David Lee Roberts v. Commissioner, Alabama Department of Corrections , 677 F.3d 1086 ( 2012 )


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  •                                                                          [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT               U.S. COURT OF
    ________________________                 APPEALS
    ELEVENTH CIRCUIT
    APRIL 18, 2012
    No. 10-15259
    JOHN LEY
    ________________________
    D.C. Docket No. 6:04-cv-02661-CLS-HGD
    DAVID LEE ROBERTS,
    llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,
    versus
    COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
    llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama - Jasper
    ________________________
    (April 18, 2012)
    Before BARKETT, HULL and WILSON, Circuit Judges.
    PER CURIAM:
    David Roberts, an Alabama state prisoner, appeals from the district court’s
    denial of his 
    28 U.S.C. § 2254
     habeas petition challenging his conviction for
    capital murder. We issued a Certificate of Appealability on the following three
    issues: (1) whether Roberts’s trial counsel was ineffective for failing to investigate
    and/or present evidence to support an insanity defense despite entering a plea of
    “not guilty and not guilty by reason of insanity”; (2) whether the trial court
    improperly refused to instruct Roberts’s jury on the lesser included offense of
    felony murder; and (3) whether the state court erred when it reversed Roberts’s
    death sentence but remanded the case for a new penalty-phase hearing before the
    trial court, not before a jury.1 Roberts argues that the state court’s resolution of
    each of these issues was contrary to or involved an unreasonable application of
    clearly established federal law.
    I. BACKGROUND
    Roberts was convicted in December 1992 for two counts of capital murder
    and following the conclusion of the penalty phase hearing, the jury recommended
    that he be sentenced to life without parole by a majority vote of seven to five.
    Nearly two years later in May 1994, the trial court held a sentencing hearing and
    rejected the jury’s recommendation, sentencing Roberts to death.
    1
    We also granted the COA on a fourth issue, which Roberts does not address in his brief, thus
    we presume that he does not wish to pursue this claim and we deem it to have been abandoned.
    2
    The facts of the offense as recounted by the state appellate court on direct
    appeal are as follows:
    Roberts had been a houseguest of Wendell Satterfield. On April 22,
    1992, Satterfield’s girlfriend, Annetra Jones, was sleeping on a couch
    in Satterfield’s den. Roberts left his job and went to Satterfield’s
    residence around noon on that day. He packed his belongings, stole
    money from the victim’s wallet, and shot her three times in the head
    with a .22 caliber rifle while she slept. Jones died within seconds.
    Roberts poured flammable liquid on her body and on the floor in the
    den, then set fire to a piece of paper he had placed under the couch. In
    the bedroom in which Roberts had stayed, which was in the basement
    of Satterfield’s house, Roberts set another fire, causing major damage
    to the room and sending smoke throughout the house. Roberts left the
    house, taking with him a variety of items, such as the murder weapon
    and other guns. He hid this evidence, but later led the police to the
    hiding place.
    Law enforcement authorities questioned Roberts and he gave several
    statements. He admitted shooting Jones and setting Satterfield’s
    house on fire. In his last statement, Roberts said that he had set the
    house on fire to get back at Satterfield for threatening his parents; he
    said that he did not know that Jones would be at the house and he did
    not know why he shot her.
    At the sentencing hearing before the jury, the State presented
    evidence that Roberts had previously been convicted of second
    degree burglary and first degree theft, and that he had been on parole
    for less than two months when he committed this crime. Roberts’s
    brother, Terry, and his mother, Brenda, testified that Roberts was
    nervous, slept poorly, and had a history of drug abuse. Terry Roberts
    also testified that two days before the murder, Satterfield made what
    could be construed as a threat against their father.
    At the sentence hearing before the court, Roberts testified that he was
    sorry about what had happened. He stated that an “older individual”
    3
    had threatened to kill his parents, that the pressure had built up over
    time, that he had no one to turn to for help, and that he did what he
    thought he needed to do at the time. He also testified that the “older
    individual” told him to burn the house and to shoot Annetra Jones.2
    Roberts’s conviction was affirmed on direct appeal, however, his sentence
    was reversed and remanded because the trial court had improperly excluded
    certain evidence during the sentencing hearing.3 Upon remand, the trial court held
    another sentencing hearing, without a jury, and again sentenced Roberts to death.4
    After further clarification, the trial court’s sentencing order was affirmed by both
    the appellate court,5 and the Alabama Supreme Court.6 The United States Supreme
    Court denied certiorari.7
    Roberts timely filed his state petition for post-conviction relief pursuant to
    Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32 Petition”).
    Following an evidentiary hearing, the state trial court8 entered an order denying
    2
    Roberts v. State, 
    735 So. 2d 1244
    , 1249–50 (Ala. Crim. App. 1997).
    3
    
    Id. at 1266
    .
    4
    
    Id.
    5
    Roberts v. State, 
    735 So. 2d 1244
    , 1269–70 (Ala. Crim. App. 1997).
    6
    Ex parte Roberts, 
    735 So. 2d 1270
    , 1280 (Ala. 1999).
    7
    Roberts v. Alabama, 
    528 U.S. 939
     (1999).
    8
    The judge who presided over Roberts’s trial and who, contrary to the jury’s advisory
    sentence, sentenced him to death, was the same judge who presided over Roberts’s Rule 32
    proceedings and who denied all of his post-conviction claims.
    4
    relief on every claim. Roberts raised only three claims of ineffective assistance of
    counsel on appeal, which were denied by the state appellate court and for which a
    writ of certiorari was not granted. Roberts filed his federal petition for writ of
    habeas corpus, which the district court denied, and we granted a certificate of
    appealability on the issues noted above.
    II. STANDARD OF REVIEW
    When reviewing the district court’s grant or denial of habeas relief, we
    review its conclusions on legal questions and mixed questions of law and fact de
    novo and its findings of fact for clear error. Walls v. Buss, 
    658 F.3d 1274
    , 1277
    (11th Cir. 2011). Under the Antiterrorism and Effective Death Penalty Act of
    1996, Pub. L. 1-4-132, 
    110 Stat. 1214
     (“AEDPA”), a federal court may not grant
    habeas relief unless the state court’s decision on the merits of the petitioner’s
    claim 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). The Supreme Court has explained the
    requirements of § 2254(d) as follows:
    Under the “contrary to” clause, a federal habeas court may grant the
    writ if the state court arrives at a conclusion opposite to that reached
    by this Court on a question of law or if the state court decides a case
    differently than this Court has on a set of materially indistinguishable
    facts. Under the “unreasonable application” clause, a federal habeas
    5
    court may grant the writ if the state court identifies the correct
    governing legal principle from this Court’s decisions but
    unreasonably applies that principle to the facts of the prisoner’s case.
    Williams v. Taylor, 
    529 U.S. 362
    , 412-13 (2000).
    III. DISCUSSION
    A. Ineffective Assistance of Counsel During the Guilt Phase of Trial
    Roberts argues that his Sixth Amendment right to effective assistance of
    trial counsel was violated because his trial counsel, Ed Odum, asserted a plea of
    “not guilty or not guilty by reason of insanity” in the presence of the jury but
    failed to investigate or to present any evidence in support of this plea. The state
    argues that the failure to investigate mental insanity is procedurally defaulted.
    Under AEDPA, a federal habeas petition may not be granted as to any claim
    unless the petitioner has exhausted available state court remedies regarding that
    claim. See 
    28 U.S.C. § 2254
    (b), (c). “[T]he federal claim must be fairly presented
    to the state courts so that the state courts have had the first opportunity to hear the
    claim sought to be vindicated in the federal habeas proceeding.” Ogle v. Johnson,
    
    488 F.3d 1364
    , 1368 (11th Cir. 2007) (internal quotation marks omitted) (citation
    omitted). In order to determine whether a claim has been exhausted, we look to
    the entire state court record and not just the state court’s order, which may be
    silent as to a specific allegation of ineffective assistance of counsel. See 
    id.
     at
    6
    1369 (“[Petitioner] persuasively argues that he fairly presented several claims of
    ineffective assistance of counsel through his direct testimony, the examination of
    his post-trial attorney, the entry of his pro se memorandum into evidence, and the
    filing of a post-hearing brief.”).
    We conclude that Roberts fairly presented to the state post-conviction court
    an allegation of ineffective assistance of counsel for failure to investigate the
    affirmative defense of insanity. Count I of his Rule 32 Petition was entitled “Mr.
    Roberts Was Denied Effective Assistance of Counsel Before, During, and after
    His Trial.” In support of that count, Roberts cited to Strickland and to the circuit’s
    law that defense counsel has a duty to thoroughly investigate the State’s evidence
    and plausible defense theories. He alleged that Odum failed to meet with him for
    “the length of time necessary to conduct adequate investigation of the State’s case,
    investigate defense witnesses, or to adequately prepare a defense for trial.”
    Roberts also alleged that Odum was ineffective for failing to petition for and
    obtain expert assistance to assist with trial preparation and that he “should have
    hired an independent psychiatric expert to evaluate Mr. Roberts generally for signs
    of mental impairment relevant to guilt and mitigation.” As well, he alleged that
    Odum failed to develop a theory of the case and specifically was ineffective for
    entering a plea of not guilty by reason of insanity and then failing to present any
    7
    evidence in support of that theory. During the state court evidentiary hearing,
    Roberts presented evidence, primarily through the testimony of Odum, that Odum
    failed to investigate the insanity defense despite other evidence of Roberts’s
    mental illness. Finally, Roberts’s state post-conviction appellate brief asserted
    that his trial counsel was ineffective for failing to investigate the insanity defense:
    “The Rule 32 Petition pointed out this lead the jury to believe indeed that Mr.
    Roberts was guilty by raising that affirmative defense with no evidence to present
    at trial. Odum said prior to the trial he had done no special preparation for raising
    such plea.” We therefore conclude that this claim is not procedurally defaulted,
    and accordingly, must decide whether the state court unreasonably applied clearly
    established federal law in denying Roberts’s claim of ineffective assistance of
    counsel for failure to investigate and failure to present evidence in support of his
    defense of insanity.
    In addressing Roberts’s claim of ineffective assistance of counsel, the state
    appellate court explained, “Roberts contends that his trail counsel was ineffective
    for entering a plea of not guilty by mental disease or defect in front of the jury and
    then failing to present any evidence to support that plea.” The court then cited to
    the transcript of the trial proceedings that concerned the entry of the plea of not
    guilty by reason of insanity. In pertinent part, the following exchange between the
    8
    judge and the defense counsel occurred.
    THE COURT: You are charged under Count 1 of the indictment of
    the offense of murder during robbery; to that how do you plead?
    [Trial counsel] : Not guilty. Not guilty by reason of insanity.
    THE COURT: Under Count 2 of the indictment you are charged with
    murder in connection with an arson in the second degree. To that
    charge how do you plead?
    [Trial counsel] : Not guilty plea and not guilty by reason of insanity.
    THE COURT: You may be seated.
    Ladies and gentlemen, we are calling for trial at this time the case of
    State of Alabama vs. David Lee Roberts who is charged with two
    counts of capital murder.
    The state appellate court then noted that the trial court began its qualification of
    the venire.
    No one disputes that Roberts’s trial counsel never presented any evidence of
    insanity and indeed his trial counsel testified at the Rule 32 evidentiary hearing
    that his defense strategy was to create reasonable doubt that Roberts committed
    the murder. Nonetheless, the state appellate court, agreeing with the Rule 32 trial
    court’s findings, concluded that Roberts failed to prove that his trial counsel was
    ineffective. First, the state court noted that it appeared that Roberts and his trial
    counsel were at the bench when the pleas of not guilty by reason on insanity were
    9
    entered. Second, the state court concluded that it was clear that the jury venire
    was in the courtroom when the plea was entered, but further concluded that there
    was no evidence to support a finding that the prospective jurors heard the entry of
    the insanity plea. The state court based this conclusion in part on Odum’s Rule 32
    testimony wherein he stated that the arraignment took place at the bench and that
    he did not know “who heard what.” The state court also credited trial counsel’s
    testimony that he believed that he would have been speaking in a hushed tone and,
    thus, the state appellate court determined that Roberts presented no evidence at his
    Rule 32 hearing that the prospective jurors heard the entry of the insanity plea or
    that, if they did, they understood this to be an admission of guilt. Finally, the state
    appellate court credited the Rule 32 trial court’s finding that the plea was
    withdrawn before the case was sent to the jury, which was never charged on the
    defense of insanity. Based on these conclusions about the record evidence, the
    state appellate court concluded that Roberts was not prejudiced by the entry of the
    insanity plea and therefore denied his claim of ineffective assistance of counsel.
    In order to establish ineffective assistance of counsel, Roberts must show
    that his counsel’s performance was deficient and that the deficiency prejudiced his
    defense. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). With respect to
    deficient performance, Roberts must show that his “counsel’s representation fell
    10
    below an objective standard of reasonableness.” 
    Id. at 688
    . As to prejudice, he
    must show that there is a “reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different.” 
    Id. at 694
    .
    We need not address the question of deficient performance because we
    cannot say that the state court’s application of Strickland’s prejudice standard was
    unreasonable. Roberts argued to the state court, in part, that he was prejudiced by
    his counsel’s entry of the not guilty by reason of insanity plea because such a plea
    would have been treated by the jury as an admission that he committed the charged
    offense. And, he argues, when the jury then heard no evidence of his insanity, it
    would have had no reason not to find him guilty given that he essentially had
    admitted the offense conduct. Initially, we cannot say that the state court
    unreasonably applied Strickland based on its finding that the jury more likely than
    not never heard the plea. Given this finding, there would have been no reason to
    presume that the jury had the impression that Roberts had admitted the offense
    conduct, and therefore no prejudice could have resulted from the entry of the
    insanity plea.
    Roberts, however, also argues that the state court never addressed prejudice
    as it pertained to his claim that his trial counsel was ineffective for failing to
    11
    investigate his mental state in support of the insanity defense. Based on this
    claim, Roberts argues that “a proper prejudice analysis would require a review of
    what evidence counsel could have presented to support [his] insanity plea, if
    counsel had conducted an adequate investigation before the entry of the plea.”
    The appropriate prejudice analysis for this claim would require the state court to
    consider whether there is a reasonable probability that Roberts’s trial would have
    resulted in his being found not guilty by reason of insanity had his trial counsel
    properly investigated and presented an insanity defense. See e.g. Weeks v. Jones,
    
    26 F.3d 1030
    , 1038–39 (11th Cir. 1994) (explaining that to establish prejudice
    petitioner “would have to establish a reasonable probability that his trial counsel’s
    failure to discover and review his mental history from [the hospital] and, thus, to
    present an insanity defense, would have resulted in his being found not guilty by
    reason of insanity”). In assessing the probability that the outcome would have
    been different, the reviewing court must consider the totality of the relevant
    evidence before the judge or jury as well as the evidence adduced at the habeas
    proceedings. See Wiggins v. Smith, 
    539 U.S. 510
    , 536 (2003).
    As to this claim, we agree with Roberts that the state court never addressed
    whether Roberts was prejudiced by Odum’s failure to investigate and present
    evidence of his insanity and therefore, our review is controlled by Strickland only,
    12
    without the added deference of AEDPA. See Rompilla v. Beard, 
    545 U.S. 374
    ,
    390 (2005). However, after considering the evidence that Roberts contends Odum
    should have discovered and/or presented to establish his insanity, we cannot say
    that there is a reasonable probability that this evidence would have changed the
    outcome of his trial such that he was prejudiced by Odum’s failure to investigate
    the defense of insanity. Roberts relies on the court-ordered psychiatric report from
    Taylor Hardin Secure Medical Facility and the testimony of Dr. Allen Shealy that
    was presented at his second sentencing hearing to establish that he was insane at
    the time of the offense. Although the Taylor Hardin report identified that Roberts
    readily admitted to significant substance abuse in the past, had self-reported four
    prior suicide attempts, and reported occasionally hearing a high-pitched tone, it
    concluded that Roberts’s personality disorder and past substance abuse would not
    substantially interfere with his understanding of right from wrong. Specifically
    discussing his mental state at the time of the offense, the report stated that Roberts
    did not have a history of a “major debilitating mental illness” and that “[t]here is
    no evidence that [Roberts] was suffering from such during the time of the alleged
    offense which would have substantially interfered with his understanding of right
    from wrong.” See Weeks, 
    26 F.3d at
    1038–39 (“If Weeks was not suffering from
    a mental disease or defect at the time of the crime or at trial, then he was not
    13
    prejudiced by his counsel’s failure to present the mental history that he contends
    should have been submitted.”).
    Roberts also relies on the testimony of Dr. Shealy which he asserts is the
    type of evidence that Odum would have uncovered had he not been deficient in
    failing to investigate Roberts’s mental status at the time of the offense. Dr. Shealy
    testified, at Roberts’s second sentencing hearing, that he did not believe that
    Roberts knew what happened at the time of the offense given the numerous
    contradictory statements made by Roberts about the events. Dr. Shealy attributed
    Roberts’s memory lapses to his excessive alcohol and drug use, diagnosing him
    with “cannabis intoxication.” However, when asked whether Roberts was insane
    at the time of the offense, Dr. Shealy testified that “[i]t is difficult to reach a
    conclusion if a person doesn’t know what happened. Difficult to reach a
    conclusion about whether he knew right from wrong if he didn’t know what
    happened number one.” Finally, Roberts points to the testimony of his original
    trial counsel, Samuel Masdon, who stated that Roberts’s versions of the events
    changed each time they talked, which Masdon attributed to Roberts’s LSD use.
    In Alabama, the defendant bears the burden of proving the defense of
    insanity by clear and convincing evidence. See Williams v. Allen, 
    598 F.3d 778
    ,
    789 (11th Cir. 2010) (citing Ala. Code § 13A-3-1(a), (c)). Specifically the
    14
    defendant must show 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.” Ala. Code
    § 13A-3-1(a). We have explained that this means that “in order to establish the
    affirmative defense of insanity, the defendant must establish that he suffered from
    a mental disease.” Williams, 
    598 F.3d at 789
    .
    Given Alabama’s standard for establishing an insanity defense, we cannot
    say that, had the jury heard all of the evidence, there is a reasonable probability
    that the jury would have concluded that Roberts was insane at the time of the
    offense. The report from Taylor Hardin specifically concluded that Roberts was
    not suffering from any debilitating mental illness at the time of the crime and that
    there was nothing to indicate that he could not distinguish right from wrong. Dr.
    Shealy’s and Masdon’s testimony at most establish that Roberts was extremely
    intoxicated at the time of the offense, but provide no basis for concluding that as
    the result of a severe mental defect or illness that he could not appreciate the
    wrongfulness of his actions. See 
    id.
     (voluntary intoxication is not an affirmative
    defense to capital murder in Alabama).
    Accordingly, because Roberts cannot show prejudice based on Odum’s
    failure to investigate and to present evidence in support of the insanity defense, the
    15
    district court’s denial of his Strickland claim is affirmed.
    B.     Entitlement to an Instruction on the Lesser Included Offense of
    Felony Murder
    Roberts next argues that the state trial court’s failure to instruct the jury on
    the offense of felony murder violated his right to a fair trial and that the state
    appellate court’s decision was an unreasonable application of Beck v. Alabama,
    
    447 U.S. 625
     (1980). At the conclusion of the guilt phase of Roberts’s trial, the
    trial court instructed the jury on the elements of capital murder during the course
    of a robbery and during the course of arson and on the lesser-included offense of
    non-capital intentional murder. The trial court also instructed the jury that it could
    return a verdict of not-guilty. On direct appeal, Roberts argued that there was
    evidence regarding his state of mind at the time of the offense, which should have
    allowed the jury to consider whether Roberts possessed the requisite specific
    intent for capital murder, and therefore the lesser-included offense of felony
    murder should have been part of the jury instructions. The state appellate court
    considered this claim on the merits, recognizing that “[a] jury charge on a lesser
    included offense should be given when there is a reasonable theory from the
    evidence to support it.” Roberts v. State, 
    735 So. 2d 1244
    , 1252 (Ala. Crim. App.
    1997). The state appellate court went on to conclude that the instruction was not
    16
    warranted because “Roberts admitted in his statement that he intentionally shot the
    victim repeatedly to kill her.” 
    Id. at 1253
    .
    In Beck, the Supreme Court held that Alabama was constitutionally
    prohibited from absolutely barring a jury in a capital case from considering a
    lesser-included offense to that of capital murder. 
    447 U.S. at 638
    . The Court
    explained that “when the evidence unquestionably establishes that the defendant is
    guilty of a serious, violent offense—but leaves some doubt with respect to an
    element that would justify conviction of a capital offense—” the failure to provide
    the jury with another option of a lesser-included offense leads to the intolerable
    risk of an unwarranted conviction for a capital crime. 
    Id. at 637
    .
    Here, Roberts argues that the evidence at his trial about his debilitated
    mental state left doubt about whether he formed the specific intent to kill
    necessary for a conviction of either capital murder or non-capital murder, and
    therefore, the failure to give an instruction on felony murder—an offense that does
    not require intent to kill—lead to the intolerable risk of his unwarranted
    conviction for murder requiring specific intent. The Supreme Court’s later
    decision in Schad v. Arizona, 
    501 U.S. 624
     (1991), however, seems to foreclose
    Roberts’s argument. In Schad, the Court explained that the petitioner in that case
    could not “succeed under the strict holding of Beck,” because the jury had the
    17
    option of finding the defendant “guilty of a lesser included noncapital offense,
    second-degree murder.” 
    501 U.S. at 646
    . The Court was also not willing to
    extend the due process principles underlying Beck to conclude that a defendant in
    a capital case is entitled to instructions on any lesser-included offense explaining
    that in Beck, it “repeatedly stressed the all-or-nothing nature of the decision with
    which the jury was presented.” 
    Id.
     The Court concluded that because the jury in
    Schad was instructed on second degree murder, and therefore “was not faced with
    an all-or-nothing choice between the offense of conviction (capital murder) and
    innocence[,]” Beck was not implicated. 
    Id. at 647
    .
    Ultimately, we cannot say that the state appellate court’s denial of Roberts’s
    Beck claim in this case was an unreasonable application of Supreme Court
    precedent. The state court identified the correct standard for requiring an
    instruction on a lesser-included offense, i.e. “when there is a reasonable theory
    from the evidence to support it,” however, it determined that the evidence did not
    support the conclusion that Roberts lacked intent to kill as he gave a statement that
    “he intentionally shot the victim repeatedly to kill her.” Roberts, 
    735 So. 2d at
    1252–53. Accordingly, we cannot say that the state court’s resolution of this
    claim involved an unreasonable application of Supreme Court precedent.
    C.     Roberts’s Resentencing in a Judge-Only Proceeding
    18
    Roberts’s final claim is that the state appellate court on direct appeal, having
    found reversible error in the penalty phase hearing, erred in not ordering the
    empaneling of a new jury to conduct Roberts’s resentencing upon remand.
    Roberts seeks habeas relief on the ground that the failure to require his
    resentencing before a jury and instead permitting only the judge to conduct a new
    penalty phase hearing was an unreasonable application of Harris v. Alabama, 
    513 U.S. 504
     (1995). The Alabama Supreme Court, relying on Harris, reviewed and
    rejected this claim on direct appeal. Ex Parte Roberts, 
    735 So. 2d at 1279
    .
    At the conclusion of Roberts’s original penalty phase hearing, the jury
    recommended by a vote of 7 to 5 that Roberts be sentenced to life in prison
    without the possibility of parole. Under Alabama law, a capital defendant has the
    statutory right to a sentencing hearing before a jury, for the jury to find
    aggravating and mitigating factors and render an advisory verdict based on those
    findings. See Ala. Code § 13A-5-46(a). Alabama law also provides that the judge
    must consider the jury’s advisory verdict, which is not binding on the trial judge.
    Id. § 13A-5-47(e). Despite the recommendation of seven of the twelve jurors that
    Roberts be given a sentence of life without parole, the trial judge in Roberts’s case
    sentenced him to death.
    Roberts appealed his conviction and sentence and the state appellate court
    19
    reversed the death sentence concluding that the trial court prevented him from
    presenting evidence which may have established certain statutory mitigating
    factors. The state appellate court remanded for resentencing but specifically
    ordered that the hearing need not be conducted in front of a jury and could be held
    before only a judge. Roberts had a new sentencing hearing before the trial judge,
    who again sentenced him to death, and after a second remand for further
    clarification, that death sentence was affirmed.
    Roberts argues that a sentencing judge must be able to consider a
    constitutionally valid jury recommendation and that the advisory verdict in his
    case did not meet that standard because the jury was not permitted to hear certain
    mitigating evidence. We, however, cannot say that the state appellate court’s
    failure to order resentencing before a jury and the Alabama Supreme Court’s
    affirmance of that decision was an unreasonable application of Supreme Court
    precedent. In Spaziano v. Florida, 
    468 U.S. 447
     (1984), the Supreme Court
    specifically held that there is no constitutional right to jury sentencing in a capital
    case. Roberts’s reliance on Harris does not persuade us otherwise. In Harris, the
    Supreme Court, in addressing Alabama’s capital sentencing scheme, asked
    “whether the Eighth Amendment to the Constitution requires the sentencing judge
    to ascribe any particular weight to the verdict of an advisory jury.” 
    513 U.S. at
    20
    509. In concluding that it does not, the Court noted that the Constitution permits
    the trial judge, acting alone, to impose the death penalty and therefore, it would
    not be unconstitutional to permit the trial judge to decide what weight to give to
    the jury’s advisory verdict. 
    Id. at 515
    .
    Moreover, the original jury recommendation was 7 to 5 in favor of a life
    sentence, a determination that could not have been improved upon by a second
    jury other than for more jurors to recommend life. However, because Alabama
    law does not require the judge to follow the jury’s recommendation no matter the
    number of jurors recommending life, we cannot state that the Alabama Supreme
    Court’s affirmance of the appellate court’s remand for judge-only resentencing
    was an unreasonable application of clearly established federal law.
    AFFIRMED.
    21
    BARKETT, Circuit Judge, concurring:
    I concur in the majority’s opinion and write separately only to voice my
    agreement with Justice Stephens’s recognition in Harris v. Alabama, 
    513 U.S. 504
    (1995), of the perversity of Alabama’s judicial override system in capital
    sentencing. As Justice Stephens noted, Alabama is one of the four states that
    allows judicial override of a jury’s recommendation of a life sentence, and is the
    only state in the nation that leaves it to the judge’s “unbridled discretion” to do so.
    See Harris, 
    513 U.S. at
    515–16 (Stevens, J., dissenting). Even though the majority
    of jurors in Roberts’s case recommended that he receive a life sentence, Alabama’s
    capital sentencing regime permitted the judge to reject, without any guiding
    standard, that recommendation in favor of a sentence of death, which is what the
    judge in this case did.
    The practical consequence of Alabama’s system is exactly as Justice
    Stephens described:
    The defendant’s life is twice put in jeopardy, once before the jury and
    again in the repeat performance before a different, and likely less
    sympathetic, decisionmaker. A scheme that we assumed would provide
    capital defendants with more, rather than less, judicial protection, has
    perversely devolved into a procedure that requires the defendant to stave
    off a death sentence at each of two de novo sentencing hearings.
    
    Id. at 521
     (internal citation, quotation marks and alteration omitted). Moreover,
    22
    because the sentencing decision of the first decisionmaker—i.e, a presumed
    reasonable jury—can be ignored without any limiting principles in favor of a
    sentence of death by the second decisionmaker, I question whether it can be
    deemed constitutional.
    23
    HULL, Circuit Judge, specially concurring:
    I concur in the majority’s opinion. I write separately only to state that
    Roberts has not challenged the constitutionality of Alabama’s statutory, judicial
    override system in capital sentencing. Therefore, that issue is not before the
    Court, and there is no reason to discuss it.
    24