TO THE HONORABLE JUSTICES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA:
COMES NOW, the petitioner Melvin Ray, pro se and hereby makes application to this Court to issue a Certificate of Appealabiltiy in this Section 2254 habeas corpus proceeding and states the following in support:
I. Facts and Procedural Background
1. On January 26, 2001, Ray was convicted after a three-day jury trial for the March 26, 1999, murder of Mr. Andre D. Horton. The jury deliberated for over eight (8) hours, over a two-day period, before reaching its verdict of guilt. The State conceded at trial that there was no physical evidence of any kind that connects Ray to this crime or to either of the crime scenes. Ray contends in these federal proceedings that he is innocent of this offense and that evidence not presented at trial, either due to prosecutor misconduct or ineffective assistance of counsel, proves his innocence (Ray was granted an evidentiary hearing to prove his alibi, which completely exonerates Ray of this crime).
2. The State's case against Ray consisted of circumstantial evidence and the testimony of Ray's codefendant Fred Batts. Batts turned state's evidence and testified that he saw Ray shoot the deceased with a 9mm handgun. During the trial he was asked and he denied (without correction by the prosecutor) having any deal in placed in exchange for his testimony. However, Ray discovered post-trial that Batts had a deal in place with the state to have his murder charge nolle prossed in exchange for his testimony. Ray's jury was never informed of this fact.
3. Ray was initially indicted for the murder of Horton by means of asphyxia after the State's forensic pathologist, Dr. Stephen M. Pustilnik, MD, concluded in an autopsy report that the deceased had been asphyxiated. Ray entered a plea of not guilty to this indictment in June 2000.
4. Subsequent to this indictment, and some 14 months after death, the prosecutors moved to exhume the body of the deceased to conduct a second autopsy to determine if the deceased had been shot. The State has never disclosed where this evidence came from that moved them to question the original autopsy findings, though they have given at least two different accounts: One from the codefendant and, after this was proven false at trial, they alleged that the information came from people from the street.
5. Dr. J.C. Upshaw Downs, M.D., performed the second autopsy and concluded on January 5, 2001, that gunshot was the cause of death. Ray, somehow, had already been re-indicted for murder by gunshot on December 8, 2000, almost a full month before the autopsy report was completed.
6. Prior to this second autopsy being completed, Batts had given several statements that were inconsistent with each other and was inconsistent with his trial testimony: an audio/video-recorded interrogation; a recorded phone interview with Ray's original defense lawyers; and a written statement. In each of these statements, Batts never mentioned a gun or gunshot as the cause of death. But after the second autopsy was completed on January 5, 2001, Batts changed his version of his account of Horton's death to then allege that he saw Ray shoot the deceased with a 9mm.
7. Since trial, Ray has uncovered a previously suppressed scientific ballistics report that had been prepared by a state ballistics expert, which showed that the projectile recovered in this case, that is alleged to have caused the death of Mr. Horton was fired from a .380-auto caliber weapon.
8. On July 7, 2004, the Clerk of the U. S. District Court filed Ray's petition for Writ of Habeas Corpus, filed pursuant to Article I section 9 of the United States Constitution (doc.# 1). On July 19, 2004, Ray filed four amended claims to his petition (doc.# 3).
10. The District Court accepted the original petition and the amended claims, and on July 23, 2004, Hon. Magistrate Judge Harwell G. Davis III issued a show cause order upon the Respondents to answer the original and amended claims. The ORDER also directed the Respondents' to "provide a thorough discussion on all matters of fact and law relating to each of the issues or ground raised by Petitioner.
11. On September 23, 2004, Respondents filed its answer. The answer only responded to the claims in the original petition. Respondents did not respond to the amended claims. (Respondents also cited several exhibits that they did not submit and Respondents have yet to release all of the records from Ray's post conviction proceedings, including the Writ of Certiorari filed to the Alabama Supreme Court). Among the many as yet uncorrected statements in their answer are the Respondents pleading that Ray only filed 16 claims (listed by Respondents in paragraph 3 of their Answer as (a) through (p)) in his original Rule 32 petition in the Circuit Court of Madison County, notwithstanding the fact that the actual record of the Rule 32 proceedings shows clear and convincingly that Ray presented 46 claims when he filed into the circuit court (See Post-conviction Clerk's Record, CLAIMS 1 THROUGH 46, pages 24-155). Respondents have relied on this false assertion in support of their contention in paragraph 11 of their Answer that some of Ray's claims ... "are being raised for the first time here in federal habeas corpus."
12. In their Answer, the State did not refute any of the factual or legal bases of any of Ray's claims. In fact, the magistrate judge described the answer as "cursory" on page 20 of the Report and Recommendation:
In response to Ray's [section] 2254 petition respondents provided only a cursory response to any of petitioner's claims. Counsel for respondents merely cited 28 U.S.C. [section] 2254 (D)(1) and then asserted that petitioner's ineffective assistance of counsel claims were not procedurally defaulted, including this one (alibi), could not be considered in federal court, stating: "Because the Alabama State appellate court applied the correct law, and applied it correctly, its findings are entitled to a presumption of correctness here in federal habeas corpus under 28 U.S.C. 2254(d)."
13. Ray ultimately filed at least three deficiency notices due to the fact that the Respondents had not provided a full record of the state court proceedings, in part, to overcome the procedural default defenses pressed by the Respondents in their answer with respect to some of Ray's claims. But, instead of ordering the Respondents to produce the full state court record, including briefs and writs of certiorari filed on direct appeal and post-conviction appeal, the District Court held that over half of Ray's claims were procedurally barred:
"Certain claims raised by the petitioner were either not raised in state court at all or were not raised before the Alabama Court of Criminal Appeals. These claims are listed above as (2)(A), (5)(B), (10) through (13), (15), (17) through (23), (25) through (27), (29), (30)(B)(32) through (37) and (40) through (47). Some of the above-listed claims may be somewhat similar to claims raised and exhausted in state court proceedings, but they are not the exact claims raised in the state court.
* * * *
"Because these claims either never were raised or abandoned on appeal to the Alabama Court of Criminal Appeals during the Rule 32 proceedings, they are procedurally barred from consideration here and do not merit further discussion."
Pages16-17of its report and recommendation ("R&R") (adopted by the district judge).
14. The District Court convoluted three different procedural grounds among these claims it held to be procedurally barred, but without distinguishing which claims it deemed were "never raised in state court," from those it deemed "not raised before the Alabama Court of Criminal Appeals." Nor did the district court distinguish which among these claims "are not the "exact" claims raised in state court." Thus Ray does not now which legal premise applies to which claim, nor does Ray know under which theory (different claim, new argument, new authority, or new evidence) his claims were not "exact."
15. The District Court's ruling also raises the question of whether Ray has presented a "mixed petition." Rose v. Lundy, (1982) 455 U.S. 509, 100 S Ct 1198, 71 L.Ed.2d 379. Under 2254(b)(2), the district court cannot summarily dismiss a mixed-petition on procedural grounds. Such petitions must either be amended or the court can dismiss unsubstantial claims, which don't merit relief, on the merits. Or, the petition could be held in abeyance to permit exhaustions. (Ray maintains that all of his claims were exhausted, and that this would be proven when the Respondents produce a full record of the state court proceedings.)
16. Further complicating the district court's "exact claim" ruling is the recent decision by the U.S. Supreme Court in Miller-El v. Dretke, 545 U.S. -- (2005), where in footnote 2 of that Opinion the Court stated that if had not yet reached a decision "about whether the limitations of evidence in [section] 2254(d)(2) is waivable when a claim is presumably altered, where the claims is "fairly presented" to a state court. Respondents themselves have never raised this "exact claim" defense and, as the district court states, some of Ray's claims are "somewhat similar to claims raised and exhausted in state court." Pursuant to Miller-El v. Dretke, these "similar claims" many have been "fairly presented" to the state court. Ray is prejudiced by the fact that he does not know which of his claims the district court is applying this doctrine to.
17. Finally, in response to whatever procedural defenses the Respondents are raising, Ray filed three separate defenses to overcome them: (1) Actual Innocence, (2) Showing of Cause and Prejudice, and (3) Fraud. However, and over countless objections by Ray to the contrary, the district court never considered any of the defenses raised by Ray prior to making its procedural rulings. This denied Ray of due process and an opportunity to be heard in federal court on the merits of his claim that he was deprived of liberty in state court without due process and equal protection of the law. For these reasons, among other, Ray makes this application for a Certificate of Appealability.
II. REVIEW SOUGHT AND STANDARD OF REVIEW
Petitioner is claiming actual innocence in this petition and submitting evidence in support thereof, pursuant to the United States Supreme Court standard in Schlup v Delo/House v Bell, and seeking review of the district court's refusal to review this -- and other -- claims and evidence presented by petitioner. Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) Among the other claims not reviewed or adjudicated by the district court were petitioner’s showing of cause and prejudice to excuse any perceived procedural default; fraud, to excuse any perceived procedural default; and four (4) amended constitutional claims raised by petitioner.
Petitioner is also seeking review of the procedural rulings of the district court with respect to certain of Petitioner's constitutional claims, as well as, review of the underlying constitutional claims that were not adjudicated by the district court based on its procedural rulings. Slack v. McDaniel, (2000) 529 U.S. 473, 146 L.Ed.2d 542, 551, 120 S. Ct. 1595:
[W] hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Further, Petitioner seeks review of claims that were adjudicated on the merits by the district court, but where relief was denied, pursuant to Title 28 U.S.C., Section 2254(C)(2)("A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right."); Miller_El v Cockrell, (2003) 537 U.S. --, 154 L.Ed.2d 931:
Under the controlling standard, a petitioner must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" 529 US, at 484, 146 L Ed 2d 542, 120 S Ct 1595 (quoting Barefoot, supra, at 893, n 4, 77 L Ed 2d 1090, 103 S Ct 3383).
Lastly, Petitioner seeks review of the district court's rulings on discovery requests; mixed petition ruling; failure to order the Respondents to submit a complete state-court record; failure to afford de novo review; and failure to allow Petitioner to amend his petition upon the discovery of new evidence; and failure to afford an evidentiary hearing on all claims. Breedlove v Moore, 279 F. 3d 952 (11th Cir. 2002)
III.
PROCEDURAL BAR DEFENSES NOT
ADJUDICATED BY DISTRICT COURT
THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO REVIEW AND ADJUDICATE THE FOLLOWING CLAIMS:
CLAIM (1)
RAY'S ACTUAL INNOCENCE/MISCARRIAGE OF
JUSTICE CLAIM, PURSUANT TO SCHLUP V. DELO,
513 U.S. 298 (1995), TO OVERCOME PROCEDURAL BAR
Petitioner ("Ray") is innocent of this offense for which he has been convicted and has plead this claim as a defense to any procedural bar defense raised by the Respondents in regards to any of Ray's claims. However, the district court did not consider this defense when it ruled that several of Petitioner's claims were procedurally defaulted. At pages 16-17of its report and recommendation ("R&R") (adopted by the district judge), the magistrate judge made the following findings:
"Certain claims raised by the petitioner were either not raised in state court at all or were not raised before the Alabama Court of Criminal Appeals. These claims are listed above as (2)(A), (5)(B), (10) through (13), (15), (17) through (23), (25) through (27), (29), (30)(B)(32) through (37) and (40) through (47). Some of the above-listed claims may be somewhat similar to claims raised and exhausted in state court proceedings, but they are not the exact claims raised in the state court.
* * * *
"Because these claims either never were raised or abandoned on appeal to the Alabama Court of Criminal Appeals during the Rule 32 proceedings, they are procedurally barred from consideration here and do not merit further discussion."
By not considering the Petitioner's claim of actual innocence (or cause and prejudice and fraud), the district court abused its discretion. Schlup v Delo, supra. This Court should issue a COA on this issue because reasonable jurors have debated and disagreed with the district court's actions of finding these claims barred, but not considering Petitioner's claim of actual innocence to overcome the procedural bar. Ray also maintains that these claims were, in fact, not procedurally barred. (Each of the claims that Ray intends to preserve for federal review will be argued under Section VIII, below.) In Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002); Wyzykowski v. Department of Corrections, 226 F. 3d 1213 (11th Cir. 2000); and Jaramillo v. Stewart, 340 F. 3d 877 (9th Cir. 2003), each United States Court of Appeals remanded a 2254 habeas corpus petition when the district court has failed to review a petitioner's claim of actual innocence to overcome a procedural bar being plead by those respondents.
Ray further contends that the merits of his actual innocence claim merits further proceedings. Ray has presented facts to show that he was not in any way involved in this crime and that, through his alibi witnesses and evidence, other physical and scientific evidence, and impeachment evidence he has presented a claim of innocence compelling enough to excuse the procedural defenses pressed by Respondents.
The Respondents case at trial depended primarily on the testimony of the codefendant-turned-state-witness Fred Batts, who, in his fourth different rendition of what he alleged were the facts surrounding this crime, testified, among other things, that he was the only witness to the murder of the deceased, Mr. Andre D. Horton, and that he witnessed Ray shoot the deceased with a 9mm handgun (at Batts’ fiancé’s house at 3203 Rita Lane, Huntsville, Alabama) at some point between the hours of 1:30 and 2:00 p.m., Friday, March 26, 1999 :
(R. 318) (cross-examination by defense counsel Mr. Davis):
Q. Tell me this. Do you recall approximately what time of day all of this was going on, your best memory of it?
A. (co-defendant/state-witness Mr. Fred Batts): Somewhere probably in between 1:30 or 2:00 o'clock.
No one, except Batts, placed Ray at this residence between 1:30 and 2:00 p.m. Additionally, it was affirmatively established at trial, during cross-examination testimony of the crime-scene investigator, Sgt. Charles Berry, that no physical evidence of any kind linked Ray to this crime or this residence:
(R. 533-34 ) (By defense counsel): Okay. Now Sergeant, you have indicated that you went to Rita Lane, which of course, was the Batts' house.
A. Yes, sir.
Q. And, did you find any physical evidence that Melvin Ray has been in that house on March 26, 1999?
A. No, sir.
Q. You did not find any fingerprints connected to Melvin Ray?
A. NO, sir.
Q. And you did a thorough investigation and attempted to get fingerprints off the door?
A. Yes, sir.
Q. And that would have been the front door?
A. Yes, sir.
Q. No Melvin Ray prints there, were there?
A. No, sir.
Q. You attempted to collect fingerprints samples from a number of places inside the den and kitchen?
A. Yes, sir.
Q. No Melvin Ray fingerprints?
A. No, sir.
Q. The bulletproof vest you found, did you find Melvin Ray's prints on it?
A. No, sir.
Sgt. Berry also testified that Ray's prints were not found on several other objects connected to this crime: (1) a gas can (R. 538-40); (2) a blue Ford Mustang (id.); and a white Dodge Stratus (id.), all of which are objects that the codefendant-turned-state-witness, Fred Batts, testified that Ray either touched, possessed, or occupied.
Ray's alibi component of his actual innocence claim is supported by witnesses Mrs. Monique V. Ray and Ms. Antonia Brooks (formerly Mrs. Woods) and additional documentary evidence, which all show that Ray could not have killed or participated in the death of Mr. Horton. The alibi evidence of Mrs. Ray is as follows:
ALIBI WITNESS MONIQUE RAY AND TIME-STAMPED PURCHASE RECEIPTS
Mrs. Ray stated in her affidavit and testified at the evidentiary hearing that she was off from work on Friday, March 26, 1999, in order to complete last minute preparations for a planned family trip to Disney World. (See Affidavit at Post-conviction Record ("PCR") page 158 and Federal Evidentiary Hearing Transcript ("E.H.") page ). Mrs. Ray presented a copy of her "Request for Leave From Work (PCR page 216), beginning March 26,1999, to Ray's trial attorney to verify that she was, indeed, off from work on this day and able to testify as stated.
Mrs. Ray testified that she left from home with Ray and their daughter around 8:00 a.m., on this Friday morning and dropped off some rental movies at the Kroger Foods Video Center, 6070 Moores Mill Road (See Video Rental Receipt with 3/26/99 Return Date, at PCR page 217). Mr. Ray then testified that, after they dropped off these movies, she was then dropped off by Ray and their daughter at the beauty salon in downtown Huntsville at approximately 9:00 a.m. She further testified that, thereafter, she called Ray at approximately 11:00 a.m. and informed Ray (who had returned home by this time) that she would be done at the salon at approximately 12:00 p.m. and for him to be there to pick her at that time -- which Ray did. (See testimony of Mr. and Mrs. Ray at the Federal Evidentiary Hearing).
The Rays then went to Best Buy department store to exchange C.D.s. The receipt for this transaction was recorded at 12:29 p.m., March 26, 1999 (See Receipt, P.C.R. page 205). The Rays then went to Wal-Mart to purchase a camera and 35 mm film, and a time-stamped store receipt also recorded this transaction at 12:56 p.m., March 26, 1999 (See Receipt at P.C.R. 205). After leaving Wal-Mart, the Rays stopped at a drive-thru for lunch and then proceeded to Mr. Ray's mother's home at 3003 Tucker Lane, to pick up their daughter and snacks and sandwiches for the planned trip to Disney World. (Id.) The Rays returned home at approximately 2:00 p.m. (Note that Batts testified that the murder occurred between 1:30 and 200 p.m.). The Rays did not leave home again until 4:00 p.m.; they proceeded to pick up their son from daycare at 4:35 p.m. and then traveled to Mr. Ray's sister's home, arriving at approximately 4:45 p.m.
ALIBI WITNESS MS. ANTONIA WOODS
Ms. Woods states in her affidavit (P.C.R. page 156) and testified at the evidentiary hearing on December 19, 2006, that, on the morning of March 26, 1999, she was at home throughout the day, and that she was preparing to make sandwiches and snacks for her family's trip to Disney World. (Id.) She testified that she called her granddaughter and spoke to her by phone at the Ray's home on the morning of March 26, 1999, and that she told her granddaughter to ask Mr. Ray if she could come over to her house at 3003 Tucker Lane to help her prepare sandwiches and snacks for the trip to Disney World. (Id.) Ms. Woods then testified that, after her granddaughter had gotten permission from Mr. Ray, she went out to the Ray's residence at approximately 11:00 a.m. to pick up her granddaughter and that, upon her arrival, she saw Ray outside fixing on his motorcycle. Ms. Woods then testified that she and her granddaughter left about 10 minutes after her arrival and that they arrived back at her residence around approximately 11:45 a.m. Finally, Ms. Woods testified that the Rays arrived to her home around 1:15 p.m. to pick up her granddaughter and the cooler of snacks prepared for the trip to Disney World.
PETITIONER RAY'S TESTIMONY AND EVIDENCE
Ray's affidavit (Exhibit JJ, P.C.R. page 268-70) and testimony at the evidentiary hearing is consistent to Mrs. Ray's and Ms. Wood’s in every material respect. Ray further stated that he had wrecked his motorcycle in early January and that, on the day of the wreck, he went to Huntsville Hospital for treatment. (See Hospital Report at P.C.R. 219) Ray did not receive his repair parts until after they were shipped out by mail on March 23, 1999, from a parts dealer in Tennessee. (See ORDER FORM FOR PARTS at P.C.R. 218) Ray testified that he picked the parts up on that Friday morning after dropping his wife off at the beauty salon and that, upon his return home, he repaired his motorcycle until his wife called at approximately 11:20 a.m. to let him know that she would be ready to be picked up from the salon around 12:00 p.m.
All parties submitted their affidavits under oath, and testified under oath at the evidentiary hearing, that all of the above referenced material was provided to counsel who, upon discussing these matters with the parties and reviewing the documents in corroboration, told them that he would present this defense. Counsel also clearly told the jury, on the record, that he would present a defense case-in-chief. (R. 65) However, after the State rested its case, trial counsel informed Ray and his family -- over Ray's objection -- that he would not put on a defense because he believed that Ray would be acquitted the following day.
TIME-LINE OF RAY'S ALIBI IN RELATION TO BATTS'
TESTIMONY CONCERNING THE TIME OF DEATH
The time-line aspect of Batts' testimony is severely undermined by Ray's evidence of alibi. For example, Batts testified that he met Ray at Ray's home in New Market, Alabama. (R. 303) This means that, according to Ray's alibi evidence, Batts would have had to arrive at Ray's home sometime after 2 o'clock arrival. Additionally, Batts testified that he called Ray at Ray's New Market address prior to him traveling to Ray's home. (R. 301; 303):
A. On that Friday, it was a Friday when I came to work I had some of the guys I -- they left a message Melvin called, so I called Melvin back...
Thus Batts, according to his own testimony, could not have left his place of employment in Huntsville, Alabama for Ray's home in New Market, Alabama until, at the least, after Ray's 2:00 p.m. arrival. And, Ray's home in New Market, Alabama is well over a thirty (30) minutes drive from where Batts worked, and even further from where Batts' fiancé lived on Rita Lane. All of these events would have had to have taken place well outside the 1:30 to 2:00 p.m. time frame in which Batts alleges that Mr. Horton was killed.
Moreover, Batts testified that Ray arrived at the Rita Lane address approximately 15 minutes after he (Batts) did. (R. 305: So, I had a chance to get in the house. I went in the house. And later, say about 15 minutes -- about 15 minutes Melvin drove up, him and Andre.") This means that, if Batts left for Ray's home in New Market from the barber shop where he worked at some point after 2:00 p.m. (which would take over thirty (30) minutes), then drove the approximate forty-five to fifty (45 to 50) minute drive to Rita Lane, and Ray arrived 15 minutes later, then Ray could not have arrived at the Rita Lane address before 3:30 p.m. (Two o'clock departure plus thirty (30) minute drive to New Market, plus forty-five to fifty (45-50) minute drive to Rita Lane, plus fifteen (15) minute wait for Ray). And, there is additional evidence, including an exculpatory scientific ballistics report that further discredits and impeaches Batts’ trial testimony.
SUPPRESSED BALLISTICS REPORT SHOWING THAT PROJECTILE RECOVERED IN THIS CASE WAS FIRED FROM A .380 CALIBER HANDGUN, WHICH IS CONTRARY TO BATTS' TESTIMONY THAT HE SAW RAY SHOT DECEASED WITH A 9 mm
Batts testified that he saw Ray shoot the deceased by placing a gun to his head (R. 314) and that this gun was a 9 mm caliber weapon. (R. 332-33) The prosecutor withheld an exculpatory scientific ballistics report which shows that the victim was killed with a .380-auto caliber weapon. (See Ballistics Report, P.C.R. page 161) Furthermore, Batts’ testimony that Ray placed this 9 mm to the head of the deceased is inconsistent with scientific reality. The State's own witness, Dr. J.C. Upshaw Downs, testified that he had determined that the gunshot range was "distant" because of the "absence of gunpowder particles and soot on the skin surface." (R. 377) Though Ray would need assistance from an expert to present this argument, Ray directs the court's attention to Fugate v. Head, 261 F. 3d 1206 (11th Cir. 2001) where an expert explained in detail the scientific principles involved that prove that Batts was testifying falsely. Furthermore, Batts committed perjury when he denied having a deal with the State in exchange for his testimony.
NEWLY DISCOVERED EVIDENCE OF BATTS' PERJURED TESTIMONY
WHEN BATTS DENIED HAVING A DEAL WITH THE STATE IN EXCHANGE
FOR HIS TRIAL TESTIMONY AGAINST PETITIONER.
In Murray v. Carrier, 477 U.S. 478 (1986) the U.S. Supreme Court held that, in a given circumstance, impeachment evidence, by itself, can demonstrate actual innocence where it gives rise to "sufficient doubt about the validity" of a conviction. In this case, Batts gave no less than four different accounts of what he did or did not do, or did or did not know, concerning the events on March 26, 1999. (See Cross-Examination of Batts at Trial Record 394-397) In these statements, Batts either completely exonerated Ray, or gave statements that exculpated Ray.(See e.g., R. 481-484) Batts also admitted to the jury that he had lied in the past, and that a "good reason" to lie was when one was attempting to avoid responsibility for their own actions.(R. 484-486):
Q. Do you think there are good reasons to lie sometimes, Mr. Batts?
A. No, sir.
Q. But, yet, you have lied?
A. Yes, sir.
* * * *
Q. And another reason to lie is not wanting to put ourselves in something and not wanting to implicate ourselves. That's another reason people typically have for lying, isn't it?
A. Yes, sir.
Q. Another reason people have for lying is just not wanting to own up to responsibility for what they have done, isn't it?
A. I guess.
Q. And that's been one of your reasons for lying about this so much, hasn't it?
A. To an extent.
* * * *
Q. When you lied on all these occasions, no one would have any way to know you were telling a lie, would they?
A. No, sir.
Against this back-drop, Ray was confronted with the task of presenting evidence before the jury to show that Mr. Batts had not given up in his ways of lying. This opportunity presented itself when Batts was confronted about his motivations for testifying against Ray. During voir dire proceedings, the prosecutor had already told the jury that Batts would be testifying pursuant to a deal with the State:
R. 121: We have cut a deal with Fred Batts. He has turned state's evidence. We will call him to the stand and you will hear he will get a benefit out of doing what he is doing for us.
Also, during its opening argument to the jury, the Respondents again stated to the jury that Batts had a deal in exchange for his testimony:
R. 200: Fred Batts will tell you about the events that happened, though, that afternoon on March 26, 1999, and he will tell you that he has a deal with the State. But, members of the jury, that is conditioned on him taking the witness stand, looking at you and testifying truthfully.
These two statements by the prosecutors were the first times that Ray had been informed that the codefendant had reached a deal with the state in exchange for his testimony. But, and as the record reflects, the prosecutor never disclosed the full terms of this deal with Batts. Notwithstanding this, Ray was able to obtain a copy of the terms of this deal after trial and attached a copy of it to his petitions, which called for Batts to have his murder charge nolle-prossed in exchange for his testimony. (Motion to Nolle Pros, Exhibit L, P.C.R. 177) Yet, in spite of all of this evidence, when Batts was cross-examined, he completely denied having a deal with the State in exchange for his testimony:
R. 433: Q. I understand that's what you said here. I am saying when they were preparing you for testimony and cutting the deal with you, did you tell them that Billy Joe had given you information about the murder?
A. I didn't receive a deal,
* * * *
R. 452: Q. Now, several times you said -- in fact, you said even without my asking you several times that you didn't have a deal in this case.
Is that what you kind of said during your testimony?
A. Yes, sir.
* * * *
R. 457: Q. Well, you had a chance to tell the truth about the situation that day and you didn't do it, did you?
A. No, sir.
Q. And the reason you didn't is because you didn't have the kind of promise and the kind of guarantee that you needed.
Is that fair to say?
A. I haven't gotten any promise.
R. 459: Q. Let me ask you this. There are several possibilities, you agree, that could happen to your case?
A. Yes, sir.
Q. Your case could be dismissed or nolle prossed, to use the legal term. That's one possibility, isn't it?
A. I haven't went over that with anyone.
* * * *
R. 461: Q. Is there any possibility that you would be here out of the goodness of your heart because you want to tell the jury what is on your soul without a deal?
A. I haven't got a deal,
In this instance, trial counsel did not object to this false testimony; Batts' attorney, who was also present (R. 290), did not object to this false testimony; and the State prosecutor did not correct this testimony that it knew to be false. And not only that, but the prosecutor repeatedly told the jury during its closing statements that Batts "told the truth about everything," (R. 667); "He came in here straight up, I submit to you, and told you the truth and he will benefit from it."(R. 670); "Think of what you remember was, was there anything he ever got trapped up on here? He told the truth in here," and "He told the truth." (R. 675). also see (R. 681, 685). Thus Ray's jury never knew that it had been lied to by a witness who had already testified that he had intentionally lied in the past :
(R. 410): BY MR. DAVIS: Mr. Batts, while you went in to talk to the investigator, was it your intent to lie or tell the truth?
Did you understand my question?
A. What was my intent?
Q. Yeah.
A. My intent, to tell him I didn't know anything about it.
Q. So you went in intending to lie?
A. Yes, sir.
As Respondents know, in Alabama, perjury is grounds to declare a witness incompetent to testify. See Section 12-21-162, Code of Alabama 1975:
(a) No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury.
Respondents were acutely aware of the ramifications for violating Section 12-21-162 because another of their witnesses, Mr. Kenneth Friend, was excluded from the witness stand when he was caught giving perjured testimony ... for denying the existence of his deal with the State. (See Trial Record at 566-575) And, just as with Batts, the prosecutor failed to correct this perjured testimony. (Ray also discovered, post-trial, that a third witness for the State, Gene Walker, may have also committed perjury by denying a deal with the State in exchange for his testimony.) Fred Batts clearly denied having a deal with the state in exchange for his testimony, and, because the state's case relied so critically on his testimony, this evidence raises substantial doubt about the validity of Ray's conviction.
CREDIBILE PHYSICAL EVIDENCE SHOWING THAT STATE WITNESS
JOAN MOLOTSI GAVE FALSE TESTIMONY
Ray also presents credible physical evidence to refute and expose as false the testimony of Respondents' witness Ms. Joan Molotsi. Ms. Molotsi was offered by Respondents to testify, in corroboration of Batts, that at some point between 2:30 and 3:00 p.m., on March 26, 1999, she saw a "tall guy and a short guy" (R. 21-38)(Molotsi was never asked to identify the "tall guy") loading something into the trunk of a vehicle at 3203 Rita Lane. Ms. Molotsi further testified that she witnessed these events while standing in her kitchen window which, according to Respondents, was measurable in distance to a door in the courtroom:
(R. 227): Q. Give me an estimate based on where I am standing right now. As close as I am to you right now, were you as close to that house at Rita Lane as I am to you right now?
A. I can see from here to that door over there, the door. (indicating)
And, Respondents contended at trial that Ms. Molotsi's view was unobstructed:
R. 262: Q. Okay. And from what you observed, was the house she was living in, was it unobstructed as far as the view of Perrion's house?
A. No obstructions.
Ray offers 'credible physical evidence" in the form of an investigative report prepared by a privately obtained investigator, Mr. Gary L. Fox, Sr. (See Investigative Report, Exhibit O at P.C.R. 191) and photos taken by Mr. Fox (P.C.R. 211-214), cast grave doubt on the validity of Molotsi's testimony and the validity of Ray's conviction. Mr. Fox visited Molotsi's then-residence of 5001 Lori Circle after Ray's trial (recall that State has refused to provide Molotsi's address or identity prior to trial which inhibited pre-trial investigation by Ray's trial counsel. R. 57-58) and took photos from the exact location -- kitchen window (R. 213 )-- where Ms. Molotsi alleges that she was standing when she alleges to have seen two males "loading something" into a vehicle. Mr. Fox submitted his sworn affidavit, stating therein that Molotsi view of Rita Lane from her kitchen window is completely obstructed and stated that "there is no way she could have seen what she says she saw:
(R. 191): I'm enclosing these pictures I took last week. They were taken from the kitchen window of the house where Ms. Molotsi was living when she said that she saw Melvin and the other Black Male (sic)(that she couldn't Identify)(yeah) If she could ID one she should have been able to ID both. I also took some pictures from the living room window and 2 or 3 from outside at street level. I have labeled each one as to where they were taken from and what they depict. As you can see, there is NO WAY she could have seen what she says she saw. I measured the distance from the front door of the house on Rita Lane to the window where she said she was and it is over 175 feet. I don't care how good her eyesight was (which was never brought out in the trial) she could not have been able to tell the difference between a Tenn. tag and an Alabama tag. Especially if the car was backed in.
The evidence uncovered by Mr. Fox refutes the evidence offered by the State at trial and shows that Ms. Molotsi's view was not unobstructed, and Mr. Fox supported his findings by taking photos where Molotsi testified that she was standing. (See Photos at P.C.R. 211-214) These photos depict two large trees, each standing over 35 feet in height, totally blocking the view of Rita Lane from Molotsi's kitchen window. (id.) Mr. Fox states that he measured the distance between these two locations at "175 feet." And, whereas Molotsi testified that she was able to read a license plate from this distance, Mr. Fox stated in his report that reading a license plate from this distance is impossible. (P.C.R. 191-193). When this new evidence is considered in contradistinction to Molotsi's trial testimony, it is obvious that Molotsi was giving false testimony to matters that are humanly impossible. See, e.g., Bird v. State, 594 So. 2d 644 (Ala.Crim.App. 1990):
"It has been pointed out, however, that for the doctrine of physical impossibility to be applicable to the testimony of a witness, that testimony must be such that a reasonable mind must reject it as wholly impossible of belief in view of the physical evidence; mere improbability is not impossibility in terms of the doctrine under discussion.
It simply is not possible to view a rear license plate of a vehicle, backed in, from a distance of 175 feet. Just as it is impossible for a normal human being to see through two trees, each standing over thirty (30) feet. A clear indicator of the lack of veracity on the part of Molotsi can be gleamed from her account of the day/date/month of her alleged observations. The State has contended at trial that the deceased was shot and killed on Friday, March 26, 1999. (R. 295). In stark contradiction to this, Molotsi testified that the incident she was describing and was giving account of occurred on Thursday, April 22, 1999:
(R. 221): Q. (By defense counsel) Ms. Molotsi, as we sit here today, you are not exactly sure what day you saw the person that you think was Melvin Ray and this other person, are you?
A. But I know the date.
Q. What was the date?
A. The 22nd.
Q. Okay.
So you think the date was the 22nd?
A. Yes.
Q. Of what month?
A. April.
Thus, Molotsi was wrong on the day (Thursday/Friday), date (22nd vs. 26th), and month (April vs. March). The codefendant/state witness testified that there were three cars at the Rita Lane address this day: the white Dodge Stratus, plus he testified that he had driven Petitioner's gray Lexis to Rita Lane (R. 305), and that there was also a dilapidated blue Ford Mustang in the drive-way of this residence (R. 317) while Molotsi testified that she did not see any vehicle other than the white Dodge Stratus in the driveway on Rita Lane on this day:
(R. 230 ):
Q. [D]id you see any other cars parked outside that day?
A. No.
Q. No other cars.?
A. No.
Petitioner had no way of uncovering this information before trial because Respondents withheld the address and identity of Molotsi until the day she gave testimony at trial. There is also additional scientific medical evidence which suggests that asphyxia and beating -- not gunshot -- are the cause of death in this case.
MEDICAL EVIDENCE AND AUTOPSY REPORT OF DR. STEPHEN M. PUSTILNIK, WHO STATES THAT ASPHYXIA AND BEATING ARE THE CAUSE OF DEATH
Dr. Stephen M. Pustilnik, the doctor who conducted the original autopsy in this case immediately following the deceased death, concluded in his autopsy report that asphyxia (and beating) was the cause of death. (See Autopsy Report, Exhibit E, P.C.R. 1640169). Trial counsel never sought to interview Dr. Pustilnik or to have his appear as a witness.
Since trial, Dr. Pustilnik, who has relocated to Galveston, Texas, has communicated to Ray that he still stands behind his initial findings of asphyxia as the cause of death. (See E-mail communications at P.C.R. 309-313):
"When the DA asked me to re-review the x-ray with the story that he was shot, the radio dense object to me looked like a bullet. I told the DA that it certainly looked like a bullet and that I would come to trial to state that it was a bullet that I did not retrieve, but that there was no blood in the head or neck and no injuries to major vessels, therefore I was of the opinion that the bullet may have been a coup-de-grace or post mortem and MAY have contributed to the death, but the main cause of death was still the beating and asphyxia.
(Note: A copy of the e-mail was entered three times by the Circuit Clerk at three different parts of the record. At P.C.R. 309-313; 326-330; and 352-356.)
By the time of trial, however, the State had commissioned a second autopsy, by a second doctor, Dr. J.C. Upshaw Downs, who, after conducting a second autopsy over 17 months after the deceased death, concluded that gunshot was the cause of death. (See Trial Record at R. 357) Neither of these doctors’ autopsy reports was submitted as evidence at trial. The jury interrupted its deliberations to ask the court if it could review the two autopsy reports. (See Jury Questions at R. 708-709)
Major discrepancies exist between the two reports. For example, Dr. Pustilnik stated in his report that 'the soft tissue and muscles of the neck are free of extravacated blood or injury." (See Dr. Pustilnik's Report at P.C.R. 164) Dr. Pustilnik further stated that there were "no skull fracture, epidural, subdural, or subarachnoid hemorrhages" found upon the body of the deceased. Additionally, Dr. Pustilnik suggests in his e-mail that the gunshot wound, if any, was most likely inflicted "post-mortem." (See E-mail, supra.)
In addition to his medical findings, Dr. Pustilnik stated that the prosecutor and Dr. Downs were 'playing games" with the medical evidence in this case (P.C.R. 355:"Also, your client's first defense team should have realized the game being played and not have allowed it.") It should be noted that, when Dr. Pustilnik requested that Dr. Downs be present at the second autopsy, Dr. Downs refused his request: R. 384: "I have not personally discussed this case with Dr. Pustilnik he sent me a memorandum asking to be present at the exhumation autopsy and I declined that request..." Dr. Pustilnik also stated that there was a struggle and that the deceased was severely beaten by his assailant. Trial counsel, based on these findings, told the jury during his opening statements that they would hear evidence that the deceased had been beaten:
R. 208: Now, why do I emphasize that. Because you will hear from the State's own witnesses that this killing was a brutal one, that there was a beating.
Those pictures we talked about when we voir dired you in questioning this morning, you will see them and they will show a face that has been beaten to a pulp. They will show a face that is swollen with swollen lips, and they will show you a head that is beaten in.
Dr. Downs's findings were diametrically opposed to all of the above-listed findings by Dr. Pustilnik. For starters, Dr. Downs testified that gunshot was the cause of death. He testified that the projectile causing such death traveled through the soft-tissue area of the upper neck and fractured the C1 and C2 vertebrae of the spinal column. (R. 352-53) Dr. Downs also testified that the lower part of the skull was chipped and that he found evidence of epidural, subdural and subarachnoid blood. (See Autopsy findings at P.C.R. 178-88) As for counsel's claim that the jury would hear evidence that there was a severe beating ("beaten to a pulp") in this case, Dr. Downs testified as follows:
Q. You dispute his findings with respect to the blunt force injury?
A. There was some blunt force injury. In my opinion, that was not a significant amount of blunt force injury; it was a type that would leave a bruise. There was no indication of fracturing associated with the blunt force injury.
Specifically, there was a small area of hemorrhage on the left side of the head and some hemorrhage into the eyes that would be consistent with blunt force injury.
There is, in my opinion, absolutely no indication of asphyxia in this case whatsoever.
Q. Now, when you say "blunt force injury," Dr. Downs, give me an example of what kind of things would cause blunt force injury.
A. If you fell down on the sidewalk and skinned your knee, it might cause an abrasion where you take off the superficial layers of skin. And Mr. Horton had a small abrasion on the left side of his head.
Trial counsel mis-informed the jury about what the evidence would be because he never interviewed the doctors before trial to learn how vast their disagreements were. Moreover, the State has never explained exactly where its evidence of gunshot came from. Initially, the prosecutor proffered to Petitioner's trial counsel that the evidence of gunshot had come from Batts. Batts, however, explicitly denied providing this information during his trial testimony. Batts testified that he did not have any contact with the prosecutors until approximately two weeks outside of trial, which would have been in early January 2001 (as trial began January 22, 2001):
R. 453: (By defense counsel)
Q. When did you first sit down -- not talking about the video tape we just saw, putting that aside, when did you next sit down to talk to the D.A.'s office and the investigators about the facts or what you contend are the facts on March 26?
A. About two weeks -- a week or two -- about two weeks.
Q. About two weeks?
A. Yes, sir.
Q. So, between March of 1999 and today, you have had interaction with the folks on the -- from the D.A.'s office and with the sheriff'' department and that would have been about two weeks ago?
A. Yes, sir.
Notwithstanding Batts’ denial, the prosecutor still attempted to relate their uncovering of this information to Batts during their closing arguments. This attempt was objected to, and the objection was sustained. It was at this point that trial counsel reiterated the false proffer given to him by the prosecutors:
R. 687: MR. DAVIS: Your Honor, I want to elaborate and expand on the objection I made in closing argument.
At one point, Mr. Broussard stated to the jury or suggested to the jury that the reason a second autopsy was done was because Fred Batts provided the State information about the gunshot wound. That evidence was never put before the jury factually.
What occurred, according to defense counsel's understanding is that Mr. Lampley, Mr. Batts lawyer, made a proffer to Mr. Broussard and that proffer was part of the reason why the autopsy was done. Not disputing that occurred but that evidence was never put before this jury.
It's an important piece of evidence. It's corroborative of Mr. Batts, but it was never put before the jury. Indeed, the contrary. Evidence was suggested that Mr. Batts testified on direct and cross-examination that his corroboration phase began several weeks ago, and he testified his first meeting with the district attorney's office happened several weeks ago. That's what he testified to on direct and cross.
Trial counsel never attempted to ascertain exactly where this evidence came from, so this person or persons’ identity has never been revealed. Ironically, the State no longer contends that this information came from Batts. Now, the State contends that this information came from "people from the street." (SEE APPELLEE'S BRIEF on Rule 32 Direct Appeal, page 24) Also of note is that Batts did not come forward alleging gunshot as the cause of death or that Ray shot the deceased until after the second autopsy was completed on January 5, 2001. These facts, accumulated after trial, have never been placed before a jury.
Ray contends that the above-listed evidence establishes that he is actually innocent of this offense and satisfies the actual innocence standard as established by the U.S. Supreme Court. It further shows that he has suffered a miscarriage of justice to an extent, with constitutional error, that all of his claims of Federal constitutional violations should be reviewed on the merits. (Ray adopts by incorporation CLAIMS 10 AND 18 here, as if plead here in full)
CLAIM (2)
RAY'S SHOWING OF CAUSE AHD PREJUDICE, THROUGH
EXCEPTIONAL CIRCUMSTANCES AND DUE DILIGENCE, TO
EXCUSE ANY PERCEIVED PROCEDURAL DEFAULT OF HIS
FEDRAL CONSTITUTIONAL CLAIMS, PURSUANT TO Wainwright
v. Sykes (1977) 433 U.S. 72; also see Clemons v. Delo, 100
F. 3d 1394, 1398-99 (8th Cir. 1996); Manning v. Foster, 224 F. 3d
1129, 1135 (9th Cir. 2000); and Rule 5 of the Rules Governing 2254
Habeas Corpus Proceedings
In its July 23, 2004, SHOW CAUSE ORDER, the magistrate judge ordered the Respondents to, among other things, "thoroughly" discuss "the question of exhaustion of state remedies" by Ray, in its ANSWER to Ray's petition. The magistrate also ordered Respondents to "furnish copies of any court records, briefs, transcripts, or other documents which may be pertinent to the matters discussed in their ANSWER," as required by Rule 5 of the Rules Governing 2254 Habeas Corpus Proceedings. Rule 5:
The Answer and the Reply
(a) When required. The respondent is not required to answer the petition unless a judge so orders.
(b) Contents: addressing the allegations; stating a bar. The answer must address the allegations in the petition. In addition, it must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.
(c) Contents: transcripts. The answer must also indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed. The respondent must attach to the answer parts of the transcript that the respondent considers relevant. The judge may order that the respondent furnish other parts of existing transcripts or that parts of untranscribed recordings be transcribed and furnished. If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence.
(d) Contents: briefs on appeal and opinions. The respondent must also file with the answer a copy of:
(1) any brief that the petitioner submitted in an appellate court contesting the conviction or sentence, or contesting an adverse judgment or order in a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate court relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court relating to the conviction or the sentence.
Instead of providing a thorough response and complete copy of all briefs and records from appeal, the Respondents ANSWER to the petition was described by the magistrate as "cursory." (see Report and Recommendation at page 20). Respondents failed to provide a complete copy of the state record in this case, including numerous pro se filings and briefs prepared by Ray during his direct appeal from the denial of his Rule 32 post-conviction petition, two supplemental briefs, and the Petition for Writ of Certiorari to the Alabama Supreme Court. By virtue of their actions in not thoroughly informing the magistrate of Ray's efforts to exhaust in State Court and by their refusal to provide a complete record of the State Court record, the Respondents have been able to manipulate the record in this case to make it appear as though Ray has not exhausted all of his claims in state court. As will be shown, Ray submitted many orders from the Alabama Supreme Court and Court of Criminal Appeals to show that he had filed several motions and brief, yet the Respondents did not supply the Federal Court with any of these filings.
The State Court record reflects that Ray initially filed his state post conviction Rule 32 petition pro se in the Circuit Court of Madison County, Alabama. After this petition was summarily denied, and after Ray had already filed a notice of appeal setting out his intentions to appeal the Circuit Court's ruling on all of his claims, Ray solicited the services of Richard Shields, Esq. to represent him on appeal. Prior to entering into this contract with Mr. Shields, Ray and Shields had a consultation-meeting at Holman Prison so that Ray could delineate the specific terms and conditions under which Mr. Shields would be hired; including the following, which bear directly on Ray's federal constitutional claim:
(a) Mr. Shields agreed to represent Ray throughout the entire appellate process in State Court -- which he did not.
(b) Mr. Shields agreed to present and argue all 46 of the allegations that Ray had presented to the trial court in the Rule 32 petition. Prior to Mr. Shields agreeing to raise each of these claims, Mr. Shields was provided a copy of each claim raised by Ray's family when they consulted with him for his service. However, Mr. Shields did not raise all of the claims and did so without Ray's knowledge authorization, or consent. (See, Letter attached as Exhibit 6 through 14, doc # 28)
(c) Ray had also specifically instructed Mr. Shields not to file the appellate brief without providing him with a copy beforehand so that Ray could ensure that his claims were accurately and fully stated. Mr. Shields acknowledged this stipulation (and breach thereof in a letter written to Ray on October 1, 2003. (Ray attached this letter as Exhibit 7, doc # 28)
In spite of the specific contractual terms agreed to, Mr. Shields deleted over 25 of Ray's claims without Ray's knowledge, authorization, or consent. The rule of law in Alabama is that a party is not liable for the actions of his attorney when said attorney alters his clients action without consent or authorization because "an attorney has no authority to settle or compromise his client's action without authorization." Benitez v. Beck, 872 So. 2d 844 (Ala.Civ.App. 2003); Warner v. Pony Express Courier Corp. 675 So. 2d 1317 (Ala.Civ.App. 1996). When Ray learned of counsel's actions, he immediately repudiated them to the Court of Criminal Appeals of Alabama. Coleman v. Thompson, (1991) 501 U.S. 722; Indianapolis Rolling Mill Co. v. St Louis, 120 U.S. 256:
The rule of law upon the subject of the disaffirmance or ratification of the acts of an agent required that if they had the right to disaffirm it they should do it promptly, and if, after a reasonable time they did not so disaffirm it, a ratification would be presumed.
* * * *
"The authorities to the point of the necessity of the exercise of the right of rescinding or avoiding a contract or transaction as soon as it may be reasonably done, after the party, with whom that right is optional, is aware of the facts which gave him that option, are numerous. (citations omitted)
Mr. Shields did not mail Ray a copy of the brief he had prepared until September 25, 2005, which Ray did not receive until September 28, 2005. (See Cover Letter to Brief, attached as Exhibit 8, doc. #28) Upon receipt of the brief and Ray's noticing of the deletions made by counsel, Ray immediately filed a MOTION TO HOLD THE APPEAL IN ABEYANCE, and ATTORNEY DEMAND LETTER to the Alabama Court of Criminal Appeals and Mr. Shields on September 29, 2003 (the next day), respectfully requesting the Court to hold the appeal in abeyance, explaining the nature of the breach by Mr. Shields and how he had illegally compromised Ray's appeal, and demanding that Mr. Shields rescind his unlawful filing. (Ray attached a copy of these motions as Exhibit 9, doc. #28) Mr. Shields did not deny or refute Ray's claims, and he did not comply with Ray's demand letter. Moreover, the Court of Criminal Appeals denied Ray's MOTION and DEMAND LETTER. (Ray attached a copy of the Court's ORDER, issued October 8, 2003, as Exhibit 10, doc. #28) Cf. RESTATEMENT (SECOND) OF AGENCY, Section 385 (1985)("Unless otherwise agreed, an agent is subject to a duty to obey all reasonable directions in regard to the manner of performing a service that he has contracted to perform.")
After Ray's first round of objections were denied, Ray then filed a "Notice of Fraudulent Filings by Appellate Counsel and Motion for Leave to File a Supplemental Brief. The Court of Appeals did not rule on this motion and the Respondents did not make it a part of the record. Ray also contacted Mr. Shields by phone and sent him a copy of this filing and demanded that Mr. Shields correct his filings with a supplemental brief. Counsel told Ray to prepare the supplemental brief himself and send it to counsel, which Ray did. However, upon receiving the supplemental brief from Ray, counsel, instead of filing it, re-typed the brief and returned it to Ray and told Ray to file it himself. (Ray attached a copy of the Counsel's October 31, 2003, return letter as Exhibit 11, doc. # 28)
Upon receipt of counsel's October 31, 2003, letter, Ray submitted the supplemental brief pro se on November 3, 2003, and accompanied the brief with a Motion for Leave to Supplement explaining the circumstances as spelled out above. Ray also requested that all of counsel's filings be stricken-- which was denied. On November 10, 2003, the Clerk of the Court rejected Ray's supplemental brief and the Court did not rule on Ray's motion. (Ray attached a copy of the Clerk's order as Exhibit 12, doc. # 28) After this rejection, Ray filed a Petition for writ of mandamus with the Alabama Supreme Court attempting to get his pro se supplemental brief filed. The Respondents have failed and refused to submit any of these filings and supplemental brief as part of the record before this court -- contrary to the magistrate's order. Contrary to the Clerk's actions, the Alabama Court of Criminal Appeals does allow pro se litigants to file supplemental briefs, even when he is represented by an attorney. See e.g., Woods v. State, 699 So. 2d 965, n. 1 (Ala.Cr.App. 1997):
After the appellant's appointed counsel filed his brief with the court, the appellant requested permission to file a pro se supplemental brief if counsel did not file one. See Rule 31(a), Ala.R.App.P. "When a party is represented by counsel, the clerk may not accept a brief from that party." This court granted the request and the appellant filed a pro se brief. This court then directed counsel to file a brief addressing the appellant's pro se issues. Counsel did not file any further briefs and the appeal was submitted on counsel's original brief and the appellant's pro se supplemental brief.
Moreover, the Clerk's actions are contrary to and in violation of Alabama law. See e.g., Thompson v. State, 860 So. 2d 907 (Ala.Cr.app. 2002) Thompson was a petitioner who received appointed counsel in a Rule 32 post-conviction proceeding. Upon being denied relief in the Circuit Court, Thompson served notice of his desire and intent to appeal to the Court of Criminal Appeals and requested that his newly appointed attorney file an appeal in his behalf. Thompson's attorney, however, refused to file the Notice of Appeal in Thompson's behalf. Thus Thompson filed his own pro se Notice of Appeal, which, as with Ray's pro se supplement brief, was rejected by the Clerk and returned to Thompson. Upon appellate review, the court held that under the circumstances presented, the clerk denied Thompson due process:
Thompson found himself mired in a classic "catch 22" situation: counsel would not respond to his request to file a notice of appeal and the circuit clerk, knowing that Thompson was represented by counsel, refused to allow him to file a pro se notice of appeal. Given the particular circumstances of this case, Thompson should have been allowed to file a pro se notice of appeal. Accordingly, we conclude that procedural due process, together with the decisions in Ex parte Fountain and Brooks v. State, mandate that Thompson is entitled to an out-of-time appeal. 860 So. 2d at 910.
Upon receiving the Clerk's order, Ray again wrote back to counsel and again demanded that he file Ray's supplemental appellate brief. After this final demand, counsel finally complied with Ray's demands and, on January 5, 2004, filed his own version of Ray's supplemental brief, exhausting all of the Ray's federal constitutional claims. Counsel's motion to supplement, however, was denied. (Ray attached a copy of this denial ORDER as Exhibit 13, doc. #28.) After this denial order, Ray again notified the court by motion that his appeal was being reviewed on fraudulent filings and again asked the court to strike all filings and to allow Ray to correct the record. The Court of Appeals failed to rule on this motion. Respondents failed to produce any of these filings or the supplemental briefs filed by both Ray and his counsel of record, notwithstanding the fact that Ray submitted the clerk's order denying Ray's pro se supplemental brief, and the fact that Ray submitted a copy of the court's order denying counsel's motion to supplement and the accompanying brief.
Ray made every effort and diligently sought to present these claims to the State Court pursuant to the state's own rules and procedure. See e.g., Clemmons v. Delo, 100 F.3d 1394 (8th Cir. 1996)(Petitioner filed a pro se brief as a practical matter, to do everything he could to get omitted claims heard). In contrast to Clemmons, Ray not only filed a pro se supplemental brief, but Ray's appellate counsel also filed a supplemental brief. Ray also filed numerous motions and objections notifying the Court of Appeals that counsel had fraudulently prepared the brief then before it; filed a demand letter to counsel which, under Alabama law, counsel is bound to comply with if he has agreed to the terms of which compliance is being demanded, and Ray requested a hearing on his claim that counsel was acting without authorization or authority. Cf. Warner v. Pony Express Courier Corp, 675 So. 2d 1317, 1320-21 (Ala.Civ.App. 1996):
An attorney cannot settle a client's action or claim or prejudice a client's rights without authorization from the client. The power to compromise a demand does not arise from the power to sue or from an attorney's general authority which is usually limited in both duty and authority to the vigilant prosecution or defense of the rights of the client. The authority to settle is not incidental, but it is essential that an attorney have express, special authority from his client to do so. A person dealing with an attorney must ascertain the extent of the attorney's authority to compromise the client's claim. 'An attorney employed to represent a litigant in the prosecution or defense of a suit is a special agent of his client and has no implied or inherent authority or right to compromise and settle it.' An agent's apparent authority must be founded upon the conduct of the principal and not upon the conduct of the agent.
* * * *
Under the circumstances, we find that the trial court abused its discretion by summarily denying Warner's pro se motion to set aside the order of dismissal without at least holding a hearing on the issue of the attorney's authority to settle the case.
When Ray saw that his rights were being violated and that the law was not being complied with in this case, he notified the court and all parties concerned. Ray continued to notify the State Court on application for rehearing and on certiorari review to the Alabama Supreme Court. The State simply failed to comply with its own laws, and now attempts to benefit from it. Ray has shown cause and prejudice for the perceived procedural default defense being pressed by the State. Therefore, the magistrate judge abused its discretion in not ordering the Respondents to produce the full record of the Rule 32 appeal, where Ray clearly showed through the denial orders that there are material records that were not being disclosed by the Stat and by not ordering an evidentiary hearing to resolve this material issue. See Rules 5 and 8, Rules Governing 2254 Habeas Corpus Proceedings. Respondents were allowed to argue procedural bar defenses, while at the same time were permitted to withhold records that would have refuted these defenses. This in no way comports with due process of law.
CLAIM (3).
RAY'S CONVICTION WAS SECURED BY FRAUD THROUGH THE
USE OF RACIAL DISCRIMINATION DURING THE JURY SELECTION
PROCESS,WHICH SHOULD EXCUSE ANY PERCEIVED PROCEDURAL
DEFAULT, Gonzalez v. Crosby, 545 US --, 162 L.Ed.2d 480, 125 S Ct -- (2005);
Brown v. Head, 349 F. 3d 1291 (11th Cir. 2002)
Ray's jury venire panel consisted of 32 members; only one of which was an African American male, Mr. Randall Ashford. (See Jury Strike List as Exhibit V, P.C.R. 202) After striking jurors for cause, the prosecutors exercised its first peremptory strike to remove Mr. Ashford. (R. 177) Ray's trial counsel, suspecting racial discrimination for this strike, made a timely Batson motion to the strike. (R. 182) The trial court, pursuant to Batson, found a prima facie case of race discrimination and made the State come forward with a race-neutral reason for the strike. (R.183) The prosecutor gave the following response:
TR: 183-84: (Mr. Broussard) Quite simply, I know the court is probably aware that prior to jury week, there is compiled in our office a list of all prospective jurors and a record is run through local resources of whether or not they have ever been arrested for whatever.
And with respect to Mr. Ashford, it appears that he was arrested for DUI and driving without a license in 1992. And also, he had a probation violation. I would be happy to show Mr. Davis. And I might point out to the Court, he is the only person on our panel that did appear in our list. If Mr. Davis would like to look at the remaining ones, he was the only one who appeared on the list as having a record of any sort.
Mr. Ashford never testified that he had such prior arrests, nor was he individually voir dired by anyone to ascertain whether any of the facts attributed to him by the State were true. This supposed list was never produced or inspected by the court or trial counsel. In fact, the Respondents have never produced this "list," even though Ray has requested it throughout the post-trial and post-conviction process in multiple discovery motions in both State and Federal Court. Ray had even initiated a civil action in State Court seeking to inspect and copy this public record, but in that action the State answered that the list had been destroyed. (See Attachment to Petitioner's Objection to Magistrate's Report and Recommendation, as Exhibit 2) To date, this list has served as a basis for all of the State's arguments, yet it has never been examined in open court by anyone. The magistrate abused its discretion by not ordering the State to produce the list or explain why, how and by whom it was destroyed, or to afford Ray an opportunity to show that it never existed or to show that it did not contain the information that the State alleges.
Ray produced evidence in the form of state records that refuted the prosecutors' statement that no other jury on the panel had any prior arrests 'of any kind." Ray submitted the arrest record of white male juror Timothy Owen, who had been arrested for DUI. Ray attached this record as Exhibit F. (See P.C.R. 170). Ray also attached the prior arrest and conviction record of white male juror Mr. Willie T. McBay, who had been convicted for Running a Red Light and Improper Tag. (See Exhibits G, P.C.R. 171-171)
When Ray pressed Respondents in the state civil action to explain the race-neutral method, procedure or protocol by which these jurors backgrounds were checked and the list was compiled so as to guard against race-profiling or discrimination, Respondents admitted that they did not have any written methods, protocols, etc. Respondents also admitted that there is no prescribed method, protocol or standard operating procedure by which this list was (allegedly) destroyed. Thus the only reason that appears -- un-refuted -- on the record to explain why Mr. Ashford was struck from the panel is his race as an African American.
Respondents continued in their racial (and gender) discrimination when they excluded female African American juror Ms. Vivian Jennings from the panel through use of a peremptory strike. (R. 178) Trial counsel did not object to the striking of Ms. Jennings at trial, but Ray challenged the strike in his post-conviction proceeding. (See Claim 39, P.C.R. 171) The State plead in their Answer (See ANSWER, PCR 231) and their Amended Answer (See AMENDED ANSWER, PCR 271) that they struck Ms. Jennings for the following reason:
"The trial transcript reveals that Ms. Jennings replied to a question on voir dire that she had had a family member arrested in the past, specifically her son, and that she did not have clear information as the nature of his arrest."
The record from trial, at page R. 104-107, illustrates the following from Ms. Jennings in response to the prosecutor's question of whether any juror had a family member who had a "brush with the law":
(Question by prosecutor) MR BROUSSARD: Ms. Jennings?
MS. JENNINGS: Yes
MR. BROUSSARD: What relation to you?
MS. JENNINGS: My son.
MR. BROUSSARD: And what was the nature of the charge?
MS. JENNINGS: I don't have a definite because the police just stopped him for a traffic violation and they locked him up and I guess I never got a full -- no one told me exactly what it was only thing is I had a lawyer friend that went down there and he was released the same day and I never heard anything else about it.
MR. BROUSSARD: Okay.
So, you are saying that's all the time he did was that day. He was -- he never had any kind of jail sentence after that?
MS. JENNINGS: No.
MR. BROUSSARD: Who was your lawyer friend?
MS. JENNINGS: Not in this town, my home town.
MR. BROUSSARD: Okay.
Would that affect your ability to be fair?
MS. JENNINGS: No.
Thus, Ms. Jennings knew that her son was arrested for an extremely minor traffic violation, which had absolutely no relevance to the case at hand. And, Ms. Jennings was not the only female prospective juror who's son had been arrested, but she was the only female African American who's son was arrested, and she was the only one who was excluded by a state peremptory strike allegedly for this reason. White female juror Ms. Catherine Weather, who did sit on Ray's 12-member jury, also had a son who had been arrested for (and convicted of) a traffic violation -- a DUI:
(See voir dire at R. 110):
MR. BROUSSARD: Okay. Thank you.
Any other hands.
MR. WEATHERS: My son was with a group of underage minors stopped for DUI and we had to go get him out of jail. It was probably good for him.
MR. BROUSSARD: And you are Ms Weather?
MS. WEATHERS: Yes.
And he wasn't but (sic) he had to go through a little program. That was in Tennessee.
MR. BROUSSARD: That would not affect your ability to be fair?
MS. WEATHERS: No.
The only distinguishing factor between these two jurors is race. The disparate and inequitable treatment of these two citizens on this ground denies equal protection. See e.g. Batson v. Kentucky; Miller-El v. Dretke, II 03-9659 (U.S. 2005) Moreover, the Respondents discriminated against this juror on the grounds of gender. White male juror, Mr. Temple McCool, who also sat on Ray's 12-member jury, stated that his brother had been arrested previously. (R. 109) The Eleventh Circuit Court of Appeals has also held that the petitioner must show how his replacement juror would have voted. Gutierrez v. Quarterman, 2006 U.S. App. LEXIS 24032. Ray satisfied this aspect of his burden by presenting the statement of alternate juror Mr. Robert Jordan. The statement of Mr.____________ is part of the state court records that Respondents have thus far not disclosed. (Ray is providing a full copy of Mr. Jordan's letter with this filing). In the over six years that have passed since the conclusion of Ray's trial, the State waited over five years to claim that this much sought after list was destroyed before anyone ever had an opportunity to view it. Respondents’ actions amount to a fraud upon this Court, as well as, the State Court's of Alabama. See Gonzalez v. Crosby, supra; and Brown v. Head, 349 F. 3d at 1294 ("We will also assume for present purposes that fraud upon a state trial court may be treated as tantamount to fraud upon the federal court where, as here, some claim affected by or touching upon that fraud was presented to the federal court in the habeas petition that was denied.") This race discrimination by the Respondents infested Ray's entire trial and "casts doubt on the integrity of the judicial process and places the fairness of [Ray's] criminal process in doubt." Powers v. Ohio, 499 U.S. 460 (1991). No jury verdict founded upon such blatant racial discrimination should be able to stand and, for these reasons, any perceived procedural bars plead by the State should be excused and Ray's claims should be heard.
IV.
AMENDED CLAIMS
RAY'S FOUR (4) AMENDED CLAIMS WERE NEVER ADDRESSED
BY THE RESPONDENTS IN THEIR ANSWER TO THE PETITION, NOR WERE
THEY ADJUDICATED BY THE MAGISTRATE OR DISTRICT JUDGE IN THEIR ORDERS
On July 7, 2004, the Clerk of the District Court filed Ray's 2254 Habeas Corpus petition. (Doc. # 1) On July 19, 2004, before Respondents filed their ANSWER to the petition, Ray amended his petition by adding four additional claims. (See doc. # 3) Both the original petition and the amended claims were accepted by the District Court, and, on July 23, 2004, Hon. Magistrate Harwell G. Davis III issued a SHOW CAUSE ORDER upon the Respondents to answer both the original complaint and the four (4) amended claims. (See Order to Show Cause, doc. # 7)
On September 23, 2004, Respondents filed their answer to the original petition, but did not and have not answered any of the amended claims. The magistrate and District Court have issued rulings, but neither adjudicated the amended claims. Under Clisby and the Supreme Court authority cited therein, Ray is entitled to have these claims adjudicated on the merits and the District Court has abused its discretion as a matter of law in not doing so. Thus, granting of a COA is in order. This petition should also be remanded to address the following claims of the denial of Ray's constitutional rights:
CLAIM (4)
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENT AMENDMENT RIGHT
TO DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, AND HIS RIGHT
TO A FAIR AND IMPARTIAL JURY BY THE STATE'S USE OF ITS PEREMPTORY STRIKE AGAINST AFRICAN-AMERICAN JUROR RANDALL ASHFORD IN A RACIALLY DISCRIMINATORY MANNER
The full factual and evidentiary basis for this claim has already been stated in section 3, CLAIM 3, FRAUD, of this application. Additionally, this claim will again be argued in another section of this application because this claim is one of the claims that the district judge adjudicated on the merits. The sole difference being that Ray is raising this claim substantively here and not under the umbrella of ineffective assistance of counsel. See e.g. Eagle v. Linahan, 279 F. 3d 926, 938 (11th Cir. 2001)("Were he so inclined, Eagle could bring his Batson claim as a substantive claim and seek to overcome the procedural default by alleging that his appellate counsel's ineffectiveness satisfied the Wainwright cause and prejudice test.") Thus, Ray adopts by incorporation the factual and evidentiary basis of this claim here as if plead here in full. Ray further states that there remains no evidence in the record to show that Mr. Ashford has ever been arrested for any crime of any kind. Under these facts, Ray has made the requisite showing that he is entitled to the granting of a COA. See e.g., Miller-El v. Cockrell, 537 U.S. 322, 154 L. Ed. 2d 931, 123 S. Ct. 1029 (2003); Strauder v. West Virginia, 100 US 303, 25 L ed 664.
CLAIM (5)
PETITONER WAS FURTHER DENIED DUE PROCESS , A FAIR AND IMPARTIAL JURY AND EQUAL PROTECTION OF THE LAW, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT, WHENRESPONDENTS USE A PEREMPTORY STRIKE IN A RACIALLY (AND GENDER) DISCRIMINATORY MANNER TO EXCLUDE FEMALE AFRICAN-AMERICAN JUROR MS. VIVIAN JENNINGS JENNINGS
Ray's factual, legal and evidentiary basis for this claim, as well as Respondents' rebuttal contention that Ms. Jennings was excluded because her son had been previously arrested, have already been stated above in section 3, CLAIM 3, FRAUD. This claim will also be argued under the section of this application that deals with those claims addressed on the merits by the District Court. Thus Ray adopts those facts, evidence and legal authority here as if plead here in full. This claim, like claim four, is also being raised as a substantive claim.
Ray further adds that during voir dire Respondents became aware that the brother of white male juror Mr. Timothy McCool, who also sat on Ray's 12-member jury, had previously been arrested. See Voir Dire proceedings at R. 109) Yet, unlike Ms. Jennings, Mr. McCool was not removed by peremptory strike by the state prosecutor. Ray contends that this disparate treatment was discriminatory based on race and gender. These acts are proscribed by the Federal Constitution. See Batson, supra; J.E.B. v. Alabama ex rel, T.B. (1994) 511 U.S. 127, 128 Led. 2d 89, 114 S Ct 1419. When a citizen is deprived of a fair trial and due process of law by an impartial jury due to deliberate and purposeful racial discrimination by the State, the Federal Constitution demands that they receive a new trial. Ray has made a substantial showing of the denial of the constitutional right and that the district court's decision to not review this claim is debatable among jurists of reason, thus showing that a COA should issue.
CLAIM (6)
RAY WAS DENIED DUE PROCESS OF LAW, IN VIOLATION OF THE SIXTH
AND FOURTEENTH AMENDMENT, WHEN TRIAL COUNSEL DENIED RAY
OF HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF. See,
Godinex v. Moran, (1993) 509 U.S. 389; Strauder v. West Virginia, 100 US 303,
25 L ed 664, 483 U.S. 44 (1987)
The United States Supreme Court has held that the right of a defendant to testify in his own behalf is a right personal to the defendant and that no one, even trial counsel can deny his that right. See Faretta v California, 422 US 806, 836, 45 L Ed 2d 562, 95 S Ct 2525, and Rock v. Arkansas, supra, 483 U.S. at pg. 45:
The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that "are essential to due process of law in a fair adversary process." Faretta v California, 422 US 806, 819, n 15, 45 L Ed 2d 562, 95 S Ct 2525 (1975).
The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony:
"A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel." In re Oliver, 333 US 257, 273, 92 L Ed 682, 68 S Ct 499 (1948).
* * * *
Moreover, in Faretta v California, 422 US, at 819, 45 L Ed 2d 562, 95 S Ct 2525, the Court recognized that the Sixth Amendment "grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' "
Even more fundamental to a personal defense than the right of self-representation, which was found to be "necessarily implied by the structure of the Amendment," ibid., is an accused's right to present his own version of events in his own words. A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.
The High Court has had made it clear that this fundamental right "essential" to due process being afforded, cannot be taken away from the defendant. The record in this case, from trial, post-conviction and during the federal evidentiary hearing all show that Ray demanded of counsel that he be called as a witness to exercise his right to testify in his own behalf, and the record also shows that counsel refused to adhere to Ray's demand to be permitted to testify.
Trial counsel's affidavit from the post-conviction proceedings is entered in the record at P.C.R. 288. On page 4, in paragraphs 8 and 9, counsel relates that:
"He (Ray) wanted to testify,"
"He further wanted to testify," and
"Mr. Ray wanted to testify."
Counsel further states in Interrogatories submitted to him in a civil action, which were also made part of the post-conviction record, Petitioner's Exhibit YY, P.C.R. 400, that :
"He wanted to testify," and
Plaintiff (Ray) further wanted to testify."
And, during the federal evidentiary hearing, trial counsel testified under oath that Ray told him that he wanted to testify in his own behalf (See E.H. at ). Ray also reiterated at the evidentiary hearing that (1) he demanded to testify in his own behalf, and (2) that he never rescinded this demand. Counsel states in his affidavit that he "would not let" Ray exercise his constitutional right to testify in is own behalf.
The only issue in these proceedings has been exactly what Ray intended to testify to. Counsel has stated under oath initially that Ray did not inform of his alibi witnesses, but also testified under oath at Ray’s federal evidentiary hearing that Ray had informed him of his alibi and alibi witness, and that Ray wanted to testify to an alternative theory defense. Yet, the closing arguments of trial counsel shows that it was counsel who was arguing an alternative theory defense to the jury. See R. 653:
"Let me say to you in very simple, unequivocal terms that he did not do this. He did not do this. Fred Batts probably did and probably was involved in it, self-described muscle man."
According to trial counsel, the only person who could have established this "alternative theory" defense that counsel argued to the jury was Ray. But, as Ray has maintained throughout these proceedings, he never told counsel this. The record shows that Investigator Cook developed this theory in behalf of the State during his interrogation of the codefendant Fred Batts and that Fred Batts ultimately was impeached by this prior statement.. (See, R. R. 415-17; R-441-446; Ray ‘s testimony to these facts under oath at the federal evidentiary hearing was neither impeached, challenged, or disputed by Respondents). Batts gave the following testimony concerning this interview with Investigator Cook when being cross-examined by trial counsel:
R. 415-417:
BY MR. DAVIS: So, what he is saying to you right now. as you understood it, is if you say you killed him, you’re not going home and you will be arrested.
Is that what you understood him to mean?
A. Yes, sir.
Q. Whereas, the opposite, if you say you didn't kill him, you might go home that day?
A. Yes, sir.
Q. And as you were giving your answer, that's the understanding you had in mind that day, isn't it?
A. Yes, sir.
(whereupon, the video tape was played.)
* * * *
Q. BY MR. DAVIS: He is really pressing you for information on Melvin, isn't he? He is asking you about Melvin?
A. Yes, sir.
(whereupon, the video tape was played.)
Q. BY MR.DAVIS: At that point he suggested to you that you might have been helping to load the body up.
Did you hear him say that?
A. Yes, sir.
Q. And you had that assumption in mind as you went through the rest of this?
A. We talked about it.
Q. You heard him ask you if you loaded the body?
A. Yes, sir.
Q. And as you went through the rest of the tape, you had that in mind, didn't you?
A. Yes, sir.
* * * *
(R. 441-445):
Q. BY MR. DAVIS: Right there you said, "What if I say I helped him move the body. What is going to happen to me, though?"
A. Rewind it and let me make sure.
MR. DAVIS: Rewind it.
(whereupon, the video tape was played)
Q. BY MR. DAVIS: Did you hear what you just said?
A. I said, "What if I say I helped moved him."
Q. That's what you asked. And you said, "What is going to happen to me then?"
A. Yes, sir. I think so.
Q. You are asking what would the consequences be if that was your story?
A. Yes, sir.
Q. What the legal consequences would be?
A. Yes, sir.
Q. And you wanted to know if you traveled with that story, what good might happen for you?
A. I wanted to know if I helped move him, what would happen to me.
Q. Okay.
So, you wanted to know if that was your story, that you helped moved him, what you would get for that?
A. I wanted -- yeah, I wanted to know.
THE COURT: Were you through with your response.
THE WITNESS: I just wanted to know, if the only thing I did was helped move the body, what would happen to me. If I didn't commit the murder and moved the body, I wanted to know what would happen to me.
This was Batts' third story of that interview, and by the time of trial Batts had a entirely new story. This shows the progression from him going in with the intent to lie, to him saying that he just happened to walk into his fiancé’s' house and discovered a body, to the investigator providing Batts with the story of helping move the body and Batts giving it. Though these facts show just where this theory came from, it has no impact on the real issue, because nothing empowers counsel to ignore the demands of his client to testify in his own behalf. Rock, supra. Gallego v. United States, 174 F. 3d 1196 (11th Cir. 1996). The District Court abused its discretion by not adjudicating this claim and by not compelling the Respondents to reply to it. A COA should issue for these basis.
CLAIM (7)
RAY WAS DENIED HIS 14TH AMENDMENT RIGHT TO DUE PROCESS OF LAW
WHEN THE STATE FAILED TO DISCLOSE MATERIAL EVIDENCE AS REQUIRED
BY THE BRADY V. MARYLAND, 373 U.S. 83 CONCERNING WITNESS JOAN MOLOTSI
As stated in the ACTUAL INNOCENCE claim and CLAIM 20 of this petition, the factual basis, which are adopted by incorporation here, the state prosecutor alleged that Ms. Joan Molotsi was a "tipster" witness who had provided information that she saw "two black males" at the crime scene approximately sixty (60) to ninety (90) minutes after the crime was alleged to have been committed. Ms. Molotsi was called to testify that she identified petitioner as one of the two black males, and that he was carrying "something large" with the aid of a "tall guy”, that was large enough to be a human body.
The State did not disclose this witness's identity, name or address prior to trial. The withholding of this information, in light of the materiality of her testimony and the facts and evidence as stated in petitioner's ACTUAL INNOCENCE claim, which shows that Molotsi's testimony is unreliable if not outright false, denied Ray of his federally protected right to confrontation, right to prepare a defense, and right to a fair trial and due process of law. The testimony of this witness is material because it was the only evidence aside from the codefendant that purports to place Ray at the scene of the crime -- even though she testified that this was approximately sixty -(60) to -ninety (90) minutes after the crime was alleged to have been committed. Rovario v. United States, 353 U.S. 53, 77 S Ct 623, 1 L.Ed.2d 639 (1957):
A further limitation on the applicability of the privilege [of the government to withhold the identity of a confidential witness] arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
The District Court, in adopting the magistrate judge's report and recommendation ("R & R") as to CLAIM 14 of the petition, has already made a finding that the evidence petitioner uncovered since trial concerning this witness impeaches -- at the least -- her at trial. (See R & R at page 31-32)("In addition, even assuming that, had trial counsel performed the investigation which petitioner alleges he should have, it would have served only to impeach Molotsi.") This impeachment evidence was only made possible after her identity was revealed at trial. So this testimony was shown to be material at trial, and Ray's post-trial discoveries show that, had it been disclosed prior to trial, it would have lead to this impeaching evidence and possible rendered her incompetent as a witness because it shows that her testimony was impossible. United States v. Valdez, 453 F.3d 252 (5th Cir. 2006)("Testimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature.") United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). Ray was, therefore, prejudiced by the State's non-disclosure. The district court abused its discretion by not adjudicating this claim and by not compelling the Respondents to reply to it. A COA should issue for these basis.
V.
MIXED-PETITION
THE DISTRICT COURT'S RULING DEPRIVED ITSELF OF JURISDICTION
OR ALTERNATIVELY, ITS RULING RENDERED THE PETITION A
"MIXED-PETITION" THAT PETITIONER SHOULD HAVE BEEN ALLOWED
TO AMEND OR HAD HIS CLAIMS ADJUDICATED ONTHE MERITS
CLAIM (8)
The Respondents raised the defense to the petition that some of the claims were either procedurally defaulted or never exhausted in State Court. (See RESPONDENTS' ANSWER, doc. # 12 at page 10) In addition to these grounds, the magistrate judge sua sponte found that Ray had not presented the "exact" claim in State Court, with respect to some of his claims, (See REPORT AND RECOMMENDATION, at pages 16 and 17:
"Certain claims raised by the petitioner were either not raised in state court at all or were not raised before the Alabama Court of Criminal Appeals. These claims are listed above as (2)(A), (5)(B), (10) through (13), (15), (17) through (23), (25) through (27), (29), (30)(B)(32) through (37) and (40) through (47). Some of the above-listed claims may be somewhat similar to claims raised and exhausted in state court proceedings, but they are not the exact claims raised in the state court.
* * * *
"Because these claims either never were raised or abandoned on appeal to the Alabama Court of Criminal Appeals during the Rule 32 proceedings, they are procedurally barred from consideration here and do not merit further discussion."
The District Court judge (and the Respondents) enumerated many claims that it found that are barred and raised these contentions under three separate procedural grounds, without distinguishing which of these claims it deemed were 'never raised" from those it deemed had "not been raised before the Alabama Court of Criminal Appeals." Nor did the district judge distinguish which among those claims "are not the exact claims raised in state court." Thus Ray does not know which legal premise applies to which claim, nor does he know under which theory -- i.e., different claim, new argument, new evidence, relying on different constitutional clause -- that the district judge found his claim to not be the exact claim as presented in State Court.
The District Court's ruling effectively renders this petition a "mixed petition." This standard invokes certain duties upon the district court that have not been implemented here. See 28 U.S.C. section 2254(b)(2), and Rose v. Lundy, (1982) 455 U.S. 509, 510:
Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.
Under this standard, the District Court must either:
(1) afford Ray an opportunity to delete any unexhausted claims, without prejudice to exhaust in state court those claims that can be exhausted, or
(2) these claims must be reviewed on the merits. See Section 2254(b)(2): "(2).
An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." Ray cannot effectively argue the otherwise factual basis of the District Court's rulings because the court does not identify which claims are procedurally barred or for which specific procedural ground. For example, Ray cannot attempt to refute the fact that one of his claims is not the "exact claim" because he has changed the evidence in support of that claim, because the District Court did not state which claim it considered to not be the exact for this (or any of the other reasons) reason.
Further complicating the district judges "exact claim" finding is the recent Supreme Court decision in Miller-El v. Drake, II, 545 U.S. --(2005), where the Court stated in footnote 2 of this Opinion that it had not reached a decision "about whether the limitation on evidence in section 2254(d)(2) is waivable when a claim is presumably altered, where the claim was 'fairly presented' to a state court." The Supreme Court apparently acknowledged a burden upon the Respondents -- not the district court -- to raise this defense, which the Respondents have not done in these habeas proceedings. Under the Supreme Court's rationale, the finding by the district judge that Ray has presented "similar" claims in state court may well have satisfied the "fairly presented" standard of the Supreme Court.
For the reasons stated, this petition deserves further proceedings and the granting of a COA so that Ray's claims can be reviewed under the proper standard and a determination can be made as to whether an evidentiary hearing is warranted to resolve any potential material issues of fact that may develop when the State is held to their obligation of providing a thorough discussion of all the efforts of exhaustion made by Ray, and when the District Court issued specific findings as they relate to specific issues.
VI.
BRADY CLAIMS
RAY'S BRADY CLAIMS WERE ERRONEOUSLY DENIED ON PROCEDURAL
GROUNDS, CONTRARY TO SUPREME COURT PRECEDENT, WITHOUT
ADJUDICATION ON THE MERITS AND THE QUESTION OF MAETRIALITY
OF THE EVIDENCE OR THE PROSECUTOR'S MISCONDUCT
The District Court applied an incorrect legal standard to Ray's Brady v Maryland (1963) 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 claims, where Ray was alleging that the state prosecutor had withheld material, exculpatory evidence. The magistrate denied these claims on exhaustion grounds, but without reviewing the question of materiality of the evidence or the prosecutor's misconduct. See e.g., Strickler v Greene, 527 US 263, 281-282, 144 L Ed 2d 286, 119 S Ct 1936 (1999); and Banks v. Dretke, (2004) 540 U.S. 668, 691, 157 L. Ed. 2d 1166, 1190:
"[C] ause and prejudice" in this case "parallel two of the three components of the alleged Brady violation itself." Id., at 282, 144 L Ed 2d 286, 119 S Ct 1936. Corresponding to the second Brady component (evidence suppressed by the State), a petitioner shows "cause" when the reason for his failure to develop facts in state-court proceedings was the State's suppression of the relevant evidence; coincident with the third Brady component (prejudice), prejudice within the compass of the "cause and prejudice" requirement exists when the suppressed evidence is "material" for Brady purposes. 527 US, at 282, 144 L Ed 2d 286, 119 S Ct 1936. As to the first Brady component (evidence favorable to the accused), beyond genuine debate, the suppressed evidence relevant here, Farr's paid informant status, qualifies as evidence advantageous to Banks. See App. to Pet. for Cert. A26 (Court of Appeals' recognition that "Farr's being a paid informant would certainly be favorable to Banks in attacking Farr's testimony"). Thus, if Banks succeeds in demonstrating "cause and prejudice," he will at the same time succeed in establishing the elements of his Farr Brady death penalty due process claim.
The above-stated standard reflects the fact that a petitioner presenting a Brady claim should receive review of that claim under the materiality standard because satisfaction of that standard also satisfies the "cause and prejudice" standard of the court to overcome a procedural bar. Banks, supra, at 1190: " 'Thus, if Banks succeeds in demonstrating 'cause and prejudice,' he will at the same time succeed in establishing the elements of his Farr Brady death penalty due process claim.' "(quotations in original) also see Crawford v. Head, 311 F.3d 1288 (11th Cir 2002). The District Court applied an incorrect legal standard to petitioner’s claims and its judgment is due to be set aside. Pullman Standard v. Swift, 456 U.S. 273; Murray v. Carrier, 477 U.S. 478, 91 L.Ed. 2d 397 (1986).
[W] e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel, see Reed v Ross, 468 US, at 16, 82 L Ed 2d 1, 104 S Ct 2901, or that "some interference by officials," Brown v Allen, 344 US 443, 486, 97 L Ed 469, 73 S Ct 397 (1953), made compliance impracticable, would constitute cause under this standard. (emphasis added).
A COA should issue on this procedural question and on the merits of these claims. An evidentiary hearing should also be held to resolve the genuine issues of facts that remain, as the state has withheld numerous pieces of material and exculpatory evidence. Kyles v. Whitley, (1995) 514 US 419, 131 L.Ed.2d 490, 115 S Ct 1555:
"On habeas review, we follow the established rule that the state's obligation under Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention."
CLAIM 9
THE STATE WITHHELD A BALLISTICS REPORT SHOWING THAT
THE DECEASED WAS SHOT WITH A .380-auto CALIBER WEAPON,
CONTRARY TO THE TESTMONY OF THEIR WITNESS AT TRIAL, FRED
BATTS, WHO TESTIFIED THAT HE SAW THE PETITIONER SHOT THE
DECEASED WITH A 9MM
State witness Fred Batts, who was also the codefendant, testified at trial that he saw Ray shot the deceased with a 9mm handgun (R. 311-312; 332-333). Batts testified that this 9mm and a 357 magnum was kept at his fiancé’s house and that, after Ray shot the deceased with the 9mm, Ray placed it into a broke-down vehicle parked at Batts' fiancé’s' (R. 317). Batts then testified that Ray came back to his fiancé’s' residence to retrieve these two guns:
R. 332-33:
Q. What happened as far as you and Melvin leaving?
A. He went and got his stuff because I don't guess he expected to come back over there, so he wanted to get his stuff. He got the gun from out of the Mustang.
Q. When you said earlier -- when you said some of his property, did you mean another gun?
Mr. Davis: Same objection.
Q. By Mr. Broussard (prosecutor): Well, what property are you talking about?
A. Two guns. A .357 and a 9-millimeter.
Mr. Davis: Same objection.
Mr. Broussard: That's a simple question if he is talking about the same gun he killed Andre with.
Mr. Davis: Mr. Broussard is testifying more than Mr. Batts.
The Court: He has talked about the guns a number of times. We have that point.
Q. By Mr. Broussard: You are talking a total of two guns?
A. Yes, sir.
The state beleaguered the point of their being two guns, a .357 and 9mm, to the extent that even the trial court was compelled to press the prosecutor to move on with its questioning of the witness. Additionally, the forensic pathologist, Dr. J.C. Upshaw Downs(R. 378-79), and the crime scene investigator Sgt. Charles Berry (R. 532-533), were both examined by trial counsel about a 9mm and .357, and what type of damage would occur from being shot with a 9mm. During these examinations, however, and unbeknownst to Ray or his trial counsel, the prosecutor was withholding a scientific ballistics report that showed that the deceased had been shot with a .380-auto caliber weapon. (See Ballistics Report as Exhibit B, P.C.R. 161)
Trial counsel made responses to interrogatories in a civil action brought against him by Ray that indicates that this report was never disclosed. This action addressed counsel's representation and the fact that counsel had not conducted any type of pre-trial investigation in the case, including the fact that counsel had not discovered the ballistics report. In his response to the interrogatories counsel stated, among other things, that he had no recollection of receiving the ballistics report:
Exhibit YY, (P.C.R 400-413):
INTERROGATORY 9: State whether Mr. Davis had received notice and/or a copy of the ballistics report which lists the projectile allegedly recovered in plaintiff's criminal case as a .380. If yes, by whom and when?
RESPONSE 9: Subject to the foregoing objections, Defendants state that he received both autopsy reports and accompanying document. Defendants reviewed the first autopsy reports upon initial receipt of discovery from the state. Defendant does not have any independent recollection of the specific date that the discovery was received from the state. Defendant received and reviewed the second report in the fall of 2000. Although a ballistics report may have been attached to either of the autopsy reports, Defendant does not have any independent recollection of receiving a ballistics report from the state.
* * * * * *
INTERROGATORY 14: State why Artur G. Davis failed to submit the ballistics report as listed in the complaint.
RESPONSE 14: Subject to the foregoing objections, Defendant does not have any independent recollection of a ballistics report. If a ballistics report was prepared by the State, the State would have entered the report into evidence.
The state prosecutor contends, contrary to trial counsel that he did send a copy of the ballistics report to counsel prior to trial. See Affidavit of Assistant District Attorney Robert L. Broussard, State's EXHIBIT 3, P.C.R. 291:
"The trial in this matter was commenced on January 22, 2001. All discoverable material was presented to the defense before trial. This office received a ballistics report from Department of Forensic Sciences in either late December or early January. This was also forwarded to the defense prior to trial."
But Ray’s Exhibit D, P.C.R. 163, which is a copy of the cover-letter for the ballistics repost, belies the prosecutor's affidavit and shows that the Alabama Department of Forensic Sciences did not mail out its copy of the report to the state prosecutor until Friday, January 19, 2001 (late January), which was just three (3) days outside of trial. This first-class mail could not have been delivered to the district attorney's office until no earlier that the following Monday (January 22, 2001) evening, the day trial began. And, since trial began at 9 a.m., the district attorney could not have received this report until later that evening -- after trial had begun. Under these circumstances, not only would the prosecutor have had to disclose the evidence to Ray, but he also would have had to "promptly notify the trial court." See rule 16.3. Continuing Duty to Disclose:
If prior to or during trial a party discovers additional evidence or decides to use additional evidence, which evidence has been subject to discovery under this rule, that party shall promptly notify the court and the opposing party of the existence of the additional evidence."
There is nothing in the record to support the State's assertion that it complied with Rule 16.3. To the contrary, the record reflects a pattern of non-disclosure of material evidence by the prosecutor. This report undermines and impeaches the testimony of Batts, who falsely accused Ray and falsely attempted to put a murder weapon into Ray's hands. Due to the materiality and impeaching nature of the report and the material nature of Batts' testimony, this report should have been disclosed. Brady, supra. Also see Miller v Pate, 386 US 1, 17 L Ed 2d 690, 87 S Ct 785 (1967), a case on point involving deception by the state in the use of evidence, where the Court held that a state prisoner was entitled to federal habeas relief upon a showing that a pair of stained under shorts, allegedly belonging to the prisoner and repeatedly described by the State during trial as stained with blood, was in fact stained with paint. In the course of its opinion, the Court said:
More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v Holohan, 294 US 103, 79 L ed 791, 55 S Ct 340, 98 ALR 406. There has been no deviation from that established principle. Napue v Illinois, 360 US 264, 3 L ed 2d 1217, 79 S Ct 1173; Pyle v Kansas, 317 US 213, 87 L ed 214, 63 S Ct 177; cf. Alcorta v Texas, 355 US 28, 2 L ed 2d 9, 78 S Ct 103. There can be no retreat from that principle here.
Ray also cited the Court to the cogent authority on this issue from a case on point from the United States Court of Appeals for the Fourth Circuit, Barbee v. Warden, Maryland Penn., 331 F. 2d 842 (4th Cir. 1964). Defendant Barbee had been convicted at trial based on evidence presented by the State that .32 caliber weapon that was recovered from Barbee during a traffic-stop by police looked similar to the one used to shoot the victim in that case, who was a police officer. But, just as in this case, the State withheld a ballistics report that had been generated by the State forensics agency that showed that the gun used to shoot the projectile recovered in that case was actually fired from a .38 caliber weapon.
The Circuit Court of Appeals found the evidence to be material and that the state had deliberately misrepresented the facts at trial, while knowing that contrary facts existed. The Court held that the misrepresentation denied Barbee of the guarantees of the United States Constitution. Ray, in contrast, has not been afforded a hearing to resolve the two material issues that surround this claim: (1) was the evidence suppressed, and (2) whether the evidence is material and, if it is and was not disclosed, did it deny Ray of a fair trial and due process of law. The district court abused it discretion in not resolving these issues and this Court should issue a COA for this claim.
CLAIM 10
THE STATE FAILED TO DISCLOSE THE FULL TERMS OF THE DEALS IT
REACHED WITH IT WITNESSES, INCLUDING ITS DEAL TO NOLLE PROS
THE CASE AGAINST RAY'S CODEFENDANT IN EXCHANGE FOR HIS
TESTIMONY AGAINST RAY
In Davis v Alaska, 415 US 308, 315-316, 39 L Ed 2d 347, 94 S Ct 1105 (1974) the Supreme Court held that criminal defendants have the right to know the "full terms' of any deal that the State has with it witnesses in exchange for their testimony. In this case the State not only failed to disclose the full terms of the deals it had with Fred Batts and Gene Walker, just two of the three witnesses it had deals with, but the State knowingly allowed all three of these witnesses to falsely deny the existence of their deals and failed to correct this false testimony. See also, Kyles v. Whitley, (1995) 514 US 419, 131 L.Ed.2d 490, 115 S Ct 1555:
"On habeas review, we follow the established rule that the state's obligation under Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention."
FRED BATTS (co-defendant R.394-504):
Ray's co-defendant reached a deal with the State approximately two (2) weeks before trial to testify against Ray. (R. 453-54). During this interval, the State did not disclose this agreement to Ray or his trial counsel, leaving Ray and counsel unprepared for this testimony. Instead, Ray and trial counsel learned of this deal on the day of trial when the prosecutor was telling the jury during voir dire proceedings that it had reached this deal with the codefendant. (R. 120; 200) Yet Batts repeatedly and continuously denied the existence of this deal throughout his testimony. (See full rendition of facts in Section I. Actual Innocence, ante). Even with its acknowledgement of their existence of this deal to the jury, the State never disclosed the terms of this deal. Ray did not learn of these terms until well after trial, which called for Batts to have his case Nolle Prossed in exchange for his testimony. These terms were spelled out in a Motion to Nolle Pros (See Motion to Nolle Pros as Petitioner’s Exhibit L, P.C.R. 177) filed by the State:
Comes now the State of Alabama by and through its Deputy District Attorney, and moves this Court to enter its Order to Nolle Prosse (sic) in the above styled cause, and assigns as grounds therefore as follows:
1. For the defendant's substantial assistance rendered in the form of testimony against the co-defendant and his future assistance should that be necessary, the State elects not to prosecute at this time.
Neither Ray, his trial attorney, the trial court, nor the jury were ever informed that this witness would have a pending murder indictment dismissed against him in exchange for his testimony. Ray was only able to uncover this evidence by having to send his family to inspect the files of Mr. Batts under Alabama' public records laws. The State never disclosed this information!
STATE-WITNESS KENNETH FRIEND (564-578)
The testimony of this witness and the circumstances surrounding his testimony establishes beyond any doubt that the State's prosecutor was knowingly allowing witnesses to give false testimony. Friend was apparently called by Respondents to give testimony incriminating of Ray. But before this witness could give his testimony he was excluded for giving perjured testimony by denying that he too was testifying pursuant to a deal with the State. Friend was testifying pursuant to a deal that called for two pending drug charges to be dismissed against him in exchange for his testimony. However, Friend, just like Batts earlier, completely denied any deal with the State in and the prosecutor did not correct this false testimony:
(R. 566):
Q. (by prosecutor) Okay.
Are you here today just because you are a good citizen?
A. Yes, sir.
Q. Okay. Let me ask you this.
Are you also here because you hope to get a benefit for your testimony with any pending charges you might have?
A. No, sir.
Q. You're not even looking to get a benefit from me?
A. No, sir.
Q. All right.
What were the pending charges you had?
A. Possession of cocaine and marijuana.
Q. All right.
And what happened to those charges?
A. I still got them.
Q. Okay.
But you understand that they were nolle prossed?
A. Yeah, two of my cases were nolle prossed.
Q. Who did you think nolle prossed those?
A. I don't know.
Q. Do you have a guess?
A. The system, I guess. I don't know.
Q. Do you think it might have been me?
A. I don't know who done it.
Q. What is your understanding about you possibly having to fact those charges again?
A. I got to fact them.
Q. Okay.
Tell me this, do you think b coming here and testifying, do you think it might help you in the future on those charges?
A. No, sir.
Q. Okay. Let me ask you this.
Do you know the fellow seated over there (indicating)?
MR. DAVIS: Your Honor, I ask to approach at this point.
Only at the point of counsel's objection did this mockery of justice end. All of this testimony was false and counsel, having been informed that this witness had a deal in exchange for his testimony, had to object to stop this knowingly false testimony from continuing. During the course of a hearing outside the presence of the jury, the prosecutor had to admit that its witness was giving false testimony. (R. 570):
MR. BROUSSARD: Judge, let me say this. I do not recall telling defense counsel -- I do recall telling him I had nolle prossed the charges, but I don't recall saying that was a permanent deal. But I agree with defense counsel whether this witness is confused or whether he is -- or whatever it may be -- that so far his testimony is not -- is not my agreement with him.
The jury, on the other hand, was never informed that this witness had lied to them. And, when trial counsel moved to have the jury informed, the prosecutor moved to have this known liar reinstated as a witness (R. 574):
MR. BROUSSARD: Judge, I thing we will just withdraw this witness.
MR. DAVIS: And I ask this jury be instructed that this witness was withdrawn because he lied.
MR. BROUSSARD: In that case, then, we do not withdraw that witness.
Thus, the predicament for Ray was compromised on whether the jury should know that a witness was lying to it all within the knowledge of the prosecutor, against Ray seeking a fair trial whereby Ray was trying to keep a known liar from lying further to the jury about whatever he intended to testify to. (In the case of Batts, the lies made it through)
STATE-WITNESS GENE WALKER (R. 578-614)
The third witness testifying for the State and who denied having a deal in exchange for his testimony on direct-examination by the State was Gene Walker, a Federal prisoner housed in South Carolina at the time of trial.
(R. 580-81):
Q. All right let me ask you this, Mr. Walker. What -- is there any specific agreement between me and you of what you might get out of your testimony here?
A. No, sir.
Walker, who was also a federal drug informant, was called to testify that, approximately three weeks after Horton's March 26, 1999, death, Ray told him that he had to "body Dre"(R. 594) -- which Walker testified that he understood as a confession. Walker did not come forward with this evidence until November 2000, however, some 18 months after the statements were allegedly made and that he had been a federal drug informant for 11 of these 18 months (R. 599). Walker also testified on cross-examination that when he came forward with his evidence in this case, he had only one (1) month left on his informant status that would allow him to receive a time reduction for any information he might have and that, because he had ran out of drug cases to inform on, he was looking for some other type of case that would bring him a time cut:
R. 606-608:
Q. . . . Now, you don't have any more drug cases out there that you can provide information about, do you, Mr. Walker?
A. I have no more pending charges.
Q. Listen to what I asked you.
Do you know of any drug cases out there that you could provide information to get a time cut?
A. No, sir.
Q. So, the only was you can get a time cut is if you found some other kind of case to talk about; is that right?
A. No, sir.
Q. Well, I ask you again. Are there any drug cases that you know of that you could talk about?
A. No, sir.
Q. So, therefore, if you wanted to provide information, you had to find some other kind of case, some kind of case that was not a drug case.
Do you agree with that, Mr. Walker?
A. No, sir.
Q. Well, tell me how you would get a time cut without providing information in a case?
A. Somebody may catch a case that I had dealing with in the past.
Q. And that's kind of what you contend happened here?
A. Excuse me?
Q. That's what you contend happened here, a case came up and you know something about it and you were looking to testify in that kind of a case, weren't you?
That's all I am asking?
A. Looking to testify, yes, sir.
Q. You were looking to testify. You were looking to testify. You were looking to do whatever would help you get a Rule 35; is that right?
A. Yes, sir.
In the end, Ray has been able to obtain a copy of a Downward Departure Motion that was filed for Walker, in which Walker received an 18-month reduction in sentence in exchange for his testimony against Ray. See Ray's Exhibits X and Y, P.C.R. 206-210.
Ray's Fourteenth Amendment rights to due process of law and a fair trial were eroded by these witnesses' false testimony, which was knowingly permitted and suborned by the State's prosecutor. Ray was unable to overcome the impact of this prejudice because Respondents failed to disclose the terms of these deal in advance of trial. Thus resulting in a miscarriage of justice. See e.g., Majoy v. Roe, 296 F. 3d 770 (9th Cir. 2002) Though these witnesses were impeached in certain other respects, it is an entirely different matter for a jury to know that witnesses of already impeachable past-character have now lied under oath before them. A jury inclined to forgive for past indiscretion may not be so inclined once they learn that a witness is now lying in the present. In Alabama, impeachment affects credibility, while perjury affects competency as a witness.
Even as late as sentencing, trial counsel still did not know that Batts was to have his case nolle prossed in exchange for his testimony:
Sentencing Hearing, page 11: "I don't know what sentence or exactly what the nature of the State's deal was with Mr. Batts, but its very clear from his testimony that he was certainly involved at least as at an accessory level."
Happenstance alone cannot account for the fact that three witnesses all committed perjury concerning the same fact -- they all denied having a deal with the State. Ray cannot ever receive due process of law until the State prosecutor is called into court and confronted about the actions or inactions on the part of his witnesses and himself when these witnesses committed perjury. A COA should issue on this claim and Ray should receive an evidentiary hearing to prove that he has been denied a fundamentally fair trial whose result can not be trusted.
CLAIM 11
THE STATE IS WITHHOLDING EXCULPATORY GRAND JURY MINUTES
OR TRANSCRIPTS, WHERE THE SAME WITNESSES ARE LISTED AS
HAVING TESTIFIED BEFORE TWO DIFFERENT GRAND JURIES THAT
PRODUCED TWO DIFFERENT INDICTMENTS, WHICH CHARGED TWO
DIFFERENT CAUSES OF DEATH
Ray was indicted by two different grand juries that reached opposing results concerning their charge as to what was the cause of death in this case. However, the witness lists attached to both of these indictments list the same witness as giving testimony and evidence before both grand juries -- both under oath. The witness list from Grand Jury 555, (clerk's Record from Trial CR. 04-07), which found asphyxia as the cause of death, and from Grand Jury 225 A (Clerk's Record from Trial CR. 40-43), which lists gunshot as the cause of death, both list the following persons as the witnesses:
1. Investigator Brant Patterson
2. Lt. Blake Dorning
3. Investigator Jim Cook
4. Investigator Charles Berry
5. Ms. Mary Holt, Forensic Scientist
6. Ms. Perrion Roberts
7. Ms. Carmen Green
8. Deputy Jeff Malone
9. Dr. Stephen M. Pustilnik, M.D.
As already stated, the first grand jury found asphyxia as the cause of death, while the second grand jury found gunshot as the cause of death. Additionally, the listed forensic pathologist for both grand juries, Dr. Pustilnik, concluded (and reaffirmed for these post-conviction proceedings in the attached e-mail) that he still stands by his findings of asphyxia as the cause of death. Also, contrary to the witness lists, the State has erroneously plead that Dr. Downs, the doctor who conducted the second autopsy and who concluded that gunshot was the case of death, testified before the second grand jury in December 2000 -- even though the second report was not completed until January 2001:
See Respondents Rule 32 Post-conviction Appellee Brief, Respondents' Exhibit 8, page 25:
"It is not possible to know exactly what went on in the grand jury proceedings. It is possible, however, to safely assume that the first grand jury heard from the first pathologist, either through testimony or a report, and that the second grand jury heard from the second pathologist."
The assumption that the Respondents pressed the Court to make: "the second grand jury heard from the second pathologist,” is untenable, because the record squarely contradicts it. Nowhere on either grand jury witness list does the name of the second pathologist appear. The second proposition pressed by the Respondents, that it is "impossible to know exactly what went on in the grand jury proceedings," only highlights why the District Court abused its discretion by denying Ray discovery of the records the grand jury proceedings. As stated by the Eleventh Circuit in Miller v. Wainwright, 798 F.2d 426, 430 (11th Cir. 1996):
The state argues that a defendant has to establish what is in the grand jury testimony to avoid the rule that such testimony will not be revealed on pure speculation. That sets too high a threshold, however, when it appears clear that the testimony, under oath, is bound to differ from other testimony, given under oath. Dennis, 384 U.S. at 872-74; Procter & Gamble, 356 U.S. at 683; State of Wisconsin v. Schaffer, 565 F.2d 961, 966 (7th Cir. 1977). Since the Court knows of two different versions under oath, it is quite apparent that the grand jury testimony cannot agree with both. This takes away the speculation as to the possible usefulness of the grand jury testimony. To ultimately decide the merits of the defendant's request, it is incumbent upon some court to review the grand jury testimony of the three testifying eyewitnesses to determine if the defendant has the particularized need sufficient to overcome the need for secrecy. Since neither the state nor federal court has reviewed this evidence, the case must be remanded to the district court to consider the claim involving the grand jury testimony under the correct standard.
Ray avers that he has shown good cause for discovery in this case because, among other facts, Dr. Pustilnik, who is listed as the pathologist who testified before both grand juries has stated in his e-mail communications that he told the prosecutor that, if he were summoned to trial, he would still testify that asphyxia and not gunshot was the cause of death (See e-mail, supra). The grand jury records have never been inspected, even though Ray has filed numerous discovery motions in both State and Federal Court. The District Court abused its discretion by denying this claim without ordering discovery to review the grand jury records. This court should grant a COA and an evidentiary hearing.
CLAIM 12
THE STATE IS WITHHOLDING THE IDENTITY OF AN ALLEGED CONFIDENTIAL
SOURCE WHO SUPPOSEDLY PROVIDED INFORMATION ABOUT THE DECEASED
BEING SHOT, WHICH CAUSED A SECOND AUTOPSY TO BE PERFORMED AND
RESULTED IN THE CONCLUSION THAT GUNSHOT WAS THE CAUSE OF DEATH
Ray was initially indicted for murder by asphyxiation; was arraigned; and plead not guilty to this charge on or about June 26, 2000. (See Arraignment R. 07) On this same day, Respondents filed a motion to exhume the body of the deceased (See Motion to Exhume, Trial Clerk's Record "CR" at CR. 18), contending therein that they had received confidential information that the deceased had been shot -- not asphyxiated. (id) It has never been disclosed from whom or where this information came, despite Ray having made numerous requests in both State and Federal Court.
At one point during Ray's trial, the prosecutor attempted to attribute this information to Ray's codefendant, Fred Batts. (R. 677) However, trial counsel objected to this and the objection was sustained, because Batts testified at trial that, aside from his initial statement to police upon his arrest in March 1999 (which did not include any mention whatsoever of gunshot), he did not have any future contact with the State until approximately two weeks before the start of trial in January 2001:
Trial Record at 453:
Q. When did you first sit down -- not talking about the video tape we just saw, putting that aside, when did you next sit down to talk to the D.A.'s office and the investigators about the facts or what you contend are the facts of March 26?
A. About two weeks -- a week or two -- about two weeks.
Q. About two weeks?
A. Yes, sir.
Q. So, between March of 1999 and today, you have had interaction with the folks on the -- from the D.A.'s office and with the sheriff's department and that would have been about two weeks ago?
A. Yes, sir.
Trial counsel made explicit affirmations on the record that the state prosecutor had told him that Batts was the source of this information:
R. 687:
MR. DAVIS: Your Honor, I want to elaborate and expand on the objection I made in closing argument.
At one point, Mr. Broussard stated to the jury or suggested to the jury that the reason a second autopsy was done was because Fred Batts provided the State information about the gunshot wound. That evidence was never put before the jury factually.
What occurred, according to defense counsel's understanding is that Mr. Lampley, Mr. Batts' lawyer, made a proffer to Mr. Broussard and that proffer was part of the reason why the autopsy was done. Not disputing that occurred but that evidence was never put before this jury.
It's an important piece of evidence. It's corroborative of Mr. Batts, but it was never put before the jury. Indeed, the contrary. Evidence was suggested that Mr. Batts testified on direct and cross-examination that his corroboration phase began several weeks ago, and he testified his first meeting with the district attorney's office happened several weeks ago. That's what he testified to on direct and cross.
Thus the codefendant, according to his testimony, did not allege that Ray had shot the deceased until over twenty (20) months after having already given four prior statements -- none of which so much as mentions anything about a gun, gunshot or Ray shooting anyone -- which was also seven months after whomever provided this information, as well as ... coincidentally ... just a few days after the second autopsy was completed. It is obvious that, as the information changed, so did the testimony of the codefendant. Contrary to their position prior to and during trial, the Respondents no longer contend that Batts provided them with this information. In their Appellee's Brief on Direct Appeal from the Rule 32 post-conviction petition (Respondents' Exhibit 8, page 24), the Respondents now contend that this information came "from the street":
"The law enforcement officials related that they were receiving information from the street contradicting the original autopsy conclusion that Horton had been asphyxiated. [] They did not specify whom the information came from. [] They did not have to."
The State is taking inconsistent positions from Court to Court as to how this information came about. The Respondents were able to convince the Circuit Court in Alabama to grant their motion to exhume by contending that the information came from the codefendant. Then, when this was proven false at trial and Ray sought the identity of whomever this information came from, they were able to convince that same Court in post-conviction proceedings to deny Ray's Brady and misconduct claims on an entirely different theory. See, Kahn v. Hakim, 2006 U.S. App. LEXIS 25314:
The doctrine of judicial estoppel" protect[s] the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (internal quotations marks and citations omitted). See also United States v. McCaskey, 9 F.3d 368, 379 (5th Cir. 1993). Judicial estoppel prevents a party from "playing fast and loose" with the courts, Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir. 1996) (quotation omitted), and the decision to invoke it is within the discretion of the district court. Ahrens v. Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir. 1999). This court has found that the application of judicial estoppel is warranted when (1) the party's position is clearly inconsistent with his earlier position; and (2) the party has convinced a court to adopt the position urged, either preliminarily or as part of a final disposition. Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 206 (5th Cir. 1999).
Dr. Pustlinik stated in his e-mail communications that the prosecutor had told him that the codefendant provided this information. (See e-mail, supra). As some point, the identity of the person or persons who provided this information must be made known because, the State's theory from trial is that Ray and Batts acted alone. These "people from the street” have played an essential role in this case, as their information was used to impeach the findings of a grand jury indictment and all nine (9) of its witnesses and used to provide cause for a second autopsy whose findings remain in dispute between the two doctors. The source of this information may very well be able to shed light on whom the .380-auto belonged to and who fired it to kill Mr. Horton. These people may also have information relative to the .380-auto and the nylon pistol holster that was found inside a garbage-can at Batts' fiancé’s' residence. (See Inventory List, Ray's Exhibit O, P.C.R. 197). Ray's right to due process of law will continue to be violated and his ability to prove his innocence will be hampered if this witness (s) is not disclosed. Roviaro v. United States, (1957) 353 U.S. 53, 77 S Ct 623, 1 L. Ed. 2d 639; Ex parte State of Alabama, 420 So. 2d 798 (Ala. 1982). A COA should issue and this petition should be remanded for an evidentiary hearing, because the District Court abused its discretion by not addressing the merits of this claim and by not ordering discovery.
CLAIM 13
THE STATE FAILED TO DISCLOSE THE MENTAL HEALTH RECORDS
OF THE CO-DEFENDANT, FRED BATTS, WHERE THESE RECORDS
BEAR ON BOTH HIS CREDIBILTIY AND COMPETENCE
Ray's conviction rests primarily upon the testimony of a witness with a mental health history spanning over 20 years: Fred L. Batts. However, the Respondents have failed and refuse to disclose any of this witness' medical records, which reflect not only on the credibility of this witness, but also on the competency of Batts as a witness. See, for example, Carriger v. Stewart, 132 F. 3d 463, where that Court found a Brady violation for the failure of the state to disclose the mental health and prison records of a mentally-ill witness who had, among other things, a good reason to lie is not wanting to own responsibility for what one has done. Compare with the trial record as cited above at:
Trial Record at R. 484-486:
Q. Do you think there are good reasons to lie sometimes, Mr. Batts?
A. No, sir.
Q. But, yet, you have lied?
A. Yes, sir.
* * * *
Q. Another reason people have for lying is just not wanting to own up to responsibility for what they have done, isn't it?
A. I guess.
Q. And that's been one of your reasons for lying about this so much, hasn't it?
A. To an extent.
Ray is entitled to discovery of these records to assess the mental competency of Batts to determine whether there is a need to request appointment of a psychological expert to assess these and similar statements in light of the mental health vel non of Fred Batts and the weight and consideration these findings have on Batts' competency and/or credibility as a witness. Brady; Carriger v. Stewart; Murray v. Carrier, 477 U.S. 478 (1986) supra.
VII.
CLAIMS ADJUDICATED ON THE MERITS BY THE MAGISTRATE
CLAIM 14
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE,
UNCOVER, UTILIZE THE BALLISTICS REPORT WHICH SHOWED THAT
THE WEAPON USED TO KILL THE DECEASED WAS A .380-AUTO, AND
NOT A 9 mm AS TESTIFIED TO AT TRIAL
The magistrate judge abused its discretion by deferring to the State Court's finding that this claim is procedurally barred, where the state appellate court held that the claim was not specifically plead. Ray contends that the state appellate court relied on a procedural rule as a subterfuge, to avoid consideration of a fully and specifically plead claim of a federal constitutional violation, in violation of the U.S. Supreme Court precedent. See e.g., Mullaney v Wilbur, 421 US 684, 700, 44 L Ed 2d 508, 95 S Ct 1881 (1975)
"On rare occasions the Court has re-examined a state-court interpretation of state law when it appears to be an "obvious subterfuge to evade consideration of a federal issue." Radio Station WOW, Inc. v Johnson, 326 US 120, 129, 89 L Ed 2092, 65 S Ct 1475 (1945). See Ward v Love County, 253 US 17, 64 L Ed 751, 40 S Ct 419 (1920); Terre Haute & I. R. Co. v Indiana ex rel. Ketcham, 194 US 579, 48 L Ed 1124, 24 S Ct 767 (1904)."
Ray's CLAIM II, which will be reproduced here in its entirety, covered over four (4) pages in his Appellant Brief, pages 38-41, Respondents Exhibit 8:
The main witness in this case against Ray was the co-defendant, Fred L. Batts, who, among other allegations, testified that Ray shot the victim with a 9mm pistol. (R. 314) Batts further testified that he had earlier seen Ray place this same 9mm pistol in a blue Mustang (R. 330) and that Ray routinely possessed the 9mm used to shoot the victim and a .357 caliber handgun. Another witness testified that Ray was seen with a .357 caliber handgun. (R. 588).
The Ballistics report that trial counsel failed to cross-examine the witnesses about and, most importantly, failed to produce and admit into evidence for consideration by the convicting jury, showed that the victim was shot with a .380 caliber weapon. (R. 161) The state, in its response, claimed that trial counsel was in possession of the ballistics report. The State wholly failed to address Ray's allegation of ineffectiveness with trial counsel's failure to cross-examine any witnesses concerning this discrepancy or to offer the ballistics report to the trier of fact. Trial counsel's affidavit (CR. 285) makes an illogical justification for his failure to use the ballistics report. he states that the report was not exculpatory in nature, which is arguably untrue. Assuming, arguenda, that it was not exculpatory, the report clearly would have been factual information, which would have been utilized to impeach the single most damaging witness to Ray, the co-defendant, Fred L Batts. It would show by objective evidence that Batts was untruthful about his knowledge of the shooting
Trial counsel, in his affidavit (CR. 286) stressed why he could not allow Ray to testify and attempted to confuse that issue with his failure to present the ballistics report. The decision to not allow Ray to testify is completely irrelevant and unrelated to his failure to present the ballistics report through cross-examination and presentation and/or direct examination and presentation to the trier of fact. An evidentiary hearing and a written order making specific findings in accordance with Arrington v. State, 716 So. 2d 237, 2003 WL 22026043 (Ala. Crim.App. 2003), would show that trial counsel again failed to meet the standard set out in Strickland, and the trial court could never find this failure to be acceptable.
Once testimony was produced that a 9 mm handgun had been used to shoot and kill the victim, it became not only appropriate but imperative that any additional evidence concerning the gun be made available either to substantiate or refute the evidence. Barbee v. Warden, Maryland Penttentiary, 331 F. 3d 842 (4th Cir. 1964) If the testimony suggested that the pistol was a 9 mm, the ballistics report refuting that allegation was pertinent. It cannot be said that the trier of fact would have given no weight to the ballistics report or expert testimony. In effect, trial counsel allowed the State to point the finger at Ray and place the murder weapon in his hand while trial counsel had at his disposal direct expert testimony from the State's own witness that contradicted same, yet counsel chose not to present it. Although, the trial court observed conduct of trial counsel during the trial, that court was not privy to trial counsel's failure to utilize the ballistics report and the trial court never addressed this failure in its order.
The State Court's finding of non-specificity is contrary to the above-quoted record and defies logical reasoning. The Respondents did not address this claim in the Circuit Court upon the initial filing of the petition. Under Alabama law, unrefuted allegations are to be accepted as true. On appeal, however, instead of accepting Ray's facts as true, the Court allowed the State to enter a response to the merits of the claim. Even though, the Respondents did not (and could not) plead any procedural bar at that point in the litigation. See e.g., Nicks v. State, 783 So. 2d 895 (Ala.Crim.App. 1999), (citing Ex parte Rice, 565 So. 606 (Ala. 1990), where that court overruled an attempt by the State to plead a procedural bar to a Brady claim for the first time on appeal. In this case though, the Court of Criminal Appeals, at page three (3) of its Opinion, Ray v. State, 890 So. 2d 1107, (2004) overlooked and ignored State precedent and applied a procedural bar to this claim ... not even plead by the Respondents:
"[Ray] did not allege adequate facts to support this claim. Therefore, he did (sic) satisfy this burden of pleadings regarding this claim. See Rule 32.3 and 32.6 (b), Ala.R.Crim.P."
In this same Opinion, Hon. Judge Baschab, filed a concurring opinion, but disagreed with the majority holding that this claim, which was CLAIM II on post-conviction appeal (and a number of other claims) was not specific:
I write specially to state that I do not agree with the majority's holding in its unpublished memorandum that claims II, VI, XIII, XIV, XV, XVI, and XVII (claims 2, 6, 27, 18, 19, 20, and 31 in the appellant's petition) were not sufficiently pleaded pursuant to Rules 32.3 and 32.6(b), Ala. R. Crim. P. However, I concur with the majority's decision to affirm the summary denial of Melvin Ray's Rule 32, Ala. R. Crim. P., petition because those claims are without merit or are otherwise precluded.
If the claim had not been specific, the Respondents could not have entered pleading to it on the merits. Moreover, Alabama's law with regard to application of the specificity rule requires that the State first plead the affirmative defense and, thereafter, the petitioner be afforded an opportunity to respond to that defense. See Rule 32.3, Ala.R.Crim.P. ([O]nce a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of evidence." But, as Ray has already stated, the State never plead this defense in the Circuit Court. And even if they had, Ray was not afforded an opportunity to respond because the trial court denied the petition one (1)day after the Respondents filed their amended response. Thus, the petition was denied before Ray received the Respondents pleadings. Alabama law states that Ray should be afforded an opportunity to respond. In Nicks, supra, the court held that, because Nicks was never given an opportunity to disprove the ground of preclusion by a preponderance of evidence, which was being raised for the first time on appeal by the respondents, he had been denied due process of law. The Alabama Supreme Court re-affirmed this holding in Liberty National Life Ins. v. University of Alabama health Services, 881 So. 2d 1013, 1020 (Ala. 2003):
Nonetheless, this Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. Ex parte Ryals, 773 So. 2d 1011 (Ala. 2000), citing Ex parte Wiginton, 743 So. 2d 1071 (Ala. 1999) , and Smith v. Equifax Servs., Inc., 537 So. 2d 463 (Ala. 1988) . This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, [Ms. 1011791, November 27, 2002] 851 So. 2d 458 (Ala. 2002) , or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant's evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So. 2d 75, 80 (Ala. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) , and Kennedy v. Western Sizzlin Corp., 857 So. 2d 71, 2003 Ala. LEXIS 68 (Ala. 2003) ). (emphasis added)
Trial counsel was placed on notice of the importance of the report when the state moved to exhume the body of the deceased based on their allegation -- which ultimately proved to be false -- that the codefendant had told them that the deceased had been shot. Trail counsel could only test Batts' credibility and veracity by investigating him before trial. This evidence clearly is exculpatory and impeaches Batts and could have easily changed the outcome of the trial. Barbee, supra:
In our view, all of this evidence tending to exculpate the petitioner became highly relevant the instant his revolver was presented in court, formally marked for identification, a witnesses interrogated about it. Presenting the gun, without explanation or qualification, could not fail to suggest an inference that this was the weapon used to commit the offense for which Barbee was on trial ... Once produced, it became not only appropriate but imperative that any additional evidence concerning the gun be made available either to substantiate or to refute the suggested inference. If the pistol was pertinent for any purpose, so also was the opinion of the ballistics expert that it was not the weapon used in the Fisher shooting. We cannot say that the trier of fact would have given no weight to the ballistics report or the expert's testimony.
* * * *
If the police allow the State's attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this information, state officers are practicing deceit not only on the State's attorney but on the court and the defendant. "The cruelest lies are often told in silence.
The State Court's finding with regard to this claim on appeal was an unreasonable determination of the facts in light of the evidence presented, an inconsistent application of State law, and is contrary to clearly established U.S. Supreme Court precedent. In his pleadings in State Court in relation to this claim, Ray attached a copy of the Ballistics Report; cited counsel's admission that he did not investigate this matter; cited counsel's admission that he did not receive this report; cited the record where the codefendant gave testimony that a 9 mm was used; and showed the materiality of this evidence as it related to the testimony from trial. The District Court abused its discretion by deferring to and relying on the State Court, and, under AEDPA, this claim must now be addressed on the merits. Williams v. Taylor, 529 US 420, 146 L.Ed.2d 435; Wainwright v. Sykes, supra.
CLAIM 15
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN HE FAILED TO CONDUCT ANY PRE-TRIAL INVESTIGATION AND
SECURE THE PRESENCE OF DR. STEPHEN M. PUSTILNIK FOR TRIAL, WHO
IS THE STATE FORENSIC PATHOLOGIST THAT PERFORMED THE FIRST
AUTOPSY IN THIS CASE, AND WHO CONCLUDED THAT THE THE
CAUSE OF DEATH IS ASPHYXIA, AND NOT GUNSHOT
Dr. Pustilnik received the body of the deceased and conducted the original autopsy of the on March 29, 1999, which was three days after his death. Dr. Pustilnik issued his autopsy report August 1999, and concluded that asphyxia was the cause of death. (See Autopsy Report, supra) Based on these findings, the case was presented to a grand jury who issued a True Bill charging Ray with murder by asphyxia. Ray was arraigned on this Indictment and plead not-guilty in June 2000. However, before Ray was tried on this indictment, the State filed a Motion to Exhume and exhumed the body of the deceased based upon the allegation that the codefendant had provided them with information that the deceased had been shot. (See Motion to Exhume, Ray's Exhibit 20, doc. # 20). After a hearing on the Respondents' Motion to Exhume in July 2000, the trial court issued an order to exhume. A second autopsy was ultimately conducted by Dr. J.C. Upshaw Downs. Dr. Downs concluded that the deceased died from a gunshot wound to the neck. (See Second Autopsy, supra) Trial counsel did not consult with either doctor in advance of trial, nor did he seek assistance from an expert in this field. Additionally, neither report was entered into evidence.
In its review of this claim, the Alabama Court of Criminal Appeals ("ACCA") found that counsel was not ineffective because he had "extensively" cross-examined Dr. Downs about Dr. Pustlinik's report and because counsel had "elicited testimony that Pustilnik still stood behind his report" that asphyxia was the cause of death." Ray contends that the decision of the ACCA is an unreasonable application of Strickland v. Washington, and that its findings of fact are unreasonable in light of the evidence presented. Also see e.g., House v. Balcom, 725 F. 2d 608 (1984):
"One of the primary duties defense counsel owes to his client is the duty to prepare himself adequately prior to trial. "Pretrial preparation, principally because it provides a basis upon which most of the defense case must rest, is, perhaps the most critical stage of a lawyer's preparation.
* * * *
"While we do not require that a lawyer be a private investigator in order to discern every possible avenue which may hurt or help the client, we do require that the lawyer make an effort to investigate the obvious. Pretrial investigation, principally because it provides a basis upon which most of the defense case must rest, is, perhaps, the most critical stage of a lawyer's preparation.
Ray's jury was never informed of the factual underpinnings of Dr. Pustilnik's conclusions, mostly because counsel did not know what they were because he had never spoken with him. Nor did the jury hear that Dr. Pustilnik opined that the prosecutor and Dr. Downs were "playing games" with the evidence and cause of death in the case. Dr. Pustilnik said this in his e-mail communications. Supra. Dr. Pustilnik also stated in his e-mail that, if there was a gunshot, it was most likely post-mortem:
I told the DA that it certainly looked like a bullet (on x-ray) and that I would come to trial to state that it was a bullet that I did not retrieve, but that there was no blood in the head or neck area and no injuries to major vessels, therefore, I was of the opinion that the bullet ma have been a coup-de-grace or post-mortem and MAY (sic) have contributed to the death, but the main cause of death was still beating and asphyxia.
Whereas Dr. Pustilnik stated in his report that, there were "no injuries to the soft-tissue area of the neck" or to the "vertebral column" of the deceased; Dr. Downs stated the direct opposite. None of these facts were presented to the jury. The autopsy reports were an issue of concern for the jury because they interrupted their deliberations to request permission of the court to review the autopsy reports. This request was denied, of course, because these reports were not entered as evidence.
Another critical issue that counsel attempted to divine at trial was the lack of physical evidence establishing that 3203 Rita Lane was the actual crime scene (R. 537-38). Counsel thought that developing this was important, based on the findings of Dr. Pustilnik that there was a beating. Counsel told the jury that "[Y]ou will hear from the State's own witnesses that this killing was a brutal one, that there was a beating." But, because counsel had not spoken with either Dr. Pustilnik or Dr. Downs prior to trial, he did not know that Dr. Pustilnik would not be present for trial, or that Dr. Downs, the doctor who actually testified, disagreed with this conclusion. Thus the jury never heard any evidence of a severe beating. Counsel had a "duty to investigate a favorable medical report; to seek to obtain a copy of the report; and present testimony of the doctor himself." Johnson v. United States, 413 A. 2d 499 (Dist. Col. App. 1980). This issue is debatable among jurors of reason and deserves further proceedings, therefore a COA should issue.
CLAIM 16
TRIAL COUNSEL RENDERD INEFFECTIVE ASSISTANCE FOR HIS FAILURE TO
INVESTIGATE RESPONDENTS EXERCISE OF A PEREMPTORY STRIKE TO REMOVE JUROR RANDALL ASHFORD FROM THE JURY VENIRE, WHERE COUNSEL RELIED SOLELEY ON A PRETEXTUAL REASON GIVEN BY THE PROSECUTOR THAT WAS UNSUPPORTED BY ANY EVIDENCE
Mr. Ashford was the sole male African American juror on Ray's jury venire panel. Mr. Ashford stated during jury voir dire questioning that he was an employee of NASA on the National Missle Defense Program:
(R. 85):
MR. ASHFORD: Hi, everybody. I am Randall Ashford. I am a computer software test engineer on the National Missle Defense Project. I am single.
And what else was that, judge?
THE COURT: You covered that very nicely.
MR. ASHFORD: I'm glad to be here.
Mr. Ashford was never asked whether he had any prior arrest, and he did not give any statement indicating that he had. Nor did he -- or any other juror -- answer in the affirmative to the general question posed by the prosecutor of whether any of the prospective juror had had a prior arrest that left them with a "bad taste in their mouth" or that they felt they didn't deserve:
R. 110: Have any of you personally had any brushes with the law? Not talking about getting arrested, not really about the speeding ticket you got that you didn't deserve. I mean any encounter with police officers that has left a bad taste in your mouth?
After the voir dire proceedings and challenges for cause were exercised, the panel was qualified, which included Mr. Ashford. The State then exercised its first preemptory strike to remove Mr. Ashford from the venire. (R. 177) Trial counsel served notice of a Batson challenge and the trial court, finding a prima facie case of discrimination, ordered the prosecutor to give a race-neutral reason for its strike (R. 182-83). The State offered the following as the race-neutral explanation for its strike:
TR: 183-84: (Mr. Broussard) Quite simply, I know the court is probably aware that prior to jury week, there is complied in our office a list of all prospective jurors and a record is run through local resources of whether or not they have ever been arrested for whatever.
And with respect to Mr. Ashford, it appears that he was arrested for DUI and driving without a license in 1992. And also, he had a probation violation. I would be happy to show Mr. Davis. and I might point out to the Court, he is the only person on our panel that did appear in our list. If Mr. Davis would like to look at the remaining ones, he was the only one who appeared on the list as having a record of any sort. (emphasis added)
The "list" that the prosecutor refers to has never been inspected by anyone. Nor have they specified exactly what their "local resources" are that they used to conduct these searches. Ray has expended much energy, including filing multiple motions for discovery in both State and Federal Court, and a civil action in State Court, attempting to recover and inspect this "list", but to no avail. Under Alabama law at the time of Ray's trial, the trial court could not simply accept at face-value to explanation given by the prosecutors. See e.g., David v. State, 741 So. 2d 1142, 1145-46, (Ala.Crim. App. 1998):
"We have held that strikes based on previous criminal charges, prosecutions, or convictions of the venire member or a family member of the venire member are not racially discriminatory as such." Thomas v. State, 611 So. 2d 416, 418 (Ala. Cr. App.), cert. denied, 611 So. 2d 420 (Ala. 1992) (citations omitted). However, the prosecution did not question the venire members about prior criminal convictions during voir dire examination, and the record does not contain any mention of the venire members' prior convictions. The trial court cannot accept "at face value the State's ostensibly facially neutral explanations for the use of its peremptory challenges." Ex parte Thomas, 601 So. 2d 56, 58 (Ala. 1992). In Thomas, the Alabama Supreme Court held that the trial court improperly denied the defendant's Batson motion because the trial court accepted at face value the prosecutor's facially race-neutral reason for striking the venire members. In so doing, the supreme court explained that, if the prosecutor had questioned the venire members about their prior criminal convictions, or if the trial court had ordered the prosecutor to produce the records that documented the venire members' criminal convictions or had examined the document that the prosecutor relied upon in making his peremptory challenges, it might have been in a position to affirm. Ex parte Thomas, 601 So. 2d at 58-59. See also Bush v. State, 615 So. 2d 137 (Ala. Cr. App. 1992); King v. State, 612 So. 2d 1333 (Ala. Cr. App. 1992); Williams v. State, 620 So. 2d 82 (Ala. Cr. App. 1992).
"In this case, the prosecution did not question the venire members during voir dire about their prior criminal convictions or histories; the trial court did not order the prosecution to produce any evidence of the basis for its peremptory challenges; and the trial court did not examine the evidence relied upon by the prosecution. Because it accepted at face value the prosecution's facially neutral explanations for its peremptory challenges, the trial court did not ensure that the prosecution exercised its peremptory challenges in a race-neutral manner. Accordingly, we remand this case with instructions that the trial court hold a hearing to determine whether the prosecution exercised its peremptory challenges in a racially neutral manner. Because the prosecutor has already given facially neutral explanations for its strikes, the trial court must simply determine whether the evidence relied upon by the prosecutor substantiated the prosecutor's explanations. We do not hold that the appellant has the right to examine the evidence relied on by the prosecution. Instead, the trial court shall examine that evidence and shall make specific, written findings of fact as to whether the evidence substantiates the prosecutor's explanations.
When Ray's initial requests to the prosecutor for the list were denied, Ray conducted a public records search of every juror who sat on the panel. The results from this search showed that two white males who sat on the 12-member panel that convicted Ray had the same or similar arrests (and one had convictions) as those alleged to exist against Mr. Ashford. Ray submitted the prior DUI arrest of Mr. Timothy Owen and the prior arrests and convictions of Mr. Willie T. McBAy for running a red light and improper tag, as Exhibits F and G, at P.C.R. 170-72.
The ACCA denied Ray relief on his claims by finding that Ray had not shown: (1) that the State relied upon false or erroneous evidence to strike Mr. Ashford, (2) that the prosecutor knew these venire members had any prior criminal history, and (3) that the prosecutor's reason for striking Mr. Ashford was pretextual. As to the first ground, the ACCA overlooked the fact that there is no evidence in the record showing that Mr. Ashford even has the prior arrests attributed to him. Second, the prosecutor stated that they had conducted a search of all jurors and they found that no other juror had any prior arrest of any kind. This has been proven false by Exhibits F and G. These exhibits also belie the prosecutors' reason for striking Mr. Ashford because, if these reasons served to exclude Mr. Ashford, they should have likewise served to exclude Messrs. Owens and McBay.
Ray cannot now determine the contents of the list because, according to the State, the list was destroyed during Ray's direct appeal from his conviction, even before the conviction became final, and even with the Batson claim being raised on appeal. The only plausible reason why the State did not discover the prior arrests of the white male jurors is because the search itself was conducted in a racially discriminatory manner. Cf. Castaneda v. Partido (1977) 430 US 482, 494, 51 L.Ed.2d 498, 97 S Ct 1272. Notwithstanding his evidence though, Ray has never been afforded an opportunity to prove his claim. The ACCA's decision is unreasonable and an inconsistent application of state law. Ray has shown unequivocal disparate treatment and that the rule of Batson and the Equal Protection Clause of the 14th Amendment have been violated. See e.g, Miller-El v. Dretke, 545 U.S. --, 162 L.Ed.2d 196, 125 S Ct -- (2004):
When the government's choice of jurors is tainted with racial bias, that "overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial . . . ." Powers v. Ohio, 499 U.S. 400, 412, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991). That is, the very integrity of the courts is jeopardized when a prosecutor's discrimination "invites cynicism respecting the jury's neutrality," id., at 412, 113 L. Ed. 2d 411, 111 S. Ct. 1364, and undermines public confidence in adjudication, Georgia v. McCollum, 505 U.S. 42, 49, 120 L. Ed. 2d 33, 112 S. Ct. 2348 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991); Batson v. Kentucky, supra, at 87, 90 L. Ed. 2d 69, 106 S. Ct. 1712. So, "[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause." Georgia v. McCollum, supra, at 44, 120 L. Ed. 2d 33, 112 S. Ct. 2348; see Strauder v. West Virginia, supra, at 308, 310, 25 L. Ed. 664; Norris v. Alabama, 294 U.S. 587, 596, 79 L. Ed. 1074, 55 S. Ct. 579 (1935); Swain v. Alabama, supra, at 223-224, 13 L. Ed. 2d 759, 85 S. Ct. 824; Batson v. Kentucky, supra, at 84, 90 L. Ed. 2d 69, 106 S. Ct. 1712; Powers v. Ohio, supra, at 404, 113 L. Ed. 2d 411, 111 S. Ct. 1364.
* * * *
More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.
The State Court imployed an unreasonable fact-finding process in that Ray had been confined to attempting to overcome facts that are not even in the record. No one knows what was on the supposed list, but it can be said with assurity that, if it were conducted indiscriminately it would have reflected the prior arrest of the two white male jurors. The State admitted in the State Court civil action that these type of searches are not conducted pursuant to any policy, standard operating procedure or regulation. They also admitted that the list was not destroyed pursuant to any policy, standard, operating procedure or regulation either. So why, of all the documents in Ray's file, would the prosecutors go to look for, find, and destroy this list? Answers to this and related questions should be resolved in an evidentiary hearing. The District Court abused its discretion by deferring to the State Court's findings, and a COA should issue on this issue. Coleman v. Thompson, 501 U.S. 722; Williams v. Taylor, 529 U.S. 420.
CLAIM 17
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HE FAILED TO OBJECT TO THE EXCLUSION OF FEMALE AFRICAN AMERICAN
PROSPECTIVE JUROR MS. VIVIAN JENNINGS, WHO WAS STRUCK BY THE
PROSECUTOR BASED SOLELY ON HER RACE, IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE 14TH AMENDMENT
A full disclosure of the factual basis of this claim is set out in Section III, CLAIM III FRAUD, supra, and is adopted here as if plead here in full. Simply stated, the State has plead in their responses that Ms. Jennings was excluded from the panel because she stated that her son had a prior arrest for a traffic violation, however, white female juror Ms. Catherine Weathers, who also stated during voir dire examinations that here son had also been previously arrested for DUI (R. 110), was not likewise excluded. The sole response from the Respondents throughout the course of these proceedings is stated in their Answer (P.C.R. 231) and Amended Answer (P.C.R. 271) as follows:
"The trial transcript reveals that Ms. Jennings replied to a question on voir dire that she had had a family member arrested in the past, specifically her son, and that she did not have clear information as the nature of his arrest."
Alabama law holds that the type of disparate treatment present here violates the Equal Protection Clause of the 14th Amendment. Preachers v. State, 2006 Ala.Crim.App. 213:
Though we have held that striking a prospective juror because of a prior criminal history is a race-neutral reason, we have also held that the failure to strike both whites and blacks because of prior criminal records is evidence of disparate treatment, in violation of Batson. See Powell v. State, 548 So. 2d 590 (Ala. Crim. App. 1988) , aff'd, 548 So. 2d 605 (Ala. 1989) . 'Such disparate treatment of otherwise similarly situated persons who happen to be of different racial backgrounds, would evidence discriminatory intent in the State's use of its strikes.' Bishop v. State, 690 So. 2d 498, 500 (Ala. Crim. App. 1995) , on remand, 690 So. 2d 502 (Ala. Crim. App. 1996) . See also Russell v. State, 739 So. 2d 58 (Ala. Crim. App. 1999) ; Wright v. State, 601 So. 2d 1095 (Ala. Crim. App. 1991) ; and Mitchell v. State, 579 So. 2d 45 (Ala. Cr. App. 1991) , cert. denied, 596 So. 2d 954 (Ala. 1992) . The prosecutor's reasons for striking prospective jurors numbers 93, 118, and 151, evidence disparate treatment.
* * * *
White "persons with the same or similar characteristics as the challenged [black] juror[s] were not struck." Branch, 526 So. 2d at 624 . See Acres v. State, 548 So. 2d 459 (Ala. Cr. App. 1987) (on return to remand) (validity of prosecutor's reasons for striking two black venire persons because they had had traffic citations did not "stand up under close scrutiny" when record revealed that two white jurors who served on jury had similar traffic offenses). The State simply did not remove white persons for the same reasons given by the State for removing blacks.
* * * *
[D]isparate treatment furnishes strong evidence of discriminatory intent."' Freeman v. State, 651 So. 2d 576 (Ala. Crim. App. 1994) , quoting Ex parte Bird, 594 So. 2d 676, 681 (Ala. 1991) , on remand, 594 So. 2d 689 (Ala. Crim. App. 1992) . See also Kynard v. State, 631 So. 2d 257 (Ala. Crim. App. 1993) . 'This court has condemned the failure to strike white venire persons who share the same characteristics as black venire persons who were struck.' Bishop v. State, 690 So. 2d at 500 ."
"....
The simplicity and straightness of this obvious and glaring example of racial discrimination caused the State Courts to avoid consideration of this claim and to rely on state procedural rules instead of affording Ray review on this federal equal protection claim. The State's own answer on the record proves that the striking of this juror violated the equal protection clause of the 14th and Batson v. Kentucky, supra. In Wilber v. Mullaney, 421 U.S. 684, the United States Supreme Court stated that a State cannot use subterfuge to avoid consideration of a federal claim, but that is exactly what has occurred here. A COA should issue on this important claim because the District Court abused its discretion by not reviewing this claim on the merits.
CLAIM 18
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO OBJECT TO TESTIMONY THAT HE KNEW TO BE FALSE, WHEN RAY'S CODEFENDANT DENIED HAVING A DEAL WITH THE STATE IN EXCHANGE FOR HIS TESTIMONY, AND THE STATE ALSO DENIED RAY DUE PROCESS AND A FAIR TRIAL FOR FAILING TO CORRECT THIS TESTIMONY IT KNEW TO BE FALSE
Fred Batts was the jointly indicted codefendant in this case. According to statements made by the prosecutor during jury voir dire proceedings (R. 121) and during their opening arguments (R. 200), Fred Batts was testifying pursuant to a deal with the State:
R. 121: We have cut a deal with Fred Batts. He has turned state's evidence. We will call him to the stand and you will hear he will get a benefit out of doing what he is doing for us.
* * * *
R. 200: Fred Batts will tell you about the events that happened, though, that afternoon on March 26, 1999, and he will tell you that he has a deal with the State. But, members of the jury, that is conditioned on him taking the witness stand, looking at you and testifying truthfully.
Ray's trial attorney also stated during his opening statements to the jury that they would hear evidence coming from the state's witnesses that Fred Batts (and Walker and Friend) all had deals in place in exchange for their testimony:
R. 205:
Now, in addition to Mr. Batts, as Ms. Lunsford told you, there are going to be witnesses like Mr. Batts who are testifying. What do I mean when I say "witnesses like Mr. Batts." Other people who cut a deal. Two of them, a man named Gene Walker and a man named Kenneth Friend.
As stated above in the actual innocence claim, Batts denied the existence of this deal on multiple occasions throughout the course of his testimony:
R. 433:
Q. I understand that's what you said here. I am saying when they were preparing you for testimony and cutting the deal with you, did you tell them that Billy Joe had given you information about the murder?
A. I didn't receive a deal,
* * * *
R. 452:
Q. Now, several times you said -- in fact, you said even without my asking you several times that you didn't have a deal in this case.
Is that what you kind of said during your testimony?
A. Yes, sir.
* * * *
R. 457:
Q. Well, you had a chance to tell the truth about the situation that day and you didn't do it, did you?
A. No, sir.
Q. And the reason you didn't is because you didn't have the kind of promise and the kind of guarantee that you needed.
Is that fair to say?
A. I haven't gotten any promise.
R. 459:
Q. Let me ask you this. There are several possibilities, you agree, that could happen to your case?
A. Yes, sir.
Q. Your case could be dismissed or nolle prossed, to use the legal term. That's one possibility, isn't it?
A. I haven't went over that with anyone.
* * * *
R. 461:
Q. Is there any possibility that you would be here out of the goodness of your hear it because you want to tell the jury what is on your soul without a deal?
A. I haven't got a deal,
The District Court denied this claim by deferring to the findings of the ACCA, page 6-7, this claim was due to be denied because Ray "did not present any evidence that a specific agreement existed between Batts and the State at the time of trial." The ACCA completely overlooked the fact that the prosecutor never disclosed the exact terms of their deal with Batts. And no Court, including the District Court, has ever addressed Ray's specific allegations that both the state prosecutor and trial counsel failed to object and correct testimony that they knew to be false. Ray presented a copy of the State's Motion to Nolle Pros the indictment against Batts as Exhibit L, P.C.R. 177). The State also attempt to rely on their statements to the jury concerning the deal with Batts as grounds to excuse their failure to disclose this information to Ray prior to or since trial. This overlooks the fact that opening and closing comments are not evidence and that the trial court in this case, just as in most cases --if not all -- criminal trials admonish jurors that counsels' arguments are not are not ever to be considered as evidence. "The prosecutor's statements are not evidence". Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App. 1984). Also see, United States v. Mason, 293 F.3d 829 (5th Cir. 2002):
Government informant's false answer "No" to question of whether informant had plea agreement with government, given on direct examination at federal narcotics trafficking trial and not corrected by government, was not rendered immaterial. so as to preclude due process appeal, by fact that certain details of agreement were revealed on further examination including possibility of "leniency" and fact that informant's cooperation would be made known" to district attorney; other facts remained undisclosed, including informant's use immunity and possibility of government request for downward sentencing departure for substantial assistance.
The ACCA unreasonably determined the facts of this case in light of the evidence presented and unreasonably applied Strickland v. Washington, to this claim. The U.S. Supreme Court has specifically held that perjured testimony concerning material facts deprive a citizen of due process and a fair trial. Giglio v. United Stated (1972) 405 U.S. 150; Napue v. Illinois, (1959) 350 U.S. 264:
As long ago as Mooney v Holohan, 294 US 103, 112, 79 L Ed 791, 794, 55 S Ct 340, 98 ALR 406 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of justice." This was reaffirmed in Pyle v Kansas, 317 US 213, 87 L Ed 214, 63 S Ct 177 (1942). In Napue v Illinois, 360 US 264, 3 L Ed 2d 1217, 79 S Ct 1173 (1959), we said, "[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id., at 269, 3 L Ed 2d at 1221.
The District Court abused its discretion by failing to address Ray's prosecutor misconduct claim and misconstrued, thus failed to properly adjudicate Ray's ineffective assistance of counsel claim. For the above-stated reasons, a COA should issue.
CLAIM 19
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN HE FAILED TO OBJECT TO THE PROSECUTOR MAKING A DIRECT
COMMENT OF RAY'S SILENCE
During the course of its closing arguments, the prosecutor made the following statement to the jury:
R. 674: We don't have his (Ray's) alibi.
The ACCA stated in its Opinion that they had "reviewed the prosecutor's statement in the context of the entire argument and found that the allegedly prejudicial comment was not a direct comment or indirect comment on petitioner's decision not to testify." The ACCA did not cite a single fact which it contended supported it finding that the statement was not a direct or indirect comment on Ray's decision not to testify. Prior to this claim reaching the ACCA, the State had not disputed Ray's allegation that this was a direct comment in any manner. According to Alabama's law, "When the State does not respond to a petitioner's allegations, the unrefuted statement of facts must be taken as true." Bates v. State, 620 So. 2d 745, 746 (Ala. Crim. App. 1992), quoting Smith v. State, 581 So. 2d 1283, 1284 (Ala. Crim. App. 1991) .
This comment was not only a direct comment on Ray's failure to testify, but it also shifted the burden of proof in this case because it placed the burden on Ray to present an alibi defense. The District Court also deferred to the findings that the statement was a permissible comment on the evidence during trial. Again, though, no one has cited to any portion of the record that supports this conclusion. In any given case that a defendant does not take the stand and testify in his own behalf or present an alibi defense, a comment on these facts would be a comment of the evidence during trial. But the U.S. Supreme Court held that comment of a citizens apparent exercise of this constitutional right is prohibited. Griffin v. California, (1965) 380 U.S. 609, 614, 85 S Ct 1229, 14 L. Ed. 2d 106:
"We ... hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."
Section 2254 (d)(2) and (e)(1) imposes upon State petitioners seeking relief by Habeas Corpus to show unreasonable determination of facts or to over factual findings by clear and convincing evidence. The problem faced by Ray is that no court has issued any factual findings, so Ray does not know what facts he must dispute. In Anderson v City of Bessemer City, North Carolina, 470 US 564, 84 L Ed 2d 518, 105 S Ct 1504 (1985). The United States criticized the practice of affirming ruling that do not support their finding by citation to the record.
"We ... have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. See, e.g., United States v El Paso Natural Gas Co. 376 US 651, 656-657, 12 L Ed 2d 12, 84 S Ct 1044 (1964); United States v Marine Bancorporation, 418 US 602, 615, n 13, 41 L Ed 2d 978, 94 S Ct 2856 (1974)."
The comment by the prosecutor was a direct (not even an indirect) comment of the fact that Ray did not testify at trial or present his "alibi" defense. The statement also shifted the burden of proof upon Ray to prove his innocence (which Ray desired to do, but for counsel's refusal to place him on the stand), instead of holding the state to its burden. Thus, a COA should issue on this claim and specific findings should be made as it relates to the fact that this comment was a direct comment on the petitioner not testifying or presenting an alibi defense.
CLAIM 20
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE
DISCOVER, AND PRESENT EVIDENCE THAT REFUTES THE TRIAL
TESTIMONY OF STATE WITNESS JOAN MOLOTSI, WHERE THIS EVIDENCE'
IS CRITICAL AND SHOWS THAT THIS WITNESS GAVE FALSE AND MISLEADING
TESTIMONY
Ray adopts the full factual basis of this claim as plead in the actual innocence section of this petition as if plead here in full and further states that the State Courts adjudication of this claim was unreasonable in light of the evidence presented. In denying this claim on appeal, the ACCA issued the following findings:
[B]ecause the state was concerned about Molotsi's safety, it did not disclose her name or address before she testified at trial, therefore, trial counsel could not have investigated the view from Molotsi's house before trial. Additionally Inv. Brent Patterson of the Madison County Sheriff's Department testified that Molotsi's house had an unobstructed view of the front of Robert's house and that her house was about 50 yards from Robert's house. Finally, the evidence [Ray] submitted in support of his petition did not show that, at the time of the murder trees would have obscured Molotsi's view of Roberts' house.
Based on these findings, the ACCA found that counsel was not ineffective. However, these findings are contrary to Ray's evidence. Furthermore, Ray has overcome these findings by clear and convincing evidence. Foremost among these unreasonable findings is the fact that the photographs submitted by Ray's private investigator Mr. Fox shows that he measured the distance from the two addresses to be 175 feet and that the view from Molotsi's house to that of Ms. Roberts is obstructed. Mr. Fox took photographs that show two large trees sitting between these two residences. ( See Photographs as Exhibit Z-1 through Z-8, P.C.R. 211-214 ). In addition, Mr. Fox stated in his affidavit, Exhibit O, P.C.R. 191, that he had spoken with the then-resident of this same house, a Mr. Dixon, and that Mr. Dixon stated as follows:
As you can see, there is no way she could have seen what she says she saw. I measured the distance from the front door of the house on Rita Lane to the window where she said she was and it is over 175 feet ... As you can see, the trees almost block the entire view of the front of the garage and this is where she said the car was parked ... The first thing the D.A. is going to say is that these pictures were taken in September and the murder took place in March. Well that's true, however, the tree blocking the view from the kitchen window of 5001 Lori Circle is a Red oak. Its leaves turn a bright Red in the fall and don't fall off the trees until Mid-April. When the new green leaves push them off. I was raised in the mountains and am very familiar with Hardwood trees and their leaves. I also asked Mr. Dixon, the man who now lives at 5001 Lori Circle, and he said that he has been living there almost three years and the leaves stay on the tree all winter long."
Thus, Ray's evidence shows that Molotsi's view was obstructed and that the distance between these two residences makes her testimony impossible. Also, the record shows that the State's contention that the reason it withheld the name and identity from trial counsel is a pretext. This assertion was made based on statements allegedly given by state-witness Gene Walker, who testified that Ray had told him that he was looking for some woman who had pulled in on the Rita Lane street and saw him so that he could kill her. (R. 595) However, the evidence at trial was not that Molotsi pulled in on the street and saw Ray, but that she was standing in her kitchen window and saw Ray. Plus, according to his trial testimony, Walker did not come into contact with the state until late- October or early-November 2000. By this time, Ray had already filed at least two motions for discovery: the first on August 5, 1999, (See Clerk's Record of Trial, C. 15-17), and the other on July 11, 2000 (C. 19-21). Both of these motions were filed between one year and several months, respectively, before Walker was even known to the prosecutors, and during a time when the prosecutor had a duty to disclose this information.
Additionally, trial counsel contends in his affidavit that his sole defense at trial was to discredit Molotsi. See Affidavit at P.C.R. 265, page 4: "Using my professional judgment, I determined that the proper defense would be to attempt to discredit the testimony of this eyewitness during a vigorous cross-examination." Recall though, as quoted above, the ACCA has found that " trial counsel could not have investigated the view from Molotsi's house before trial." It is unreasonable that any attorney would go to trial with a defense designed to discredit a witness that the attorney knows absolutely nothing about. In the case at bar Counsel did not know the witnesses name, address, personal history, or anything that would allow him to prepare a defense. At a minimum, after learning her identity, counsel could have moved for a continuance to investigate the veracity and accuracy of her testimony by visiting her address. However, counsel did not do this. Trial counsel's testimony at the evidentiary hearing under oath that he did investigate this defense by visiting Molotsi's address before trial conflicts with the holding of the ACCA and his own objection entered on the second day of trial -- which was overruled -- that he did not have knowledge of Molotsi's identity, name or address:
(R. 58-61):
MR. DAVIS: Yes, Your Honor. We also had raised during a pretrial hearing that occurred in either September or October in this case the argument that the State should have to disclose in advance of trial the identity of an eyewitness.
As I understand the State's case, Your Honor, this eyewitness, who is a female, will testify that on March 26, 1999, that she observed Mr. Ray and his co-defendant, Fred Batts, carry a bundle that appeared consistent in size and shape with the form of a human body
That information again was the subject of a hearing we had in the fall of last year. It's my recollection at that time, Your Honor, the Court had directed the State to produce at some point in advance of trial the identity of this witness and any statements generated by the witness.
I was informed on Friday by Mr. Broussard because the State fears there may be a continuing threat to this witness' safety that they have elected not to disclose her identity in advance of her appearing in the courtroom. Because the statements identify her and her address therefore make it clear who she is, that they also declined to produce those statements.
And, for the record, I understood the Court's ruling is that they do not have to produce her identity in advance of her testimony and, further, they do not have to produce any statements before her testimony or after her testimony unless for whatever reason she says something that produces impeachment or something that's inconsistent with the statements.
The District Court found that Ray's evidence generated by Mr. Fox constitutes merely impeachment evidence and that counsel was not ineffective for not investigating it. This overlooks the fact that counsel stated that he exercised his professional judgment and determined that discrediting Molotsi would be his sole defense. If Strickland requires anything, it is that the attorney investigated the defense that he intends to present to the jury. Strickland v. Washington, 466 US at 695:
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, 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, applying a heavy measure of deference to counsel's judgments.
* * * *
Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v Agurs, 427 US, at 104, 112-113, 49 L Ed 2d 342, 96 S Ct 2392, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v Valenzuela-Bernal, supra, at 872-874, 73 L Ed 2d 1193, 102 S Ct 3440. The 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 probability is a probability sufficient to undermine confidence in the outcome.
Under the Strickland standard, counsel cannot be functioning effectively if he is pursuing a defense that he has not investigated. Because the District Court found that the evidence produced by Ray is impeachable, which is material under Agurs, and United States v. Bagley, 473 US 667, 87 L.Ed.2d 481, 490, Ray was prejudiced.
In Brady and Agurs, the prosecutor failed to disclose exculpatory evidence. In the present case, the prosecutor failed to disclose evidence that the defense might have used to impeach the Government's witnesses by showing bias or interest. Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. See Giglio v United States, 405 US 150, 154, 31 L Ed 2d 104, 92 S Ct 763 (1972). Such evidence is "evidence favorable to an accused," Brady, 373 US, at 87, 10 L Ed 2d 215, 83 S Ct 1194, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. Cf. Napue v Illinois, 360 US 264, 269, 3 L Ed 2d 1217, 79 S Ct 1173 (1959) ("The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend").
There is a reasonable probability that there would have been a different outcome if the jury had known that Ms. Molotsi was giving testimony that is scientifically impossible and factually incorrect. This ineffective assistance claim must be and the impact of this evidence must be viewed in light of the additional evidence that Ray has presented in his petition, including the fact that trial counsel did not investigate Ray's alibi defense; the deal with Batts, which allowed Batts to gave perjured testimony when he denied the deal; the medical evidence and Dr. Pustilnik; and the exculpatory scientific ballistics report. Strickland v. Washington, 466 U.S. at 699 states:
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will <*pg. 699> have had a pervasive effect on the inferences to [466 US 696]
be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, 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. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
Ray's photographs and the affidavit of his investigator raise a genuine issue of material fact as to whether Molotsi gave false testimony and whether counsel was ineffective for failing to investigate his professed defense for trial. The photos show two (2) trees, each standing over 35 ft., and telephone pole in between the two residences separated by over 175 feet. These unresolved factual disputes deserve further proceedings and an evidentiary hearing; therefore, a COA should issue.
CLAIM 21
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HE FAILED TO OBJECT TO EXTREMELY PREJUDICAL AND DEROGATORY REMARKS MADE BY THE PROSECUTOR DURING THEIR CLOSING ARGUMENTS THAT DENIED RAY OF A FAIR TRIAL AND DUE PROCESS OF LAW
During the course of their closing arguments, the prosecutors likened Ray to "Al Capone," and called him "Scarface," (R. 681), and "John Gotti, the Mafia Don." (R. 670) The prosecutor also injected the fact that "Sammy 'the Bull' Gravano" had killed something like 16 murders." (Respondents concede in their brief on appeal in the Rule 32 Post-conviction proceedings that this latter statement referring to "16 murders" was omitted from the trial transcript. See Respondents Exhibit 8, page 37)
When Ray presented this claim on appeal from the denial of his Rule 32 petition, the district attorney admitted in their appellate brief that they intended to draw the analogy and make a comparison of these infamous mob figures:
Respondents Appellate Brief, Exhibit 8, at pages 28-30:
At a couple of points in his closing argument, the prosecutor compared Ray to famous gangsters Sammy the Bull Bravano and Scarface. [ ] What the prosecutor was referring to, in bringing up Sammy "the Bull" and Al Capone, was that - just as Capone was a boss, and Gravano an enforcer - here, Ray kept Fred Batts on his side at all times, as an enforcer, to do his bidding. [ ] Furthermore, the prosecutor was trying to make a point that, in order to get the head man in a operation sometimes you need to rely on the testimony of someone like a trusted enforcer. In John Gotti's case, that enforcer-turned accuser was Sammy "the Bull." In Ray's case the enforcer-turned accuser was Fred Batts.
Thus the prosecutor made clear that he intended to make this comparison and to interject the fact that Sammy "the Bull" Gravano had killed something like 16. Also, the prosecutor did not refute Ray's allegations in the trial court, so the pleadings were supposed to be accepted as true on appeal. Carter v. State, 853 So. 2d 1040 (Ala.Crim.App. 2002) ("As the trial court dismissed Carter's petition without requiring a response from the State, the allegations are unrefuted, and they must be accepted as true.") However, when this claim was presented on appeal, the ACCA found that the prosecutor did not intend to make these comparisons:
Opinion, page 8:
"When viewed in the context of the entire closing argument, the comment made by the prosecutor, in fact did not suggest that he had committed other murders or that he should be convicted because he was like -well-known mafia figures."
The issue presented by this record is that the prosecutors have admitted their intent, and the reviewing court is refusing to accept it. Under Section 2254(d)(2), the State Court decision is unreasonable based on the facts:
(d) 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--
(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.
The United States Supreme Court has held that when it reviews closing arguments for misconduct, the entire trial record, including the full closing arguments, must be considered. Donnelley v. Dechristoforo, 416 US 637, 40 L.Ed.2d 431(1974) When all of these comments are properly considered, including the comments by the prosecutor that Ray was from "a different segment of society" than the jury (R. 659); that this segment of society is composed of "criminals" (R. 687), who are "cold-blooded killers" (R. 665; 682) that are "not bound by any sense of moral duty to report crime," (R. 660) , the ACCA's Opinion that the prosecutor's entire closing arguments did not suggest that Ray has committed other crimes was an unreasonable determination of the facts in light of the evidence presented. 2254 (d)(2), supra. Copeland v. Washington, 232 F. 3d 969 (8th Cir. 2000)(The prosecutor made reference to street-gang turf-war killings in California and all of the murders in Missouri history: ""there has never been a more complete and utter disregard for the sanctity of human life as this case." Neither of which had any relevance to the case.)
CLAIM 22
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO OBJECT TO THE
STATE'S FAILURE TO DISCLOSE A STATEMENT ALLEGEDLY MADE BY RAY
TO STATE WITNESS GENE WALKER
The State called as its witness Gene Walker, who was then incarcerated in a Federal Correctional Institution on drug offenses, to give testimony concerning a statement that Walker alleges that Ray made to him approximately two weeks after the murder of the deceased. (See Testimony of Walker at R. 578-614) According to Walker, Ray made the following statement:
R. 595: "He said he had to body Dre and he needed to find some woman who had pulled in on the street and suppose to see him, and he didn't know who she was. He needed to find her. He had to kill her.
When Walker was asked what he understood this statement to mean, he said that it was a confession by Ray. Ray has maintained throughout these proceedings that this statement is false and there is absolutely no evidence to corroborate it.
The State never disclosed this information prior to trial. In fact, the Respondents did not notify Ray that Walker would be a witness until December 27, 2000, when they filed a motion for a transport order for Walker to be brought from federal prison, which was less than one month before the trial began. On January 4, 2001, trial counsel filed a motion for discovery of information related to Gene Walker and informed the Court in this motion that the State had not disclosed any information to the defense regarding Walker. (See Motion in the Clerk's Record, at C. 44, Ray's Exhibit 20)
On January 9, 2001, the trial court ordered the state to disclose "all exculpatory information pursuant to Brady and all discovery information required by Rule 16, A.R.Crim.P., to be supplied by January 15, 2001 - Otherwise denied." The State never complied with this order and trial counsel never objected. When this claim reached the Alabama Court of Criminal Appeals, that Court held that this claim was to be denied because it allegedly did not allege sufficient facts in support. The magistrate cited this finding at page 35 of the Report and Recommendation. This was, again, a deliberate avoidance by the State Court to review this claim. Mullaney v. Wilber, supra. It was also an unreasonable determination of the facts in light of the evidence presented. 2254 (d)(2).
The record of Ray's Rule 32 Petition, ISSUE 31, P.C.R. 116, shows that Ray plead the statements made by Walker and cited the discovery motions and orders concerning this claim. Ray also cited the transport order of Walker to show the belated disclosure of this witness. On post-conviction appeal, the Respondents devoted a full page or rebuttal argument to this claim and not only did they respond to this claim on the merits, they also conceded that a Brady violation had occurred. In their Appellee Brief, Respondents' Exhibit 8, page 35-36, they state the following:
It simply cannot be gleamed from this record whether the prosecution committed a discovery violation, or whether it did not. Because of this, and because Ray bears the burden of proof in Rule 32, it cannot be said that Ray has shown here that his trial counsel was ineffective for failing to seek to prevent, or limit, the introduction of Walker's testimony. In fact, it can be said that Ray has not.
* * *
Even if Ray has adequately shown a discovery violation in accordance with his burden of proof under Rule 32, it cannot be presumed that the outcome of his trial would have been affected. Under the Alabama Rules of Criminal Procedure, discovery violations presuppose a range of sanctions."
When the State argues that it cannot be gleamed from the record whether a discovery violation has occurred or not, this is the type of material issue of fact that evidentiary hearings are supposed to resolve. Despite two full pages of arguments from the Respondents on post-conviction appeal dedicated to this claim, including an explanation of the wide "range of sanctions" available to trial counsel under Ala. Rules of Criminal Procedure for such a violation, the ACCA held that the claim was a bare allegation. Respondents' contention that, even if Ray has shown a discovery violation, he has not shown that the outcome of trial would have been affected, misinterprets the U.S. Supreme Court standard regarding Brady claims. In Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999), the Court explained that a party cannot establish a Brady claim without showing that the outcome of trial was affected:
Thus the term "Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence -that is, to any suppression of so-called "Brady material"-although, strictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
The fact that the prosecutor would argue that introduction of a statement which is suppose to be a confession by a defendant who is claiming that he is innocence and that the evidence against him is tainted is incredulous. Such a statement cannot be anything but prejudicial to the defense. This statement conflicted substantially with the defense that counsel alleges he intended to present at trial: To discredit Molotsi and her identification testimony. Also, there was no evidence that the deceased was known by the name "Dre," and there was no evidence of a woman (or a police) pulling in on a street -- Walker stated both in his testimony (R. 578-614). This testimony was uncorroborated, lacked trustworthiness, and served no interest of justice. Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999), and United States v. Hall, 165 F. 3d 1095 (7th Cir. 1999) The failure by the State to produce this statement denied Ray of a fair trial and an opportunity to prepare a defense. See, e.g., United States v. Camargo-Vergara, 57 F. 3d 993 (11th Cir. 1995). In Camargo-Vergara, the defendant was on trial in a drug conspiracy case. He had denied involvement with the cocaine. The federal prosecutor failed to disclose a statement and the Eleventh Circuit reversed is conviction:
Prior to trial, the government only disclosed to Dominguez's lawyer the following post-arrest statement made to DEA Agent Cynthia Schultz:
When asked about the foot lockers that Sanchez had, Dominguez said that he had looked inside them and that they contained "kilos." He said that he didn't want anything to do with them. Dominguez also said that he had touched the kilos in the foot locker.
Based on this disclosure, Dominguez's lawyer prepared a trial strategy emphasizing that Dominguez's statements clearly revealed that he "didn't want anything to do with" the cocaine that Sanchez offered to him and properly told her to take it away. Thus, at the beginning of trial, Dominguez's lawyer made the following opening statement:
No, no, I don't want it. No, no way. These will be the words that you will hear out of the mouth of my client, Santos Dominguez.... When Santos Dominguez, at the very tail end of this thing, was offered to buy what was believed to be fifty kilograms of cocaine by someone else, because they needed to find a buyer, he said, no. Just say no.... That person was told to leave, and left the apartment building with the supposed cocaine in the trunk.
During the government's direct examination, Agent Schultz revealed for the first time that Dominguez said "that he had touched the kilos inside the trunk" and "said they were strange." (Emphasis added.)
Dominguez moved for a mistrial alleging that the government committed a discovery violation because it failed to disclose prior to trial that Dominguez said that the kilos were "strange."
A discovery violation under rule 16(a)(1)(A) or a standing discovery order is reversible error only when it violates a defendant's substantial rights. See United States v. Rivera, 944 F.2d 1563, 1566 (11th Cir.1991); United States v. Silien, 825 F.2d 320, 323 (11th Cir.1987); United States v. Barragan, 793 F.2d 1255, 1259 (11th Cir.1986). Substantial prejudice exists when a defendant is unduly surprised and lacks an adequate opportunity to prepare a defense, or if the mistake substantially influences the {57 F.3d 999} jury. United States v. Rivera, 944 F.2d at 1566; United States v. Barragan, 793 F.2d at 1259. Inadvertence does not render a discovery violation harmless; rather, the purpose of rule 16 is to protect a defendant's right to a fair trial rather than to punish the government's non-compliance. United States v. Noe, 821 F.2d 604, 607 (11th Cir.1987); United States v. Rodriguez, 799 F.2d 649, 654 (11th Cir.1986); United States v. Padrone, 406 F.2d 560, 560-61 (2d Cir.1969).
Upon a review of the record, we hold that the government substantially prejudiced Dominguez's defense when it failed to disclose that Dominguez told Agent Schultz that the kilos were strange.
Respondents comment that the prosecuting attorney submitted an affidavit stating that "all discoverable material was handed over to Ray's defense before trial." Appellee Brief, id., page 35. Well, it is without question that the Respondents did not disclose the full terms of its deal with Batts or the ballistics report in this case. In fact, on direct appeal as of right from the initial conviction, the ACCA noted in its Opinion the fact that the record did not show that the State had responded to any of Ray's discovery motions. See: Opinion, Direct Appeal, page 13: " The record on appeal, however, contains no response from the State to either motion."
In addition to Ray's due process and fair trial rights protected by the 14th Amendment, State law also requires that the statement be disclosed. See Rule 16, Ala.R.Crim.P. and Rule 404 (b), Ala.R.Evid. With the State prosecutor not only finding Ray's pleadings sufficient enough to respond on the merits in two different sections of its Brief, but also conceding to the discovery violation, the ACCA's decision is based on an unreasonable determination of the facts in light of the evidence presented. 2254(d)(2). The District Court abused its discretion by deferring to the state court decision without independent review this question of law and a COA should issue for this claim.
CLAIM 23
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR HIS FAILURE TO
OBJECT TO AN ERRONEOUS JURY INSTRUCTION THAT GAVE THE JURY PERMISSION TO CONSIDER THE TESTIMONY OF WITNESSES EVEN IF THEY FOUND IT TO BE WILLFUL AND INTENTIONAL FALSE TESTIMONY AS TO MATERIAL FACTS
The ACCA unreasonably determined that trial counsel was not ineffective for failing to object to a jury instruction given by the trial judge that gave the jury discretion to consider false testimony because, in the Opinion of the court, such instruction is not an incorrect statement of the law. The trial court gave the following instruction to the jury:
R. 694: A mere contradiction, standing alone would not authorize you to disregard the testimony of that witness entirely. But should you find that a witness has willfully and intentionally testified in a false manner to a material fact then as to that witness you are privileged to disregard his or her entire testimony if you see fit. You do not have to, but you have that privilege if you choose to do so
The ACCA held in its review of this claim that: [W]e have reviewed the trial court's instruction and find that it was a correct statement of the law." This holding, however, conflicts with both State and Federal precedent and trial counsel was ineffective for his failure to object. For example, in Dixie Highway Express, Inc. v. Southern Railway Co., 244 So. 2d 591 (1971), the Alabama Supreme Court explicitly held that "No discretion should be allowed a jury to consider and give weight to willfully false testimony on a material point, even in part." A witness in Alabama can be rendered incompetent to testify on the grounds of perjury, and one cannot commit perjury unless his false testimony was to a material fact. In Estelle v. McGuire, (1991) 502 U.S. 62, 116 L.Ed.2d 385, 112 S Ct 474, the Court explained that willfully false testimony "about a material matter" denies due process.
In Bagley v. United States, 473 U.S. 667 (1985), the Supreme Court held that material evidence is the species of evidence that has a reasonable probability of affecting the outcome of a trial. From this holding, one can conclude that if a jury considers and accepts willfully false testimony to establish a material fact, then there is a reasonable probability that if counsel had objected to this testimony the outcome of trial would have been different, Strickland v. Washington, supra, because the state would have failed to prove each element of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) also see Mills v Maryland, 486 US 367, 383-384, 100 L Ed 2d 384, 108 S Ct 1860 (1988)
In Giglio, supra, the Supreme Court held that the false testimony of just one witness about a material fact - a deal with the State in exchange for testimony -- denied due process and reversed the conviction. There is no way that a jury can have discretion to consider willfully and intentionally false testimony. Batts lied about his deal in this case; a ballistics report shows that a .380-auto weapon was used to shot the deceased, not a 9mm; the entire testimony of Joan Molotsi; and the cause of death is still in dispute, all of which are material matters. See Gaines v. State, 147 Ala. 16 (1906). Willful and intentionally false testimony by anyone of these witnesses concerning either of these matters is grounds for a new trial, so the State Court has unreasonably applied Strickland to this ineffective assistance of counsel claim. 2254(d)(1). This Court should issue a COA because this issue deserves further proceedings, as the jury instruction is clearly incorrect. The District Court erred by deferring to the State Court on this legal question instead of affording de novo review. Romine v. Head, 253 F. 3d 1349 (11th Cir. 2000)
CLAIM [24]
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO
DISCOVER AND DISCLOSE TO THE JURY THE FULL TERMS OF THE DEAL THE
STATE HAD WITH CO-DEFENDANT FRED BATTS
Ray has again alleged in this petition a claim of the denial of his right to due process and a fair trial premised upon the false testimony of the codefendant, Fred Batts, who denied having a deal with the State in exchange for his testimony. In this claim, Ray alleges that his trial counsel rendered ineffective assistance when counsel failed to discover and disclose to Ray's jury the full terms of the deal Batts’ had with the State in exchange for his testimony. Throughout the course of the litigation of this (these) claims, the one thing the State has not done is deny that they never disclosed the full terms of their deal with Fred Batts in exchange for his testimony. Nor has the State denied that Batts lied on the witness stand regarding the deal he had with the State in exchange for his favorable testimony. Instead, Respondents have attempted to play semantics in theirs various briefs, including the following example from their Brief on Post-Conviction appeal:
On March 8, 2001, Fred Batts, in fact, had his murder indictment relating to the death of Andre Horton dismissed by the Madison County District Attorney. (C. 177) Fred Batts’ testimony in June 2000, however, was that, at the time of Ray's trial -- six months earlier -- he had not yet entered into any kind of agreement with the State. (R. 289)
Ray has presented nothing here, other than bald conjecture, to show that -- at the time the testimony was offered -- the dismal of his murder case was connected to Batts’ testimony against Ray. Bald conjecture is not good enough under ALA. R. CRIM. P. Rule 32.3 and 32.7(d). Counsel was not deficient.
Respondents are correct that Batts testified in Ray's trial that he had not yet entered into any kind of agreement with the State during his testimony at trial. But this doesn't help the Respondents' cause because there is no escaping the fact that, not one, but two different assistant district attorneys told the jury that Batts had entered into a deal with the State:
R. 121: We have cut a deal with Fred Batts. He has turned state's evidence. We will call him to the stand and you will hear he will get a benefit out of doing what he is doing for us. (Emphasis added)
* * * *
R. 200: Fred Batts will tell you about the events that happened, though, that afternoon on March 26, 1999, and he will tell you that he has a deal with the State. But, members of the jury, that is conditioned on him taking the witness stand, looking at you and testifying truthfully. (Emphasis added)
What Ray is alleging in this federal habeas corpus petition is that Ray's trial attorney did not discover and disclose the full terms of the deals -- the "benefit" --that these two prosecutors were referring to in their voir dire and opening statements to the jury. Which is the same deal that the ACCA was referring to in their Opinion on the Direct Appeal in this case:
Here, as in Weaver, it appears that the State failed to disclose until trial that it had cut a deal with a codefendant. This information -- that Batts had agreed to testify -- was provided both during voir dire and during the prosecution's direct examination of Batts. Because the State did, however, divulge that Batts would testify because he had cut a deal, the State's failure to provide this information prior to trial was harmless error. Ray had sufficient time to explore this information before the jury during his cross examination of Batts.
Additionally, it is apparent from Batts’ testimony that the State had not spoken with him about testifying until two weeks before trial. Therefore, the State had not discussed with Batts whether he would testify or whether they would cut a deal until well after the filing of both of Ray's motions for the production of exculpatory evidence. Opinion, Direct Appeal, page 13- 15.
Now, on post-conviction, Ray has presented an actual copy of the motion to nolle pros Batts’ indictment for murder.(Exhibit L, P.C.R. 177) This motion explicitly states that Batts’ charge was dismissed in exchange for his testimony against Ray and for future assistance if that becomes necessary:
Comes now the State of Alabama by and through its Deputy District Attorney, and moves this Court to enter its Order to Nolle Prosse in the above styled cause, and assiassigns grounds therefore as follows:
1. For the defendant's substantial assistance rendered in the form of testimony against the co-defendant and his future assistance should that be necessary, the State elects not to prosecute at this time.
In the face of the plain writing of the motion, the State has never explicitly stated that this was not the deal that they were speaking of when they told the jury that they had cut a deal with Batts. However, Ray has alleged that this was in fact the specific deal throughout all of his litigation.(Unrefutted allegation are to be taken as true.) Ray's trial counsel never discovered this deal and never disclosed its terms to the jury. Ray was prejudiced by counsel's ineffectiveness because, not only was Ray not able to have the testimony of his codefendant properly assessed by the jury, but Ray was not able to expose to his jury the fact that the State's most critical witness was lying to them while under oath. Napue v Illinois, 360 US 264, 269, 3 L Ed 2d 1217,1221, 79 S Ct 1173 (1959):
"The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend."
On Rule 32 post-conviction appeal, the ACCA, Opinion, Rule 32 Post-conviction Appeal, pages 4-5, entertained the State's argument and premised its ruling on the fact that Batts testified that he "hoped" to receive a benefit, even while acknowledging the fact that Batts denied having a deal with the State in exchange for his testimony:
During the trial, Batts indicated that he did not have an agreement with the State. However, he testified that he was testifying to help himself; that he hoped he would be able to get a plea agreement; and that the State had not made any promises to him. The Appellant did not present any evidence that a specific agreement existed between Batts and the State at the time of his trial. Therefore, he has not shown that his trial counsel rendered ineffective assistance in this regard or that he was prejudiced by counsel's allegedly deficient performance. (emphasis added)
In United States v. Barham, 595 F.2d 231 (5th Cir. 1979) the Court distinguished between a witness's "hope" for lenient treatment as opposed to the "expectation" that a witness knows he has when they have a for-sure deal struck with the prosecutors. Thus, the ACCA's findings of what Batts may have hoped for has no relevance because a fully consummated deal existed. Batts’ statements that he did not have an agreement and that the State had not made any promises to him were false and outright lies. Had trial counsel been functioning as Sixth Amendment counsel should, he would have known this.
Ray has alleged throughout the entire State and Federal post-conviction process that the State had a deal with Batts to have his case nolle prossed. Ray has also provided a copy of the nolle pross order as Exhibit _____, which states that his murder charge was dismissed because of his testimony from trial. The State has never denied Ray's allegation that Batts' deal with them ... at the time of trial ... called for his murder charge to be dismissed in exchange for his testimony. Trial counsel had a duty and an obligation to uncover and present this evidence to the jury. In spite of the prosecutor’s statements on the record that they had a deal with Batts, the fact that these disclosures were made on the day trial began, and Batts continuously denied that a deal existed during his testimony, trial counsel NEVER inquired as to the terms of the State's deal with Batts. At the sentencing hearing, which was almost two months after the jury rendered its verdict, trial counsel still had not inquired about the deal:
Sentencing Hearing, page 11:
"I don't know what sentence or exactly what the nature of the State's deal was with Mr. Batts, but it's very clear from his testimony that he was certainly involved at least at an accessory level."
For these reasons, Ray contends that his trial counsel was ineffective in violation of the Sixth Amendment and the ineffectiveness was prejudicial to Ray. Counsel had a constitutional duty to investigate this evidence and this witness and thereafter present the deal to the jury. Wiggins v. Smith, 539 U.S. 510, 156 L. Ed. 2d 471, 123 S. Ct. 2527:
In highlighting counsel's duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same "clearly established" precedent of Strickland we apply today. Cf. 466 US, at 690-691, 80 L Ed 2d 674, 104 S Ct 2052 (establishing that "thorough investigation[s]" are "virtually unchallengeable" and underscoring that "counsel has a duty to make reasonable investigations"). A COA should issue because this cause deserves further proceedings.
“Claim Raised on Direct Appeal”
CLAIM 25
On direct appeal, Ray alleged that the State had violated the rule of Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963), AND Giglio v United States, 405 US 150, 154, 31 L Ed 2d 104, 92 S Ct 763 (1972). United States v. Bagley, 473 US 667, 682, 87 L Ed 2d 481, 105 S Ct 3375 (1985), was violated on the grounds that the State withheld that it had cut a deal with the codefendant until the day of trial (but did not reveal the terms of the deal) and that this witness denied the existence of this deal throughout his testimony. Thus far, Ray has not been able to get any court to review the full dimensions of this claim. Specifically, Ray has not been able to get the Giglio, jurisprudence applied to his claim in the totality of his argument. In its Opinion, the ACCA conceded the following facts: (1) Ray made requests for the disclosure of any deals the State had with any of its witnesses as early as August 11, 1999; and (2) The State failed to disclose the fact that it had reached a deal with Batts until the day of trial:
On August 11, 1999, Ray filed a motion requesting disclosure of "[a]ny promise or indication to any witness of immunity from prosecution, leniency in disposition, or recommendations of specific sentences concerning actual or alleged crimes, whether related to this case or to other cases.
* * * *
Here, as in Weaver, it appears that the State failed to disclose until trial that it had cut a deal with a codefendant. This information -- that Batts had agreed to testify -- was provided both during voir dire and during the prosecution's direct examination of Batts. Because the State did, however, divulge that Batts would testify because he had cut a deal, the State's failure to provide this information prior to trial was harmless error. Ray had sufficient time to explore this information before the jury during his cross examination of Batts.
Additionally, if is apparent from Batts’ testimony that the state had not spoken with him about testifying until two weeks before trial. Therefore, the State had not discussed with Batts whether he would testify or whether they would cut a deal until well after the filing of both of Ray's motions for the production of exculpatory evidence. Opinion, Direct Appeal, page 13- 15
The ACCA also is correct that Ray "had sufficient time to explore this information before the jury during his cross examination of Batts." What the ACCA did not do though was acknowledge the fact that Batts denied the existence of a deal on both direct-examination and cross-examination, which Ray specifically plead in his argument. The ACCA premised its ruling primarily on the fact that the State disclosed the fact that it had reached a deal with the codefendant. But this is not what Brady/Giglio/Bagley and their progeny require. What Ray is entitled to under these decision is not the mere knowledge of the fact that a deal exists, but the actual details of the deal. Deals connote agreements of specific terms. See, Giglio, surpra:
Petitioner was convicted of passing forged money orders and sentenced to five years' imprisonment. While appeal was pending in the Court of Appeals, defense counsel discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key witness that he would not be prosecuted if he testified for the Government. We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v Illinois, 360 US 264, 3 L Ed 2d 1217, 79 S Ct 1173 (1959), and Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963).
As long ago as Mooney v Holohan, 294 US 103, 112, 79 L Ed 791, 794, 55 S Ct 340, 98 ALR 406 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of justice." This was reaffirmed in Pyle v Kansas, 317 US 213, 87 L Ed 214, 63 S Ct 177 (1942). In Napue v Illinois, 360 US 264, 3 L Ed 2d 1217, 79 S Ct 1173 (1959), we said, "[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id., at 269, 3 L Ed 2d at 1221. Thereafter, Brady v Maryland, 373 US, at 87, 10 L Ed 2d at 218, 83 S Ct 1194 (1963), held that suppression of material evidence justifies a new trial "irrespective of the good faith or bad faith of the prosecution." See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function § 3.11(a). When the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269, 3 L Ed 2d at 1221.
* * * *
Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
In Bagley, the Supreme Court quoted extensively from its decision in Davis v Alaska, 415 US 308, 39 L Ed 2d 347, 94 S Ct 1105 (1974) which explicitly states that the full terms of a deal with a State witness must be disclosed to the jury for consideration. This holding has been accepted without alteration in the State of Alabama for over 20 years. See e.g, Smith v. State, 838 So. 2d 413 (Ala. Crim. App. 2002):
It is well settled that "a defendant has a right to cross-examine an accomplice as to the nature of any agreement he has with the government or any expectation or hope that he may have that he will be treated leniently in exchange for his cooperation. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1109-10, 39 L. Ed. 2d 347 (1974) ." United States v. Barrett, 766 F.2d 609, 614 (1st Cir.) (emphasis added [in Starks]) cert. denied, 474 U.S. 923, 106 S. Ct. 258, 88 L. Ed. 2d 264 (1985) . If the accomplice has entered into a plea bargain agreement with the State, "the full terms of this agreement must be allowed to be placed before the jury." Dawkins v. State, 494 So. 2d 940, 943 (Ala.Cr.App. 1986) (emphasis added [in Starks]). The accomplice's agreement with the State has bearing on his credibility and bias. Id. Additionally, the terms of the agreement provide the jury with an "understanding of the possible motivations of the accomplice as he sits on the stand." State v. Donelson, 302 N.W.2d 125, 131 (Iowa 1981) , quoted with approval in Dawkins v. State, 494 So. 2d at 943 . Moreover, where, as in this case, the accomplice is a key witness, the trial court has little, if any, discretion to curtail an accused's attempts to show bias or motive on the part of the witness. See Jones v. State, 531 So. 2d 1251, 1254 (Ala.Cr.App. 1988); Proctor v. State, 331 So. 2d 828, 830 (Ala.Cr.App. 1976) .'
Starks v. State, 594 So. 2d 187, 197 (Ala.Cr.App. 1991) .
However, in the present case, the terms of Willis's plea agreement were before the jury. Defense counsel was allowed to cross-examine the witness extensively about the agreement and made the jury 'fully aware of the possible influences that the plea agreement could have had on [Willis's] testimony. The jury was free to reject [Willis's] testimony. It chose not to do so.' Wilson v. State, 690 So. 2d 449, 462 (Ala.Crim.App. 1995) . See also Allen v. State, 611 So. 2d 1152 (Ala.Crim.App. 1992) .
838 So. 2d at 460 .
For reasons unexplained, the ACCA attempts to confine Ray's claim to the fact that the State disclosed the fact that it had a deal with Batts, while giving no consideration to the fact that the full details of this deal were not aired to the jury:
Opinion, Rule 32 Post-conviction Appeal, pages 4-5:
During the trial, Batts indicated that he did not have an agreement with the State. However, he testified that he was testifying to help himself; that he hoped he would be able to get a plea agreement; and that the State had not made any promises to him. The Appellant did not present any evidence that a specific agreement existed between Batts and the State at the time of his trial. Therefore, he has not shown that his trial counsel rendered ineffective assistance in this regard or that he was prejudiced by counsel's allegedly deficient performance.
Ray has objected to the District Court on the grounds that the court was not correct in applying the precedent of the Supreme Court to his claim. Not only must the fact that the details of this deal were not disclosed be considered, but the fact that Batts denied the existence of this deal on direct- and cross-examination, without correction from anyone. Batts did not have to hope that a plea agreement be reached because he already had a deal with the States and promises had been made to him. In reality, the State did not disclose the terms of the deal it had reached with Batts; the State mere disclosed that it had reached a deal. As Ray has already stated, these are two different things. Under the statutory and judicial standard, Ray is entitled to a COA because this claim raises a serious and substantial question as to whether Ray's 14th Amendment due process right were violated.
VIII.
MERIT OF THE CLAIMS HELD PROCEDURALLY BARRED BY
MAGISTRATE JUDGE
CLAIM 26
TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING PETITIONER TO PLEAD
TO AN INDICTMENT THAT WAS PASSED WITH NO WITNESS OR LEGAL EVIDENCE BEING PRESENTED BEFORE IT
Ray alleges that trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, by allowing Ray to plead to and be tried on, a void indictment. This indictment is void because it was issued by a grand jury that had no legal evidence or witness before it. An indictment issued without legal evidence or witness is void. See: Section 12-16-200, Code 1975. Coral v. State, 628 So. 2d 954 (Ala.Crim.App. 1992)
In the case at bar, there were two different indictments issued two different grand jury terms. There was also two different autopsy reports, issued by two different pathologist, with two different conclusions as to the cause of death. Ray alleges that the latter indictment is void because no witness or evidence was presented before it.
The original autopsy report, which concluded that asphyxia was the cause of death, was completed by Dr. Stephen M. Pusilnik, M.D., on August 3, 1999. (See Exhibit E, P.C.R. 164-69). The original indictment, relying on this report, was issued by Madison County Grand Jury No. 555A on May 12, 2000, and charged Ray with Murder by asphyxiation. (See Indictment, C. 05-09).
The second autopsy report, which concluded that gunshot was the cause of death, was completed by Dr. J.C. Downs, M.D., on January 5, 2001, approximately 8 months after the first autopsy report. (See Exhibit M, P.C.R. 178-88). However, the second indictment, which charged Ray with Murder by gunshot, was issued by Madison County Grand Jury No. 225A, on December 8, 2000---almost a full month before the second autopsy was complete. (See Indictment, C. 40-43). Based on the dates affixed to indictment, it is undisputable that the second grand jury did not have, and could not have had, the second autopsy report before it. In their Appellee's Brief during the Rule 32, Post-Conviction Appeal, Respondents' Exhibit 8, Respondents argue--contrary to the record--that the second grand jury "heard from the second pathologist."
Appellees' Brief, page 25 reads: "It is not possible to know exactly what went on in the grand jury proceedings. It is possible, however, to safely assume that the first grand jury heard from the first pathologist, either through testimony or a report, and that the second grand jury heard from the second pathologist."
Respondents define "heard" as either through testimony or a report." Using this definition, the fact that the indictment was issued in December 2000, while the autopsy was issued in January 2001, the second grand jury did not hear from Dr. Downs through a report. Additionally, the witness list attached to the second indictment is merely a duplicate of the witness list attached to the first indictment. (Compare witness lists at C. 07 and C. 42). Neither list names Dr. Downs as a witness. However, both of these lists, name Dr. Pustilnik, the first pathologist and the one who contends that asphyxia is the cause of death, as the doctor subpoenaed. Dr. Downs’ name does not appear in the record until January 2001, which is after the second indictment had already been issued. Thus, contrary to Respondents, it cannot be “safely assumed. . . that the second grand jury heard from the second pathologist.”
In Carter v. Jury Commission, 396 U.S. 320, 380, 24 L.Ed.2d 549 and Alexander v. Louisiana, 405 U.S. 625, 633, 31 L.Ed.2d 536, 92 S.Ct. 1221 (1972), the Supreme Court explained that, although the Sixth Amendment’s Indictment requirement is not made applicable to the States through the Due Process Clause of the Fourteenth Amendment, those States that choose to require an indictment through a grand jury must afford due process. In this context, due process means that the grand jury - - itself - - must investigate the cases brought before it, and that the independence of this body must not be overborn by a prosecutor who merely submits an indictment to the grand jury to sign. See. e.g., U.S. v. Sigma Intern, Inc., 244 F.3d 841 (11th Cir.2001).
“If the Fifth Amendment’s promise that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” U.S. Const. Amend. V., mean anything, it means that a criminal indictment must actually issue from a grand jury, and not some other source. The fundamental concept underlying the Fifth Amendment guarantee is that in order for an indictment to be recognized as actually issuing a grand jury, it must be the product of an investigative deliberation that is independent of both prosecuting attorney and the court. See United States v. Williams, 504 U.S. 36, 49 (1992). . .Without a guarantee of independence, the indictment would not be the genuine issue of a grand jury within the meaning of the Constitution.
It is clear for example, that if a prosecutor simply drew up an indictment, had a grand jury foreperson sign it, and then used it to charge the defendant with a criminal offense, we would dismiss the indictment out of hand as violative of the Fifth Amendment. This is because the indictment would in no sense be the product of a constitutionally required grand jury proceeding. So, too, would we dismiss an indictment that was issued by a “kangaroo grand jury” - - one whose deliberations were so overborne by a prosecutor or judge that the indictment was, in effect, the prosecutor’s or judge handiwork, and not the result of a considered judgment by an independently functioning grand jury.” Id. 856.
The record in this case refutes the only evidence that the State has alleged was “heard” by the Grand Jury, which is Dr. Downs. All of these facts were readily available to counsel and the law was clearly established. Counsel has a duty to know the pertinent law and facts pertaining to a case. Strickland v. Washington, supra. Ray’s codefendant testified that he was not cooperating with the state at this time. (R. 453), and no other person has ever been identified as capable of providing this information. The State has not identified any other piece of evidence or testimony that the grand jury could have heard. For these reasons, a C.O. A. should issue to address this claim.
CLAIM 27
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO
OBJECT TO THE FACT THAT THE PROSECUTOR HAD PROVIDED HIM WITH FALSE INFORMATION AS TO WHERE THE INFORMATION HAD COME FROM THAT LEAD TO A SECOND AUTOPSY BEING PERFOMRED, WHEN THE FALSITY WAS UNCOVERED DURING TRIAL
Ray was initially indicted by a Madison County grand jury in March 2000 for the murder of Mr. Horton. This indictment charged that the cause of death in this case was asphyxia. Ray was arraigned on this indictment in June 2000, and plead not guilty. On this same day, the prosecutor attempted to get an order from the trial judge to exhume the body of the deceased for a second autopsy, contending that they had received information suggesting that the deceased may have been shot to death - not asphyxiated. The circuit judge denied the prosecutor's ex parte request and instructed the prosecutor to file a motion to be heard at a hearing where all parties could be present. The prosecutor filed the motion on June 23, 2000 (C. 18), and a hearing was set for July 2000.
Prior to the hearing, the prosecutor told Ray's attorney that Ray's codefendant, Fred Batts, had made a proffer to them through his attorney, that the deceased had been shot. Ray's counsel, relying on the faith and integrity of the prosecutor, accepted this proffer and offered no objection to the Motion to Exhume being granted. (Dr. Pustilnik, the doctor who performed the original autopsy, stated that the prosecutor told him that the information was coming from Batts. See, e-mail, P.C.R. 326) The hearing was held in July 2000, and the trial court subsequently granted the State's motion on July 31, 2000 (R. 30-31). The body of the deceased was exhumed on August 22, 2000, and a second autopsy was performed by Dr. J.C. Upshaw Downs. Dr. Downs issued his autopsy report on January 5, 2001, concluding therein that the cause of death was gunshot. (See Autopsy Report, P.C.R. 178-188) Dr. Downs also completely excluded asphyxia as a cause or contributor to death. (Emphasis added). (Ray had already been re-indicted for murder by gunshot on December 8, 2000 -- almost a full month before the second autopsy was complete.)
During the cross-examination of Batts at trial, Ray's attorney inquired of Batts about the many different statements that had been attributed to him prior to trial, as well as, his prior contacts with the district attorney's office that lead to the second autopsy being performed. During this examination, however, Batts revealed that he had not spoken with the district attorney's office about this case until just two weeks before trial, which was when he received his deal to have his murder charge dismissed in exchange for his testimony:
R. 453:
(By defense counsel)
Q. When did you first sit down -- not talking about the video tape we just saw, putting that aside, when did you next sit down to talk to the D.A.'s office and the investigators about the facts or what you contend are the facts on March 26?
A. About two weeks -- a week or two -- about two weeks.
Q. About two weeks?
A. Yes, sir.
Q. So, between March of 1999 and today, you have had interaction with the folks on the -- from the D.A.'s office and with the sheriff'' department and that would have been about two weeks ago?
A. Yes, sir.
At this point, counsel became aware that the prosecutor had given him false information as to where the information that the deceased had been shot came from, because Batts denied providing it. Nonetheless, counsel did not object or attempt to explore from whom or where this information had come. This matter surfaced again when, during closing statements, the prosecutor attempted to attribute the discovery of this information to Batts. Trial counsel objected to this attempt by the State, and the trial court placed the matter into the hands of the jury:
R. 676-78:
You remember me asking him, "Have you ever seen a forensics report, Fred? did your lawyer ever show you one?"
"No, sir."
"Where was Andre Horton shot?"
"Right back in here."
You know, he may have been an inch high. How does he know that? The would want you to believe, well, maybe he shot him. He shot him. Fred Batts says that.
When the medical examiner is down there, think it's suffocation, asphyxiation. You hear the medical examiner, "We got information for the investigators up here that there may be another cause of death."
Now how do you think we learned that --
MR. DAVIS: Your Honor, I object to that. That puts facts not in evidence before the jury.
THE COURT: I will leave that to the jury to go back and recollect and determine what the facts are.
After the closing arguments were complete, counsel explained on his objection and made explicit, full disclosure of the fact that the prosecutor had previously told him that the information which lead to the second autopsy being performed came from Batts:
R. 687:
MR. DAVIS: Your Honor, I want to elaborate and expand on the objection I made in closing argument.
At one point, Mr. Broussard stated to the jury or suggested to the jury that the reason a second autopsy was done was because Fred Batts provided the State information about the gunshot wound. That evidence was never put before the jury factually.
What occurred, according to defense counsel's understanding is that Mr. Lampley, Mr. Batts lawyer, made a proffer to Mr. Broussard and that proffer was part of the reason why the autopsy was done. Not disputing that occurred but that evidence was never put before this jury.
It's an important piece of evidence. It's corroborative of Mr. Batts, but it was never put before the jury. Indeed, the contrary. Evidence was suggested that Mr. Batts testified on direct and cross-examination that his corroboration phase began several weeks ago, and he testified his first meeting with the district attorney's office happened several weeks ago. That's what he testified to on direct and cross.
The fact that the prosecutor attempted to attribute this information to Batts was a subject on appeal when Ray's court-appointed attorney raised the claim that Ray had been denied a fair trial due to the prosecutor attempting to argue facts in his closing that had not been testified to at trial. (See Appellant's Brief on Direct Appeal, Exhibit 8) On direct appeal, Respondents' defended their position from trial on appeal and stated that their attributing of this information to Batts was a correct interpretation of the evidence from trial. See Appellee's Brief,, pages 40-43:
B. The State's reference to Batts providing them with information that led to the second autopsy in its closing statement was not improper because it was a reasonable inference from the facts that had been presented at trial.
* * * *
Fred Batts testified that Ray show Horton in the back, left side of the head, about two inches form the left ear. (R. 314) The evidence at trial revealed that Fred Batts gave statements to the investigators. (R. 314, 333-335, 394-397) Thus, it is a reasonable inference for the State to argue that Batts' statements were the reason for the second autopsy to determine if Horton's death had been caused by a gunshot wound and, thus, the trial court did not abuse its discretion in overruling Ray's objection.
The ACCA affirmed Ray's direct appeal on the proposition espoused by the State that the closing comment was a correct inference on the evidence from trial:
Opinion, page 12-13:
Ray cites to case law standing for the proposition that a prosecutor should refrain from making improper statements during closing arguments and the standard of review if such comments are made. Ray states that the prosecutor's comment during closing argument inferring that Horton's body was exhumed and re-autopsied because of evidence presented by Batts was offered to prejudice him and impact the jury. It is apparent, however, that the prosecutor's comment was a mere inference from the evidence presented regarding how the medical examiner determined that Horton's body should be exhumed and re-autopsied. The prosecutor's comment was a legitimate inference from the evidence presented; as such, it was proper. No prejudice is apparent.
Respondents have now done a complete about-face. They now dismiss Batts as the source of this information and now place it into the hands of unknown individuals. In his post-conviction petition, Ray, acting on the testimony from Batts at trial, filed discovery to find out the where the prosecutors had received this information from. At this time, the prosecutors completely changed their position, and now state that this information came from "people from the street." See, Appellee Brief on Rule 32 post-conviction appeal, pages 23-25:
Ray says that the second autopsy was predicated on someone convincing the authorities that Andre Horton had been shot -- not strangled. Ray says it was impossible for Fred Batts to have been the person doing the convincing, because Batts testified that, between March 29, 1999, and the first week of January 2001, he had had no contact with law enforcement about the case. (R. 453) So what!
Dr. James Downs, MD, the pathologist who conducted the second autopsy, testified that his interest in re-autopsying the body was the result of inquiries made by Huntsville-area law enforcement authorities. (R. 346) These law enforcement officials related that they were receiving information "from the street" contradicting the original autopsy conclusion that Horton had been asphyxiated. They did not specify from whom the information had come. They did not have to.
Trial counsel's objection shows that he had full knowledge of the fact that the prosecutors had provided him false information about where the information that the decease had been shot came from. To this day, Ray does not know who these "people from the street" are. All of Ray's discovery for the identity of these people have been denied summarily in both State and Federal court. Who these people are; how they came into this information; and whatever additional information they may know about this crime, is material to this case. Trial counsel was ineffective for failing to attempt to discover this information and Ray is prejudiced by not knowing the identity of people who possessed information about the case that was used to impeach a grand jury indictment and eight (8) witnesses who testified before this grand jury.
The State Court's summary denial of this claim, where the facts were not disputed by the State in the Circuit Court and were supposed to be accepted as true on appeal, has denied Ray due process. For all of the above-stated reasons, a COA should issue.
CLAIM 28
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HE FAILED TO OBJECT TO THE PROSECUTOR IMPROPERLY VOUCHING FOR
THE TESTIMONY AND CREDIBILITY OF THE CODEFENDANT
The co-defendant/State witness Fred Batts, was the critical witness in this case. Trial counsel characterized Batts' testimony to the jury, as being central to its verdict:
(R. 647): And I say to you, ladies and gentlemen and Fred Batts, in his world one-fourth truth and one-half truth. One thing that he said that was 100 percent truthful, I asked him the question, "Mr. Batts, to believe the State's case, we have to believe you, don't we?
And he said "yes, sir" and he was absolutely right about that. You cannot convict and you cannot believe their case unless you believe Fred Batts.
During rebuttal, the prosecutor agreed that Batts testimony was critical to their verdict:
(R. 665-666): And speaking of that, let's talk about Fred Batts. Mr. Davis says he submits that y'all have to believe Fred Batts to convict. I agree with that somewhat.
Trial counsel devoted his entire cross-examination of Batts to issues of Batts veracity, criminal history, and prior inconsistent statements, as these matters bore on his credibility (Cross-examination, R. 394-509). It was shown among other things, that Batts had given four prior out-of-court statements that all contradicted each other as well as his trial testimony. Two different statements were made by Batts during an audio/video recorded interrogation by police (R. 394;401-447); Batts also made statements to Ray's initial attorney, Hon. Mike Seibert, which was recorded by audio (R. 394;465-476) and Batts wrote a purported alibi statement after escaping police custody. (R. 395; 473-484).
Batts testified to having several prior felony convictions (R. 291-92); to having been to prison twice (R. 292-293); and that he lied continuously to avoid "going to jail" (R. 485), Batts further testified as follows:
(R. 485):
Q. Another reason to lie is not wanting to put ourselves in something and not wanting to implicate ourselves. That's another reason people typically have for lying, isn't it?
A. yes, sir.
Q. Its also been one of your reasons, too, hasn't it?
A. Yes, sir.
Q. Another reason people have for lying is just not wanting to own up to responsibility for what they have done, isn't it?
A. I guess.
Q. And that’s been one of your reasons for lying about this so much hasn't it?
A. to an extent.
Finally, Batts admitted that he lied on several prior occasions, and that no one would have had any way to know he was telling a lie.(id) Batts further admitted that he had motives to lie and that he would do so when given an opportunity. Against this backdrop, it is not difficult to understand why the prosecutor felt the need to vouch for the truthfulness of this witness. But in doing so, Ray was denied a fair trial.
During closing arguments, the prosecutor told the jury that Batts told the truth during his trial testimony "about everything":
(R. 667):
He told the truth about everything. He told the truth about the untruths he told before. You can't think of anything in here that he didn't--that he was caught on in court. It was not one thing.
** ** ** ** ** ** ** ** **
(R. 670):
He came in here straight up. I submit to you and told the truth and he will benefit from it.
When the prosecutor made these statements, he knew that Batts had lied to the jury during his testimony when he denied having a deal with them in exchange for his testimony. (See: Claim 25, supra) The prosecutor also knew that Batts’ testimony that Ray had shot the deceased with a 9mm was refuted by the suppressed ballistics report. (See: Claims9 and 14, Supra) Under these circumstances, Batts could not be "caught on [anything] in court" because anything that could have caught him was suppressed by the state.
The prosecutor continued vouching for Batts throughout his closing statements: (R. 675): "He told the truth about everything"; (R. 681): "it's exactly like Fred said"; (R. 695): "but what he said, you can't make it up."
In DONNELLY v. DECHRISTOFORO, (1975) 418 U.S. 637, 647-48, the court explained that only "egregious misconduct" by a prosecutor denies a fair trial. The conduct by the prosecutor in the case at bar, of vouching for the credibility of a witness whom the prosecutor KNEW had testified falsely, is egregious. The Eleventh Circuit reversed a conviction in U.S. v. Eyster, 948 F.2d 1196 (1991) where, as here, the prosecutor vouched for the credibility of a critical witness whose credibility was otherwise in serious doubt. The court explained the harm caused to a defendant's fair trial right, as follows:
"Implying the existence of additional evidence not formally before the jury severely impairs the likelihood of a fair trial. In BERGER v UNITED STATES, 295 U.S. 78, 88-89, 55 S.Ct. 629, 633, 79 L.Ed 1314 (1935), the Supreme Court reversed a conviction when the prosecutor through questioning and arguments implied personal knowledge of additional evidence.
The Court noted the Government’s unique burden of justice and heightened responsibility in court:
The United States Attorney is the representative not of an ordinary party to a controversy, but of sovereignty whose obligation to govern impartiality is as compelling as its obligation to govern at all ... It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Id. See also United States v. Young, 470, U.S. 1, 105 S.Ct. 1038, 84 L.Ed 2d 1 (1985)(vouching may jeopardize the defendants right to be tried solely on the evidence presented to the jury.)
Ray could not locate a former Circuit Case dealing with parallel facts, as no other prosecutor appears to have vouched for the truthfulness of a witness whose testimony they knew was false. When this vouching is "viewed in the context of the entire trial", as Donnelly v. Dechristoforo, requires, and in light of the prosecutors knowledge of the perjury and the ballistics report, the prosecutor's misconduct can only be classified as "egregious"---at the minimum.
CLAIM 29
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE MISINFORMED THE JURY ABOUT WHAT THE EVIDENCE WOULD BE AT TRIAL, DUE TO THE FACT THAT COUNSEL HAD NOT CONDUCTED ANY PRI TRIAL INVESTIGATION TO KNOW WHAT THE EVIDENCE WOULD BE AT TRIAL
Because counsel failed to investigate certain matters prior to beginning trial during the course of opening statements, trial counsel promised the jury that they would hear certain evidence: but failed to produce it. Counsel further misinformed the jury about the evidence and testimony of certain state-witnesses, because of his failure to investigate these matters before trial. Counsel's failure to investigate caused-him to make these errors, denied Ray of competent and effective, assistance of counsel. Strickland v. Washington,.466 U.S. at 690-691 (“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations necessary,") also see Wiggins v. Smith, (2003) 539 U.S. 510, 123 S.ct 2527,156 L.Ed 2d 471.
(a)
Counsel promised the jury during opening statements that they would hear evidence that three witnesses for the State; Fred Batts, Gene Walker, and Kenneth Friend, were all testifying against Ray -in exchange for a deal, with the state:
(R.205): Now, in addition to Mr. Batts, as Ms. Lunnsford told ,you, there, are going to be witnesses like Mr. Batts, who are testifying. What do I mean when I say " witnesses like Mr. Batts" Other people: who cut a deal. Two of them named, Kenneth Friend.
As the court is well aware by now, through they multiple claims of perjury and Brady violations stated above all three of these witnesses denied having a deal with the State in exchange for their testimony. In fact, not a single State witness ever testified to having a deal with the State in exchange for their testimony and counsel never presented any evidence to the contrary, Counsel’s failure to present this evidence deprived Ray of opportunity to show the jury that these witnessed were biased for the State and deprived Ray of an opportunity to show the jury that these witnesses were committing perjury under oath.
(b)
Counsel told the jury that they would hear evidence from the State's witnesses that the deceased had been “beaten to a pulp” (R.208), and that they would see a head that had been bashed in (R.208-09):
[y]ou will hear from the states own witness that this killing was a brutal one, that there was a beating. Those pictured we talked about when we voir direct you in questioning this morning, you will see them and they will show you a face that is swollen with swollen lips, and they will show you, a head that is bashed in.
No State witness testified to such facts. Instead, the State's experts refuted trial counsel's allegations. Counsel based his promises to the jury on the original autopsy report and conclusions of Dr. Stephen M, Pustilnik, It is true that Dr. Pustilnik opined that a beaten took place in this case. The problem is that Dr. Pustilnik was never subpoenaed as a witness for trial; his autopsy report was not admitted at trial; and counsel never sought out or spoke to Dr. Pustilnik or investigated his findings. The doctor who actually testified at Ray's trial was Dr. J.C. Upshaw Downs. Dr. Downs was called by the State because he had exhumed the deceased body, conducted a second autopsy, and concluded that the deceased died from a gunshot. Dr. Downs also refuted and excluded Dr, Pustilnik's findings of asphyxia as the cause of death. (Dr. Pustilnik excludes gunshot as the cause of death).
The fact that these two pathologists had reached such different findings provided counsel with more than enough evidence to conduct pre-trial investigations of both witnesses. Had he done so counsel would have learned, at minimum, that contrary to his statements to the jury Dr. Down was not going to testify that the deceased had been beaten. See Wiggins v. Smith, Supra, at 527:
In assessing the reasonableness of an attorney's investigation, however, a court mush consider not only the quantum of evidence already know to counsel, but also whether the know evidence would lead a reasonable attorney to investigate further.
Dr. Down’s cross-examination begins on page 357. Dr. Downs explicitly states that he rejects blunt force injury of any significance, (R,358): " There was some blunt force injury, in my opinion, that was not a significant amount of blunt force injury, it was a type that would leave a bruise. " And, when counsel requested that Dr. Downs give an example of the type of blunt force injury present in this case, the doctor stated the following:
(R.359): If you fell down on the sidewalk and skinned your knee, it might cause an abrasion where you take of superficial layers of skin, And Mr. Horton had small abrasion on the left side of his head.
Counsel equated this small abrasion to a head that that had been “bashed.” On redirect-examination, the prosecutor specifically asked Dr. Downs whether, in his opinion, the deceased had been severely beaten. (Trial counsel's words were " beaten to a pulp")
Q: And from what you observed from Dr. Pustilnik's report, would it be your opinion this guy had been severely beaten as far as blunt force trauma?
A. Severely beaten No, I don't believe he was severely beaten.
The record clearly shows that the only person who could testify to support counsel's promised evidence was Dr. Pustilnik. Yet counsel never spoke to this witness. Interestingly enough, when Ray alleged that counsel was ineffective for not investigation and securing Dr. Pustilnik's testimony and evidence, the State responded on Post-conviction Appeal that he did not do so because Dr. Pustilnik was discredited. See Appellee's Brief, Respondent's Exhibit. 8, Page 11: “There was simply nothing to be gained by Ray's defense bring a discredited pathologist into court to defend a disproved theory.”
The irony being that, if Dr. Pustilnik lacks credibility, then why was counsel promising the jury that they would hear findings that only Dr. Pustilnik could' support. Counsel effectively discredits himself and provided ineffective assistance, using the state's logic.
(c)
Counsel also told the jury that they would hear findings that the deceased was shot at point blank range and that blood spatter would be prevalent:
(R.209): And, as Mr. Lunnsford said, you will hear evidence that the gun that was fired was fired at point blank range or very close to that and consistent with that there was blood spillage all over that face. And you will hear evidence from their own witnesses that if you shoot somebody at point blank range, almost as close as I am to you right now, that the blood would splatter on you and all over the house.
Counsel's own question posed to the State's expert refutes what counsel told the jury the evidence would show:
(R.376) Q. You believe- actually, you state in your report that the gun shot wound was what you described as INDETERMINATE range.
Is that the phrase in your report?
A. Yes, sir.5.
Thus, counsel knew that the witness was not going to testify that the deceased was shot at point blank range, which concurrently dispelled counsel's theory of blood splatter all overt the place, Dr. Downs explained that he used the term "Indeterminate` which means I cannot tell between those three options how far away the gun was” (R,377). And, because the doctor believed that the deceased died immediately, he did not believe that there was a lot of blood spillage:
(R.380) Q. You are just saying, based on your examination of the photos and based on the other things you have examined internally and externally, you don't believe there was spillage, but not excluding the possibility of spillage?
A. I am saying it's possible. IN MY OPINION, ITS NOT LIKELY.
This simply is not the testimony that counsel promised the jury they would hear! It is inconceivable that any COMPETENT attorney would promise a jury that they would hear evidence from an expert whom counsel had never spoken to or investigated his theory prior to trail.
(d)
Finally, counsel promised the jury that they would hear audio taped phone conversation of the co-defendant that was totally different from the testimony that the witness would give in the courtroom:
(8.204-05): I submit to you that you will hear an audio tape of Fred Batts talking to my client's first lawyers and, in that conversation what Mr. Batts said is totally different from what he going to say here today.
Needless to say, the audio tape was never introduced as evidence by counsel and the jury never heard it.
Counsel's multiple promises to the jury went unfulfilled, and Ray was prejudiced by having to suffer incompetent assistance. Counsel's failure to investigate before making these promises is indicative of counsel's overall failure to investigate any aspect of the case. This court held a hearing on counsel's failure to investigate Ray's alibi defense, so counsel's dereliction of duty permeates the record. Simply stated, counsel's performance was well below ANY objective standard for reasonableness, Magill v. Dugger, 824 F.2d 879 ( 11th Cir. 1987) ; Wiggins, Supra. In Wiggins, The Supreme Court held that counsel was ineffective for not investigating further than the PSI and DSS Reports as to petitioner's troubled childhood. Counsel failed to present any evidence of petitioner's life history or family background, in spite of counsel's opening argument, which promised the jury that they would hear the petitioner has had a difficult life.. but he's worked. He has tried to be a productive citizen. Id. 539 U.S. at 515-16
Ray has never been afforded reviews on the merits of this substantial claim of violation of his Constitutional Right to effective counsel and this court should Grant a C.O.A. for further review.
CLAIM 30
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO OBJECT TO PREJUDICIAL AND ERRONEOUS SCIENTIFIC, DNA TESTIMONY THAT WAS GIVEN BY A POLICE OFFICER WHO WAS NOT QUALIFIED TO GIVE TESTIMONY ABOUT SCIENTIFIC EVIDENCE
Trial counsel rendered ineffective assistance when he failed to object when Sgt. Charles Berry, a crime scene investigator, gave testimony concerning DNA evidence, where the witness was never qualified as an expert, and his testimony that there was a DNA "match" was erroneous and scientifically impossible. In Daubert Vs. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 1132 S.Ct 2706, 125 L.ed,2d 469 (1993) the Supreme Court established that scientific evidence must be reliable before it can be admitted into trial. The Alabama Legislature adopted the Daubert decision, by statutory enactment, as the governing law in this State for DNA evidence. See §36-18-30, Code 1975:
Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court "shall" be satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by the United States Supreme Court in Daubert, et. ux., al., v. Merrell Dow Pharmaceuticals, Inc., decided on June 28, 1993.
Included within the Daubert standard for reliability is the requirement that the person giving such testimony be qualified to do so. See, e.g., U.S. Vs. Frazier, 322 F.3d 1262 (11th. Cir. 2003), and City of Tuscaloosa Vs. Harcras Chemicals, Inc., 158F.3d 548, 562:
Federal Rule of Evidence 702, as explained by the Supreme Court in Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct 2786, 2794-95, 125 L.ed.2d. 469 (1993), and its progeny, controls the admissibility of expert testimony. Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusion is sufficiently reliable as deter-mined, by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
Sgt. Berry was never qualified as an DNA expert, and no attempt to qualify him as such was ever made. Despite his lack of qualifications, Sgt. Berry gave the following testimony on direct-examination by the State:
R. 521-22: Q. All right.
Now, you already told us that the bullet proof vest, it had a blood smear on it
A. Yes, sir.
Q. And do you know what the Department of Forensic Sciences' result was on that?
A. Through DNA, it matched back to the victim, Andre Horton.
As to the second prong under Daubert, no witness aver testified as to the methodology used to reach this result. Finally, the testimony did not assist the jury. Sgt. Berry testified that the DNA testing produced a match. This response merely highlight the import of requiring experts to give testimony concerning DNA evidence, because there is no such thing as a "match" in DNA science. DNA science deals with probabilities, and testimony that such testing produced a match is so highly prejudicial and so likely to impact a jury as to deny a fair trial. See e.g., Ex Parte Hutchanson, 677 So.2d 1205 (Ala. 1996):
Generally, there are two types of DNA evidence that may be admissible. One is DNA "matching" evidence, where one sample of DNA matches another sample. The other is DNA population frequency statistics, where the testimony concerns the frequency with which a given pattern might occur statistically or might occur in a given population. There are scientific, reasons for distinguishing between the two. The evidence necessary to show a "match" does not alone indicate the frequency with which that DNA pattern might occur. Population frequency statistics, on the other hand, require data on the relevant populations involved as well as data for mathematical, statistical analysis.
There are also legal reasons for distinguishing between DNA "matching" evidence and DNA population frequency statistics. DNA "matching" evidence might indicate that every-one's DNA is unique, but the impact of that testimony might not be as strong as saying that one person in hundreds of millions of people might have DNA similar to the DNA found at the crime scene, one could argue that the prejudicial impact of the statistics might unduly impact of the jury. However, a blanket statement that the DNA found at the crime scene "matched" the defendant's DNA might be just as prejudicial as statistical evidence if the term "match" is not defined. It could be that the jury would interpret such a statement to mean the DNA was an exact "match" with that of the defendant's and not a statistical probability, regardless of how high the statistic.
Id. at 1207.
This bullet-proof vest was a critical piece of evidence in the case. According to Sgt, Barn, this smear on the vest constitutes the only piece of evidence that could establish 3203 Rita Lane as the crime scene.
R. 537-38
Q. And, in fact, would you agree with me, there was no physical evidence whatsoever suggesting that there was a murder committed in this house on March 26, 1999?
A. The only thing would be the vest.
Q. That portable, movable vest that could have been brought to the house?
A. Yes, sir.
Counsel made multiple suggestions that the vest could have been moved to the residence (R.535) but offered no proof - in part due to the fact that, although the investigator was alleging that the vest was found located behind a chair in the den (R.518-19), the only photo of the vest shows it lying across the kitchen stove. See photo, Clerk's Record 30, Exhibit 13. The vest itself was never produced at trial and no one ever testified as to who moved the vest for the photo or why it was placed on the stove before the photo was taken. This evidence is patently unreliable and the State's ability to use it is fundamentally unfair. CF. Smith vs. Murray, 477 U.S. at 538.
Sgt. Berry's testified that there was no physical evidence of any kind recovered from the residence, (R.336-33) including no fingerprints, fiber evidence, or gunpowder residue. Sgt. Berry even testified that there was no evidence of the deceased ever having been to this residence:
R. 547:
Q. You didn't find any physical evidence that Andre Horton had ever been in this house, for-get Melvin Ray?
A. As for as fingerprint evidence, no.
Q. or any other kind other than the hood stain on the vest that could have been moved there?
A. Yes, sir.
During their closing argument, the prosecutor emphasized the impact of this evidence as the best proof possible:
(R.662): There is one thing probably the best signs you can find, DNA. Andre Norton's blood was in the house in an area exactly where Fred Batts told you the murder occurred.
As far as how exactly did it get on that bullet-proof vest, I don't know, but it's right in that area and I submit to you, you cannot get better proof than DNA evidence. It was Andre's blood there in the house.
And at one point in the trial the defense said somebody could have moved the vest in later. That's really stretching it, like there is some conspiracy. We will do this and move the vest.
Trial counsel failed to object to this DNA evidence coming from an unqualified witness whose testimony that the DNA "matched," and this failure was incompetent. Ray was prejudiced by the State's use of it's "best" evidence, which not even the prosecutor would attempt to explain how blood could had landed on a vest that was supposedly behind a large white leather chair that sat flush against the wall in the den. See, photo of chair, State Exhibit 3, Clerk's Record 76, where there is no sign of this bullet-proof vest. A C.O.A. should issue on this claim, where reasonable no longer even debate the fact that this witness was not qualified to give the DNA testimony he gave.
CONCLUSION
Based on the foregoing facts and arguments it is clear that there has been a denial of a substantial Constitutional right and that Counsel was ineffective. Thus, a C.O.A. should issue.
(END OF COA)__________
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