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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14543
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D.C. Docket No. 2:15-cv-00384-AKK
KENNETH EUGENE SMITH,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL STATE OF ALABAMA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 6, 2021)
Before WILSON, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
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In 1996, Kenneth Smith was convicted of capital murder for his involvement
in the killing of Elizabeth Sennett in her Colbert County, Alabama, home. After
the penalty phase of Smith’s trial, the jury recommended by vote of 11 to 1 that he
receive a life sentence without the possibility of parole. The trial judge overrode
the jury’s verdict and sentenced Smith to death. 1 Smith petitioned the district court
for a writ of habeas corpus, arguing ineffective assistance of trial counsel. The
district court denied relief, and Smith now appeals.
I.
Reverend Charles Sennett, a minister in the Church of Christ, recruited Billy
Williams, who in turn recruited Smith and John Parker, to kill his wife, Elizabeth. 2
In return, Sennett agreed to pay Williams, Smith, and Parker $1,000 each. The
plan was to kill Elizabeth in the Sennetts’ home and stage her killing as a burglary
gone wrong. On March 18, 1988, Smith and his accomplices killed Elizabeth as
planned, and Smith took a video cassette recorder (VCR) from the Sennett’s home.
Smith kept the VCR in his Lauderdale County, Alabama, home.
Captain Ronnie May of the Colbert County Sheriff’s Department was the
lead investigator on the case. His department received a call from an anonymous
1
If Smith’s trial had occurred today, he would not be eligible for execution because, in 2017,
Alabama amended its capital-sentencing scheme prospectively to repeal trial judges’ authority to
override capital jury sentencing determinations. See Ala. Code. § 13A-5-47 (2017).
2
Sennett was involved in an affair, had incurred substantial debts, and had taken a large
insurance policy out on Elizabeth. One week after the murder, when the murder investigation
started to focus on him as a suspect, Sennett committed suicide.
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informant about Elizabeth Sennett’s murder. Among other things, the informant
told investigators that Smith had obtained the VCR from the Sennetts’ and it was
now located in Smith’s home. Captain May, along with Investigator Charles Ford
of the Lauderdale County Sheriff’s Department, obtained a search warrant from the
Lauderdale County Circuit Court. The court issued the warrant directed “TO ANY
SHERIFF OF THE STATE OF ALABAMA.” Investigator Ford’s signature
appears on the warrant.
Captain May, as well as a team of law-enforcement officers from the
Lauderdale County Sheriff’s Department, the Florence Police Department, 3 and the
Lauderdale County District Attorney’s Office, executed the search warrant.
Captain May discovered the VCR, but no additional evidence was found. After the
search, Captain May took Smith to the Colbert County Sheriff’s Department,
where he read Smith his Miranda rights.4 Captain May then interrogated Smith.
During the course of the interrogation, Smith provided a statement regarding his
involvement in the killing of Elizabeth Sennett.
At trial, Smith was convicted of capital murder and sentenced to death. But
on remand from the Alabama Court of Criminal Appeals, the trial court overturned
3
The city of Florence, Alabama, is located in Lauderdale County.
4
Miranda v. Arizona,
384 U.S. 436 (1966).
3
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Smith’s conviction and sentence, and ordered a new trial on the basis that the state
had exercised its peremptory challenges to prospective jurors based on their race.
Prior to retrial, Smith’s counsel moved to suppress the VCR and his
custodial statement on the ground that the search violated his federal and state
constitutional rights because the officers continued searching Smith’s home after
finding the VCR, even though the warrant was issued for the VCR only. Trial
counsel also argued that the search warrant was based on information provided by
an anonymous informant who had acted as the state’s agent in conducting a
warrantless search of Smith’s home. The court denied Smith’s motion. Trial
counsel did not argue that the search warrant was facially invalid under Alabama
law, which requires that a search warrant be “directed to the sheriff or to any
constable of the county,”
Ala. Code § 15-5-5, rendering the VCR and Smith’s
subsequent custodial statement inadmissible under Alabama’s exclusionary rule.
At retrial, the state introduced, and the trial court admitted into evidence,
both the VCR and Smith’s custodial statement. Other than that, the State had little
evidence supporting its case against Smith. The jury convicted Smith of capital
murder. At the penalty phase, the jury rendered a verdict by a vote of 11 to 1 that
Smith receive a sentence of life imprisonment without the possibility of parole.
The trial court amended the sentencing order and imposed the death penalty.
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Smith filed a petition for relief in the state circuit court, which he later
amended. Among other things, he alleged that his trial counsel rendered
ineffective assistance by failing to challenge the facial validity of the search
warrant that led to the state’s recovery of the VCR and ultimately to the custodial
statement. The court dismissed the amended petition. The Alabama Court of
Criminal Appeals reversed. Smith v. State,
160 So. 3d 40, 51–52 (Ala. Ct. App.
2010). On remand, the circuit court found that Smith’s claim for ineffective
assistance of counsel was precluded because it had been previously raised. On
appeal, the Alabama Court of Criminal Appeals affirmed. Smith filed a petition
for writ of certiorari in the Alabama Supreme Court, which the court denied.
Next, Smith filed a petition for writ of habeas corpus in the District Court for
the Northern District of Alabama. Smith v. Dunn,
2019 WL 4338349, at *1 (N.D.
Ala. Sept. 12, 2019). Smith made several claims, including ineffective assistance
of counsel because his trial counsel did not challenge the search warrant as facially
invalid under Alabama law.
Id. at *26. The district court denied all of Smith’s
claims and dismissed the petition with prejudice.
Id. at *52. It denied the
ineffective-assistance claim on the basis that Smith could not establish prejudice
because, even if the search warrant was invalid on its face under Alabama law, that
would not constitute a Fourth Amendment violation, and, in any event, Alabama
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law did not require that the search warrant be directed to a sheriff or constable of
the issuing county.
Id. at *26.
This court granted Smith a certificate of appealability on the single issue of
whether the district court erred in holding that Smith was not prejudiced by his trial
counsel’s failure to object to the validity of the search warrant even though it was
directed to any sheriff of the state of Alabama. We review de novo the district
court’s order denying Smith’s petition. Daniel v. Comm’r, Ala. Dep’t of Corr.,
822
F.3d 1248, 1258 (11th Cir. 2016).
II.
The right to counsel is a fundamental right, assuring the fairness and
legitimacy of the criminal justice system. Gideon v. Wainwright,
372 U.S. 335,
343–44 (1963). The Sixth Amendment guarantees criminal defendants “the right
to the effective assistance of counsel.” Strickland v. Washington,
466 U.S. 668,
686 (1984). “The essence of an ineffective-assistance claim is that counsel’s
unprofessional errors so upset the adversarial balance between defense and
prosecution that the trial was rendered unfair and the verdict rendered suspect.”
Kimmelman v. Morrison,
477 U.S. 365, 374 (1986). To prevail on an ineffective-
assistance claim, the defendant must satisfy the two-pronged Strickland test: (1)
that trial counsel’s performance was deficient, and (2) that the deficiency
prejudiced the defense. Strickland,
466 U.S. at 687. A demonstration of the
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second prong—prejudice—is made through a showing 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.
Smith argues that he was prejudiced because his trial counsel failed to
challenge the warrant as facially invalid under Alabama law. He explains that,
since the language of the warrant violated sections 15-5-5 and 15-5-7 of the
Alabama Code, the VCR and his subsequent statement to the police should have
been suppressed. Had that evidence been suppressed, Smith contends, the State
would not have been able to secure a conviction because those two pieces of
evidence were crucial to the state’s case.
However, Smith is only right about having been prejudiced if there is a
reasonable probability that he would have prevailed on that challenge. See
Bolender v. Singletary,
16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that
the failure to raise nonmeritorious issues does not constitute ineffective
assistance.”); cf. Kimmelman,
477 U.S. at 375 (“Where defense counsel’s failure to
litigate a Fourth Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to demonstrate actual
prejudice.”). With that in mind, we consider the merit of Smith’s claim that the
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evidence should have been suppressed because the warrant plainly violated
Alabama law.
III.
Alabama law governing the issuance of a search warrant provides:
If the judge or the magistrate is satisfied of the existence
of the grounds of the application or that there is probable
ground to believe their existence, he must issue a search
warrant signed by him and directed to the sheriff or to any
constable of the county, commanding him forthwith to
search the person or place named for the property specified
and to bring it before the court issuing the warrant.
Ala. Code § 15-5-5. Alabama law governing the execution of a search warrant
provides: “A search warrant may be executed by any one of the officers to whom it
is directed, but by no other person except in aid of such officer at his request, he
being present and acting in its execution.”
Ala. Code § 15-5-7. Read together,
“[t]hese statutes dictate that the ‘sheriff’ or a ‘constable’ of the particular ‘county’
in which the warrant is issued will execute the warrant.” Rivers v. State,
406 So.
2d 1021, 1022 (Ala. Crim. App. 1981) (per curiam).
The issuing court directed the warrant to search Smith’s Lauderdale County
home to all sheriffs of the state of Alabama, many of whom—i.e., all those outside
of Lauderdale County—were not authorized to execute search warrants in
Lauderdale County. Smith maintains that the language in the warrant directing
unauthorized law-enforcement agents to search Smith’s home is a direct violation
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of the plain language of the statutes, especially in light of the Alabama Court of
Criminal Appeals’ decision in Rivers,
406 So. 2d 1021. In Rivers, the court
invalidated a warrant directed to “Any [State Alcoholic Beverage Control (ABC)]
Enforcement Agent.”
Id. at 1021. ABC agents are not among those authorized
under sections 15-5-5 and 15-5-7 to execute search warrants without specific
authorization from county law-enforcement officials.
Id. at 1022. Therefore,
“[s]ince the warrant was directed to ‘any ABC agent’ rather than a county official
and was executed by ABC agents without the authority of county officials, the
evidence procured under [the] search should not have been admitted at trial.”
Id. at
1023.
Smith contends that, likewise, since the warrant to search his home was
directed to unauthorized officials outside of Lauderdale County, the evidence
obtained through that search was inadmissible. The difference, though, between
Smith’s case and Rivers, is that in Rivers the warrant was directed only to
unauthorized law-enforcement agents. And only the unauthorized agents in Rivers
executed the warrant without the assistance or specific authorization from county
officials. Here, the warrant was directed to a class of law-enforcement agents
including those authorized. Even more, it can be inferred from the record that,
because Investigator Ford went to the issuing court to obtain the warrant and
signed the warrant, he was the officer designated to execute it. See Usery v. State,
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668 So. 2d 919, 921 (Ala. Crim. App. 1995) (“[B]ecause Agent Brown applied for
the warrant, we can infer from the record that he was the officer designated to
execute it.”). Additionally, the agents authorized to search Smith’s home—
Investigator Ford and his team from the Lauderdale County Sheriff’s
Department—took part in executing the search warrant. 5 All this to say that the
warrant was directed to authorized county officials, who in turn executed the
warrant. Consequently, we cannot find that the warrant to search Smith’s home
conflicts with Rivers or the requirements under sections 15-5-5 and 15-5-7 of the
Alabama Code.
To be sure, the Alabama Court of Criminal Appeals has explained that
sections 15-5-5 and 15-5-7 “are to be strictly construed for both the issuance and
execution of search warrants in general.” Rivers,
406 So. 2d at 1022. At the same
time, the court has made clear that it “will not invalidate a search warrant by
interpreting it in a hypertechnical rather than a common sense manner.” Usery,
668 So. 2d at 922 (internal quotation marks omitted). This helps explain why
Alabama courts have routinely upheld warrants directed to general classes of law-
enforcement officers and have found none to be invalid on that basis. E.g.,
id. at
5
This fact highlights another difference between Smith’s case and Rivers: There, the
unauthorized ABC agents’ “efforts could have been validated had they notified the proper county
officials and obtained their assistance,” but the agents did not do so. Rivers,
406 So. 2d at 1023.
Here, even if the warrant was directed to unauthorized officials, Investigator Ford’s assistance in
executing the search warrant validated the effort. See
id.
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921 (warrant directed “TO ANY LAW ENFORCEMENT OFFICER WITHIN
THE STATE OF ALABAMA”); Meade v. State,
390 So. 2d 685, 688 (Ala. Crim.
App. 1980) (warrant directed “TO ANY SHERIFF, CONSTABLE OR LAWFUL
OFFICER OF THE STATE OF ALABAMA”); Haynes v. State,
277 So. 2d 372,
375 (Ala. Crim. App. 1973) (warrant directed “TO ANY SHERIFF OR LAWFUL
OFFICER OF THE STATE OF ALABAMA”). Alabama courts have never
required that, under sections 15-5-5 and 15-5-7 of the Alabama Code, search
warrants be directed to particular officers. Alabama’s caselaw binds our decision,
and instructs that the general language of the warrant to search Smith’s home
conformed with Alabama’s statutory requirements.
In any event, we note that even if the warrant violated Alabama law, the
evidence would have been admissible pursuant to the good-faith exception to the
exclusionary rule. The good-faith exception applies when an officer acting in
objective good faith has obtained a search warrant from a court and acted within its
scope. United States v. Leon,
468 U.S. 897, 920 (1984). The warrant—which
neither the Colbert County nor the Lauderdale County law-enforcement agents had
reason to believe was defective—directed law enforcement to search for the VCR,
which is all that they obtained from the search. Accordingly, Smith does not have
a meritorious claim that the VCR and subsequent statement were inadmissible
because the warrant to search his home was facially invalid under Alabama law.
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In sum, because Smith’s claim that the warrant is facially invalid lacks merit
under Alabama law, we find that Smith has not satisfied the prejudice prong of the
Strickland test. Consequently, we must agree with the district court that he has not
shown ineffective assistance of counsel, and affirm.
AFFIRMED.
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