Magwood v. Culliver

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 23, 2009
No. 07-12208 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 97-00629-CV-MHT-WC

BILLY JOE MAGWOOD,

Petitioner-Appellee,
Cross-Appellant,

versus

GRANTT CULLIVER, Warden,
RICHARD F. ALLEN, Commissioner,
Alabama Departments of Corrections,
TROY KING, Attorney General of Alabama,

Respondents-Appellants,
Cross-Appellees.

________________________

Appeals from the United States District Court
for the Middle District of Alabama
_________________________

(January 23, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

BLACK, Circuit Judge:
 Grantt Culliver, Richard F. Allen and Troy King (the State) appeal the

district court’s partial grant of Alabama death-row inmate Billy Joe Magwood’s 28

U.S.C. § 2254 habeas corpus petition on Magwood’s fair-warning claim1 and

ineffective assistance of counsel based on the fair-warning claim. Magwood

cross-appeals the partial denial of his petition, raising the multiple issues as

discussed in section III. B. of this opinion. After review, we affirm in part and

reverse in part and render judgment in favor of the State.

I. BACKGROUND

A. Factual background

The facts of Magwood’s offense are not in dispute. They are set forth in an

opinion by the Alabama Court of Criminal Appeals, as follows:

Thomas Weeks, a Coffee County Deputy Sheriff, testified he was
employed as the county jailer on March 1, 1979, under Coffee County
Sheriff Neil Grantham. The witness stated he observed [Magwood],
whom he recognized as a former jail inmate, sitting in a car parked in
Sheriff Grantham’s parking space at approximately 6:45 a.m. Shortly
before 7:00 a.m., he observed Sheriff Grantham drive up and park his
vehicle. He got out of the automobile, walked to some garbage cans
and deposited a trash bag, and then walked towards the jail door.
[Magwood] got out of his automobile with something in his hand and
met Sheriff Grantham at the rear of the car. At that point, Deputy
Weeks heard three gunshots and saw Sheriff Grantham fall. The

1
Magwood asserts his death sentence violated the fair-warning requirement of the due
process clause because it was based on Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981), which was
decided after he committed his offense and retroactively applied to his case.

2
 witness then turned back into the jail and obtained a gun. He
observed [Magwood] get back into his car and saw that he held a
pistol in his hand. He exchanged fire with [Magwood] as he drove
away. Deputy Weeks then went over to where Sheriff Grantham lay
on the ground and observed that the Sheriff’s face was blue and that
he appeared not to be breathing, having apparently been hit in the
face and neck. Deputy Weeks stated he observed no one else in the
area at the time the Sheriff was killed.

Magwood v. State, 426 So. 2d 918, 920 (Ala. Crim. App. 1982).

B. Procedural background

Magwood murdered Sheriff Grantham on March 1, 1979. Magwood was

convicted and sentenced to death for the murder on June 2, 1981. On direct

appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court

affirmed Magwood’s conviction and death sentence. Magwood v. State, 426 So.

2d 918 (Ala. Crim. App. 1982), aff’d, 426 So. 2d 929 (Ala. 1983). The United

States Supreme Court denied Magwood’s petition for writ of certiorari. Magwood

v. Alabama, 462 U.S. 1124, 103 S. Ct. 3097 (1983).

On July 13, 1983, Magwood filed a petition for writ of error coram nobis in

the Circuit Court of Coffee County. This petition was denied and on March 20,

1984, the Alabama Court of Criminal Appeals affirmed the denial of the coram

nobis petition. Magwood v. State, 449 So. 2d 1267 (Ala. Crim. App. 1984). A

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motion for out-of time appeal was denied by the Alabama Supreme Court on June

5, 1984. Ex parte Magwood, 453 So. 2d 1349 (Ala. 1984).

Magwood then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in

the United States District Court for the Middle District of Alabama. On March 26,

1985, the district court upheld Magwood’s conviction but conditionally granted

the writ as to the sentence, based on the failure of the sentencing court to find two

mitigating circumstances. Magwood v. Smith, 608 F. Supp. 218 (M.D. Ala. 1985).

This Court affirmed the district court’s decision. Magwood v. Smith, 791 F.2d

1438 (11th Cir. 1986).

A resentencing hearing was conducted on September 17, 1986. On

October 2, 1986, the Alabama trial court, after considering the additional

mitigating circumstances as ordered by the federal district court, again sentenced

Magwood to death. The Alabama Court of Criminal Appeals and the Alabama

Supreme Court affirmed Magwood’s resentencing. Magwood v. State, 548 So. 2d

512 (Ala. Crim. App.), aff’d, 548 So. 2d 516 (Ala. 1988). The United States

Supreme Court denied Magwood’s petition for writ of certiorari. Magwood v.

Alabama, 493 U.S. 923, 110 S. Ct. 291 (1989).

Magwood filed an application in this Court for permission to file a second

habeas corpus petition in the district court challenging his conviction, which we

4
denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir. 1997). Magwood filed a

second habeas petition challenging his resentencing on April 23, 1997. The

district court granted Magwood’s habeas petition on his fair-warning claim and

ineffective assistance of counsel based on the fair-warning claim and vacated

Magwood’s death sentence. The district court denied relief on all other claims.

Magwood v. Culliver, 481 F. Supp. 2d 1262 (M.D. Ala. 2007).

The State appeals as of right the two issues on which the district court

granted relief. The district court granted a certificate of appealability as to all of

the issues Magwood cross-appeals.

II. STANDARD OF REVIEW

Magwood filed this habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and AEDPA

applies to this appeal. Under AEDPA, “[a] federal court may not grant a petition

for a writ of habeas corpus to a state prisoner on any claim that has been

adjudicated on the merits in state court unless the adjudication (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established federal law, or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in state

court.” Clark v. Crosby, 335 F.3d 1303, 1308 (11th Cir. 2003). A federal court’s

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review is further restricted by 28 U.S.C. § 2254(e), which provides “ a

determination of a factual issue made by a State court shall be presumed to be

correct” and places the burden on the petitioner to rebut the presumption of

correctness “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. ANALYSIS

A. State’s appeal

1. Fair warning

The State asserts the district court erred when it granted relief on

Magwood’s claim that the retroactive application of the judicial rule in Ex parte

Kyzer, 399 So. 2d 330 (Ala. 1981), deprived Magwood of due process of law

because the claim is precluded under 28 U.S.C. § 2244(b) as successive.2

a. Alabama’s death penalty statute and Ex parte Kyzer

A review of Alabama’s death penalty laws at the time of Magwood’s

offense and Ex parte Kyzer will be helpful in the analysis of Magwood’s fair-

warning claim.

2
The State also contends the district court erred in granting relief on Magwood’s fair-
warning claim because the claim is procedurally defaulted and is meritless. We do not address
these contentions as we conclude Magwood’s claim is successive.

6
 i. The 1975 Act

Magwood committed the crime on March 1, 1979. At that time, Alabama’s

death penalty statute provided in Alabama Code § 13-11-2(a)(5) (1975):

(a) If the jury finds the defendant guilty, it shall fix the punishment at
death when the defendant is charged by indictment with any of the
following offenses and with aggravation, which must also be averred
in the indictment, and which offenses so charged with said
aggravation shall not include any lesser offenses:

(5) The murder of any police officer, sheriff, deputy, state
trooper or peace officer of any kind, or prison or jail guard
while such prison or jail guard is on duty or because of some
official or job-related act or performance of such officer or
guard.

Alabama Code § 13-11-4 (1975), entitled “Determination of sentence by court;

court not bound by punishment fixed by jury” provided:

Notwithstanding the fixing of the punishment at death by the jury, the
court, after weighing the aggravating and mitigating circumstances,
may refuse to accept the death penalty as fixed by the jury and
sentence the defendant to life imprisonment without parole, which
shall be served without parole; or the court, after weighing the
aggravating and mitigating circumstances, and the fixing of the
punishment at death by the jury, may accordingly sentence the
defendant to death. If the court imposes a sentence of death, it shall
set forth in writing as the basis for the sentence of death, findings of
fact from the trial and the sentence hearing, which shall at least
include the following:

(1) One or more of the aggravating circumstances enumerated
in section 13-11-6, which it finds exists in the case and which it
finds sufficient to support the sentence of death . . . .

7
 Alabama Code § 13-11-6 (1975), did not have a corresponding aggravating

circumstance to the crime for which Magwood was convicted, namely the murder

of a law enforcement officer. Additionally, the resentencing court specifically

found that Magwood’s crime did not qualify him for any of the listed aggravating

circumstances enumerated in Alabama Code § 13-11-6 (1975).

Thus, although Magwood’s conviction under Alabama Code § 13-11-

2(a)(5) (1975), forced the jury to fix the punishment at death, the judge could

nonetheless sentence Magwood to life imprisonment without parole. Magwood

asserts that under Alabama Code § 13-11-4 (1975), he should have been sentenced

to life imprisonment, as § 13-11-4 (1975) requires there be an aggravating

circumstance listed in § 13-11-6 (1975). Magwood did not have an aggravating

circumstance listed in § 13-11-6 (1975), to correspond with his crime.

ii. Beck v. Alabama

In Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980), the United States

Supreme Court found fault with the Alabama death penalty scheme because it

failed to allow a jury in a capital case to consider lesser included, noncapital

offenses. On remand, the Alabama Supreme Court determined the preclusion

clause could be removed from the statute, allowing the Alabama rule on lesser

included offenses in noncapital cases to apply to capital cases. Beck v. State, 396

8
So. 2d 645, 658-59 (Ala. 1980). The Alabama Supreme Court further decided the

statute required jury participation in the sentencing process, and created the

necessary procedures by adding an additional stage to the trial of a capital case.

Id. at 659-62.3

iii. Ex parte Kyzer

Kyzer was tried and convicted under Alabama’s 1975 death penalty statute,

§ 13-11-2(a)(10), for first degree murder “wherein two or more human beings are

intentionally killed by the defendant by one or a series of acts.” Ex parte Kyzer,

399 So. 2d 330, 332 (Ala. 1981). The Alabama Supreme Court concluded there

was an evidentiary basis for lesser included offense instructions in Kyzer’s case,

and thus reversed and remanded for a new trial to be conducted in conformance

with Beck. Id. at 333.

However, based on the facts of Kyzer’s case, the Alabama Supreme Court

went on to address the issue of whether the death penalty would be an available

option to the State if Kyzer was retried. Kyzer, like Magwood, was convicted of

3
The jury first considers a defendant’s guilt, not only with respect to the capital charge
but also concerning those noncapital, lesser included offenses supported by the evidence. If the
jury convicts the accused of a capital offense, the trial proceeds to a second stage consisting of a
sentence hearing during which the jury hears any evidence of aggravating and mitigating
circumstances. If the jury is unable to unanimously agree on a death sentence, the judge
sentences the accused to life imprisonment without parole. If the jury imposes a death sentence,
the judge conducts a sentencing hearing without the jury and imposes a sentence of either death
or life imprisonment without parole. See Beck, 396 So. 2d at 662-63.

9
an aggravated offense in § 13-11-2 (1975), for which the legislature failed to

provide a corresponding aggravating circumstance in § 13-11-6 (1975). The

Alabama Supreme Court stated: “[t]his case presents in purest form an anomaly in

Alabama’s Death Penalty Statute.” Id. at 334. The Alabama Supreme Court

concluded “[a] literal and technical reading of the statute” would lead to the

conclusion that if the trial judge cannot find the existence of an aggravating

circumstance other than the one averred in the indictment, the trial judge must

refuse to accept the death penalty as fixed by the jury. Id. at 337. The Alabama

Supreme Court could think of no reason the Alabama legislature would have

imposed such a result, however, and concluded the trial judge is authorized to find

the same aggravation averred in the indictment and proven beyond a reasonable

doubt to the jury. Id. at 337-38.

b. Successive petition

The State argues Magwood’s fair-warning claim is a successive petition

within the meaning of 28 U.S.C. § 2244(b)(2). Magwood filed his first 28 U.S.C.

§ 2254 petition on July 20, 1983, and the district court ruled on that petition on

March 26, 1985. Magwood did not argue his fair-warning claim in his first habeas

petition, although the aggravator averred in the indictment was his sole

aggravator. Magwood filed an application in this Court for permission to file a

10
second habeas corpus petition in the district court challenging his conviction,

which we denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir. 1997). In his

application for permission to file a second petition, he did not mention his fair-

warning claim. The current petition on appeal is the first federal habeas petition in

which Magwood asserts his fair-warning claim.

According to 28 U.S.C. § 2244(b)(2):

A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless–

(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

Magwood does not argue that his case fits into one of these exceptions.

Instead, he asserts the fair-warning claim is not successive because he challenges

only the state trial court’s application of Kyzer at his resentencing, not at his

11
original sentencing. Because he limits his fair-warning claim to the resentencing,

he contends he necessarily could not have challenged it in his first habeas petition.

The district court concluded that, based on Ex parte Green, 215 F.3d 1195

(11th Cir. 2000), Magwood’s fair-warning claim is not successive within the

meaning of AEDPA. In Green, the petitioner filed an application seeking an order

authorizing the district court to consider a second or successive petition under 28

U.S.C. § 2255. Id. at 1195. Green pled guilty to possession with intent to

distribute cocaine base and was sentenced. After the district court was affirmed on

direct appeal, Green filed his first 28 U.S.C. § 2255 petition. Id. The district court

granted the petition with respect to Green’s Bailey v. United States, 516 U.S. 137,

116 S. Ct. 501 (1995), claim, and denied relief as to all other claims. Green, 215

F.3d at 1195-96. Green appealed, but this Court did not issue a certificate of

appealability. The district court then held a resentencing and entered an amended

judgment. Green thereafter filed a second § 2255 motion, alleging his counsel

rendered ineffective assistance at resentencing. The district court found the

motion constituted a second or successive motion because Green’s claims

concerned the same conviction attacked in his first § 2255 motion. Id. at 1196.

Green applied for permission to file a successive § 2255 petition in this

Court, which we denied as unnecessary, reasoning Green’s § 2255 motion attacked

12
only his amended sentence. “Because Green attacks the constitutionality of his re-

sentencing proceeding only, and not the validity of his conviction, we hold this

§ 2255 motion is not ‘second or successive.’ Green obviously could not challenge

his counsel’s effectiveness at re-sentencing at the time he filed his first § 2255

motion.” Id. at 1196. We concluded his application to file a successive motion

was unnecessary because the motion attacked for the first time a sentence that was

not yet imposed at the time of his first § 2255 motion. Id.

Green’s ineffective assistance of resentencing counsel is distinguishable

from Magwood’s fair-warning claim in one important respect. Unlike Green’s

claim, Magwood’s fair-warning claim was available when he filed his first § 2254

petition. Green’s ineffective assistance of counsel at resentencing claim

necessarily was not available until after Green’s resentencing. Magwood’s fair-

warning claim was available when he filed his first petition, as his only

aggravating factor at his first sentencing was the same one charged in the

indictment. We now must consider whether Magwood may bring this fair-warning

claim even though it was available when he filed his first petition.

We noted this possibility in Walker v. Crosby, 341 F.3d 1240, 1245 n.4

(11th Cir. 2003). In Walker, we concluded Walker’s § 2254 petition was not

second or successive because his first petition was dismissed without prejudice for

13
failure to exhaust state remedies, and thus we had “no occasion to decide whether

and to what extent § 2244(b) allows a petitioner, who filed one habeas application

and is then resentenced, to bring another habeas application that, in part,

challenges his resentencing.” Id. We further noted “[o]ther courts have suggested

that in such a case the district court is allowed to separate the new claims

challenging the resentencing from the old claims that were or should have been

presented in the prior application.” Id. (citing In re Taylor, 171 F.3d 185, 188 n.*

(4th Cir. 1999); Walker v. Roth, 133 F.3d 454, 455 n.1 (7th Cir. 1997); Galtieri v.

United States, 128 F.3d 33, 37-38 (2d Cir. 1997)).

We now have occasion to answer the question noted in Walker–“whether

and to what extent § 2244(b) allows a petitioner, who filed one habeas application

and is then resentenced, to bring another habeas application that, in part,

challenges his resentencing.” 341 F.3d at 1245 n.4. We find persuasive the

Second Circuit’s analysis in Galtieri, 128 F.3d at 37-38. In that case the Second

Circuit noted AEDPA does not define what constitutes a second or successive

petition in either § 2255 or § 2254. Any petition for habeas relief that is filed after

a prior one cannot automatically be discounted as being successive, however,

because a petitioner could be successful in a first petition and succeed in receiving

a new sentencing hearing. A second petition after resentencing could challenge

14
errors from the amended sentence. Id. at 37. The Second Circuit disapproved,

however, of considering the second petition after resentencing as a first petition

challenging the amended sentence.

That approach . . . would permit every defendant who succeeds in
having any component of his sentence modified to bring a renewed
challenge . . . to the unamended components of his original sentence,
raising grounds that were either available for presentation on the first
petition or even specifically rejected on that petition. Congress, in
enacting sections [2255 and 2254] to sharply restrict repetitive habeas
petitions, could not have wanted such an indulgent result.

Id. at 37. The Second Circuit then concluded:

[W]henever a first 2255 petition succeeds in having a sentence
amended, a subsequent 2255 petition will be regarded as a ‘first’
petition only to the extent that it seeks to vacate the new, amended
component of the sentence, and will be regarded as a ‘second’
petition to the extent that it challenges . . . any component of the
original sentence that was not amended.

Id. at 37-38.

Applying this approach in Magwood’s case, those claims seeking to

challenge the new, amended component of the sentence are regarded as part of a

first petition, and those claims seeking to challenge any component of the original

sentence that was not amended are regarded as part of a second petition. Here, the

fair-warning claim was available at Magwood’s original sentencing. On

resentencing, the exact same aggravator–the one alleged in the indictment as

15
allowed by Kyzer–was used again. As Magwood’s fair-warning claim was

available at his original sentencing, Magwood’s claim is successive and is

governed by 28 U.S.C. § 2244(b)(2).4 This claim is due to be dismissed because it

is successive, and Magwood does not assert it fits into one of § 2244(b)(2)’s

exceptions. Thus, we reverse the district court’s grant of relief on this claim, and

dismiss Magwood’s fair-warning claim as successive.

2. Ineffective assistance of counsel on the fair-warning claim

The State claims the district court erred when it concluded Magwood’s

attorney was constitutionally ineffective during his resentencing because he failed

4
Magwood asserts under Burton v. Stewart, 549 U.S. 147, 156-57, 127 S. Ct. 793, 798-
99 (2007), this claim is not successive because he is challenging the judgment under which he is
in custody–the resentencing. The problem with Magwood’s argument is that he could have, and
did, challenge his sentence which contained the same purported error in his first habeas petition.
We applied Burton in Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007) (Ferreira
II). In Ferreira II, we reconsidered our earlier decision that Ferreira’s petition for habeas corpus
was time-barred. Ferreira v. Sec’y, Dep’t of Corr., 183 Fed. Appx. 885 (11th Cir. 2006)
(Ferreira I). We held in Ferreira I that when a petitioner who has been resentenced challenges
only his underlying conviction in a habeas petition, the one-year statute of limitations in AEDPA
runs from the date the conviction became final, regardless of when the petitioner’s corrected
sentence became final. After considering Burton, Ferreira II held “that AEDPA’s statute of
limitations runs from the date the judgment pursuant to which the petitioner is in custody
becomes final, which is the date both the conviction and sentence the petitioner is serving
becomes final.” Ferreira II, 494 F.3d at 1288. Thus, Ferreira’s challenge to his conviction, filed
after his resentencing, was timely. Id. at 1293. Our conclusion in Ferreira does not affect this
case, however, because (1) Ferreira was deciding a statute of limitations issue; and (2) Ferreira
was challenging his conviction, which he had not challenged in his first habeas petition.
Conversely, Magwood challenged his sentence (which contained the same purported error) in his
original habeas petition, thus his fair-warning claim is successive.

16
to argue that the retroactive application of Kyzer to Magwood’s case was a

violation of due process.

In order for Magwood to obtain relief on his ineffective assistance of

counsel claim, he must show (1) “counsel’s representation fell below an objective

standard of reasonableness,” and (2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052,

2064, 2068 (1984). Counsel’s effectiveness is presumed, and “[a] fair assessment

of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Id. at 689, 104 S. Ct. at 2065. “[C]ounsel cannot be adjudged incompetent

for performing in a particular way in a case, as long as the approach taken ‘might

be considered sound trial strategy.’” Chandler v. United States, 218 F.3d 1305,

1314 (11th Cir. 2000) (en banc) (quoting Darden v. Wainwright, 477 U.S. 168,

186, 106 S. Ct. 2464, 2474 (1986)). “To overcome [the] presumption in favor of

competence, the petitioner bears the heavy–but not insurmountable–burden of

persuading the court ‘that no competent counsel would have taken the action that

17
his counsel did take.’” Haliburton v. Sec’y for Dep’t of Corr., 342 F.3d 1233,

1243 (11th Cir. 2003) (quoting Chandler, 218 F.3d at 1314-15).

Magwood asserted the ineffective assistance of counsel at resentencing on

the fair-warning claim on collateral review in state court, where both the trial court

and Alabama Court of Criminal Appeals rejected it. The district court disagreed

with the state courts’ conclusions, and found counsel was ineffective for failing to

argue to the resentencing court that the retroactive application of Kyzer to

Magwood’s case was a violation of the due process clause. The district court had

already concluded the state trial court violated the fair-warning component of the

due process clause by retroactively applying Kyzer to Magwood’s case. The

district court found that at the resentencing hearing, Magwood’s counsel stated the

court could sentence Magwood to death without finding an aggravating

circumstance in § 13-11-6. Defense counsel stated:

We say to Your Honor, as we did in some proposed findings that we
submitted to you, that the capital offense itself is an aggravating
circumstance and that this Court has every right to consider it as an
aggravating circumstance.

Applying Strickland, the district court concluded the combination of defense

counsel misstating the law as it was clearly established by United State Supreme

Court precedent in Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697

18
(1964), and failing to argue against the retroactive application of Kyzer, was

deficient performance by counsel. Magwood, 481 F. Supp. 2d at 1292-93.

The district court relied on Cave v. Singletary, 971 F.2d 1513 (11th Cir.

1992), in finding Magwood’s counsel deficient. In Cave, the defendant’s attorney

emphasized the fact the defendant was guilty of robbery and essentially conceded

the State had proven its case as to guilt. Defense counsel did not understand her

client could be convicted of felony murder if he participated in a robbery, and so

made the nonsensical argument to the jury that, although he committed the

robbery, he was not guilty of felony murder. Id. at 1517-18. We found counsel’s

performance deficient. Id.

The district court also concluded Magwood’s counsel’s deficient

performance was prejudicial. If counsel had been able to successfully argue a

death sentence violated the fair-warning principle of the due process clause, the

district court reasoned the outcome of the case would surely have been different.

Magwood, 481 F. Supp. 2d at 1293.

The district court then addressed whether the state court was unreasonable

in rejecting Magwood’s ineffectiveness claim. The Alabama Court of Criminal

Appeals rested its holding on the fact the lawyer had no substantive role in the

resentencing. The district court found this conclusion unreasonable, whether

19
regarded as a legal issue or a factual issue. The Alabama court’s holding was not

consistent with legal requirements, clearly established by the United States

Supreme Court, that individualized consideration of the aggravating and

mitigating factors is required. Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct.

2733, 2744 (1983). The holding was also not consistent, factually, with what

actually happened at resentencing. Thus, the district court found the Alabama

court’s holding, that counsel’s performance was adequate because the federal

courts only ordered a resentencing court to find the mitigating circumstances,

unreasonable and concluded habeas relief was due to be granted on this claim.

Magwood, 481 F. Supp. 2d at 1293-95.

We conclude the district court erred in holding that counsel’s performance

was deficient. While there was a possible objection, Alabama’s highest court had

said in Kyzer that a § 13-11-2 aggravating factor could be used as an aggravating

circumstance. We are not prepared to require counsel to raise an argument that

has already been decided adversely to his client’s position by a state’s highest

court in order to avoid being found ineffective. The district court relies on Cave,

and in that case, counsel did not understand the felony murder rule–a much more

elementary legal concept. Magwood has failed to overcome the presumption in

favor of competence. Because we do not find the performance of Magwood’s

20
counsel deficient, we need not discuss the prejudice prong. See Strickland, 466

U.S. at 687, 104 S. Ct. at 2064 (“Unless a defendant makes both showings, it

cannot be said that the conviction or death sentence resulted from a breakdown in

the adversary process that renders the result unreliable.”). Thus, we reverse the

district court’s holding that Magwood’s resentencing counsel was ineffective in

failing to argue the retroactive application of Kyzer was a violation of due process.

B. Magwood’s Cross-Appeal

Magwood asserts multiple issues on cross-appeal. Specifically, he asserts

the district court erred in denying him discovery and an evidentiary hearing on his

claim he was denied effective assistance of counsel. Magwood asserts counsel

was ineffective for failing to investigate and present any evidence at his

resentencing, including mitigating evidence that was later obtained and proffered

to the Alabama courts in the collateral challenge to his sentence, and appended to

his habeas corpus petition in the district court. Magwood also contends the

district court erred in denying him relief on the remainder of his ineffective

assistance of counsel claims, including that his counsel: (1) failed to demand a jury

at resentencing; (2) permitted the resentencing court to rely on the jury

recommendation from the first sentencing and the State’s wholesale introduction

of the record, including inadmissible evidence from the trial and first sentencing;

21
and (3) failed to object to the unconstitutional grounds of his resentencing.

Magwood next contends the district court erred in declining to consider the merits

of his claims that Alabama had suppressed internal departmental reports and

documents that directly belied the Alabama court’s expressed bases for reimposing

a sentence of death notwithstanding the two statutory mental state mitigating

circumstances, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

(1963), and in denying discovery and an evidentiary hearing thereon. Magwood

also asserts the district court erred by not granting him relief from his death

sentence on the ground it was freakish and arbitrary, insofar as Magwood is the

sole Alabamian to ever have been sentenced to death: (1) in the absence of at least

one of the aggravating circumstances required by statute; or (2) having committed

a capital offense while suffering from a mental disease that placed him under the

influence of extreme mental disturbance and so impaired his capacity to appreciate

the criminality of his act and to conform his conduct to the requirements of the law

that those enumerated Alabama statutory mitigating circumstances were met, in

violation of the Eighth and Fourteenth Amendments. Magwood next argues the

district court erred in denying relief on his claims that the resentencing court, in

response to the federal court’s writ vacating his first death sentence, merely

substituted for its refusal to recognize the existence of Alabama’s two statutory

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mental capacity mitigating circumstances, findings of his purported capacity that

were the equivalent of their earlier refusal and, therefore, were incompatible with

the prior writ, and that he was denied effective assistance due to his counsel’s

failure to object to the sentence on that ground. Finally, Magwood asserts

Alabama unconstitutionally deprived Magwood of a jury on resentencing and he

was involuntarily medicated and presented to the Alabama courts as competent

and of apparent capacity.

After hearing oral argument and reviewing the record and the parties’ briefs,

we find no error in the district court’s denial of relief on the above-listed claims.

Thus we affirm the district court’s denial of relief on these claims.

IV. CONCLUSION

We REVERSE the district court’s grant of relief on Magwood’s fair-

warning claim and ineffective assistance of counsel on Magwood’s fair-warning

claim. We AFFIRM the district court’s denial of relief on the claims Magwood

asserts in his cross-appeal. Thus, we render judgment in favor of the State.

REVERSED IN PART; AFFIRMED IN PART.

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