United States Court of Appeals,
Eleventh Circuit.
No. 94-6687.
Billy Wayne WALDROP, Petitioner-Appellant,
v.
Ronald E. JONES, Respondent-Appellee.
Feb. 26, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 90-H-1845-S), James Hughes Hancock,
Judge.
Before KRAVITCH, EDMONDSON and COX, Circuit Judges.
COX, Circuit Judge:
Billy Wayne Waldrop was convicted in Talladega County,
Alabama, for murder and sentenced to death. He appeals the denial
of relief on his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On the night of June 2-3, 1982, Thurman Macon Donahoo was
robbed, beaten, shot, and left for dead in his house as it burned
to the ground. Investigators found his body, charred almost beyond
recognition, during their investigation of the fire. Suspicion
about the identity of the perpetrator focused almost immediately
upon Billy Wayne Waldrop.
In July 1982 Waldrop was arrested in California on a charge of
driving under the influence of alcohol. He waived extradition and
was returned to Alabama based on a warrant issued by the Calhoun
County Circuit Court charging him with receipt of stolen property.
Apparently the property in question was that taken from Donahoo's
home on the night of his murder. Although Waldrop was returned to
Alabama on the basis of a Calhoun County warrant, he was taken to
Talladega County on August 19, 1982. While incarcerated there,
Waldrop gave two statements implicating himself in the Donahoo
robbery and murder.
In December 1982 Waldrop was indicted on six counts of capital
murder. The first four counts of the indictment charged variations
of murder during the course of a first degree robbery. See
Ala.Code § 13A-5-40(a)(2). Counts five and six charged murder
during two separate types of first degree burglary. See Ala.Code
§ 13A-5-40(a)(4).
On February 18, 1983, the petitioner was found guilty of the
murder of Donahoo. On the same day, the jury unanimously
recommended the imposition of the death penalty. After a separate
sentencing hearing on March 22, 1983, the trial court sentenced the
petitioner to death. On direct appeal, the Alabama Court of
Criminal Appeals affirmed the conviction and sentence and denied
rehearing. Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983).
The Alabama Supreme Court affirmed, Ex parte Waldrop, 459 So.2d 959
(Ala.1984), and the United States Supreme Court denied certiorari,
Waldrop v. Alabama, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323
(1985).
In June 1985 Waldrop filed a petition for writ of error coram
nobis in the Circuit Court of Talladega County. After an
evidentiary hearing, the trial judge denied coram nobis relief.
The Alabama Court of Criminal Appeals affirmed the denial of coram
nobis relief. Waldrop v. State, 523 So.2d 475 (Ala.Crim.App.1987).
Both the Alabama Supreme Court and the United States Supreme Court
denied certiorari. Id.; Waldrop v. Alabama, 488 U.S. 871, 109
S.Ct. 184, 102 L.Ed.2d 154 (1988).
Waldrop filed a second petition for relief in November 1988 to
vacate and set aside his conviction and death sentence pursuant to
Rule 20 of the Alabama (Temporary) Rules of Criminal Procedure.
The Circuit Court of Talladega County denied relief, and the Court
of Criminal Appeals affirmed without opinion. Waldrop v. State,
564 So.2d 115 (Ala.Crim.App.1990). Waldrop did not file a petition
for writ of certiorari with the Alabama Supreme Court.
In September 1990 Waldrop filed the present petition for a
writ of habeas corpus in the Northern District of Alabama. He
later filed an amended petition, and in May 1991 filed a second
amended petition. After construing the State's answer as a motion
for summary judgment, the district court granted the State's motion
and denied the petition for habeas relief. Waldrop v. Thigpen, 857
F.Supp. 872 (N.D.Ala.1994).
II. ISSUES ON APPEAL
Waldrop raises several issues on appeal. First, he contends
that the district court erred in denying him relief on his claim
that his counsel was ineffective for failing to present mitigating
evidence during the penalty phase of the trial. Second, Waldrop
attacks the district court's conclusion that he procedurally
defaulted his claim based on Cage v. Louisiana, 498 U.S. 39, 111
S.Ct. 328, 112 L.Ed.2d 339 (1990), that the jury instruction
defining "reasonable doubt" violated the Due Process Clause of the
Fourteenth Amendment. Finally, Waldrop challenges the district
court's conclusion that his confession was properly admitted and
not involuntary under the Fourteenth Amendment or obtained in
violation of his Sixth Amendment right to counsel.1
III. DISCUSSION
A. Ineffective assistance of counsel
Waldrop contends that the district court erred in finding that
his lawyers were not ineffective and that Waldrop was not
prejudiced by their failure to present allegedly mitigating
evidence during the sentencing phase of his trial. Waldrop
contends that his counsel failed to adequately investigate his
background, thereby depriving the jury and judge of evidence of his
violent and abusive family background, mental instability, and
neurological damage from a gunshot wound inflicted in November
1981. The State asserts that the district court correctly
concluded that Waldrop showed neither ineffective assistance of
counsel nor prejudice because of his counsel's failure to introduce
this evidence.
Relying on the findings of the coram nobis court, the district
court concluded that, although Waldrop's trial counsel's
investigation of mitigating factors was "far from the most
thorough," it was professionally reasonable. Waldrop v. Thigpen,
857 F.Supp. at 916. The district court also concluded that Waldrop
was not prejudiced by his counsel's failure to introduce this
allegedly mitigating evidence. Id. at 919.
1
Waldrop also argues that several comments made during the
prosecutor's summation at the penalty phase of the trial deprived
him of a fundamentally fair trial. This argument is without
merit and does not warrant further discussion. See 11th Cir.R.
36-1.
An ineffective assistance of counsel claim is a mixed
question of law and fact, subject to de novo review. Strickland v.
Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674
(1984). To prove ineffective assistance of counsel, a petitioner
must prove that counsel's performance was deficient and that the
deficiency prejudiced the defendant. Id. at 687, 104 S.Ct. at
2064. To satisfy the prejudice prong, a petitioner "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." Mills v. Singletary, 63 F.3d
999, 1020 (11th Cir.1995) (quoting Strickland, 466 U.S. at 694, 104
S.Ct. at 2068) (internal quotation marks omitted). When
challenging a death sentence, a petitioner must show that "there is
a reasonable probability that, absent the errors, the sentencer ...
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Strickland, 466 U.S. at 695,
104 S.Ct. at 2069. Because a petitioner must satisfy both prongs
of the Strickland test, a failure to prove either provides a
sufficient basis to deny relief on the ineffective assistance
claim. Id. at 697, 104 S.Ct. at 2069.2
Waldrop alleges that certain evidence about his background
would have changed his sentence if it had been offered by his
2
Although it first addressed the performance component and
then moved to the prejudice component in Strickland, the Supreme
Court specifically held that a court need not address the
components in any particular order or even address both if the
defendant makes an insufficient showing on one. 466 U.S. at 696,
104 S.Ct. at 2069; see also Marek v. Singletary, 62 F.3d 1295,
1298 (11th Cir.1995).
counsel. But the coram nobis court and the district court
disagreed, finding that much of the evidence Waldrop offered was
not credible and concluding that none of it would have altered
Waldrop's sentence. The State urges that those findings are
justified by the record. The state court's findings of fact are
entitled to a presumption of correctness and are given deference if
fairly supported by the record of the coram nobis hearing. 28
U.S.C. § 2254(d); see also Strickland, 466 U.S. at 698, 104 S.Ct.
at 2070.
Waldrop first would have had his counsel introduce evidence
of his allegedly abusive and traumatic childhood. He claims that
as a child, he endured violent physical and sexual abuse. Waldrop
testified that his father, uncle, and half-sister all sexually
abused him, and he alleges that these experiences caused
long-lasting effects on his behavior. See Waldrop v. State, 523
So.2d at 483-84. But the evidence presented at the coram nobis
hearing about Waldrop's childhood was contradictory and at times
supported by nothing more than Waldrop's own testimony. See id.
The state court found that the petitioner was not sexually abused
as a child, id., and it also concluded that Waldrop failed to
establish that he suffered any lasting negative effects from the
alleged physical abuse, id. at 483. These findings are fairly
supported by the record. The evidence about Waldrop's childhood,
if presented, would not have weighed heavily as a mitigating
factor.
Waldrop also contends that his counsel should have offered
evidence of the neurological damage he allegedly suffers from a
gunshot wound to his brain in 1981. Waldrop testified that the
wound has caused lasting effects on his behavior. His mother, as
well as several other family members, corroborated his testimony,
and they stated that he had suffered seizures on several occasions.
Id. at 484-85. Dr. Zeiger, Waldrop's treating neurosurgeon,
contradicted Waldrop's evidence; he testified that the wound had
healed well and that there was no evidence of any resulting seizure
activity. Dr. Zeiger also stated that the damage to Waldrop's
frontal lobe did not affect either his mental or physical
functioning. The coram nobis court credited the doctor's testimony
and found that Waldrop suffered no behavioral effects as a result
of the gunshot wound. Id. at 485. This finding is fairly
supported by the record; thus, evidence of the gunshot wound would
not constitute mitigation.
Waldrop also claims that evidence concerning his history of
excessive alcohol and drug use constituted a mitigating factor. He
alleges that the combination of his anti-seizure medication, which
he took sporadically, and several illicit drugs altered his
behavior. Waldrop also claims that he was severely depressed and
had attempted suicide at the time of Donahoo's murder. The
district court found that these facts, if shown, would not
constitute evidence in mitigation of the death penalty. Waldrop v.
Thigpen, 857 F.Supp. at 919. We agree; indeed, admission of some
of this evidence might have been harmful to Waldrop's case.
In sum, the evidence that Waldrop claims his counsel should
have introduced would not have changed the outcome in his case. We
agree with both the coram nobis court and the district court that
Waldrop has not demonstrated that his counsel's failure to present
the evidence in question altered the outcome of the sentencing
phase of his trial. "Given the [ ] aggravating factors, there is
no reasonable probability that the omitted evidence would have
changed the conclusion that the aggravating circumstances
outweighed the mitigating circumstances and, hence, the sentence
imposed." Strickland, 466 U.S. at 700, 104 S.Ct. at 2071.
Waldrop's claim must fail because he was not prejudiced by any
ineffective assistance of counsel that may have occurred.
B. The jury instruction on reasonable doubt
Waldrop next challenges the trial court's jury instruction
that "[a] reasonable doubt means an actual, substantial doubt."3
3
The court's instruction on reasonable doubt was as follows:
Now, you will want to know what a reasonable doubt
is. When I say the state is under the burden of
proving guilt beyond a reasonable doubt and to a moral
certainty, that does not mean that the state must prove
an alleged crime beyond every imaginable or speculative
doubt, or beyond all possibility of mistake, because
that would be impossible.
A reasonable doubt means an actual, substantial
doubt. It could arise out of the testimony in the case
or a reasonable doubt could arise from a lack of
testimony in the case. It is a doubt for which a
reason can be assigned, and the expression "to a moral
certainty" means practically the same thing as "beyond
a reasonable doubt" because if you are convinced to the
point where you no longer have a reasonable doubt, then
you are convinced to a moral certainty.
(Trial Tr., R. 4-16 at 576-77.)
On appeal, Waldrop also challenges the portion of the
instruction in which the trial court equates proof beyond a
reasonable doubt with proof to a moral certainty. However,
he did not present this claim in his amended petition in the
district court, (see R. 2-31 at 34-35 (Second Am.Pet. WW 87-
90)), and the district court did not address the issue. We
decline to address an issue not presented to the district
He relies on Cage, 498 U.S. at 39, 111 S.Ct. at 328, to support his
argument that the use of the phrase "actual, substantial doubt" to
define "reasonable doubt" allowed a finding of guilt based upon a
degree of proof below that required by the Due Process Clause of
the Fourteenth Amendment. 4 The State contends, and the district
court concluded, that the Cage claim is procedurally defaulted and
therefore cannot be raised in federal court. Waldrop counters that
his attack on the instruction is not defaulted because Alabama
courts do not strictly and regularly apply their procedural default
rules in cases such as his; thus, he argues, there are no adequate
state grounds to bar federal review of his claim. Waldrop further
argues that even if the claim is procedurally defaulted, there is
cause to excuse the default.
A federal court will not address a federal question on
collateral review of a state conviction if a state court's denial
of relief is based on adequate and independent state grounds.
Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103
L.Ed.2d 308 (1989). Here, the state court has not passed upon
Waldrop's challenge to the trial court's definition of reasonable
doubt because he first made this challenge in his federal habeas
petition. In such a case, the federal court should itself
determine whether the claim would be procedurally defaulted under
state rules constituting an adequate and independent state ground
court but raised for the first time on appeal. See Depree
v. Thomas, 946 F.2d 784, 793 (11th Cir.1991).
4
In Cage, the Supreme Court ruled that a similarly-worded
instruction improperly "suggest[ed] a higher degree of doubt than
is required for acquittal under the reasonable-doubt standard."
Id. at 41, 111 S.Ct. at 329-30.
for denial of relief. See Teague v. Lane, 489 U.S. 288, 298-99,
109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).5
Alabama law precludes post-conviction relief for claims which
could have been but were not raised on direct appeal.
Ala.R.Crim.P. 32.2(a)(5). Under Rule 32, this jury instruction
claim should have been raised on direct appeal. Because it was
not, it has been defaulted. Thompson v. State, 581 So.2d 1216,
1218 (Ala.Crim.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct.
868, 116 L.Ed.2d 774 (1992); Weeks v. State, 568 So.2d 864, 871
(Ala.Crim.App.1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112
L.Ed.2d 184 (1990).
Waldrop acknowledges that Alabama law requires that challenges
to jury instructions be raised on direct appeal, but he argues that
Alabama courts permit the assertion of claims otherwise defaulted
if the claim is based upon a new rule of law that could not have
been anticipated. Alabama's procedural default rule, Waldrop
argues, is thus unclear, with the result that the procedural
default rule is not strictly and regularly applied.
In Ex Parte Beavers, 598 So.2d 1320, 1324-25 (Ala.1992), the
court acknowledged that a failure to object at trial may not, under
Alabama law, bar a later post-conviction challenge to a jury
instruction based upon a subsequent Supreme Court decision
announcing a "clear break" with past precedent. In the same
5
Although a federal court may dismiss a petition when it
contains both exhausted and unexhausted claims, Rose v. Lundy,
455 U.S. 509, 532-33, 102 S.Ct. 1198, 1210-11, 71 L.Ed.2d 379
(1982), the State has not argued exhaustion. The State argues
that Waldrop has no state remedy available because of his
procedural default.
decision, however, the court rejected the argument that Cage was
such a decision.
Waldrop cites no Alabama authority supporting his argument
that Alabama does not regularly and strictly apply its rule that
challenges to jury instructions must be raised on direct appeal.
Moreover, Waldrop cites no cases to support his argument that
exceptions to this rule under Alabama law are not strictly and
regularly applied. We hold, therefore, that Waldrop's failure to
challenge the reasonable doubt instruction on direct appeal is an
adequate and independent state ground for denial of relief on his
claim.
Waldrop also contends that the futility of challenging the
instruction in state court is cause to excuse his failure to raise
the issue on direct appeal. He argues that Alabama courts have
approved similar jury instructions on reasonable doubt, e.g.,
Beavers, 598 So.2d at 1324-25 (stating that Cage was merely
application of settled precedent to specific factual context), and,
therefore, it would have been futile to raise this issue earlier.6
According to the Supreme Court, the "futility of presenting
an objection to the state courts cannot alone constitute cause for
a failure to object at trial." Engle v. Isaac, 456 U.S. 107, 130,
102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). This reasoning
applies equally to Waldrop's failure to raise the issue on direct
6
The petitioner cites Layton v. Carson, 479 F.2d 1275 (5th
Cir.1973), to support this argument. However, Layton does not
hold that futility excuses a state procedural default; rather,
the opinion states that futility will excuse the failure to
exhaust state remedies. Id. at 1276. Layton is thus inapposite;
the State has not raised exhaustion as a basis for the denial of
relief.
appeal. Even if it was unlikely that his claim would have been
well-received in state court, Waldrop should have presented it.
See id.
Waldrop also contends that the procedural default should be
excused because Cage represents a change in the law. He argues
that, due to the novelty of Cage, he could not have been expected
to anticipate that the trial court's definition of reasonable doubt
would be disapproved until Cage was decided in 1990. The district
court concluded that "the basic legal principles were available to
[Waldrop] to assert this claim at least at the time of his 1988
Rule 20 petition." Waldrop v. Thigpen, 857 F.Supp. at 935.7
We conclude that Waldrop had at his disposal the essential
legal tools with which to construct his claim in time to present
the claim to state court on direct appeal. We have held that Cage
was a "new rule" under Teague, 489 U.S. at 288, 109 S.Ct. at 1060,
but under Teague a rule is "new" if it is not dictated by prior
precedent. On the other hand, a rule is "novel," and therefore
cause for a procedural default, only if the petitioner did not have
the legal tools to construct the claim before the rule was issued.
See Dugger v. Adams, 489 U.S. 401, 409-10, 109 S.Ct. 1211, 1216-17,
103 L.Ed.2d 435 (1989). As the district court noted, "[i]t is
7
The district court held that Waldrop would be barred from
attacking the instruction in a new Rule 32 petition for two
reasons. First, Rule 32.2(b) (the substantive equivalent of
former Rule 20) prohibits successive petitions brought on grounds
which were available or could have been ascertained at the time
of the first Rule 32 petition. Ala.R.Crim.P. 32.2(b).
Second, Rule 32.2(c) bars a petition for relief based
on a constitutional claim if the petition is filed after the
two-year statute of limitations period has run.
Ala.R.Crim.P. 32.2(c).
plainly possible that the legal elements of a claim can be
available and reasonably recognizable without being dictated by
prior precedent." Waldrop v. Thigpen, 857 F.Supp. at 934 n. 42.
In fact, before Waldrop's trial, many defendants were
attacking instructions which defined "reasonable doubt" in terms
very similar to the instruction used in Waldrop's case. Such
claims were percolating in both state and federal courts at the
time of Waldrop's trial. See, e.g., United States v. Muckenstrum,
515 F.2d 568, 570-71 (5th Cir.) (criticizing instruction that
defined "reasonable doubt" as one that "must be substantial" and
more than "a mere possible doubt"), cert. denied, 423 U.S. 1032, 96
S.Ct. 564, 746 L.Ed.2d 406 (1975); Bryant v. State, 348 So.2d
1136, 1138 (Ala.Crim.App.) (rejecting attack on instruction
defining "reasonable doubt" as a "real and substantial doubt"),
cert. denied sub nom. State ex rel. Attorney General, 348 So.2d
1138 (Ala.1977); Hall v. State, 306 So.2d 290, 293
(Ala.Crim.App.1974) (same), cert. denied, 293 Ala. 757, 306 So.2d
294 (1975). The existence of such cases is strong evidence that a
"reasonable basis" for Waldrop's attack on the reasonable-doubt
instruction existed before Cage. See Reed v. Ross,468 U.S. 1, 13-
20, 104 S.Ct. 2901, 2909-12, 82 L.Ed.2d 1 (1984) (stating that
novelty can excuse default if no "reasonable basis" for claim
previously existed; discussing what constitutes a "reasonable
basis"); James v. Cain, 50 F.3d 1327, 1331 (5th Cir.) (stating
that novelty is less likely an excuse where other defendants have
contemporaneously perceived and litigated similar issues) (citing
Engle, 456 U.S. at 134, 102 S.Ct. at 1575), cert. denied, --- U.S.
----, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). Waldrop, therefore,
has not demonstrated cause for his default.
C. Involuntary confession
While held in the Talladega County jail, Waldrop confessed on
September 15, 1982, and again on October 18, 1982, to participating
in the robbery and murder of Donahoo. Waldrop challenges his
conviction based on the admission at trial of the October 18
confession. He argues that because he was detained in the
Talladega County jail without probable cause and without
presentation to a judicial officer for four months, his confession
was coerced and therefore obtained in violation of the Due Process
Clause of the Fourteenth Amendment.8
On review of a habeas petition, we make an independent
assessment of the voluntariness of the confession. Miller v.
Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405
(1985). The subsidiary and historical facts found by the state
trial court, however, are presumed correct under 18 U.S.C. §
2254(d). Id. at 112, 106 S.Ct. at 450. When a state court fails
to make explicit findings, a state court's denial of the claim
"resolves all conflicts in testimony bearing on that claim against
the criminal defendant." Culombe v. Connecticut, 367 U.S. 568,
604-05, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961).
To determine whether a confession is voluntary, the court
must assess "the totality of all the surrounding circumstances—both
the characteristics of the accused and the details of the
8
The petitioner also raised a Fifth Amendment challenge to
his confession in his petition, but has not questioned on this
appeal the denial of relief on this claim.
interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93
S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The inquiry focuses on
whether there has been any "police overreaching." Colorado v.
Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 520, 93 L.Ed.2d 473
(1986). Factors to be considered include the "[accused's] lack of
education, or his low intelligence, the lack of any advice to the
accused of his constitutional rights, the length of detention, the
repeated and prolonged nature of the questioning, and the use of
physical punishment such as the deprivation of food or sleep."
Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (citations omitted).
The trial court held an evidentiary hearing on Waldrop's oral
motion to suppress the October 18, 1982, confession. 9 In denying
the motion to suppress, the court implicitly found that (1) Waldrop
had been advised of and understood his Miranda rights before making
his statement; (2) Waldrop asserted that he knew the rights better
than the officers did; (3) he wished to talk to the authorities;
(4) he asserted that he did not want or need a lawyer; (5) he
never requested counsel; (6) no threats or promises were made to
induce Waldrop's statement; (7) the statement had not been induced
by telling Waldrop that it was necessary to prepare him for a
polygraph examination; and (8) Waldrop's visiting privileges had
been suspended, not as an inducement to confess, but because
weapons were found on persons attempting to visit him at the jail.
Waldrop v. Thigpen, 857 F.Supp. at 894-895 (summarizing the
evidence at the hearing and the implicit factual findings of the
9
The September 15, 1982, confession was not introduced at
trial.
trial court).10 The court made similar factual findings during the
hearing on Waldrop's coram nobis petition. See Waldrop v. State,
523 So.2d at 487-88.11 The coram nobis court additionally found
that (1) Waldrop was never allowed conjugal visits and thus was not
told that these visits would cease until he confessed; (2) Waldrop
was held in Talladega County on the Calhoun County receiving stolen
property warrant; (3) this warrant was obtained because there was
sufficient evidence to prove the crime at that point and not to
hold petitioner while the Donahoo investigation continued; (4) the
sheriff did not know that Waldrop needed to go to Calhoun County
and would have returned Waldrop had he known; and (5) Waldrop
never requested that he be returned to Calhoun County but preferred
to remain in Talladega County. Id. After reviewing the evidence,
we believe that these factual findings are fairly supported by the
record.12
Waldrop argues that his lengthy detention without a judicial
10
Although the district court used these facts in its
assessment of Waldrop's Fifth Amendment claim, they can also be
used in a voluntariness determination. During the suppression
hearing, Waldrop offered contradictory evidence on these factual
issues. However, the trial court's denial of the motion
implicitly credits the State's evidence. See Culombe, 367 U.S.
at 604-05, 81 S.Ct. at 1880.
11
As the district court noted, Waldrop v. Thigpen, 857
F.Supp. at 895 n. 11, these factual findings were made by the
coram nobis court in the context of an ineffectiveness claim.
However, these findings of fact are presumed correct under §
2254(d) for all claims.
12
On appeal, Waldrop specifically challenges only the
district court's factual finding that he wanted to remain in
Talladega County to be near his family. We agree that the state
trial court did not find this, but we find that the record fairly
supports the coram nobis court's finding that Waldrop wanted to
remain in Talladega County. (See Tr., Coram Nobis Hr'g, R. 2 at
273-74.)
presentment or counsel in a county in which no charge lay against
him renders his confession involuntary. Waldrop had been held in
the Talladega County jail for less than a month when he made the
September statement. Although he alleges that he was interrogated
ten times before making the September statement, "there is nothing
in the record to indicate that any single session was exhaustingly
lengthy. There is no evidence that the police used any physical
force against the petitioner or that they threatened or harassed
him in any way." Waldrop v. Thigpen, 857 F.Supp. at 896. Nothing
suggests that Waldrop was deprived of food or sleep. He was not
isolated from others, but was allowed visitors until the visitors
were found with weapons.
Waldrop was held pursuant to a valid arrest warrant. He was
not presented to a judicial official before he made his statements,
but because he had been "arrested pursuant to a warrant issued by
a [judicial official] on a showing of probable-cause[, Waldrop was]
not constitutionally entitled to a separate judicial determination
that there [was] probable cause to detain him pending trial."
Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 2694, 61
L.Ed.2d 433 (1979).
Waldrop complains that the Talladega police violated Alabama
law by detaining him in Talladega County. Removal to a distant
prison location is a factor to be considered in a voluntariness
determination. Culombe, 367 U.S. at 630, 81 S.Ct. at 1893-94.
Here, the petitioner was undoubtedly removed from Calhoun County to
Talladega County. However, the coram nobis court found that
Waldrop wanted to be in Talladega County and never requested that
he be returned to Calhoun County. Furthermore, the sheriff of
Talladega County stated that he would have returned Waldrop if he
had known that Waldrop was needed in Calhoun County. It is
possible that the Talladega County police violated Alabama law by
moving the petitioner to Talladega County; however, that question
is not before us. Moreover, a violation of state law does not
necessarily render a confession involuntary. Cf. Fikes v. Alabama,
352 U.S. 191, 194 n. 2, 77 S.Ct. 281, 283 n. 2, 1 L.Ed.2d 246
(1957).
Waldrop contends that detention without counsel added to the
involuntariness of his confession. But the district court
correctly concluded that Waldrop's right to counsel had not yet
attached on the uncharged murder offense. While Waldrop was
entitled to counsel during his detention for the robbery, he had
been advised of his rights on several occasions and indicated that
he did not want or need a lawyer.
[T]here is no evidence which suggests that [petitioner] was
unable to comprehend the Miranda warnings or the consequences
of his waiver of those rights. He stated to the police that
he understood the rights better than they did and his past
criminal history evinces his familiarity [with] the warnings
and the legal system in general.
Waldrop v. Thigpen, 857 F.Supp. at 896. There is also no evidence
in the record that Waldrop suffered from diminished mental
capacity, as a result of his gunshot wound or the brain surgery
which followed it, that would have called into question his waiver
of his Miranda rights. Id.; see also Waldrop v. State, 523 So.2d
at 484 (discussing deposition testimony from coram nobis proceeding
of Waldrop's neurosurgeon, Dr. Zeiger, who stated that petitioner
suffered no permanent disability or diminished capacity from
surgery).
We acknowledge that under some circumstances a lengthy
detention might induce an involuntary confession. See Davis v.
North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 1770, 16 L.Ed.2d
895 (1966). But we find no coercion here. After assessing the
totality of the circumstances, we conclude that the confession
given by Waldrop on October 18, 1982, and later used at trial, was
not involuntary.
D. Confession obtained in violation of the Sixth Amendment
Waldrop finally claims that his October confession, made
without counsel present, was obtained in violation of the Sixth
Amendment because his right to counsel had already attached at the
time he made the statement. The district court held and the State
contends that the claim is procedurally barred. We agree.
In Claim II of his first coram nobis petition, Waldrop argued
that his statement had been illegally obtained in violation of his
Fourth, Sixth, and Fourteenth Amendment rights. The state circuit
court held that it could not review the claim because the claim had
been litigated on direct appeal.13 But Waldrop abandoned this claim
on his coram nobis appeal. He instead argued that his attorneys
were ineffective because they did not move to suppress his
confession—a statement which, Waldrop claimed, violated his Sixth
Amendment right to counsel.14
13
In fact, the petitioner did not raise this claim on direct
appeal; he argued that his statement had been obtained in
violation of his Fifth Amendment rights.
14
In Waldrop's coram nobis brief to the Alabama Court of
Criminal Appeals, Claim II is headed: "The Admission in Evidence
of Appellant's Illegally Obtained Statement Violated His
We agree with the district court that this claim is
defaulted. Waldrop abandoned it during his appeal to the Alabama
Court of Criminal Appeals following the denial of his coram nobis
petition. "[T]he state court that is usually the final arbiter of
such [a] collateral attack[ ] on [a] criminal conviction[ ] was not
afforded a fair opportunity to rule on [it]." Collier v. Jones,
910 F.2d 770, 773 (11th Cir.1990). Waldrop's claim is thus
"analogous to claims that have never been presented to a state
court, and which have become procedurally barred under state
rules." Id.; see Ala.R.Crim. P. 32.2(b) & (c). Given the posture
of Waldrop's Sixth Amendment claim, the district court properly
found that the claim is procedurally defaulted. See Collier, 910
F.2d at 773.
IV. CONCLUSION
We have reviewed Waldrop's ineffectiveness claim, improper
prosecutorial remarks claim, and involuntary confession claim on
the merits and find no constitutional error. We conclude that
Waldrop's attack on the trial court's reasonable-doubt instruction
and his Sixth Amendment right to counsel claim are procedurally
barred. Accordingly, the district court's denial of the petition
for a writ of habeas corpus is affirmed.
AFFIRMED.
Constitutional Rights." However, the text of the argument does
not support an independent Sixth Amendment claim.