Waldrop v. Jones

PUBLISH
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-6687

D. C. Docket No. CV90-H-1845-S

BILLY WAYNE WALDROP,

Petitioner-Appellant,

versus

RONALD E. JONES,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Alabama

(February 26, 1996)

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

2
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

(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 (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,

3
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 (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

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.

4
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.
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 (1984). To

prove ineffective assistance of counsel, a petitioner must prove

that counsel's performance was deficient and that the deficiency

5
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

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

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).

6
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.

7
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

8
reasonable probability that the omitted evidence would have changed

the conclusion that the aggravating circumstances outweighed the

mitigation 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

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"

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. ¶¶ 87-90), and the
district court did not address the issue. We decline to address an
issue not presented to the district court but raised for the first
time on appeal. See Depree v. Thomas, 946 F.2d 784, 793 (11th Cir.
1991).

9
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 (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 for denial of relief. See

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.

10
Teague v. Lane, 489 U.S. 288, 298-99, 109 S. Ct. 1060, 1068-69

(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

(1992); Weeks v. State, 568 So. 2d 864, 871 (Ala. Crim. App. 1989),

cert. denied, 498 U.S. 882, 111 S. Ct. 230 (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 (1982), the State has
not argued exhaustion. The State argues that Waldrop has no state
remedy available because of his procedural default.

11
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 (1982). This reasoning applies equally to

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.

12
Waldrop's failure to raise the issue on direct 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

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).

13
(1989). As the district court noted, "[i]t is 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 (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, 306 So. 2d 294 (Ala. 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 (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

14
Engle, 456 U.S. at 134, 102 S. Ct. at 1575), cert. denied, ___ U.S.

___, 116 S. Ct. 310 (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 (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 (1961).

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.

15
 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

interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S. Ct. 2041, 2047 (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 (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

9
The September 15, 1982, confession was not introduced at
trial.

16
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

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

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.

17
believe that these factual findings are fairly supported by the

record.12

Waldrop claims that his lengthy detention without a judicial

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 (1979).

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.)

18
 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 (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.

19
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 (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

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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

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

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
Constitutional Rights." However, the text of the argument does not
support an independent Sixth Amendment claim.

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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.

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