
For the reasons explained in my concurrence in Childers v. Floyd, — F.3d —, No. 08-
15590, slip op. at 60–65 (June 2, 2011) (en banc) (Wilson, J., concurring in the judgment), I
must object to the majority’s footnote 42, which states that “it matters not for our analysis
whether the Court of Criminal Appeals resolved Borden’s claim under Strickland or under a
state rule.” Majority Op. at 62 n.42 (citing Early v. Packer, 537 U.S. 3, 123 S. Ct. 362 (2002)
85
2. Summary Dispositions, Evidentiary Hearings, and AEDPA
The majority’s central holding—that Borden’s claims were adjudicated on
their merit when the Alabama state court dismissed them for failing to meet Rule
32.6(b)’s specificity requirement—raises another important concern.
Borden was never afforded an evidentiary hearing. The state court
summarily dismissed his claims without granting him an opportunity to develop
the factual record. The majority decides that these Rule 32.6(b) dismissals were on
the merits, triggering deferential review under AEDPA, because they were the
substantive equivalent of dismissals under Rule 4 of the Rules Governing Section
2254 Cases (the “Habeas Rules”) in federal court. Puzzlingly, however, in
applying that deference, the majority never once engages with, or even mentions,
the substantive pleading burden enforced by Habeas Rule 4. See Habeas Rule 4,
advisory committee’s note (“[T]he petition is expected to state facts that point to a
real possibility of constitutional error.” (internal quotation marks omitted)).
All adjudications on the merits—including summary dismissals—are
entitled to deference under AEDPA. But not all adjudications on the merits decide
the same thing. Habeas claims may be dismissed at the pleading stage, for
(per curiam)). It matters a great deal. If the state rule enforces a different or higher burden
against Borden at the pleading stage, an adjudication under that burden surely cannot be
considered “on the merits” of the federal constitutional claim.
86
example, because, as pled, they are so “‘vague (or) conclusory’ as to warrant
dismissal for that reason alone,” Blackledge v. Allison, 431 U.S. 63, 75, 97 S. Ct.
1621 (1977) (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S. Ct.
510 (1962)); or “when viewed against the record,” they may be shown to be “so
palpably incredible, so patently frivolous or false, as to warrant summary
dismissal,” id. at 76 (internal quotation marks omitted) (citations omitted). If
claims survive these threshold inquiries, they may still be susceptible to summary
judgment because there remains no genuine issue of material fact to resolve in
further proceedings. Id. at 80–81 (citing Fed. R. Civ. P. 56(e), (f));17 see also
Alabama Rule of Criminal Procedure 32.7(d). Alternatively, when claims are
denied at the proof stage—i.e. after the proceedings have run their full course—the
court has simply decided that the petitioner failed to carry his or her burden of
17
This is not to say that every set of allegations not on its face without
merit entitles a habeas corpus petitioner to an evidentiary hearing.
As in civil cases generally, there exists a procedure whose purpose is
to test whether facially adequate allegations have sufficient basis in
fact to warrant plenary presentation of evidence. That procedure is,
of course, the motion for summary judgment. Upon remand the
warden will be free to make such a notion [sic], supporting it with
whatever proof he wishes to attach. If he chooses to do so, [the
petitioner] will then be required either to produce some contrary
proof indicating that there is a genuine issue of fact to be resolved by
the District Court or to explain his inability to provide such proof.
Fed. Rules Civ. Proc. 56(e), (f).
431 U.S. at 80–81 (footnote omitted).
87
proof.
For many habeas claims, the distinctions among these different dismissals or
denials at the various stages of habeas litigation are distinctions without a
difference, because those claims do not require any factual development in order
for the judge to conclusively evaluate the petitioner’s entitlement to relief. Other
types of claims, however, are not similarly susceptible to summary proceedings.
See Machibroda, 368 U.S. at 494–95 (“The factual allegations contained in the
petitioner’s motion . . . related primarily to purported occurrences outside the
courtroom and upon which the record could, therefore, cast no real light.”). That is
why federal law prohibits summary dismissals “where specific allegations before
the court show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is confined illegally and is therefore
entitled to relief . . . .” Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082 (1969).
So long as a petitioner has raised such a possibility—that, if the facts are fully
developed, there is “reason to believe” that he or she “may” be able to demonstrate
a constitutional violation—“it is the duty of the court to provide the necessary
facilities and procedures for an adequate inquiry.” Id.; see id. at 298 (“Petitioners
in habeas corpus proceedings . . . are entitled to careful consideration and plenary
processing of their claims including full opportunity for presentation of the
88
relevant facts.”); see also Blackledge, 431 U.S. at 82 n.25 (“But before dismissing
facially adequate allegations short of an evidentiary hearing, ordinarily a district
judge should seek as a minimum to obtain affidavits from all persons likely to have
firsthand knowledge of the existence of any plea agreement.”); Franklin v. Rose,
765 F.2d 82, 85 (6th Cir. 1985) (per curiam) (“Even Franklin’s undeveloped
allegations satisfied the requirement of Blackledge v. Allison, that a habeas
petition must ‘state facts that point to a “real possibility of constitutional error.”’”
(citation omitted)).18
Federal courts reviewing § 2254 petitions must recognize exactly what
federal law requires of habeas petitioners at each stage of habeas litigation.
AEDPA mandates deference for all state court adjudications on the merits. But it
does so in light of what is required under “clearly established Federal law.” See 28
U.S.C. § 2254(d)(1) (emphasis added). Under that provision, it is our job to
determine whether a state court’s merits adjudication falls outside the wide range
18
Our understanding of what federal law demands of habeas petitioners at the pleading
stage is informed by 28 U.S.C. § 2255. The Supreme Court has looked to § 2255 and cases
thereunder to map the procedural requirements of federal habeas corpus, stating that “the remedy
under § 2255 was designed to be ‘exactly commensurate’ with the federal habeas corpus
remedy.” Blackledge, 431 U.S. at 74 n.4. Therefore, assuming a petition is not subject to Rule 4
dismissal, courts “must accord [a habeas petitioner] an evidentiary hearing [u]nless the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief.
If the trial record is inadequate to show conclusively that the movant’s contentions are without
merit, the [habeas court] must conduct a hearing.” Anderson v. United States, 948 F.2d 704, 706
(11th Cir. 1991) (internal quotation marks omitted) (footnotes omitted).
89
of objectively reasonable resolutions permissible under that clearly established
federal law. See Williams v. Taylor, 529 U.S. 362, 409–10, 120 S. Ct. 1495
(2000). We simply cannot conduct that analysis unless we understand both what
burden the state court determined the petitioner failed to carry and what federal law
requires of habeas petitioners at that particular stage in the proceedings.
The majority finds Borden’s allegations lacking in prejudice. It does so by
briefly comparing Borden’s allegations, as pled, against the evidence of prejudice
relied upon by the Supreme Court to find petitioners deserving of habeas relief on
similar claims. Majority Op. at 68–69 (citing Wiggins v. Smith, 539 U.S. 510, 123
S. Ct. 2527 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005)).
But the evidence of prejudice in those cases had been developed during the very
proceeding Borden was denied: an evidentiary hearing. And the state court
adjudications being reviewed were decisions that the petitioners had failed to prove
their entitlement to relief after full proceedings.19
Here, conversely, we are reviewing a pleading-stage dismissal. And based
on the majority’s own authority for finding Borden’s claims adjudicated on their
merits, the question we must ask under § 2254(d) is whether fairminded jurists
19
I draw these distinction not to say that Borden need not make his substantial showing
of a real possibility of constitutional error to obtain further proceedings, but simply to highlight
that we risk over-enforcing burdens of pleading if we compare on equal footing evidence of
prejudice, as pled, with the evidence of prejudice, as uncovered during an evidentiary hearing.
90
could disagree that Borden pled facts demonstrating a “real possibility of
constitutional error.” We are not asking whether Borden—like Wiggins and
Rompilla—had actually proven his entitlement to habeas relief beyond any
objectively reasonable dissent. If that were the question, the majority would surely
be correct to deny relief on all counts—as would virtually any federal court
reviewing the dismissal of claims naturally relying on non-record evidence at the
pleading stage. Without the aid of legal process and a developed record to rely
upon, it would be virtually impossible for any petitioner to carry his or her ultimate
burden of proof, let alone to demonstrate that he or she is entitled to habeas relief
in federal court under AEDPA’s “doubly deferential” standard of review. See
Pinholster, 131 S. Ct. at 1403.20
20
The majority implies otherwise, relying on the nature of habeas fact-pleading and
Alabama’s requirement that Rule 32 petitioners plead “every fact” needed for their claim. See
Majority Op. at 46, 49.
But federal law has long recognized that a burden of proof is often impossible to carry
without the benefit of legal process, such as the ability to compel the testimony of reluctant
witnesses, because habeas petitioners often do not possess all the facts they need to make out
their constitutional claim:
It is now established beyond the reach of reasonable dispute that the
federal courts not only may grant evidentiary hearings to applicants,
but must do so upon an appropriate showing. And this Court has
emphasized, taking into account the office of the writ and the fact
that the petitioner, being in custody, is usually handicapped in
developing the evidence needed to support in necessary detail the
facts alleged in his petition, that a habeas corpus proceeding must not
be allowed to founder in a ‘procedural morass.’
Harris, 394 U.S. at 291–92 (emphasis added). See also Blackledge, 431 U.S. at 83 n.26.
Moreover, federal law does not require that habeas petitioners set forth “every fact”
bearing on their claims in their petitions in order avoid summary dismissal. In fact, the text of
91
Therefore, when applying § 2254(d) to summary dismissals of such claims
in state court, we should not expand the already exceedingly broad sweep of
AEDPA deference by enforcing the wrong burden against habeas petitioners.
Instead, we must recognize the important distinctions among the different merits
adjudications made at different stages in habeas litigation and review a particular
state court merits adjudications in light of the decision that court actually made.
***
Notwithstanding these reservations, I agree with the majority that, if our
view is restricted to the allegations contained in his first Amended Rule 32
Petition,21 Borden is not entitled to federal relief on the vast majority of his claims.
Habeas Rule 2 in force at the time Borden made his filings specifically instructed petitioners to
plead their factual case in summary form:
(c) Form of Petition. . . . . It shall specify all the grounds for relief
which are available to the petitioner and of which he has or by the
exercise of reasonable diligence should have knowledge and shall set
forth in summary form the facts supporting each of the grounds thus
specified.
Habeas Rule 2 (effective Aug. 1, 1982) (emphasis added). See Cuadra v. Sullivan, 837 F.2d 56,
58 (2d Cir. 1988) (“Although the Habeas Rules contemplate more than the ‘notice’ pleading
envisioned by the Federal Rules of Civil Procedure, they do not require that the petitioner plead
evidentiary detail in his petition. Rather, the Habeas Rules require that the petitioner set forth
facts supporting the grounds of the petition ‘in summary form.’” (citations omitted)); see also
Spaziano v. Singletary, 36 F.3d 1028, 1031 n.2 (11th Cir. 1994) (“Although the habeas rules
require more than notice pleading, and some factual specificity will often be helpful, or even
necessary, a habeas petition should not resemble a treatise.”).
21
The majority relies on Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (per
curiam), for this limitation. Majority Op. at 59. Though the relevant language in that case was
uncited, I concede that, in the wake of Pinholster, its conclusion seems sound. I am troubled by
the fact, however, that such a limitation essentially renders the drafting and filing of a separate
federal petition a meaningless formality. For a merits review as undertaken in this case, the
92
This is a closer case, however, than the majority conveys.
As noted above, the majority resolves this case on Strickland’s prejudice
prong. When evaluating the potential prejudice of an unprofessional error at the
sentencing phase of a death penalty case, a court asks “whether there is a
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695. To answer that question, the court
“reweigh[s] the evidence in aggravation against the totality of available mitigating
evidence.” Wiggins, 539 U.S. at 534. Therefore, naturally, the weaker the
evidence of aggravation, the less evidence of mitigation will be needed to create a
“reasonable probability” that the sentencer would have struck a different balance.
See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors than one with
overwhelming record support.”); Williams v. Allen, 542 F.3d 1326, 1343 (11th
Cir. 2008) (“Further supporting a finding of prejudice is the fact that this case is
court would not even need to read it. This seems strangely at odds with a well-developed body
of exhaustion-requirement caselaw allowing § 2254 petitioners to retool their federal allegations,
so long as the substance of their claims was fairly presented to the state court. See Vasquez v.
Hillery, 474 U.S. 254, 258–60, 106 S. Ct. 617 (1986); Kelley v. Sec’y for Dept. of Corr., 377
F.3d 1317, 1344 (11th Cir. 2004) (“We recognize that habeas petitioners are permitted to clarify
the arguments presented to the state courts on federal collateral review provided that those
arguments remain unchanged in substance.”); see also Childers, slip op. at 24 (majority opinion)
(“The concept of an ‘adjudication on the merits’ is the corollary of the long-held requirement
that a state prisoner first exhaust his claims in state court.”).
93
not highly aggravated.”).
Here, there was minimal evidence of aggravation. The prosecution proved
only a single aggravating factor: Borden “knowingly created a great risk of death
to many persons” by firing several bullets into a house. Ala. Code § 13A-5-49(3).
It did so without providing any evidence that Borden actually knew there were
others in the house, and by paraphrasing the aggravating standard for the jury in a
way that relaxed its statutory requirements. See note 12, supra. And the jury
recommended the death penalty by a vote of 10 to 2—the bare minimum allowed
under Alabama law.22
Borden’s chief complaint at issue in this appeal is that counsel was
22
The majority asserts that, “In Borden’s case, we must determine whether the facts pled
in his Amended Petition establish that, had his counsel conducted a reasonable investigation and
presented additional mitigating evidence, there is a reasonable probability that the jury would
have recommended—and the judge would have imposed—a sentence of life without parole.”
Majority Op. at 67. The standard actually set by Strickland reads as follows: “When a defendant
challenges a death sentence . . . , the question is whether there is a reasonable probability that,
absent the errors, the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” 466 U.S. at 695 (emphasis added). Though it is a minor
distinction, in the context of Alabama’s capital sentencing regime, it is an important one.
Strickland’s rule is phrased in the negative: “the balance of aggravating and mitigating
circumstances did not warrant death.” Death recommendations by Alabama juries must be made
by a vote of at least 10-2, whereas a recommendations of life must be made by a vote of 7-5.
Ala. Code § 13A-5-46(f). Since Alabama’s death penalty statute does not create a binary
structure (allowing for the possibility of a hung jury) and Borden’s death recommendation was
10-2, Strickland’s rule would have been satisfied if Borden had changed only one juror’s mind,
not five. Cf. Wiggins, 539 U.S. at 537 (“Had the jury been able to place petitioner’s excruciating
life history on the mitigating side of the scale, there is a reasonable probability that at least one
juror would have struck a different balance.” (emphasis added)).
94
ineffective for failing to contact his treating physicians and present their testimony
at the sentencing phase of trial. The majority dismisses these allegations as
“boilerplate” and insufficient to establish a reasonable probability that the result of
the proceeding would be different:
We are not blind to the possibility that testimony from
Borden’s treating physicians at the penalty phase of his
trial could have strengthened his ability to fully present
the mitigating circumstances he sought to prove to the
jury; while the jury had access to Borden’s complete
medical history and defense counsel urged the jurors to
review that history, we can imagine that hearing
testimony from his doctors could have provided a more
in-depth view of Borden’s mental state over the years.
But our inquiry into Strickland prejudice requires that we
find more than a possibility that the jury could have
benefitted from additional testimony that would shed
light on evidence already produced for their review.
Majority Op. at 73.
But “the Strickland [prejudice] inquiry requires [a] . . . probing and
fact-specific analysis.” Sears, 130 S. Ct. at 3266. Had such an inquiry been
conducted here, in light of the trial record in this case, I believe Borden may have
raised a real possibility of constitutional error.23
23
This specific allegation of error is one of those for which the Criminal Court of
Appeals’s opinion contains no clear merit-based alternative ruling to its Rule 32.6(b)
determination. Borden made this allegation alongside others claiming counsel was ineffective
for not calling medical experts to testify at the penalty phase of trial. Faulting Borden for failing
to “identify what type of mental health expert he believed should have been presented at the
sentencing phase, or how that expert’s testimony would have differed from the testimony
presented at the guilt phase,” the court affirmed the trial court’s dismissal for lack of specificity.
95
First of all, I cannot agree with the majority’s characterization that testimony
from Borden’s treating physicians would have merely cast additional light on
evidence already produced for the jury’s review. There were over 1,100 pages of
photocopied medical records submitted, in bulk, as evidence. I have reviewed a
number of these records, and it is impossible to believe that, in the hour they
deliberated, these lay jurors would have been able to read and digest this
information in any way that would have even begun to stand-in for professional
summary and analysis. Second, counsel made no attempt—other than a passing
request that the jurors review the medical records—to apply the guilt-phase
mental-health evidence to the demonstrably lower burden of mental-health
mitigation at the penalty phase. See Bell v. Cone, 535 U.S. 685, 706–08 n.4, 122
S. Ct. 1843 (2002) (Stevens, J., dissenting) (“It is true that the jury was instructed
to consider mitigation from the guilt phase, and also true that [counsel]’s brief
penalty phase opening referenced the mental health evidence from the guilt phase,
but the jury’s whole view of that testimony was influenced by its relation to the
debunked insanity defense.”). Third, and most importantly, testimony from
CCA Op. at 26. But the ruling was completely non-responsive to Borden’s claim that his
attorneys failed to present testimony from any of his prior “mental health care providers.” See
Amended Petition ¶ 66. Had the majority avoided its categorical treatment of Rule 32.6(b), I
believe this is one of the rulings that would have been difficult to categorize as truly “on the
merits” of the federal constitutional question. Consequently, I dissent from the majority’s
affirmance of the district court’s denial of this claim, and I would remand it to the district court
for de novo review and further factual development.
96
Borden’s physicians would have rebutted a powerful and pervasive attack leveled
at Borden’s mental-health strategy throughout the entire trial.
The prosecution tirelessly attacked Borden’s affirmative guilt-phase
defense, claiming he was “faking” and that his alleged mental health problems
were an “excuse.” On cross-examination of both medical experts (neither of whom
were among Borden’s treating physicians), the prosecution repeatedly inquired if
their tests contained any controls for faking, or what objective proof one could
obtain for psychological complaints such as hallucinations. At closing argument,
this concerted strategy culminated in a powerful indictment of Borden’s mental-
health defense:
And if there was a serious attempt here, folks, to give you
the big picture and all the information, we’re missing
somebody, aren’t we? The defendant’s mother said that
in the year 1993 leading up to these shootings that
nobody, nobody, knew the defendant’s condition better
than Dr. Shehi.[24] Where is he? Have you seen him?
...
And don’t you think you’ve got a right to expect if they
want to prove something to you, they’re going to bring
the person who according to the defendant’s own mother
knows more about him than anything [sic] else? And
they chose not to. And I think you can infer from that
why.
24
Dr. Shehi was the physician treating Borden just before the incident. Borden’s mother
testified that Dr. Shehi was more familiar with Borden’s state of mind during the relevant time
period than any other person.
97
The jury subsequently rejected Borden’s affirmative defense and convicted him of
capital murder.
In light of the picture painted by the trial transcript, if Borden’s counsel truly
failed to even contact most of Borden’s treating physicians, I am not convinced
that this unprofessional oversight would have created only a “possibility that the
jury could have benefitted from additional testimony that would shed light on
evidence already produced for their review.” Majority Op. at 73. Their testimony
was likely the only evidence that could have meaningfully countered the
prosecution strategy—a strategy that clearly prevailed at the guilt stage. See
Rompilla, 545 U.S. at 385–86 (finding counsel provided ineffective assistance for
failing to uncover evidence that counsel knew the prosecution would put at issue,
despite the fact that counsel had conducted a largely extensive background
investigation).
Had the factual record been developed, despite the clear inadequacy of most
of his other allegations, Borden may still have ultimately proven his entitlement to
relief on this claim. Unfortunately, there is no way to be sure; he was never
afforded the opportunity.25
25
I also dissent from the majority’s affirmance of the district court’s denial of Borden’s
claim that counsel was ineffective for failing to investigate and present evidence of Borden’s
significant religious activities. Specifically, Borden contended that he was deeply religious, and
that he and his wife were so active in their church that the pastor asked them to establish their
98
Because of the unique severity and finality of the punishment, we have
always aspired to a higher degree of factual reliability in proceedings leading to a
prisoner’s execution. See Brownlee v. Haley, 306 F.3d 1043, 1070 (11th Cir.
2002) (“[T]he Supreme Court and this Court . . . have repeatedly emphasized the
constitutional right of a defendant facing the death penalty to present any relevant
own congregation. Borden asserts that his religious activities constituted an additional
mitigating factor that would have counseled the jury against voting for the death penalty.
The trial court found this claim sufficiently pleaded, but denied it on a summary
judgment basis. The Alabama Court of Criminal Appeals affirmed, stating:
Although we cannot say, based on the record before us, that trial
counsel knew about Borden’s religious activities and made a decision
not to present them, we agree with the trial court that presentation of
the evidence could have severely damaged the defense theory. As
such, the trial court correctly determined that Borden could not
establish that counsel’s failure to present evidence of his religious
activities constituted deficient performance. Borden also could not
establish that the failure to present evidence of the religious activities
resulted in prejudice to his defense. There is no reasonable
probability that, had the evidence been presented, Borden would not
have been sentenced to death. Therefore, no material issue of law or
fact existed and the trial court correctly dismissed the claim.
CCA Op. at 38.
But under federal law, summary judgment denying Borden the opportunity to present
evidence on a sufficiently pleaded claim is proper only when the record conclusively shows that
the petitioner is not entitled to relief. Though it is possible—perhaps even likely—that, if
developed, Borden’s purported evidence of mitigation would have done violence to his mental-
health strategy or failed to rise to provide sufficient prejudice under Strickland, it is entirely
possible that it would have not. Given this ambiguity, summary judgment was entirely
inappropriate. See note 18, supra; 28 U.S.C. § 2255(b) (“Unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions
of law with respect thereto.”); Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461
(1973) (“On this record, we cannot conclude with the assurance required by the statutory
standard ‘conclusively show’ that under no circumstances could the petitioner establish facts
warranting relief under § 2255; accordingly, we vacate the judgment of the Court of Appeals and
remand to that court to the end that the petitioner be afforded a hearing on his petition in the
District Court.” (emphasis added)); Anderson, 948 F.2d at 706.
99
evidence of mitigating circumstances. In Lockett v. Ohio, the Supreme Court
explained that the ‘qualitative difference between death and other penalties calls
for a greater degree of reliability when the death sentence is imposed,’ . . . .”
(citation omitted)). Perhaps that is why prisoners facing death sentences are almost
never denied even a single post-conviction hearing on their alleged constitutional
claims.
The majority decides this case on Strickland prejudice—an inquiry that tests
our confidence in a conviction or a sentence. See Cave v. Sec’y for Dept. of Corr.,
638 F.3d 739, 748 (11th Cir. 2011). And on the underdeveloped record in this
case, I cannot say with complete confidence that this sentence of death was
untainted by constitutional error. But under AEDPA, it is no longer this Court’s
task to evaluate the constitutional sufficiency of Borden’s counsel directly. Rather,
we determine if the Alabama Court of Criminal Appeals was objectively
unreasonable in evaluating the same. See Pinholster, 131 S. Ct. at 1402 n.12;
Richter, 131 S. Ct. at 788. Under that deferential standard of review, and with the
exception of the two claims addressed in footnotes 23 and 25, I concur in the result
reached by the majority.
100