[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2010
No. 09-12195
JOHN LEY
________________________ CLERK
D. C. Docket No. 05-01932-CV-VEH-PWG
DERRICK O’NEAL MASON,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner, Alabama Department of
Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 11, 2010)
Before DUBINA, Chief Judge, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Derrick O’Neal Mason appeals from the denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Mason was convicted in 1998 for the murder of Angela Michele Cagle, who
was found dead in the back room of a convenience store in Alabama on March 27,
1994. Mason became a suspect in the Cagle murder after an unidentified man told
the police that Mason had committed the crime, described the gun used, and told
the police that Mason “was out of control” and “trying to make a name for
himself.” A few days after the murder, on March 29, 1994, the unidentified
informant led the police to Mason’s car where Mason was arrested on an
outstanding warrant for a misdemeanor assault. As part of an inventory search,
police searched Mason’s car and found a gun that laboratory results later indicated
was the same gun used in Cagle’s murder. After arresting Mason around 10:00
p.m., police held him in an interrogation room, first interrogating him on the
assault for which he was arrested, then on an unrelated prior robbery, and then on
the murder at issue. Approximately two hours later, Mason confessed to
committing the murder.
Mason was tried, found guilty, and the jury voted 10-2 to sentence him to
death, a recommendation the trial court accepted. The Alabama Court of Criminal
Appeals and the Alabama Supreme Court affirmed Mason’s conviction and death
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sentence in 1998 and 2000, respectively, and the United States Supreme Court
denied Mason’s petition for a writ of certiorari.
On October 17, 2001, Mason filed a Rule 32 petition in the Madison County
Circuit Court, which was denied on July 7, 2005.1 The Alabama Court of Criminal
Appeals dismissed Mason’s appeal of that decision, and the Alabama Supreme
Court denied certiorari review. Mason then initiated federal habeas corpus
proceedings in the Northern District of Alabama, and his petition was denied.
After an unsuccessful motion to alter or amend the judgment, Mason filed a Notice
of Appeal. This Court granted Mason’s application for a Certificate of
Appealability on the following issues:
• whether Mason’s Fourth Amendment rights were violated by his
pretextual arrest and the subsequent search of his vehicle;
• whether Mason’s confession was coerced and therefore involuntary,
in violation of the Fifth Amendment; and
• whether Mason’s rights under the Confrontation Clause were violated
when a police officer testified to the allegedly hearsay statements
made by the informant.
Standard of Review
We review the district court’s conclusions on legal questions and mixed
1
Due to a clerical error, neither Mason nor the government was notified of the trial
court’s original ruling, issued on August 5, 2004, until April of 2005, and the court reissued the
denial on July 7, 2005.
3
questions of law and fact de novo and its factual findings for clear error. Rhode v.
Hall, 582 F.3d 1273, 1279 (11th Cir. 2009). However, our review of the Alabama
courts’ decisions2 are limited by the terms of 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362,
402-03 (2000). Under AEDPA, we accord a presumption of correctness to a state
court’s factual findings. § 2254 (e)(1) (“[A] determination of a factual issue made
by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing
evidence.”). We therefore grant habeas relief to a petitioner challenging a state
court’s factual findings only in those cases where the state court’s decision “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2). See Wiggins v. Smith, 539
U.S. 510, 528-29 (2003).
AEDPA similarly constrains our review of legal questions decided on the
merits in state court. Under the statute, we cannot grant habeas relief “with respect
to any claim that was adjudicated on the merits in State court proceedings” unless:
2
When the last state court rendering judgment affirms without explanation, we presume
that it rests on the reasons given in the last reasoned decision. Ylst v. Nunnemaker, 501 U.S.
797, 803-05 (1991); Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311, 1316-17 (11th Cir. 2006).
4
[T]he adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
§ 2254(d). The Supreme Court has further explained the requirements of §
2254(d) as follows:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13. When, however, a claim is properly presented to the
state court, but the state court does not adjudicate it on the merits, we review de
novo. Cone v. Bell, — U.S. —, 129 S.Ct. 1769, 1784 (2009).
If a petitioner fails to “properly” present his claim to the state court – by
exhausting his claims and complying with the applicable state procedure – prior to
bringing his federal habeas claim, then AEDPA typically bars us from reviewing
the claim. Exhaustion requires that “state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete
5
round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); see § 2254(b),(c). That is, to properly exhaust a claim,
the petitioner must “fairly present[]” every issue raised in his federal petition to the
state’s highest court, either on direct appeal or on collateral review. Castille v.
Peoples, 489 U.S. 346, 351 (1989) (quotation and emphasis omitted).
In the process of exhausting a claim, the petitioner must comply with all
“independent and adequate” state procedures, or else the petitioner will have
procedurally defaulted on that claim. See Wainright v. Sykes, 433 U.S. 72, 86-87
(1977); Bailey v. Nagle, 172 F.3d 1299, 1302-03; § 2254(b),(c). Where a
petitioner has not “properly . . . presented his claims to the state courts,” he will
have “procedurally defaulted his claims” in federal court. O’Sullivan, 526 U.S. at
848. To determine whether a state court’s procedural ruling constitutes an
independent and adequate state rule of decision, this court has set forth the
following three-part test: (1) “the last state court rendering a judgment in the case
must clearly and expressly state that it is relying on state procedural rules to
resolve the federal claim without reaching the merits of that claim[; (2)] the state
court’s decision must rest solidly on state law grounds, and may not be
“intertwined with an interpretation of federal law[;]” and (3) the state procedural
rule must not be applied in an arbitrary or unprecedented fashion. Judd v. Haley,
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250 F.3d 1308, 1313 (11th Cir. 2001). We review de novo the district court’s
determination that a claim has been procedurally defaulted. See Mize v. Hall, 532
F.3d 1184, 1190 (11th Cir. 2008).
Under this framework, we address each argument in turn.
Pretextual Arrest and Vehicle Search
Mason first argues that he was subjected to a pretextual arrest on a
misdemeanor assault warrant, in violation of his Fourth Amendment rights, and,
accordingly, the gun found in his vehicle in conjunction with this arrest should not
have been admitted into evidence.3 He also claims that the search of his vehicle
was an improper inventory search, in violation of the Fourth Amendment. We find
that Stone v. Powell, 428 U.S. 465 (1976), precludes our consideration of these
arguments. In Stone, the Supreme Court narrowly delineated the scope of review
over Fourth Amendment claims in federal habeas corpus actions brought under 28
U.S.C. § 2254. The Court held in that case that:
where the state has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.
428 U.S. at 494; see Peoples v. Campbell, 377 F.3d 1208, 1224-26 (11th Cir. 2004)
3
For the first time on appeal, Mason also argues that the pretextual arrest violated his
Fifth and Sixth Amendment rights. Thus, because they were waived below, we decline to
address these arguments.
7
(holding that Stone precluded consideration on habeas review of claim alleging
arrest lacked probable cause); Bradley v. Nagle, 212 F.3d 559, 564 (11th Cir.
2000) (holding that Stone precluded consideration of claim alleging an invalid
search).
Mason attempts to distinguish Stone, arguing that it should not be applied to
his case because the state trial court did not engage in fact-finding on his claim that
his pretextual arrest violated the Fourth Amendment. We do not find any merit to
this argument, as Mason concedes that all the facts relevant to this claim are
undisputed. Bradley, 212 F.3d at 565 (“[F]ull and fair consideration . . . includes at
least one evidentiary hearing in a trial court and the availability of meaningful
appellate review when there are facts in dispute, and full consideration by an
appellate court when the facts are not in dispute.”) (internal quotation marks
omitted).
Nor can it be argued that the state appellate court failed to provide “full
consideration” of Mason’s claim challenging his arrest. The Alabama Court of
Criminal Appeals, in discussing this claim, noted that Mason “d[id] not challenge
the validity of the arrest warrant,” and held that the officer’s subjective intent in
arresting Mason was irrelevant. Mason v. State, 768 So. 2d 981,1001 (Ala. Crim.
App. 1998). As long as the arrest was “objectively authorized,” it was a valid
8
arrest. Id. We note that the same result would obtain under Whren v. United
States, 517 U.S. 806, 813 (1996) (holding that an officer’s “[s]ubjective intentions
play no role” in the analysis of a Fourth Amendment claim).
Likewise, Mason presented to the state courts his argument that the
inventory search of his car was unlawful and the claim received full and fair
consideration. Mason’s counsel cross-examined two police officers regarding the
arrest and argued this claim to the trial court. On appeal, the Alabama Court of
Criminal Appeals thoroughly analyzed this legal claim. See Mason, 768 So. 2d at
996-99. Because Mason received “full and fair consideration” of these Fourth
Amendment claims, we are precluded from considering them here. Stone, 428
U.S. at 494.
Involuntary Confession
Next, Mason argues that his confession was involuntary because he was (1)
subjected to improper questioning; (2) intoxicated and hungry during the
interrogation; (3) psychologically coerced, and (4) misled by law enforcement
officers. Mason also argues that, due to this alleged coercion, he was unable to
validly waive his right to not self-incriminate when Miranda warnings were read to
him.4 The government argues that the claim is procedurally defaulted and, in the
4
Although Mason argues that Officer Renfroe did not read him his Miranda warnings
before initiating questioning on the Cagle murder, the record shows that Officer Parker did read
9
alternative, that Mason was adequately advised of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), before being questioned about the murder.
On direct appeal, Mason did not include any allegations of coercion in his
brief. Mason argued only the following to the state appellate court:
Mason confessed to the third-degree assault, and as such any further
questioning of Mason regarding other alleged incidents was in
violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
The continued questioning of Mason after his alleged statement
regarding the misdemeanor assault was in violation of his rights under
Miranda, and as such, the alleged custodial statement should have
been suppressed by the trial court.
In his Rule 32 petition, however, Mason alleged that police interrogators grabbed
him, pinned him down to his chair, and forced him to look at photographs
(presumably of the crime scene), and argued that this conduct rendered his
confession coerced and involuntary. The Rule 32 trial court found that this claim
was procedurally defaulted under Alabama law because it could have been but was
not raised on direct appeal. See Ala. R. Cr. P. 32.2(a)(5). The Alabama court’s
ruling is based on an independent and adequate ground, and Mason does not argue
otherwise. Thus, Mason’s claim that his confession was coerced was procedurally
defaulted and therefore we cannot review it. 28 U.S.C. § 2254(b), (c). To the
the Miranda warnings to Mason prior to questioning him on the murder. In total, Mason
received Miranda warnings three times during the interrogation: before the questioning on the
misdemeanor assault charge, again before being questioned on the robbery charge, and finally,
before being questioned on the murder.
10
extent that Mason argues that the State failed to advise him of his Miranda rights,
we find this claim refuted by the record. Accordingly, we cannot say that the state
court’s ruling on the legality of his confession is contrary to or an unreasonable
application of clearly established federal law.
Confrontation Clause
Finally, Mason argues that his Sixth Amendment right to confront witnesses
against him was violated, in both the guilt phase and the penalty phase of his trial,
by the introduction of statements made to the police by an unidentified informant.
The government counters that Mason failed to exhaust this claim and therefore
AEDPA precludes federal court review. § 2254(b)(1)(A). In the alternative, the
government argues that the out-of-court statements were not hearsay (i.e., they
were not offered for the truth of the matter asserted) and, thus, no Sixth
Amendment violation occurred.
Before trial, Mason made multiple motions to reveal the identity of the
informant and for production of documents listing individuals whom the
prosecution had interviewed but did not intend to call as witnesses. The trial court
denied all of these motions. At trial, Investigator Harry Renfroe testified that the
informant told him that Mason committed the murder, and that Mason was “out of
control” and “out to make a name for himself.” Mason did not make a
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contemporaneous objection. In closing argument during guilt phase, the prosecutor
told the jury:
Now, as a matter of law, information provided by a confidential
informant is admissible . . . to the finders of the fact, you must simply
take, because it has been held admissible, the information that the
confidential informant provided, as a matter of law.
This confidential informant, who is obviously known to this
defendant, perhaps even a close friend of this defendant, said that he
came to Investigator Renfroe because this young man, Derrick Mason,
was out of control and wanting to make a name for himself on the
streets.
In closing argument during the sentencing phase, the prosecution again
referred to the informant’s statements, telling the jury:
[O]ne theme kept coming out . . . [at] some point in time, I believe one
of the witnesses characterized it this way: At some point in time the
defendant took a wrong turn. Took a wrong turn, became out of
control. We heard that from more than one witness. Became out of
control. There comes a time in all of our lives when we have to accept
responsibility for what we do . . . .
You heard him on the witness stand. He wants to be a leader, he
hopes that he can get a life without parole in the penitentiary so he can
be a role model for other young people. Ladies and gentlemen, we
have got a lot of good role models, we don’t need this defendant as a
role model for our young people.
And like all of the modern-day criminals, he wants to write a book,
wants to profit from what’s happened to him and the horror and the
tragedy that he has inflicted upon another family, including his own
family.
No evidence was presented, at either the guilt or penalty phase, to support the
12
argument that Mason wanted to write a book based on his criminal conduct.
We first reject the government’s argument that Mason failed to fairly present
his Confrontation Clause argument to the state court and therefore failed to exhaust
his claim.5 However, the state court did not address the federal Sixth Amendment
claim. Thus, we review this claim de novo. Cone, 129 S. Ct. at 1784.
At the time of Mason’s trial, the law provided that the Confrontation Clause
precludes the admission of hearsay statements from an unavailable witness unless
the statements fall within a firmly rooted hearsay exception or contain a
particularized guarantee of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66
(1980).6 The State concedes that the statements do not bear a particularized
5
In his brief to the Alabama Criminal Court of Appeals, Mason alleged the following:
The informant was allowed to not only supply information to Renfroe, but the
informant’s statements were presented in front of the jury. Renfroe was allowed to
testify that the informant told him that the weapon used was a .380 caliber, that the
offender was Derrick Mason, and that Mason was ‘out of control and was trying to make
a name for himself.’ . . . [T]he informant’s testimony was clearly hearsay and Mason
was deprived of his Sixth Amendment right to confront the witness who accused him of
this crime.
Mason cited the Sixth Amendment as a legal basis for his argument and presented the factual
allegations to make up a Sixth Amendment claim, which clearly alerted the state court that he
was asserting a federal constitutional issue. See Snowden v. Singletary, 135 F.3d 732, 735-36
(11th Cir. 1998) (holding that exhaustion requires only “mak[ing] the state court aware that the
claims asserted present federal constitutional issues”).
6
Since Roberts, the Supreme Court has held that the Confrontation Clause forbids
“testimonial” statements unless the defendant has the opportunity to cross-examine the declarant.
A statement is testimonial if it was “made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial.”
Crawford v. Washington, 541 U.S. 36, 52 (2004) (quotation omitted).
13
guarantee of trustworthiness or fall within a firmly rooted hearsay exception.
Rather, the State argues that the statements are not hearsay at all because they were
admitted to show a sequence of events, not for the truth of the matter asserted
therein.
The record, however, belies the State’s assertion. The prosecutor clearly
used the hearsay statements to establish the truth of the matter asserted. In addition
to the manner in which the testimony was presented, the prosecutor, in closing, told
the jury they must accept the hearsay testimony “because it has been held
admissible . . . as a matter of law.” (emphasis added). Worst of all, during the
penalty phase, the prosecutor told the jury as a matter of fact that Mason wanted to
write a book without a scintilla of evidence in the record to support such an
assertion. It is clear that the prosecutor relied on these statements during closing
arguments for the truth of the matter asserted therein at both the guilt phase and the
sentencing phase, violating Mason’s rights under the Confrontation Clause.
However, notwithstanding the Confrontation Clause violation, we cannot
reverse a conviction or order a new sentencing hearing if the error is harmless.
United States v. Mills, 138 F.3d 928, 938 (11th Cir. 1998). Whether an error is
harmless is a mixed question of law and fact that we review de novo. See Smith v.
Singletary, 61 F.3d 815, 817 (11th Cir. 1995) (per curiam). In habeas proceedings,
14
we review whether a constitutional violation is harmless by determining “whether
the error had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Sims v.
Singletary, 155 F.3d 1297, 1315 (11th Cir. 1998) (citation omitted). To show
prejudice under Brecht, there must be “more than a reasonable possibility that the
error contributed to the [conviction or] sentence.” Horsley v. State of Ala., 45 F.3d
1486, 1493 (11th Cir. 1995); Brecht, 507 U.S. at 637. We analyze the effect of the
Confrontation Clause violation by looking at several factors, including “the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, . . . and, of course,
the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986).
Under this standard, Mason cannot show the prejudice required in order to
reverse his conviction. Mason confessed to the murder shortly after being arrested,
and the murder weapon was found in his car. Mason’s confession was thorough
and described in detail the murder scene found by the officers. When viewed in
light of the overall strength of the prosecution’s case and the presence of
corroborating evidence, we cannot say that there was “more than a reasonable
15
possibility that the [Confrontation Clause] error contributed to the [conviction].”
Horsley, 45 F.3d at 1493.
As to the sentencing phase, Mason appears to argue that the statement that
he was out of control was prejudicial because it tended to support the “heinous,
atrocious, and cruel” aggravating factor. Although we find that the statement was
improperly admitted and that the prosecutor wrongfully argued to the jury that
Mason intended to write a book when there was absolutely no evidence supporting
that statement, we cannot say that the prosecutor’s erroneous conduct had a
“substantial and injurious effect” on the jury’s death recommendation in light of
the nature of the crime and the mitigating evidence presented.
Even without the improper testimony and argument, there was sufficient
evidence to support the heinous, atrocious, and cruel aggravating factor. Mason
himself presented testimony that he lacked the ability to control his behavior.
Mason’s family also testified that at times they could not control Mason, and that
they put him on various medications to help him control himself and, even then, he
would still have problems. Based on this testimony, his counsel was able to argue
to the jury that three statutory mitigating circumstances were present, including
that Mason had substantially-impaired capacity to appreciate the criminality of his
conduct or to conform his conduct to the law. The informant’s statement that
16
Mason was “out of control” is hardly prejudicial if the defense also argued that
Mason could not control his behavior as a mitigating circumstance. Under all of
the circumstances presented in this record, we conclude that Mason has failed to
show “more than a reasonable possibility that the error contributed to the
sentence.” Horsley, 45 F.3d at 1493.
For the foregoing reasons, we find no reversible error in the conviction and
sentence imposed here.
AFFIRMED.
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