Glenn William HOLLADAY, Petitioner-Appellant,
v.
Michael W. HALEY, Commissioner, Alabama Department of Corrections, Attorney General of the State
of Alabama, Respondents-Appellees.
No. 98-6937.
United States Court of Appeals,
Eleventh Circuit.
April 19, 2000.
Appeal from the United States District Court for the Northern District of Alabama. (No. CV-95-PT-2929-M),
Robert B. Propst, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.
ANDERSON, Chief Judge:
I. FACTS AND PROCEDURAL HISTORY
In August 1986, Rebecca Ledbetter Holladay was living in a mobile home in Gadsden, Alabama.
On the night of the 24th, her son Shea Ledbetter, her sister Katrina Ledbetter, her boyfriend David Robinson,
and her son's friend Larry Thomas, Jr., were all at the mobile home. Thomas left to get something to eat at
his own home. As he walked outside, he was shot and his body was later discovered outside of the trailer.
Immediately after Thomas was shot, Glenn Holladay burst into the trailer, shoving aside Katrina Ledbetter
as she yelled a warning to her sister, who was back in the bedroom. Holladay proceeded down the hallway,
stopping at Shea's bedroom and attempting to turn on the light. After Holladay left Shea's bedroom, Shea and
Katrina left the trailer and ran to Thomas's parents' home. Holladay found his ex-wife and her boyfriend in
the back bedroom; he shot Robinson in the arm and chest and shot Rebecca in the back of the head. All three
shooting victims died of their injuries.
Glenn Holladay had told an acquaintance in Nashville that his ex-wife had a new boyfriend and that
if she did not stop seeing him, he would kill her. After the shootings, Holladay called a neighbor of his father
and told her that he had done a bad thing. He told her that he had not intended to kill Larry Thomas; he
thought that Thomas was his ex-wife's boyfriend. After being shot by the police on October 9, 1986,
Holladay was apprehended in Gainesville, Florida.
At trial Holladay testified that he was in Nashville at the time of the killings and denied killing any
of the victims. He was convicted of capital murder and sentenced to death on July 27, 1987. The Alabama
Court of Criminal Appeals and the Alabama Supreme Court affirmed both his conviction and death sentence
on direct appeal. Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988) aff'd, Ex parte Holladay, 549 So.2d
135 (Ala.1989). The United States Supreme Court denied Holladay's petition for writ of certiorari, Holladay
v. Alabama, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989), and his petition for rehearing, Holladay
v. Alabama, 493 U.S. 1095, 110 S.Ct. 1173, 107 L.Ed.2d 1075 (1990).
Next, Holladay filed for post-conviction relief under Temporary Rule 201 of the Alabama Rules of
Criminal Procedure on September 10, 1990, and amended his petition on April 24, 1991. An evidentiary
hearing was held on April 25-27, 1991 and on December 5, 1991, the Rule 20 court denied the petition,
finding some of the claims procedurally barred and determining that the others were meritless. The Alabama
Court of Criminal Appeals affirmed the denial and the Alabama Supreme Court denied his petition for writ
of certiorari. Holladay v. State, 629 So.2d 673 (Ala.Crim.App.1992), cert. denied, 629 So.2d 673
(Ala.Crim.App.1992). The United States Supreme Court denied his petition for writ of certiorari. Holladay
v. Alabama, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).
In November 1995, Holladay filed the present petition for a writ of habeas corpus. The magistrate
judge recommended that the writ be denied on May 29, 1998, and Holladay filed a motion for withdrawal
of the recommendation in June 1998. The magistrate judge amended his recommendation but retained the
substance of the recommendation. The District Court adopted the recommendation and denied the habeas
petition in July 1998. Holladay filed to alter or amend the judgment, which the district court denied in
October 1998. On November 18, 1998, Holladay filed a notice of appeal.
1
Rule 20 has since been finalized as Rule 32 of the Alabama Rules of Criminal Procedure.
2
Holladay argues on appeal that his attorneys provided ineffective assistance of counsel with respect
to his sentence. In this regard, he charges his former counsel with (a) failing to present in a meaningful way
records in their possession at trial, (b) failing to provide those records to the State's evaluating psychiatrists
and psychologists, (c) failing to procure independent mental health examinations, and (d) failing to discover
prior mental health difficulties. Next, he claims ineffective assistance of counsel with respect to guilt and
sentence because (e) his former attorneys elicited prejudicial information on direct examination. Finally,
Holladay asserts a substantive claim that his trial was rendered fundamentally unfair by the excessive security
in the courtroom and the fact that he appeared in shackles; and he also asserts that his trial and appellate
counsel provided ineffective assistance of counsel with respect to this claim.
II. STANDARD OF REVIEW
In assessing each of Holladay's claims, we review the district court's findings of fact for clear error,
while we review all questions of law de novo. See Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998).
Because the issue of whether petitioner's counsel were ineffective is a mixed question of law and fact, it is
subject to de novo review. See Mills v. Singletary, 161 F.3d 1273, 1285 (11th Cir.1998).2 Factual
determinations made by the state court are presumed to be correct with exceptions not relevant here. See 28
U.S.C. 2254(d) (1995) (amended 1996).
III. DISCUSSION
A. Ineffective Assistance of Counsel
In order to succeed with a challenge based on ineffective assistance of counsel, a petitioner has to
satisfy a two part test. First, the petitioner must show that counsel's performance was deficient. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This means that
the petitioner must show that the representation provided by counsel was outside the "wide range of
2
The pre-1996 version of § 2254 governs this petition because it was filed in 1995. See Lindh v. Murphy,
521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).
3
competent assistance" and he must also overcome the presumption of competence. Id. at 690, 104 S.Ct. at
2066. In analyzing counsel's competence, the court must apply a "heavy measure of deference to counsel's
judgments." Id. at 691, 104 S.Ct. at 2066. Second, the petitioner must show that the performance prejudiced
the defense, so that the result of the trial is not reliable. See id. To satisfy this test, the defendant "must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694, 104 S.Ct. at 2068. Furthermore, "[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. Because both parts of the test must be
satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance
prong if the defendant cannot meet the prejudice prong, see id., or vice versa.
1. Ineffective Assistance of Counsel at Sentencing for Failure to Present Records in a Meaningful Way
Holladay claims that his trial counsel, Kathleen and Howard Warren, did not use the records that they
uncovered in a meaningful way at the penalty phase. The Warrens obtained records from the Department of
Pensions and Securities from 1957 to 1981 that detailed the Holladay family history. However, Holladay
asserts that his counsel did nothing more than present those records to the jury and even advised the jury not
to read through all of the records. Furthermore, he maintains that they were entered into evidence outside
of the jury's presence. Finally, Holladay states that the Warrens did not draw attention to his mental
retardation.
Citing Stephens v. Kemp, 846 F.2d 642 (11th Cir.1988), and Turpin v. Lipham, 270 Ga. 208, 510
S.E.2d 32 (1998), Holladay maintains that the Warrens were as deficient in their representation as counsel
were in those cases. In Stephens, this Court found that an attorney who made no use in the penalty phase of
the trial of records of the defendant's mental illness, did not procure an independent expert analysis of the
defendant, and did not comment in closing argument upon the records or the defendant's mother's testimony
regarding the manifestations of the defendant's mental illness, was not within "the wide range of
professionally competent assistance." Stephens, 846 F.2d at 653. In Turpin, the Georgia Supreme Court
4
found counsel to be ineffective in the penalty phase because they introduced 2,500 pages of records from the
defendant's stays at various psychiatric institutions and children's homes, without any testimony commenting
on the contents, and merely urged the jury to use the records in their deliberations.
The conduct of the counsel in this case was markedly different. Unlike the counsel in Stephens, Mrs.
Warren in her closing argument reminded the jury of Holladay's manifold problems, including his family
circumstances, his abuse and neglect as a child, and his mental problems. She argued that those problems
"contributed to the place that he is in right now." She called two mitigation witnesses who talked about
Holladay's childhood, abuse, neglect, illiteracy, and learning difficulties. Holladay's father testified to his
neglect, abuse at the hands of foster parents, and enrollment in special education classes.3 The performance
of counsel here was far superior to that in either Stephens or Turpin.
Holladay's attack on the efficacy of Mrs. Warren's use of the records is misplaced. Mrs. Warren
discussed the contents of the records that she exhorted the jury to read and stated that the reason for giving
them the 142 pages of records was that they provided a chronological record of the traumatic events in
Holladay's childhood. Although Holladay is correct that Mrs. Warren stated that she did not expect the jury
to read all of the records, the emphasis was clearly upon all. Indeed, a sentence later she urged the jury again
to look at the records. Finally, a careful reading of the transcript reveals that the records were entered into
the record while the jury was present.
Counsel did present Holladay's mental retardation to the jury. In his testimony, Holladay's father
stated that Holladay had been in a special school for slow learners. The records presented to the jurors were
3
Holladay criticizes this testimony because he says it minimizes the degree of abuse that he suffered.
However, in her testimony at the Rule 20 hearing, Mrs. Warren stated that Holladay did not want to embarrass
his father and asked his counsel not to do so while his father was testifying. While counsel may not blindly
follow a defendant's instruction not to pursue mitigation evidence, see Mitchell v. Kemp, 762 F.2d 886, 889-
90 (11th Cir.1985), that was not the case here. Counsel called Holladay's father but tried not to pin any of
the abuse upon him, and then introduced the records, some of which contained the embarrassing information
that Holladay did not want aired publicly. Thus the information was introduced, albeit in a format that
followed Holladay's wishes.
5
replete with references to Holladay's mild retardation and many of these references are in the first few pages.
Counsel also mentioned Holladay's retardation in her closing argument at the penalty phase, and discussed
how well he can mask it. Even the prosecutor, in his closing, acknowledged that Holladay was slightly
mentally retarded. Finally, the court instructed the jury that they may consider Holladay's mental retardation
as a mitigating factor.
Our careful review of the transcript of the sentencing phase, including Mrs. Warren's closing
argument, persuades us that counsel's performance was not constitutionally deficient with regard to her
presentation of the mitigating evidence, including the family history records. Rather, we conclude that Mrs.
Warren presented the evidence in a concise and effective way, explaining how "those problems have
contributed to the place that he is in right now." [Trial Transcript at 1740].
2. Ineffective Assistance of Counsel for Failure to Provide Those Records to the Evaluating
Psychiatrists and Psychologist
Next Holladay claims that his trial counsel were ineffective because they did not provide the records
to the psychiatrists and psychologist who evaluated him at Taylor Hardin Secure Medical Facility. At that
facility, Holladay was evaluated for competency to stand trial by the "lunacy commission." Had counsel
provided the records, he maintains, the lunacy commission members would have been compelled to
acknowledge the evidence of statutory and nonstatutory mitigation contained within.
Counsel did not unreasonably withhold the records from the commission; she simply did not have
the records in question at that time.4 In her testimony at the Rule 20 hearing, Mrs. Warren stated that she
provided the lunacy commission with all of the information that she had at the time of their evaluation: "As
far as I know what Taylor Hardin requested I give them[,] I provided them all of the information I had at that
time." [Rule 20 Transcript at 719]. Indeed, in her cover letter accompanying the completed lunacy
4
Contrary to the State's argument that the record is unclear what the lunacy commission based its report
upon, the report itself states that it was based upon interviews with Holladay, a review of the district attorney's
files, and review of Holladay's treatment and evaluations at the Taylor Hardin Secure Medical Facility.
6
commission's questionnaire, Mrs. Warren stated that at that point she had only had minimal contact with
Holladay. In her questionnaire, Mrs. Warren did relay information that she obtained from Holladay's father:
that Holladay had a low IQ or was retarded, had trouble in school, and was illiterate. Mrs. Warren's failure
to provide records she did not have at the time did not fall outside of the wide range of competency.
Furthermore, Holladay is unable to prove that the provision of these records would have changed the
evaluation of the commission in any way. The records later obtained included IQ tests taken when Holladay
was a child and notations that he might be retarded. However, the commission tested Holladay and found
him to be in the Borderline Intellectual Functioning range. Thus the commission would likely have
discounted the earlier tests because the test it administered would be considered more accurate since it was
more recent. Additionally, contrary to Holladay's assertions, the commission examined him for more than
competency and sanity; the report also discusses his intelligence and rejects the idea that he was retarded.
Holladay spent more than a month in residence at Taylor Hardin, giving the mental health experts ample
opportunity to complete a thorough evaluation. Holladay has not proved that there is a reasonable probability
that the commission would have decided differently and therefore cannot show he was prejudiced by this
omission.
3. Ineffective Assistance of Counsel at Sentencing for Failure to Procure Independent Mental Health
Examinations
Holladay charges that the Warrens were ineffective when they did not seek an independent mental
evaluation of him after the examination at Taylor Hardin. Holladay asserts that counsel unreasonably
accepted the commission's determination that he did not have any statutory or nonstatutory mitigation despite
the evidence contained in the records detailing Holladay's history from 1957 to 1981.
At the Rule 20 hearing, Holladay presented two expert witnesses who testified with respect to his
mental retardation. The two witnesses, Dr. Michael Norko, a psychiatrist, and Dr. Brad Fisher, a clinical
psychologist, testified that Holladay is mildly mentally retarded. Dr. Norko also testified that Holladay
suffered from organic personality syndrome, explosive type. The Rule 20 court credited the testimony of the
7
state's expert witness, Dr. Joe Dixon, over that of Holladay's two experts. The court's decision was based on
Holladay's experts' relative inexperience with retardation, and based in part on their inability to explain why
they reached drastically different results than the seven other mental health practitioners who had examined
him. The court also discounted Dr. Norko's diagnosis because his only source was Holladay's self-reporting
and affidavits of friends and family.
Counsel is not necessarily required to seek independent mental evaluations in order to render
effective assistance. In Bertolotti v. Dugger, 883 F.2d 1503, 1511 (11th Cir.1989), we held that counsel is
not required to seek an independent evaluation when the defendant does not display strong evidence of mental
problems. Additionally, the choice not to seek out such an evaluation is a tactical decision, which "must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Whether the tactical decision is
reasonable is a question of law.
The Rule 20 court found that Mrs. Warren made a tactical decision not to seek additional expert
opinion, after receiving the report from the several mental health experts at Taylor Hardin. Holladay does
not challenge the fact that such a tactical decision was made; he argues only that it was not a reasonable
decision. Reviewing the decision for reasonableness, we find that counsel was justified in her decision not
to seek an additional mental evaluation after she received the report from the lunacy commission. Holladay
spent over a month at the Taylor Hardin facility, during which time he was seen by four mental health
specialists. During his stay, Holladay's IQ was tested and found to be 71, in the borderline range. The report
also stated that his "speech and history of autonomous living suggest that he is a rather streetwise individual
and, apart from well documented criminal tendencies, not the kind of person who would require extensive
supervision on the basis of intellectual dysfunction." [R2-7-1279]. One of the psychiatrists stated that
Holladay was of normal intelligence. [R2-7-1298]. Each of the psychiatrists and the psychologist found
Holladay to be lucid about the criminal activity with which he was charged. At the Rule 20 hearing, Mrs.
8
Warren testified that she found Holladay to be "articulate, affable, he is one of the kind of people that seems
to want to be friendly towards people." [Rule 20 Transcript at 652]. She found him cooperative and that he
could recall dates, times, places, and motivations clearly and without hesitation. Id. The ease of her contacts
and Holladay's apparent clarity of thought convinced her that she need not seek further evaluation. Id. at 653.
Given the content of the lunacy commission report and her own contacts with the petitioner, it was
reasonable for counsel to rely on the records alone for evidence of mental problems and not seek another
evaluation. The report prepared by the four specialists suggested that Holladay was not retarded and thus
counsel could have reasonably assumed that the same result would be reached by a fifth specialist.
Furthermore, her own impression of Holladay was that he was normal and indeed, as she testified at the Rule
20 hearing, more competent than some of her other clients. It reasonably appeared that the only evidence that
she would be able to elicit of retardation would be found in the records. Finally, the determination of the Rule
20 judge that Holladay's mental health experts were not credible lends credence to her decision; it is likely
that any experts introduced at trial would likewise have been less credible than those of the state. For the
foregoing reasons, we cannot conclude that this tactical decision was unreasonable and thus Holladay cannot
satisfy the performance prong of the ineffective assistance of counsel analysis. Moreover, in light of the
findings of the Rule 20 court discrediting the opinions of the two experts offered by Holladay at the Rule 20
hearing, we also conclude that Holladay could not satisfy the prejudice prong.
4. Ineffective Assistance of Counsel at Sentencing for Failure to Discover Evidence of Prior Mental
Health Difficulties
Although the Warrens talked to Holladay's brother and father, they did not talk to anyone else in the
family. They did not uncover the fact that Holladay had been treated at a mental hospital in Georgia and so
did not find those records. Holladay argues that had they interviewed other members of his family or other
friends, they would have found a wealth of mitigating evidence, including evidence of his stay in the
psychiatric ward in Georgia, stories that corroborated the information in the records introduced by counsel,
and friends' recollections of his unpredictable behavior.
9
Counsel have a duty to investigate but this duty is confined to reasonable investigation. See
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. In Funchess v. Wainwright, 772 F.2d 683, 689 (11th
Cir.1985), this Court found counsel reasonably investigated despite the fact that he had not investigated his
client's psychological problems because the client never told him of any problems and the competency
evaluation did not suggest any problems existed. The client also acted competently while assisting counsel
in preparing his case. See id. Thus the court held that counsel was not put on notice of any problems and
could not be faulted for not pursuing the matter. See id.; cf. Collins v. Francis, 728 F.2d 1322, 1349 (11th
Cir.1984) (determining that counsel who failed to investigate witnesses that the defendant did not tell him
about was not ineffective).
Reliance upon some family members's statements that other mitigation witnesses did not exist was
considered permissible in Singleton v. Thigpen, 847 F.2d 668, 670 (11th Cir.1988). Rejecting a per se rule
of ineffective assistance where counsel does not consult family members, we held in Williams v. Head, 185
F.3d 1223, 1237 (11th Cir.1999), that counsel's investigation was reasonable when he did not interview the
defendant's sister or father, the latter because the defendant had not lived with him for very long. "[S]trategic
choices made after less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In other words, counsel has a duty to make
a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.
The conduct of the counsel here did not fall below the professionally competent standard. While the
Warrens did not discover the records from Holladay's stay at Central State Hospital in Milledgeville, Georgia
or records from other psychiatrists who treated Holladay, there is no evidence in the record, nor does
Holladay allege, that he told them of his prior treatment.5 As in Funchess, the report of the lunacy
5
There is a mention in the Lunacy Commission Evaluation Report that Holladay was at Central State
Hospital, but it states that he reported he was not found to be mentally ill then or at any other time. [R2-7-
1291]. Thus counsel could have reasonably determined that these records were not worth pursuing. Cf.
10
commission that Holladay was sane and competent combined with counsel's impression of Holladay as
cooperative, articulate, and affable did not put Mrs. Warren on notice that there were or might be psychiatric
records that she needed to find.
Similarly, counsel reasonably did not interview other family members after Holladay's father and
brother told them that no one else was interested in assisting Holladay. Mrs. Warren interviewed and
presented as witnesses the two family members who reasonably appeared to be the most knowledgeable and
helpful, the father and the brother David, who was a minister. Counsel are not required to interview all family
members, and it is reasonable that Mrs. Warren, after interviewing two helpful relatives, would limit her
investigation in accordance with their advice. Additionally, Holladay cannot meet the prejudice prong on this
claim of ineffective assistance because he has not offered any evidence of the substance of the testimony
which other family members would have provided. At the Rule 20 hearing, psychiatrist Dr. Michael Norko
discussed how some family members' affidavits substantiated Holladay's self-reporting of rages, but this is
the only indication of their contents. In the absence of more evidence, we cannot conclude with reasonable
probability that discussions with other family members would have changed the outcome in this case.
5. Ineffective Assistance of Counsel with regard to Guilt and Sentencing Because Counsel Elicited
Prejudicial Information on Direct Examination
Finally, Holladay alleges that his counsel were constitutionally inadequate because they elicited
information on direct examination that he had escaped, which, he argues, was highly prejudicial. Although
counsel had moved, in limine, for an order prohibiting the District Attorney from making any reference to
Holladay's escape from the Cherokee County Jail, Holladay maintains that during direct examination of him,
the fact that he had escaped was revealed as a result of inept questioning.
After reviewing the testimony, we cannot conclude that the district court was clearly erroneous in
finding that counsel did not intend for this information to be revealed, but rather that Holladay volunteered
Williams v. Head, 185 F.3d 1223, 1239-40 (11th Cir.1999)(finding reasonable counsel's decision not to
pursue mental health evaluation when records from previous evaluation indicated no problem).
11
it himself. In the first instance, counsel was attempting to elicit Holladay's criminal history on direct
examination6 and then changed her topic by stating, "let me ask you this."7 She then asked when he resumed
6
Because Holladay decided to testify, his counsel decided to lessen the impact of his prior criminal
convictions by revealing them on direct examination. A tactical decision is ineffective only "if it was so
patently unreasonable that no competent attorney would have chosen it." Adams v. Wainwright, 709 F.2d
1443, 1445 (11th Cir.1983). Eliciting prior convictions on direct examination is a common trial tactic and
not unreasonable under the circumstances.
7
Q: You have been in a lot trouble during your life, haven't you Glenn?
A: Yes, ma'am.
Q: Okay, You have been a convicted felonist, haven't you?
A: Yes, ma'am.
Q: Do you remember how many?
A: Approximately ten—ten to twelve felonies.
Q: Okay. Do you recall what those were for?
A: Most of them were burglaries, buying and receiving, and buying, receiving and selling—
Q: Buying and concealing stolen property—
A: Concealing—yeah, uh-huh. And I had one rape.
Q: Okay, weren't you also convicted of assault?
A: Yes, ma'am, I had one assault.
Q: Now, at the time you were arrested in January of 1986, what charge was that on?
A: Buying and receiving.
Q: Were you confined to Cherokee County on that—
A: Yes, ma'am.
Q: —jail?
A. Yes, ma'am.
Q: Let me ask you this. I know you started seeing Becky Holladay again in 1986.
12
his relationship with his ex-wife and he answered that it was after he had escaped from jail. The fact that he
escaped from jail was neither necessary to answer the question nor elicited by counsel; the question asked
was "when" and "not in what context." The second time that Holladay mentioned that he escaped was in the
context of questioning regarding his whereabouts at the time of the murders. Mrs. Warren asked where he
was in August 1986 and Holladay volunteered that he was on the run from jail.8 Counsel did not anticipate
Holladay would bring up his escape and in fact she interrupted his answer, apparently in an attempt to prevent
him from saying anything more damaging.
A: Yes, ma'am.
Q: After January, after being arrested—
A: Yes, ma'am, sure did.
Q: When you next see her?
A: Well, I escaped from the Cherokee County Jail March the 18th, 1986, and I started seeing Becky
somewhere around the end of March.
[Trial Transcript at 1569-70].
8
Q: Did you consider Becky Holladay to be your wife?
A: Yes, Ma'am.
Q: Where were you in August of 1986?
A: August, 1986, I was in Nashville.
Q: Do you remember when you got there?
A: Well, I had been up there three or four separate times. I was on the run from, you know, Ft. Payne's
County Jail. And—
Q: So you were in and out of Nashville in August—
A: Yes Ma'am, just kind of in and out of it.
[Trial Transcript at 1570].
13
Holladay argues that these errors would not have been made had his counsel adequately prepared him
to testify. The record reveals that Holladay's counsel did not learn until voir dire that he intended to testify.
At that time, she discussed his testimony with him and again counseled against testifying. Given the severe
time constraints that she was under, as a result of Holladay's last minute decision, counsel cannot be faulted
for failing to prepare her client fully. Thus we cannot find that counsel rendered ineffective assistance in this
instance.
B. Excessive Security
Holladay asserts a substantive claim that his trial was rendered fundamentally unfair by the excessive
security in the courtroom and the fact that he was required to wear shackles. At trial, Holladay was brought
in with handcuffs and a belly chain, which were removed before the jury came in, but he was kept in shackles
during the trial. Besides the Gadsden police, there were state troopers present in the courtroom, and metal
detectors screened all who entered the courtroom. Holladay asserts that such unprecedented security,
combined with the mood created by extensive pretrial publicity, rendered it impossible for the jurors to view
Holladay as innocent until proven guilty.
Holladay's counsel did not raise this issue on direct appeal and thus it is procedurally barred9 unless
he can show cause for the default and actual prejudice, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977), or a fundamental miscarriage of justice, see Engle v. Isaac, 456 U.S. 107, 102 S.Ct.
1558, 71 L.Ed.2d 783 (1982). Constitutionally ineffective assistance of counsel can constitute cause. See
Hollis v. Davis, 941 F.2d 1471, 1476 (11th Cir.1991)(citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct.
2639, 2645, 91 L.Ed.2d 397 (1986)). In an effort to demonstrate cause, Holladay argues that counsel
deficiently failed to object adequately at trial and neglected to raise this issue on appeal. Next, if Holladay
9
Alabama Rule of Criminal Procedure 32.2(a)(5) bars a petitioner from raising an issue in the Rule 32
petition that was not raised on direct appeal. Federal constitutional claims defaulted in the state proceedings
are procedurally barred at federal habeas review if there existed "adequate and independent state grounds"
for the bar. See Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640
(1991). Rule 32.2(a)(5) provides such grounds.
14
can show cause, he must be able to show prejudice as a result of the cause, "not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimension." United States v. Frady, 456 U.S. 152, 170,
102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982).
Holladay argues that it was constitutionally ineffective assistance of counsel not to object to at trial
and raise on appeal the excessive security and shackling. While he concedes that his trial counsel did object
to the shackling at trial, he maintains that counsel should have sought an evidentiary hearing on the issue.
He also asserts that the law was clear enough on excessive security and shackling that he would have
prevailed on direct appeal, had counsel raised these issues.
Starting with the shackling aspect of the claim, we address Holladay's contention that his counsel
rendered ineffective assistance at trial when she did not request a hearing on the issue, propose alternatives
to the shackles or allow her client to address the court on the issue. Holladay cites Elledge v. Dugger, 823
F.2d 1439 (11th Cir.1987), for the premise that he was entitled to a hearing on whether shackles could be
employed during trial. However, the facts in Elledge are quite different; there the court announced that the
defendant would be placed in shackles, allowed only an objection from the defense counsel, and told the
defendant that he could not address the court. 823 F.2d at 1451. This Court, in determining that the
defendant was entitled to an "opportunity to present his own side of the case," noted that the judge had
presented a number of unsubstantiated reasons for requiring the shackles. Id. at 1452. Instead of mandating
a formal hearing, we merely required that the trial court give the defendant the opportunity to respond to the
imposition of shackles. See id. Trial judges are given reasonable discretion in balancing the state's interests
in shackling and the defendant's right to appear "untainted by physical reminders of his status as an accused,"
and in determining whether shackles are appropriate. Zygadlo v. Wainwright, 720 F.2d 1221, 1223 (11th
Cir.1983). Here, the court and defense counsel engaged in a lengthy discussion on the necessity of the
shackles, in which counsel had the opportunity to address the reasons proffered by the court with regard to
15
the need to put the defendant in shackles. Additionally, the Rule 20 court found that the judge ordered
measures be taken to ensure that the jury could not see the shackles, such as bringing him in before the jury
was seated and also putting him on the stand before the jury came back. We cannot conclude that Holladay
has demonstrated that his counsel's actions were constitutionally deficient.
Holladay also argues that counsel was ineffective at trial when they did not object to the heavy
security. The Supreme Court has held that an essential element of a fair trial is the "principle that 'one
accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence
introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.' " Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 1345,
89 L.Ed.2d 525 (1986)(quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468
(1978)). While the trial court should strive to impart to the jurors the need to presume the defendant's
innocence, there are instances when state interests require the use of restrictive measures or noticeable
security. See id. at 567-68, 106 S.Ct. at 1345. The Court held that "[w]henever a courtroom arrangement is
challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated
a consciousness of some prejudicial effect, but rather whether 'an unacceptable risk is presented of
impermissible factors coming into play.' " Id. at 570, 106 S.Ct. at 1346-47 (quoting Estelle v. Williams, 425
U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976)). In Holbrook, the Court found that the presence
of four uniformed police officers seated directly behind the defendants did not mark the defendants as
unmistakably guilty. See id. at 570-71, 106 S.Ct. at 1347. The Court noted that had it discerned prejudice,
the state had a valid interest which, when balanced against the possible prejudice, precluded a constitutional
violation. See id. at 571-72, 106 S.Ct. at 1347.
It was not unreasonable or deficient for Holladay's counsel not to object to the security measures
taken at the trial. As Mrs. Warren testified at the Rule 20 hearing, she considered Holladay an escape risk
and was also concerned about threats Holladay had received from the father of one of the victims. Thus her
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decision not to object to the security measures was a conscious decision, based on the particular
circumstances of the case. These concerns were entirely rational in light of the circumstances and we cannot
conclude that her analysis resulted in deficient representation. Holladay had escaped from prison twice before
and Mrs. Warren testified that "there was no doubt in my mind after talking to Glenn Holladay that if he had
the opportunity to escape he would take it." [Rule 20 Transcript at 658]. Furthermore, the father of one of
the victims had been disarmed at a previous hearing which demonstrated the need for extra guards and the
metal detectors. Finally, when he was ultimately arrested after eluding the police for several weeks, Holladay
attempted to evade the police and was only captured after he was shot several times. Indeed, Mrs. Warren
testified at the Rule 20 hearing that he had been shot by law enforcement officers three times before he came
to trial. In light of such a history, it was not unreasonable for the counsel to decline to object.
Next, Holladay alleges that his counsel were ineffective when they did not raise either the shackling
or security on direct appeal. The crux of his argument is that the law was so clearly established that he would
have prevailed on these issues.
In order to render effective assistance, counsel need not raise every possible nonfrivolous issue on
appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). Instead, it
is the job of counsel to weed out the weaker arguments. See id. at 751, 103 S.Ct. at 3313. That is precisely
what Mrs. Warren claimed she did when questioned at the Rule 20 hearing. And in making this decision she
was correct because, as discussed above, the law does not clearly disallow shackles or heightened security.
Additionally, the decision to place a defendant in shackles is reviewed only for abuse of discretion in the
Alabama courts. See, e.g., Minor v. State, No. 95-1968, --- So.2d ----, ---- (Ala.Crim.App. Oct.29,
1999)(finding that defendant's prior history of escapes justified shackling outside the presence of the jury).
Similarly, Alabama courts review claims of excessive security only for abuse of discretion. See, e.g., Burgess
v. State, --- So.2d ----, No. 93-2054 (Ala.Crim.App. Nov.20, 1998). In light of the circumstances in this case
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and the standard of review that these claims would be subjected to, it was not deficient representation not to
raise them on appeal.
Because Holladay cannot establish that it was constitutionally ineffective assistance of counsel not
to raise the excessive security and shackling issues on direct appeal, he cannot show cause needed to
overcome procedural default. As a result, we need not address whether he can show the required prejudice
to overcome the procedural bar.10 Similarly, because this claim is procedurally barred, we need not reach the
merits of the substantive issue.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court denying relief is
AFFIRMED.
10
Holladay also argues that the prejudice resulting from the shackling and excessive security was
exacerbated by the pretrial publicity about the crime. However, the Alabama Court of Criminal Appeals on
direct appeal noted that the voir dire examination was thorough and extensive as to each juror's knowledge
of and feelings about the case. That court concluded that all prospective jurors who had opinions about the
case or expressed reservations about their impartiality were excused, and also concluded that Holladay had
failed to demonstrate a connection between the pretrial publicity in the case and the existence of any actual
jury prejudice. See Holladay v. State, 549 So.2d 122, 126 (Ala.Crim.App.1988).
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