Kennedy v. Herring

United States Court of Appeals,

Eleventh Circuit.

No. 94-6386.

Victor KENNEDY, Petitioner-Appellee, Cross-Appellant,

v.

Tommy HERRING, Commissioner of the Alabama Department of
Corrections, Respondent-Appellant, Cross-Appellee.

May 23, 1995.

Appeals from the United States District Court for the Northern
District of Alabama. (No. 91-C-106-S), U.W. Clemon, Judge.

Before TJOFLAT, Chief Judge, ANDERSON and COX, Circuit Judges.

COX, Circuit Judge:

Victor Kennedy seeks relief under 28 U.S.C. § 2254 from a

conviction and death sentence imposed in Shelby County, Alabama.

The district court granted Kennedy relief on his claims of a Brady

violation and ineffective assistance of counsel at sentencing, and

the State appeals. Kennedy cross-appeals the district court's

denial of relief on his Hitchcock claim. We reverse the grant of

relief on the Brady and ineffective assistance of counsel claims

and affirm the denial of relief on the Hitchcock claim. We also

note on our own accord that the district court did not address

Kennedy's claim that the trial court improperly denied his motion

to suppress statements made to the police and probation officers,

and we therefore remand for the district court to consider that

claim.

I. Background

A. Facts

Kennedy was convicted for the murder of 86-year-old Annie Orr
on December 23, 1980 at Orr's home in Montevallo, Alabama. Orr was

badly beaten, repeatedly raped, and finally suffocated slowly on

her bed under a pillowcase taped tightly around her head. The

coroner testified that the tape, not the pillowcase, caused her

asphyxiation.

Kennedy made three statements to the police, all of which were

admitted in evidence. In the statements, Kennedy admitted to

accompanying Darrell Grayson, whom Orr had employed, to Orr's house

in order to steal money for Christmas. Both had been drinking

heavily, and Kennedy had a gun. According to the statements,

Kennedy entered the house with Grayson and searched the house for

cash. Kennedy stated that he saw Grayson having intercourse with

Orr, and that he entered Orr's bedroom at this time to look for his

gun. Kennedy did not admit, however, to taping the pillowcase, or

to having been in Orr's bedroom when the tape was wrapped around

Orr's head.

Apart from Kennedy's statements, the state's evidence was

circumstantial. Playing cards found in Orr's house and on the path

between Orr's house and Kennedy's nearby residence corresponded to

the missing cards of a deck seized at Kennedy's residence. Hairs

collected from Orr's body and bedroom, where she was found, proved

to be those of a black male. Both Kennedy and Grayson are black,

but forensic analysts could not identify the hairs as belonging to

either of them. Serological analysis did not indicate that any of

the semen present was Kennedy's, although there was too much to

have resulted from one ejaculation. At least some of the semen,

however, was shown to be Grayson's.
 Grayson made two statements to the police, neither of which

was introduced at Kennedy's trial. Grayson's story differed from

Kennedy's. According to Grayson, he and Kennedy had gone to Orr's

house at Kennedy's suggestion to rob Orr, and Kennedy had taken a

gun. Upon breaking into Orr's house, they both went to Orr's

bedroom. Grayson's statements inconsistently recounted the order

of events in Orr's bedroom, but said that at some time while the

two were in the house Kennedy grabbed Orr by the throat, raped her,

struck her head with his fist, and held her down as Grayson wrapped

the tape around the pillowcase. Grayson also confessed to having

raped Orr, possibly twice.

B. Procedural History

Kennedy was tried and convicted separately from Grayson in the

circuit court of Shelby County, Alabama. Agreeing with the jury's

recommendation, the court sentenced Kennedy to death. State appeal

courts affirmed Kennedy's conviction and sentence, and the U.S.

Supreme Court denied certiorari. Kennedy v. State, 472 So.2d 1092

(Ala.Crim.App.1984), aff'd, 472 So.2d 1106 (Ala.), cert. denied,

474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Kennedy then

petitioned the Shelby County circuit court for a writ of error

coram nobis, which the court denied. The Alabama Court of Criminal

Appeals affirmed, and the Alabama and U.S. Supreme Courts denied

certiorari. Kennedy v. State, 545 So.2d 214 (Ala.Crim.App.), cert.

denied, 545 So.2d 214 (Ala.), and cert. denied, 493 U.S. 900, 110

S.Ct. 258, 107 L.Ed.2d 207 (1989).

Kennedy then filed this petition for habeas corpus under 28

U.S.C. § 2254, asserting twenty-one claims for relief. The
district court granted relief on two claims. First, it concluded

that Kennedy's trial counsel had provided unconstitutionally

ineffective assistance at the sentencing phase of the trial by

failing to investigate and present evidence of Kennedy's low

intelligence, abusive upbringing, and minor role in the offense.

Second, the district court granted relief because the prosecution

failed on request to provide Kennedy with Grayson's statements, in

violation of Kennedy's due process rights under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).1

II. Issues

The State raises two issues on this appeal. First, it

contends that Kennedy's Brady claim merits no relief. Second, the

State argues that procedural default bars consideration of the

ineffective assistance of counsel claim on which the district court

granted relief.

In his cross-appeal, Kennedy raises only one issue. He

challenges the district court's conclusion that the

nonretroactivity doctrine bars relief on Kennedy's claim based on

Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347

(1987).

III. Standards of Review

Although the district court held no evidentiary hearing, this

court defers to the district court's findings of fact that are not

clearly erroneous. Anderson v. City of Bessemer City, 470 U.S.

1
The 21 claims asserted in Kennedy's petition, as stated by
Kennedy, are attached as an appendix to this opinion. This
appeal concerns only claims I, X, and XIII. The district court
denied relief on the remaining 18 claims, except for claim XIV,
which the district court did not address.
564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). However,

we review de novo both questions of law and mixed questions of law

and fact. Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir.1995);

Nutter v. White, 39 F.3d 1154, 1156 (11th Cir.1994). Whether

evidence is material for Brady purposes is such a mixed question,

Duest v. Singletary, 967 F.2d 472, 478 (11th Cir.1992), as is

whether jury instructions impermissibly limited the jury's

consideration of mitigating evidence, see Waters v. Thomas, 46 F.3d

1506, 1524-27 (11th Cir.1995) (en banc).

IV. Discussion

A. The Brady Claim

The district court determined that the prosecution had

violated Kennedy's due process rights under Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it failed on

request to allow Kennedy a useful examination of Grayson's

statements, which exculpated Kennedy and were material to issues at

trial. We conclude that the statements would not have changed the

case's outcome and that therefore the prosecution did not violate

Brady.2 Accordingly, we reverse.

"[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence

is material either to guilt or to punishment...." Brady v.

Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97. A Brady violation

2
The parties dispute whether the prosecution in fact
produced Grayson's statements and whether 28 U.S.C. § 2254(d)
requires this court to defer to state court findings about
production. However, because we conclude that the statements
were not material, we need not address whether they were in fact
suppressed. See Nelson v. Nagle, 995 F.2d 1549, 1555 (11th
Cir.1993).
requires a showing of three elements: (1) suppression by the

prosecution (2) of exculpatory evidence (3) material to the issues

at trial or sentencing. Nelson v. Nagle, 995 F.2d 1549, 1555 (11th

Cir.1993). The third element is satisfied "only if there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.

A "reasonable probability' is a probability sufficient to undermine

confidence in the outcome." United States v. Bagley, 473 U.S. 667,

682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).

Kennedy contends that Grayson's statements would have cast

doubt on Kennedy's intent to kill, an element of the capital murder

with which Kennedy was charged. The theory of Kennedy's trial

defense was that Kennedy was in Orr's house when the murder

happened, and even may have raped Orr, but that Kennedy did not

apply the tape and thus did not intentionally kill her. Because

Grayson's statements have Kennedy restraining Orr, but not taping

the pillowcase, Kennedy argues that Grayson's statements support

this theory. Kennedy concedes that he still might have been found

guilty of burglary or murder even if the prosecution had failed to

show intent to kill, but he asserts that the jury would not have

found him guilty of capital murder. Furthermore, Kennedy argues

that even if the jury had found him guilty of capital murder,

Grayson's description of Kennedy's minor role in the murder would

have been mitigating. Therefore, he contends, the statements were

material to his sentence.

Our review of the record convinces us that Kennedy would not,

in fact, have benefited from Grayson's statements. The jury heard
several pieces of evidence linking Kennedy to the crime. Kennedy's

own statement admitted his presence in Orr's house at the time of

the murder. The hairs of a black person were found on and around

the body. The playing cards discovered in Orr's house exactly

filled the gaps in a deck seized from Kennedy's house. The

quantity of semen on and around the victim's body suggested

multiple rape. Finally, human blood was present on the shirt

Kennedy wore during the event. On this evidence, the jury found

that Kennedy intentionally killed Orr.

If the prosecution had produced Grayson's statements and the

defense had introduced the statements in evidence, the jury would

also have heard that Kennedy had raped Orr, beaten her, and held

her down while Grayson wound the masking tape fatally tight.

Kennedy is correct that without Grayson's story, the jury might

have inferred that Kennedy applied the tape. However, it is

equally true that none of the evidence actually introduced at the

trial prevented the jury from finding that Kennedy had little to do

with taping the pillowcase. Grayson's statements, on the other

hand, would have provided direct evidence implicating Kennedy in

the fatal taping.

In this evidentiary context, we find unpersuasive Kennedy's

argument that Grayson's statements exculpated Kennedy. We doubt

that the jury, given the direct evidence the statements provided

that Kennedy held the victim down while Grayson taped the

pillowcase, would have found Kennedy less culpable than Grayson.

Any possibility of such a finding is sufficiently remote that it

does not "undermine confidence in the outcome." Bagley, 473 U.S.
at 682, 105 S.Ct. at 3383. A jury would more likely find Grayson's

statements to be persuasive evidence of Kennedy's intent to kill.

Grayson's statements likewise would have offered no evidence

in support of mitigation at the sentencing phase. To the contrary,

if Grayson's statements had been introduced, it would have been the

most telling evidence of Kennedy's culpable involvement in the

crime. The evidence of Kennedy's participation in the rape and

beating would weigh more in aggravation than mitigation.

Furthermore, the only clearly mitigating evidence in the

statement—that of Kennedy's intoxication—was cumulative. In sum,

there is no reasonable probability that the defense's possession of

Grayson's statements would have changed the result of the

proceedings. Kennedy therefore merits no relief on his Brady

claim.

B. Ineffective Assistance of Counsel

The district court granted Kennedy relief on his claim that

his trial counsel was unconstitutionally ineffective in failing to

present evidence at the sentencing phase of Kennedy's low I.Q. and

traumatic childhood. We conclude that the claim is procedurally

barred.

Kennedy asserted these two penalty-phase instances of

ineffective assistance for the first time in his federal habeas

petition. In the Alabama coram nobis proceedings, Kennedy alleged

only that trial counsel was ineffective for failing to object to

certain expert testimony, failing to challenge the exclusion of

religious objectors to the death penalty from the jury, failing to

have the body fluids on the murder scene DNA-typed, and failing to
object to a prosecutorial argument that violated Booth v. Maryland,

482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The state

petition did not mention any deficiencies in counsel's performance

at the sentencing stage. Neither did Kennedy present any evidence

of sentence-phase ineffective assistance of counsel in the state

coram nobis hearing. The state coram nobis courts did not consider

or make findings of fact concerning sentence-phase assistance of

counsel.

"In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the claims

is barred unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of

federal law...." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.

2546, 2565, 115 L.Ed.2d 640 (1991). If a claim was never presented

to the state courts, the federal court considering the petition may

determine whether the petitioner has defaulted under state

procedural rules. See Teague v. Lane, 489 U.S. 288, 299, 109 S.Ct.

1061, 1069, 103 L.Ed.2d 334 (1989).

In this case, Kennedy has defaulted under Alabama procedural

rules by omitting from his state coram nobis petition the instances

of ineffective assistance of counsel advanced in this § 2254

petition. Alabama coram nobis rules forbid consideration of

grounds in later petitions that could have been, but were not,

raised in the first coram nobis petition. Ala.R.Crim.Pro. 32.2(b);

Wilkins v. State, 629 So.2d 705, 706 (Ala.Crim.App.1993). This

prohibition of successive petitions on different grounds bars
consideration of newly raised instances of ineffective assistance

of counsel even if the petitioner claimed other instances of

ineffective assistance of counsel in the first petition. Weeks v.

Jones, 26 F.3d 1030, 1043 (11th Cir.1994) (applying Alabama's

successive petition bar).3 Because Kennedy has thus defaulted his

claim of ineffective assistance of counsel, this court will

consider the claim only if Kennedy can show cause to excuse the

default and prejudice from it. Id. "Cause" sufficient to excuse

a procedural default "requires a showing of some external

impediment preventing counsel from constructing or raising the

claim." Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639,

2648, 91 L.Ed.2d 397 (1986).

The district court concluded that coram nobis counsel's

reliance on Brand v. Lewis, 784 F.2d 1515 (11th Cir.1986), was

cause to excuse the default. The court read Brand to hold that

failure to present some instances of ineffective assistance to the

state courts does not bar federal consideration of those instances.

See id. at 1517.4 According to the district court, because Brand

was the law of this circuit during the state coram nobis

proceedings, it was an external factor causing the default. We

disagree. Accepting for the argument's sake the district court's

finding that coram nobis counsel relied on Brand, this reliance

3
We note that state rules also time-bar Kennedy's new claim
of ineffective assistance of counsel. Under Alabama's Temporary
Rule of Criminal Procedure 20.2(c), the statute of limitations
ran on all his federal constitutional claims April 1, 1989.
4
This court has held that Keeney v. Tamayo-Reyes, 504 U.S.
1, 7-10, 112 S.Ct. 1715, 1719-20 (1992), effectively overruled
this holding of Brand. Footman v. Singletary, 978 F.2d 1207,
1210 (11th Cir.1992).
could not be cause to excuse a state procedural default. Brand

concerned federal exhaustion doctrine, not state procedural rules.

Counsel's reliance on federal law cannot excuse a failure to comply

with state procedure.

In alternate support of the district court's holding, Kennedy

advances another cause for the procedural default. He contends

that Alabama's insufficient funding of coram nobis counsel

prevented counsel from investigating and raising the claim. This

alleged cause is equally unavailing for two reasons. First, a lack

of money is not an external impediment. See LaRette v. Delo, 44

F.3d 681, 688 (8th Cir.1995). Second, finding cause in a lack of

resources would be inconsistent with the settled principle that a

state need not provide counsel in collateral proceedings, even for

petitioners under sentence of death. Murray v. Giarratano, 492

U.S. 1, 7, 10, 109 S.Ct. 2765, 2768-69, 2770, 106 L.Ed.2d 1 (1989).

It makes no sense to say that the state need not provide counsel at

all, but that if the state opts to provide counsel, the state must

fund counsel adequately or face the possibility of excusing

procedural defaults.

Kennedy thus has advanced no cognizable cause to excuse his

failure to present the currently alleged instances of ineffective

assistance of counsel to the state coram nobis court, and we

therefore need not consider whether the default prejudiced Kennedy.

See Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S.Ct. 1558, 1575

n. 43, 71 L.Ed.2d 783 (1982). We conclude that Kennedy's

procedural default is unexcused.

C. Hitchcock Error
 The district court denied Kennedy relief on his claim that

the jury instruction violated his Eighth Amendment rights under

Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347

(1987), because the court concluded that the nonretroactivity

principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989), deprived Kennedy of Hitchcock 's benefit. We

determine to the contrary that Hitchcock is retroactively

applicable. Nonetheless, we affirm the district court's denial of

relief because the claim lacks merit.

As a preliminary matter, we hold that Hitchcock announced no

new rule. Hitchcock 's result was dictated by the Supreme Court's

earlier rulings in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57

L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102

S.Ct. 869, 71 L.Ed.2d 1 (1982), both of which issued before

Kennedy's conviction became final. See Penry v. Lynaugh, 492 U.S.

302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). The

Hitchcock claim therefore escapes a Teague bar. See Stringer v.

Black, 503 U.S. 222, 227-28, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367

(1992).

Under Hitchcock and related cases, "the sentencer may not

refuse to consider or be precluded from considering any relevant

mitigating evidence." Hitchcock, 481 U.S. at 394, 107 S.Ct. at

1822 (interior quotations omitted). Thus, jury instructions must

permit full consideration of mitigating circumstances. Penry, 492

U.S. at 327-28, 109 S.Ct. at 2951. An instruction is erroneous if

a reasonable likelihood exists that the jury has applied it in a

way that prevents the consideration of constitutionally relevant
evidence in mitigation. Boyde v. California, 494 U.S. 370, 380,

110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).

Kennedy challenges the following instruction by the trial

judge:

In evaluating the testimony presented at this sentence
hearing, you are to abide by the same rules of law which I
have given you concerning the evaluation of testimony
presented during the guilt phase of the trial.

Any determination from the guilt phase of this trial that
is considered by you in determining the aggravating and
mitigating circumstances should also be considered by you to
be subject to the same rules.
(R. 6-17-1157). By this instruction, Kennedy contends, the trial

judge unconstitutionally prevented the jury from considering the

mitigating circumstance of Kennedy's extreme intoxication. During

the guilt phase of the trial, the jury was instructed that it could

consider the defendant's intoxication if the intoxication would
5
negate an element of the offense. Kennedy argues that the

challenged instruction incorporated this intoxication instruction,

5
The trial judge's exact words were:

Intoxication of the defendant, whether voluntary
or involuntary, may be considered by the jury if
relevant to consider as negating an element of the
offense charged, such as intent. However, being
unaware of a risk because of voluntary intoxication is
immaterial in a consideration of whether the defendant
acted recklessly where recklessness is an element of
the offense charged, or a lesser included offense.

....

Intoxication, other than involuntary intoxication,
is not a defense to a criminal charge but may be
considered by the jury, if relevant, on the question of
whether the fact of intoxication negates an element of
the offense charged, such as intent, but not the
element of recklessness.

(R. 5-8-1076-77.)
and that the jury thus would have supposed itself unable to

consider evidence of Kennedy's intoxication on the night of the

crime.

Kennedy's claim is nearly identical to the petitioner's in

Waters v. Thomas, 46 F.3d 1506 (11th Cir.1995) (en banc). In

Waters, the petitioner challenged a similar sentence-phase charge

that imported the "rules of law" given at the guilt phase into the

sentencing phase. Id. at 1525.6 Waters had pleaded a defense of

insanity, and at the guilt phase the judge had accordingly

instructed the jury in the right-wrong standard of insanity. Id.

Waters contended that the importation of the stringent right-wrong

standard into the sentencing phase prevented the jury from

considering Waters's mental illness as mitigation. Id.

The Waters court rejected the challenge, and we do as well.

As the Waters court noted, "our evaluation must focus not upon the

challenged instruction in isolation, but upon the entire sentencing

instruction and the entire sentencing proceeding." Id. Because of

two circumstances in Kennedy's sentencing proceeding, we conclude

that there is no reasonable likelihood that the jury felt

constrained in its consideration of mitigating evidence of

Kennedy's intoxication.

6
The instruction challenged in Waters read:

The instructions given you earlier in this case and the
rules of law outlined to you in this portion of the
instructions apply also to your deliberations as to
penalty, that is the rules of law outlined to you in
the Charge that I gave you earlier, also apply to your
deliberations in arriving at the penalty or punishment
in this case.

Id.
 First, the guilt-phase instruction on intoxication related

only to the determination of guilt, and the remainder of the

sentencing-phase instructions would have made clear to the jury

that it was not one of the generally relevant rules of law that the

challenged instruction incorporated into the sentence phase. In

the guilt phase, the judge did not instruct the jury that

intoxication was always irrelevant. Rather, the jury heard that

"intoxication is immaterial in a consideration of whether the

defendant acted recklessly...." (R. 5-8-1076.) Recklessness was

not an issue in the sentencing phase, and thus it is unlikely that

the jury would have extrapolated the intoxication instruction to

apply in the sentencing phase. Furthermore, immediately after

telling the jurors that they were to abide by the same rules of law

they heard in the guilt phase, the judge reiterated guilt-phase

instructions that the jurors were the "sole and exclusive judges of

the evidence," and went on to explain how the jury was to assess

witnesses' credibility. (R. 6-17-1157-58.) In this context, the

jury would probably have understood the challenged instruction to

mean "that the court was incorporating those instructions from the

earlier stage that were applicable to sentencing," and not all the

guilt-phase instructions whether relevant or not. Waters, 46 F.3d

at 1527.

Second, the sentence-phase instructions themselves explicitly

gave the jury free rein to consider any mitigating circumstances

and any evidence to support them. Immediately before giving the

challenged instruction, the trial judge told the jury that:

In addition to the mitigating circumstances I have just
read to you, you may also consider as a mitigating
 circumstance any aspect of the defendant's character and life
and any of the circumstances of the capital offense which tend
to indicate that the defendant should not be sentenced to
death.

A mitigating circumstance must [sic ] not have to be
included in the list which I have just read to you in order
for it to be considered by you.

A mitigating circumstance considered by you should be
based in the evidence you have heard. If you are satisfied
from the evidence presented during the guilt stage of the
trial or during this sentence hearing that a mitigating
circumstance existed in this case, then you may consider it.

(R. 6-17-1156-57.) For the jury to have understood the challenged

instruction to limit its consideration of Kennedy's intoxication,

the jury would have had to ignore these three paragraphs concerning

mitigation. It would also have had to remember exactly what the

judge had said about intoxication at the guilt phase and then

unreasonably extrapolate that intoxication instruction to apply it

to their weighing of aggravators and mitigators. We find it

improbable that the jury would have done so.

Given these two circumstances, there is no reasonable

likelihood that the trial court's instruction incorporating the

guilt-phase intoxication instruction would have prevented the jury

from considering all relevant evidence in mitigation. We therefore

affirm the district court's denial of relief on the Hitchcock

claim.

V. Conclusion

For the foregoing reasons, we REVERSE the district court's

grant of relief on the Brady claim and the claim of ineffective

assistance of counsel. However, we AFFIRM the district court's

denial of relief as to the Hitchcock claim. We REMAND to the

district court for the limited purpose of allowing it to consider
Claim XIV of Kennedy's petition, concerning the trial court's

denial of Kennedy's motion to suppress his statements.

AFFIRMED in part; REVERSED in part; REMANDED in part.

APPENDIX

I. Mr. Kennedy was denied effective assistance of counsel at
trial in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.

II. The prosecutor's pervasive improper conduct rendered Mr.
Kennedy's trial fundamentally unfair and violated Fifth,
Sixth, Eighth and Fourteenth Amendment guarantees.

III. The trial court's failure to consider relevant mitigating
circumstances violated, inter alia, Mr. Kennedy's right to a
reliable sentencing procedure under Alabama statutory law as
well as his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.

IV. The admission and consideration of nonstatutory
aggravating factors during penalty phase violated Mr.
Kennedy's rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments.

V. Mr. Kennedy was deprived of the benefit of Alabama capital
law requiring a finding of intent to kill and thereby deprived
of due process and equal protection and other rights as
secured by the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the U.S. Constitution.

VI. Mr. Kennedy was denied effective assistance of counsel on
direct appeal in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.

VII. Mr. Kennedy's rights to a fair trial by an impartial jury
were violated by the trial court's restrictions on the voir
dire examinations of prospective jurors in contravention of
the Fifth, Sixth, Eighth, and Fourteenth Amendments.

VIII. The trial court's failure to grant Mr. Kennedy a change
of venue violated his rights to a fair trial, an impartial
jury, a sentencing hearing free from bias and prejudice and
other rights in contravention of the Fifth, Sixth, Eighth and
Fourteenth Amendments.

IX. Evidence of rape and the use of murder in the course of a
rape as an aggravating factor deprived Mr. Kennedy of his
rights pursuant to the Fifth, Sixth, Eighth and Fourteenth
Amendments to the U.S. Constitution.

X. The court's instruction to the penalty phase jury
concerning intoxication was violative of Mr. Kennedy's rights
pursuant to the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution.

XI. The prosecution's failure to disclose the existence of Mr.
Kennedy's confession to his probation officer violated Mr.
Kennedy's rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the U.S. Constitution.

XII. The court's ex parte knowledge of Mr. Kennedy's
confession to his probation officer undercut defendant's
Fifth, Sixth, Eighth and Fourteenth Amendment rights in both
the guilt and sentencing phases.

XIII. The State's withholding of the alleged co-perpetrator's
statements and other evidence was violative of Mr. Kennedy's
rights pursuant to the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

XIV. The admission of Mr. Kennedy's statements to the police
and to probation violated Mr. Kennedy's rights pursuant to the
Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S.
Constitution.

XV. The consideration of evidence concerning the homicide
victim and her family subverted the rights of Mr. Kennedy in
contravention of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.

XVI. The trial court's failure to adequately instruct the jury
on lesser included offenses violated Mr. Kennedy's rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments.

XVII. Belittlement of the jury's role in the capital trial
fatally eroded Mr. Kennedy's rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the U.S. Constitution.

XVIII. The trial court acted improperly and committed
reversible error by admitting an incomplete and misleading
version of Victor Kennedy's statement into evidence, violating
his rights secured by the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.

XIX. The admission of testimony from the forensic serologist
as to sperm quantity and the speculative conclusions drawn
therefrom violated the rights of Mr. Kennedy pursuant to the
Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S.
Constitution.

XX. The use of heinous, atrocious and cruel as an aggravating
factor violated Mr. Kennedy's rights pursuant to the Fifth,
Sixth, Eighth and Fourteenth Amendments to the U.S.
Constitution.
XXI. The death sentence imposed against Mr. Kennedy is
racially biased in violation of Fifth, Sixth, Eighth, and
Fourteenth Amendment requirements.

(R.1-4.)