Michael David Carruth v. Commissioner, Alabama Department of Corrections

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-13548
____________________

MICHAEL DAVID CARRUTH,
Petitioner-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,

Respondent-Appellee.

____________________

Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:14-cv-01107-WKW-SMD
____________________
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2 Opinion of the Court 22-13548

Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
WILSON, Circuit Judge:
Michael David Carruth was convicted by an Alabama jury
on four counts of first-degree murder, one count of attempted mur-
der, one count of first-degree burglary, and one count of first-de-
gree robbery. 1 On December 3, 2003, he was sentenced to death.
Carruth appeals the district court’s denial of his petition for
a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The dis-
trict judge granted a Certificate of Appealability (COA) on six is-
sues:
1. Whether trial counsel were ineffective in failing to investi-
gate and present mitigating evidence in the penalty phase;
2. Whether the issue concerning trial counsel’s failure to pre-
sent mitigating evidence in the penalty phase is procedurally
barred;
3. Whether appellate counsel was ineffective in failing to notify
Carruth that the Alabama Court of Criminal Appeals
(ACCA) had overruled an application for rehearing and to
advise Carruth of further available appellate proceedings;
4. Whether the issue concerning appellate counsel’s failure to
notify Carruth that the ACCA had overruled an application
for rehearing and to advise Carruth of further available ap-
pellate options is procedurally barred;

1 The first-degree burglary and robbery counts were later vacated by the Ala-

bama Court of Criminal Appeals on direct appeal on double jeopardy grounds.
Carruth v. State, 927 So. 2d 866, 878, 880 (Ala. Crim. App. 2005).
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22-13548 Opinion of the Court 3

5. Whether appellate counsel was ineffective in failing to argue
that the prosecution engaged in prosecutorial misconduct in
the guilt/innocence closing argument by telling the jury that
the punishments of life without the possibility of parole or
death were the punishment options and that anything else
did not have those options; and
6. Whether Carruth was deprived of his right to an impartial
jury and due process of law guaranteed him by the Sixth and
Fourteenth Amendments to the United States Constitution
by premature jury deliberations.
After thorough examination of all issues, and with the bene-
fit of oral argument, we affirm.
I. Background
We first discuss the factual background underlying this case.
Then, we separately discuss the complicated procedural history
that led to this appeal.
A. Factual Background
In 2002, Carruth and his accomplice, Jimmy Lee Brooks Jr.,
drove to the home of Forrest “Butch” Bowyer and his twelve-year-
old son, William Brett Bowyer in Phenix City, Alabama. Carruth
and Brooks handcuffed Butch and Brett and transported them to
an empty construction site, hoping to extort thousands of dollars
from Butch. Butch agreed to give them money from a box in his
home closet, and all parties went back to the house to retrieve the
money. Apparently, Carruth was irritated by the sum of money,
and all parties went back to the construction site. Carruth then slit
Butch’s throat, sat on his back, and told him to “be quiet and go to
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4 Opinion of the Court 22-13548

sleep.” Carruth and Brooks dug a shallow grave, and Carruth told
Brooks, “I’ve done one, now you do one.” Brooks then shot Brett,
who fell into the grave. Brooks proceeded to shoot Brett twice
more, murdering him. Butch, still alive, played dead while Carruth
and Brooks tossed Butch’s body on top of Brett’s and covered the
grave. When Butch knew Carruth and Brooks had gone, he dug his
way out, signaled a passing driver for help, and the driver called
911. Butch’s testimony and accompanying evidence pointed to
Carruth, who was subsequently indicted on four counts of capital
murder. 2
In May 2002, the court appointed two attorneys—Robert
Lane and Jeremy Armstrong—to defend Carruth. Carruth pled not
guilty, and the case proceeded to a three-day trial. During the pros-
ecution’s closing argument, the prosecutor stated to the jury that
the capital murder counts carry sentences of death or life without
parole. His full statement was as follows:
I’m going to ask you to convict this man of those cap-
ital counts, the only punishments for which are life
without parole or the death penalty, something that
you’re not even considering now, but if you convict
him of those capital counts, we’ll get to that phase

2 One count because the murder was committed during a kidnapping; one

count because the murder was committed during a robbery; one count be-
cause the murder was committed during a burglary; and one count because
the murder victim was less than fourteen years of age, in violation of sections
of Ala. Code § 13A-5-40(a)(1), (a)(2), (a)(4), and (a)(15).
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later. Any other charge other than those four capital
counts does not carry that punishment.
Defense counsel objected to this statement, to which the judge re-
plied: “Noted.” Carruth was found guilty on all counts.
The penalty phase began the following day. Carruth’s coun-
sel received funds for a psychologist, which they ultimately did not
hire, and an investigator, but were denied funds for a polling ex-
pert. Carruth’s counsel did not request funds for a mitigation ex-
pert. Armstrong later testified at the Rule 32 evidentiary hearing
that Wiggins v. Smith 3 was published three months prior to trial, and
he was not aware of Wiggins during Carruth’s case.
Regarding mitigation efforts with his counsel, Carruth
stated that he did not want his family involved, he had a great child-
hood, and there was “nothing there” to help with mitigation. Ac-
cordingly, his counsel did not seek mental health records but did
arrange for three family members to provide character evidence.
Due to the family members’ indicated cooperation, counsel did not
subpoena them to appear at the penalty phase. However, at the last
minute, family members refused to show up because they wanted
to avoid the “media circus” of the trial. Consequently, Carruth’s
counsel offered no witnesses or evidence during the penalty phase
and waived opening argument. But counsel did argue that the lack
of family members present to testify should be considered a miti-
gating factor. The State also did not present any witnesses or

3 539 U.S. 510 (2003).
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evidence at the penalty phase. Further, Carruth’s counsel read a
stipulation into the record that Carruth had no significant prior
criminal history and argued this should also be a mitigating factor.
Counsel reiterated these points to the jury during closing argu-
ments, and also emphasized that Carruth did not pull the trigger
on the gun that killed Brett.
Ultimately, the jury voted unanimously in favor of death. At
sentencing, Carruth’s counsel again argued the above as mitigating
circumstances, and contended that evidence was disputed as to
whether Carruth had specific intent to kill anyone. Considering all
before it, the state court found the existence of all four aggravating
factors: the murder was committed during a (1) robbery, (2) bur-
glary, (3) kidnapping, and (4) the murder was especially heinous,
atrocious, or cruel. The trial court found one statutory mitigating
factor—Carruth had no significant prior criminal history. With re-
gard to non-statutory mitigation, the trial court found that the ab-
sence of Carruth’s family at the trial proceedings did not constitute
a mitigating circumstance. Similarly, the trial court found that the
fact that Carruth did not procure or possess the murder weapon
was not an additional mitigating circumstance, noting that the evi-
dence at trial established that Carruth “told his accomplice, ‘I’ve
done one, now you do one.’” Accordingly, the trial court deter-
mined that the aggravating circumstances outweighed the mitigat-
ing circumstances, and Carruth was sentenced to death for the cap-
ital crimes.
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B. Procedural History
For clarity, the procedural history is subdivided into five
parts: (1) direct appeal, (2) first Rule 32 proceeding and appeals;
(3) Rule 2(b) motion in the Alabama Supreme Court; (4) second
Rule 32 proceeding and appeals; and (5) federal habeas proceed-
ings.
i. Direct Appeal
Appointed counsel, Stephen Guthrie, represented Carruth
on appeal. Guthrie submitted an appeal to the ACCA regarding
Carruth’s murder and attempted murder convictions, which was
denied, and an application for rehearing, which was also denied.
Guthrie failed to submit a certiorari petition to the Alabama Su-
preme Court and the United States Supreme Court. Guthrie attrib-
utes this failure to lack of notice—he moved offices and failed to
inform both the ACCA and Carruth of his change of address.
Once Carruth realized the avenue for appeal was officially
foreclosed, he then filed a petition for post-conviction relief under
Alabama Rule of Criminal Procedure 32. The procedural history
becomes a bit thorny here, as (1) Carruth’s Rule 32 proceeding was
bifurcated and, (2) within the timeframe of the two Rule 32 appeals,
Carruth filed a Rule 2(b) motion under the Alabama Rules of Ap-
pellate Procedure (ARAP) in the Alabama Supreme Court.
ii. First Rule 32 Proceeding and Appeals
Carruth’s Rule 32 petition listed a myriad of grounds for re-
lief. Pertinent to this appeal, he listed the following grounds for
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8 Opinion of the Court 22-13548

relief, among others: (1) he was entitled to an out-of-time appeal,
since (a) his right to counsel under the Sixth and Fourteenth
Amendments was violated and (b) Alabama Rule of Criminal Pro-
cedure 32.1(f) 4 applied, which allowed him an avenue for appeal;
(2) ineffective assistance of counsel in violation of the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitu-
tion; (3) prosecutorial misconduct; and (4) juror misconduct. The
circuit court initially granted the out-of-time petition in a single
page order. The order did not state which ground was meritorious
and reserved ruling on the remaining Rule 32 issues until after the
Alabama Supreme Court’s ruling on the certiorari petition. 5
The State appealed the circuit court’s ruling and, while the
appeal was pending, Carruth filed the Rule 2(b) motion, discussed
below. The ACCA reversed the circuit court in May 2008, stating
(1) certiorari was discretionary; (2) Rule 32.1(f) was inapplicable;
and (3) no Sixth Amendment right to counsel exists for certiorari
petitions. In Carruth’s petition for certiorari, he asked the Alabama
Supreme Court to “affirm the circuit court’s order granting him an
out-of-time petition for writ of certiorari in this Court.” He argued:

4 “[A]ny defendant who has been convicted of a criminal offense may institute

a proceeding in the court of original conviction to secure appropriate relief . . .
[when t]he petitioner failed to appeal within the prescribed time from the con-
viction or sentence itself . . . and that failure was without fault on the peti-
tioner’s part.”
5 The order stated the following: “To the extent this court has jurisdiction . . .

Carruth is granted permission to file an Out of Time Petition for Writ of Cer-
tiorari to the Alabama Supreme Court.”
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22-13548 Opinion of the Court 9

(1) he was entitled to counsel under § 15-12-22 of the Alabama
Code, and Rule 39(a)(2) under ARAP mandates counsel “shall” file
for certiorari in death cases; (2) his Sixth Amendment right to effec-
tive assistance of counsel was violated; and (3) he was entitled to
an out-of-time appeal under Rule 32.1(f). The Alabama Supreme
Court granted certiorari, then quashed the writ, holding (1) a Rule
2(b) motion was the appropriate avenue to bring this request be-
fore the court; (2) Carruth already brought the 2(b) motion, which,
as we explain further below, was denied; and (3) bringing the issue
through a Rule 32 petition could not provide the relief requested.
Despite this, Carruth still filed a petition for certiorari in the U.S.
Supreme Court, which was denied.
iii. Rule 2(b) Motion in Alabama Supreme Court
In the Rule 2(b) motion, Carruth argued that his counsel vi-
olated Rule 39(a)(2) of ARAP, that the Alabama Supreme Court
could correct the violation by granting an extension of time under
Rule 2(b), and that, under Rule 39(a)(2)(C), the court “may enlarge
the time for filing the petition.” But Carruth did not argue ineffec-
tiveness of counsel under Strickland v. Washington, 466 U.S. 668
(1984). Therefore, no federal basis of relief was invoked. The Ala-
bama Supreme Court denied the motion in February 2008.
iv. Second Rule 32 Proceeding and Appeals
With the out-of-time issue exhausted, the circuit court lifted
the stay of the Rule 32 proceeding and turned to the remaining is-
sues, and the State filed a motion to summarily dismiss the petition
in its entirety. The circuit court held a hearing on February 3, 2012,
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10 Opinion of the Court 22-13548

on the State’s motion to dismiss. Following the hearing, the circuit
court summarily dismissed many of Carruth’s remaining Rule 32
claims from his amended petition. Carruth was given deadlines to
amend any claim not dismissed, and an evidentiary hearing was
scheduled for September 17, 2012, to address the lingering claims.
One of the remaining issues involved premature jury delib-
erations. At the evidentiary hearing, three jurors—B.T., J.H., and
R.M.—were brought in to testify. The jurors provided mixed testi-
mony as to whether and to what extent they discussed Carruth’s
guilt prior to the jury instructions being given. R.M. and J.H. testi-
fied that they played Rummikub with other jurors at night after the
trial activities for that day had concluded. 6 When asked if the jurors
discussed facts about the case during Rummikub, R.M. testified:
“Absolutely not. The judge told us not to discuss it. We did not.”
R.M. was also asked about whether any premature deliberations
occurred during breaks in the jury room, to which R.M. responded
in the negative.
J.H.’s testimony muddied the factual waters. During J.H.’s
questioning, J.H. attested that J.H. and three other jurors played
Rummikub. During Rummikub, J.H. and the other jurors did dis-
cuss the case but “not in depth,” which included “mention[ing] that
a piece of evidence was unusual or something we didn’t expect.”
When asked if there was discussion regarding the effect of evidence
presented on the ultimate issue of Carruth’s guilt, J.H. responded:

6 The jury was sequestered during the trial.
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“There was never a discussion of that to my knowledge.” J.H. was
presented with a document purporting to be J.H.’s statement,
which J.H. identified, that was admitted for impeachment purposes
only. The document stated J.H. and other jurors talked about what
sentence Carruth would receive when they talked about the trial.
Yet during J.H.’s testimony, J.H. disavowed the statement. J.H.
stated, “I gave the statement, but I don’t recall the discussion.” J.H.
testified they had not made a final decision regarding Carruth’s
guilt prior to all evidence being taken and the judge instructing the
jury on the law. Later, on cross examination, J.H. attested any dis-
cussions pre-deliberation were “just passing comments,” those dis-
cussions did not compare to the deliberation jury room discussions,
and the jurors applied the facts to the law to determine Carruth’s
guilt.
When B.T., an alternate juror, was questioned, B.T. stated
that B.T. “really [did]n’t think there was any discussion about [the
evidence]. Everybody was just so disturbed over the evidence.”
And B.T. also said “If we ever discussed [the evidence], it was in the
break room during the trial. We never communicated after we
went back to the hotel.” B.T. stated the extent of any discussions
was “I think Brooks was the one, Brooks did this. I never recall an-
ytime anybody say that he was guilty, that he needs to be sentenced
or anything to that effect.”
Also considered at the evidentiary hearing was ineffective
assistance of counsel at the penalty phase. Armstrong testified that
he had multiple conversations with Carruth and family regarding
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12 Opinion of the Court 22-13548

investigation and mitigation efforts, and that the evidence against
Carruth was “insurmountable.” When he asked Carruth about in-
formation from his past that could help with mitigation, Carruth
indicated that he had a good childhood and there would be nothing
to find. While Armstrong conceded his investigation was probably
deficient in light of Wiggins, he felt confident that Carruth was not
prejudiced in light of the evidence presented at trial and lack of
helpful mitigating evidence from Carruth’s past.
Finally, Carruth sought to call Janann McInnis, a mitigation
specialist, to present testimony as to what several individuals she
interviewed as part of the postconviction investigation told her
about Carruth. The State objected on hearsay grounds, and the
Rule 32 court sustained the objection, but nevertheless allowed a
proffer of her testimony.
On December 26, 2012, the circuit court denied relief on the
last issues, including juror misconduct. The court held that some
jurors may have made “passing comments” regarding the evi-
dence, but no comments judged Carruth’s guilt or innocence until
after the official jury deliberations began. The court also denied the
ineffective assistance at penalty phase claim, relying on Arm-
strong’s testimony that Carruth indicated that nothing in his past
would assist with mitigation.
Carruth appealed to the ACCA, which affirmed and denied
rehearing. As to the pre-deliberation juror statements, the ACCA
stated the circuit court gave little weight to J.H.’s out-of-court
statement and resolved contradictions in favor of J.H.’s in-court
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22-13548 Opinion of the Court 13

testimony—a credibility determination that was entitled to defer-
ence under Alabama law. This, the ACCA said, it did not find con-
trary to the evidence, and the circuit court did not abuse its discre-
tion. Regarding the alleged prosecutorial misconduct, the ACCA
found that Carruth failed to allege the jury was affected by the pros-
ecutor’s statement. Instead, Carruth’s claim was not sufficiently
specific, and the ACCA stated the circuit court was correct to dis-
miss the claim under Alabama Rule of Criminal Procedure 32.7(d).
The Alabama Supreme Court denied certiorari.
v. Federal Habeas Proceedings
Carruth filed his § 2254 petition in the Middle District of Al-
abama, which the district court denied. Then the district court
granted a certificate of appealability on the six issues identified
above. Carruth timely appealed.
II. Analysis
We review a court’s decision to deny a § 2254 petition de
novo, applying a de novo standard to legal conclusions and a clear
error standard to factual ﬁndings. Daniel v. Comm’r, Ala. Dep’t of
Corr., 822 F.3d 1248, 1258 (11th Cir. 2016). This includes ineﬀective
assistance claims, which are mixed questions of law and fact. Pye v.
Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1034 (11th Cir. 2022)
(en banc).
When a state court has adjudicated a habeas petitioner’s
claim on the merits, we review its decision under the Antiterrorism
and Eﬀective Death Penalty Act’s (AEDPA) “highly deferential
standards.” Davis v. Ayala, 576 U.S. 257, 269 (2015). Under AEDPA,
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14 Opinion of the Court 22-13548

a federal court can grant relief to a state prisoner only if he shows
that the state court’s determination of his claim resulted in a obvi-
ously wrong decision under 28 U.S.C. § 2254(d)(1)–(2).
§ 2254(d)(1) review
We must decide whether the ACCA’s decision that Carruth
was not deprived of an impartial jury was “‘contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.’” Borden v.
Allen, 646 F.3d 785, 818 (11th Cir. 2011) (quoting 28 U.S.C.
§ 2254(d)(1)). An opinion is “contrary to” clearly established federal
law if it makes a conclusion of law in opposition to the Supreme
Court or “confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a [diﬀer-
ent] result.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Our review
is limited to the evidence produced in the state court proceedings,
“both direct and collateral.” Frazier v. Bouchard, 661 F.3d 519, 532
n.17 (11th Cir. 2011). “Overall, ‘a state court’s determination that a
claim lacks merit precludes federal habeas relief so long as fair-
minded jurists could disagree on the correctness of the state court’s
decision.’” Pye, 50 F.4th at 1034 (quoting Harrington v. Richter, 562
U.S. 86, 101 (2011)) (alteration adopted). In other words, to deem a
state court’s application of Supreme Court precedent “unreasona-
ble,” we must ﬁnd that the decision was not only “incorrect or er-
roneous”—it must have been “objectively unreasonable.” Wiins,
539 U.S. at 520–21. This standard is “diﬃcult to meet and . . . de-
mands that state-court decisions be given the beneﬁt of the doubt.”
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Raulerson v. Warden, 928 F.3d 987, 996 (11th Cir. 2019) (internal quo-
tation marks omitted).
§ 2254(d)(2) review
In the alternative, we grant a writ of habeas corpus if the
claim “resulted in a decision that was based on an unreasonable de-
termination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). A state habeas
court’s ﬁndings of fact are presumed to be correct and the peti-
tioner bears “the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.” Id. § 2254(e)(1).
“Even if the state court made a clearly erroneous factual de-
termination, that doesn’t necessarily mean the state court’s ‘deci-
sion’ was ‘based on’ an ‘unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.’” Pye,
50 F.4th at 1035 (quoting 28 U.S.C. § 2254(d)(2)). “Depending on the
importance of the factual error to the state court’s ultimate deci-
sion, that decision might still be reasonable even if some of the
state court’s individual factual ﬁndings were erroneous—so long as
the decision, taken as a whole, doesn’t constitute an unreasonable
determination of the facts and isn’t based on any such determina-
tion.” Id. (internal quotation marks omitted). Ultimately, Pye re-
quires us to look at “the reasons for the state court’s decision” and
then “consider any potential justiﬁcation for those reasons.” Id. at
1036.
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A. Deprivation of an Impartial Jury
Juror contact with evidence that does not “come from the
witness stand in a public courtroom where there is full judicial pro-
tection of the defendant’s right of confrontation, of cross-exami-
nation, and of counsel” is presumptively prejudicial. Turner v. Loui-
siana, 379 U.S. 466, 473 (1965); see also Remmer v. United States, 347
U.S. 227, 229 (1954) (“In a criminal case, any private communica-
tion, contact, or tampering directly or indirectly, with a juror dur-
ing a trial about the matter pending before the jury is . . . deemed
presumptively prejudicial.”). Yet the government can overcome this
presumption if it shows that contact with the juror did not harm
the defendant. Remmer, 347 U.S. at 229. The U.S. Supreme Court
has not held that another juror’s opinion is extrinsic evidence
within the scope of this rule.
Carruth claims that the jurors’ pre-deliberation statements
were presumptively prejudicial and that the State has not overcome
the presumption of prejudice. The Commissioner relies on the dis-
trict court’s determination that the juror misconduct claim “lacked
merit,” stating this was not an unreasonable application of the law
or determination of the facts below.
Carruth’s claim does not survive AEDPA deference. Since
the ACCA was the last state court to make a merits determination,
AEDPA applies. Under § 2254(d)(1), Carruth fails to cite clearly es-
tablished federal law that shows his claim merits relief. He relies on
Irvin v. Dowd for the proposition that jurors can be removed for
cause during jury selection if the juror forms an opinion on the
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22-13548 Opinion of the Court 17

case before trial and cannot set aside that opinion. 366 U.S. 717, 723
(1961). While acknowledging that the facts in Irvin dealt with ve-
nire members, not the already-empaneled jury context, Carruth
urges the state court unreasonably applied Supreme Court prece-
dent by not applying the principle from Irvin to his case. Williams,
529 U.S. at 407 (stating “an unreasonable application of [Supreme
Court] precedent [occurs] if the state court . . . unreasonably re-
fuses to extend that principle to a new context where it should ap-
ply”). But Carruth’s extension argument is unpersuasive, and we
decline to adopt it.
Carruth’s claim also does not survive under a § 2254(d)(2)
analysis. The Supreme Court has never held that a juror’s expressed
opinion is oﬃcially extrinsic evidence. Even assuming arguendo that
it were, testimony elicited at the evidentiary hearing suggests oth-
erwise. Any elicited comments were brief, and the jurors did not
opine on Carruth’s ultimate guilt or innocence. J.H.’s statement
was introduced only to impeach, not as substantive evidence, and
it was not objectively unreasonable for the court to determine that
evidence was less persuasive than the testimony given in court. The
adjudication of the juror misconduct claim did not run contrary to
the limited applicable Supreme Court precedent in Remmer, and it
was not based on an unreasonable determination of the facts con-
sidering the evidence presented in the state court hearing.
Carruth cannot show under § 2254 that the ACCA was un-
reasonable as to its factual determinations or that it made a deter-
mination contrary to law. Thus, his claim fails.
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18 Opinion of the Court 22-13548

B. Ineffective Assistance of Counsel: Failure to File Certiorari Petition
and Procedural Default
Whether a petitioner has procedurally defaulted a particular
claim is a mixed question of fact and law, which this Court reviews
de novo. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “Only
individual claims, and not the [petition] containing those claims,
can be procedurally defaulted.” Artuz v. Bennett, 531 U.S. 4, 9 (2000).
As long as a State appellate process exists, follows “ﬁrmly es-
tablished and regularly followed” rules, Ford v. Georgia, 498 U.S. 411,
424 (1991), and is not “ineﬀective to protect the rights” of the peti-
tioner, 28 U.S.C. § 2254(b)(1)(B)(ii), the petitioner must navigate the
State appellate process under the State’s rules. State prisoners must
allow full review of constitutional issues by state courts “by invok-
ing one complete round of the State’s established appellate review
process” prior to federal habeas review. O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Not adhering to a State’s procedural rules to
present federal claims deprives the state courts of the opportunity
to address those claims. Coleman v. Thompson, 501 U.S. 722, 732
(1991). Therefore, when a habeas prisoner fails to present his claims
to the state court in a timely and proper manner, and the state court
refuses to address the merits based on state law, the federal habeas
court is precluded from hearing the merits, absent a showing of
cause for the failure to properly present the claim and actual preju-
dice, or that the failure to consider the claim would result in a fun-
damental miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72,
81–88 (1977); Coleman, 501 U.S. at 749–50; Marek v. Singletary, 62
F.3d 1295, 1301–02 (11th Cir. 1995).
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Generally, procedural default can arise in two ways:
(1) when the state court correctly applies a procedural default prin-
ciple of state law and concludes that the petitioner’s federal claims
are barred; or (2) when the petitioner “never raised a claim in state
court, and it is obvious that the unexhausted claim would now be
procedurally barred” in state court. Bailey v. Nagle, 172 F.3d 1299,
1302–03 (11th Cir. 1999) (per curiam). In the ﬁrst instance, a federal
court must determine “whether the last state court rendering judg-
ment clearly and expressly stated that its judgment rested on a pro-
cedural bar.” Id. at 1303. In the second instance, the federal court
must determine whether any future attempt to exhaust state rem-
edies would be futile under the state’s procedural default doctrine.
Id.
A procedural default can be overcome if the petitioner
“demonstrate[s] cause for the default and actual prejudice as a re-
sult of the alleged violation of federal law, or demonstrate[s] that
failure to consider the claims will result in a fundamental miscar-
riage of justice.” Coleman, 501 U.S. at 750. Fundamental miscar-
riages of justice occur only when “a constitutional violation has
probably resulted in the conviction of . . . [an] innocent [person].”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotation omitted). To de-
termine if someone was actually innocent, petitioner must demon-
strate “it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” Id.
Attorney negligence is generally not good cause to excuse
procedural default. Coleman, 501 U.S. at 753. Attorney performance
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20 Opinion of the Court 22-13548

is only relevant if the procedural default stems from constitutionally
required counsel’s deﬁcient performance, see id. at 756, or “when a
State requires a prisoner to raise an ineﬀective-assistance-of-trial-
counsel claim in a collateral proceeding” but the prisoner did not
have eﬀective counsel in his ﬁrst collateral proceeding. Martinez v.
Ryan, 566 U.S. 1, 14 (2012); see also Trevino v. Thaler, 569 U.S. 413,
429 (2013).
The right to appellate counsel is guaranteed for appeals
taken by right. See Douglas v. California, 372 U.S. 353, 356 (1963). But
there is no federal constitutional right to counsel for discretionary
appeals. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases
establish that the right to appointed counsel extends to the ﬁrst ap-
peal of right, and no further. Thus, we have rejected suggestions
that we establish a right to counsel on discretionary appeals.”).
During a discretionary appeal, the United States Constitution pro-
vides no guarantee as to the quality of counsel, and the court must
revert to the general rule: “[T]he attorney is the prisoner’s agent,
[and] under well settled principles of agency law, the principal bears
the risk of negligent conduct on the part of his agent.” Martinez,
566 U.S. at 10 (quotations omitted).
While the Supreme Court has required trial lawyers to fulﬁll
certain closing duties under Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000), there has not been clear guidance on whether that extends
to discretionary appeals. Many of our sister circuits have similarly
held that the constitutional right to appellate counsel ends upon
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22-13548 Opinion of the Court 21

the ﬁrst appeal as of right and, therefore, does not extend to discre-
tionary appeals. 7
Here, Carruth argues that his appellate counsel was ineﬀec-
tive for failing to ﬁle a writ of certiorari to the Alabama Supreme
Court and to advise him of further appellate options. The district
court determined that this claim was unexhausted and procedur-
ally defaulted. Further, Carruth argues that his ineﬀectiveness
claim is not barred because he raised the ineﬀectiveness issue in the
ﬁrst Rule 32 petition appeal, which was considered by the ACCA
and the Alabama Supreme Court. He also claims that he raised the

7 See Folkes v. Nelsen, 34 F.4th 258, 280 (4th Cir. 2022) (“Supreme Court case

law thus supports the conclusion that the constitutional right to appellate
counsel is satisfied in advance of the appellate court’s decision and that coun-
sel’s role ends upon issuance of that decision.”), cert. denied 143 S. Ct. 736
(2023); Ahumada v. United States, 994 F.3d 958, 960–61 (8th Cir. 2021) (holding
that appellate counsel’s failure to notify the defendant of the deadline and pro-
cess for a discretionary petition did not run afoul of the constitutional right to
appellate counsel); Pena v. United States, 534 F.3d 92, 96 (2d Cir. 2008) (per cu-
riam) (finding the defendant’s “claim that the filing of . . . a petition [for discre-
tionary review] should be considered ‘the last step in his first appeal as of
right—not the first step of the subsequent discretionary appeal’ [is] . . . . ‘in-
genious, but wrong’” (citation omitted)); Jackson v. Johnson, 217 F.3d 360, 365
(5th Cir. 2000) (holding that there is no right to counsel “after the appellate
court has passed on the claims”); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir.
1989) (holding that advising the defendant about discretionary review is not
required because the “opportunity for direct appeal, and thus the defendant’s
constitutional right to counsel, has come to an end”); but see Smith v. State of
Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 434–35 (6th Cir. 2006) (holding ap-
pellate counsel is constitutionally required to provide closing duties to a de-
fendant, including notifying the defendant of the outcome of the appeal).
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22 Opinion of the Court 22-13548

issue on a Rule 2(b) motion under ARAP directly to the Alabama
Supreme Court, which was ultimately denied. Thus, he took every
route for review, and his claims should not be procedurally barred
or considered unexhausted.
Carruth is mistaken on both the procedural default doctrine
and the merits of his appellate ineﬀectiveness claim.8 Carruth’s in-
eﬀectiveness claim regarding failing to ﬁle for certiorari and failure
to counsel on appellate options is unexhausted and procedurally
barred under the second prong of the procedural default analysis.
While Carruth argued appellate ineﬀectiveness as grounds for an
entitlement to a late certiorari petition both in his Rule 2 motion
and ﬁrst Rule 32 appeal, he did not raise an independent issue of
ineﬀective assistance of appellate counsel in the second Rule 32 ap-
peal, which dealt with the merits of his Rule 32 claims. Thereby, his
appellate ineﬀectiveness claim was not presented to the ACCA nor
the Alabama Supreme Court on the merits. Further, Carruth
staked his ineﬀectiveness claim in the ﬁrst Rule 32 appeal on ARAP
and did not cite an independent federal basis for review. See Branan
v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (explaining that a ha-
beas petition grounded on issues of state law provides no basis for
federal habeas relief ). Also, any future attempt to exhaust state
remedies would be futile under the state’s procedural default

8 As the circuit court did not address the substance of Carruth’s ineffectiveness

claim for failing to file and advise, this claim is subject to de novo review. See
Pye, 50 F.4th at 1034.
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22-13548 Opinion of the Court 23

doctrine, which renders Carruth’s claim procedurally barred and
unexhausted. 9
The only way Carruth could overcome the default would be
by demonstrating either (1) a fundamental miscarriage of justice,
i.e., convicting an innocent person, will result without excusing the
default, or (2) cause for the default. Here, it is unquestionable that
the evidence produced at trial, including the graphic testimony of
Butch Bowyer, clearly demonstrated Carruth’s guilt. As to cause,
Carruth argues that his attorney’s negligence in ﬁling his certiorari
petition fulﬁlls the exception. But attorney negligence is not gener-
ally cause for default, especially when Carruth’s counsel at the dis-
cretionary appeal level was not constitutionally required. Since pro-
cedural default occurred and no exception applies, we aﬃrm the
district court’s determination that the claim is procedurally
barred. 10

9 Carruth’s only way to raise the federal issue today would be to petition the

Alabama Supreme Court for a rehearing on the Rule 2(b) motion. However,
the time to file such a motion for rehearing expired two weeks after the ruling
on the Rule 2(b) motion. See Ala. R. App. P. 40(c). Also, new arguments cannot
be raised for the first time in a motion for rehearing. See Water Works & Sewer
Bd. of City of Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002).
10 Even if these claims were not procedurally barred or unexhausted, Carruth

would still lose on the substantive ineffectiveness claims under de novo review
for (1) failing to file a certiorari petition and (2) failing to inform Carruth about
the rehearing denial and counsel him about future appeals because there is no
right to counsel for discretionary appeals. While Carruth indicates he desired
to petition for certiorari to the Alabama Supreme Court, the Constitution does
not guarantee quality counsel, so the general rule applies: the principal bears
the risk of negligent conduct on the part of his agent. Martinez, 566 U.S. at 10.
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24 Opinion of the Court 22-13548

C. Ineffective Assistance of Counsel: Failure to Argue Prosecutorial
Misconduct
When due process is at issue, we must consider whether the
prosecution’s conduct “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). We evaluate the trial record
as a whole in making this determination. See Darden v. Wainwright,
477 U.S. 168, 181–83 (1986); Cargill v. Turpin, 120 F.3d 1366, 1379
(11th Cir. 1997) (“[I]solated or ambiguous or unintentional remarks
must be viewed with lenity.” (quotation omitted)). Our circuit uti-
lizes a two-part test in analyzing prosecutorial misconduct claims
involving a state prosecutor’s closing argument, instructing district
courts “to determine ﬁrst whether particular arguments by a pros-
ecutor were improper and if so, to determine what the probable
eﬀect of the improper argument was on the jury.” Wilson v. Kemp,
777 F.2d 621, 623 (11th Cir. 1985). To determine the eﬀect on the
jury, we ask “whether there was a reasonable probability that, in
the absence of the oﬀending remarks, the . . . outcome would have
been diﬀerent.” Tucker v. Kemp, 802 F.2d 1293, 1295 (11th Cir. 1986)
(per curiam) (internal quotation marks omitted). “If a reviewing
court is conﬁdent that, absent the improper remarks, the jury’s de-
cision would have been no diﬀerent, the proceeding cannot be said
to have been fundamentally unfair.” Id. at 1296.

Lastly, Carruth has also failed to establish a reasonable probability that he
would have succeeded on his appeal if certiorari were granted, and therefore
his claim must fail.
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22-13548 Opinion of the Court 25

Carruth argues that his appellate counsel was ineﬀective for
failing to argue on direct appeal that prosecutorial misconduct oc-
curred during closing arguments when the prosecutor informed
the jury that only the capital counts carried the punishment of life
without parole or death. He maintains that this statement was
“highly prejudicial because the jury cannot consider punishment
during the guilt/innocence phase.” In response, the State argues
that this claim is unexhausted and procedurally defaulted because
Carruth failed to include this claim in his application for discretion-
ary review to the Alabama Supreme Court.
Regarding mixed questions of procedural default and merits
claims in the habeas context, we may sidestep addressing proce-
dural bar issues when the substantive issue is easily decided against
the petitioner:
The Supreme Court has explained that the independ-
ent and adequate state ground doctrine is not techni-
cally jurisdictional when a federal court considers a
state prisoner’s petition for habeas corpus pursuant to
28 U.S.C. § 2254 . . . . [W]hen it appears that another
issue is more easily resolvable against the habeas pe-
titioner, whereas the procedural-bar issue involves
complicated issues of state law, a federal court may
avoid the procedural bar issue.
Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1072 (11th Cir.
2013) (quoting Lambrix v. Singletary, 520 U.S. 518, 522–25 (1997))
(cleaned up) (emphasis added).
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26 Opinion of the Court 22-13548

Because the procedural bar issue was not suﬃciently ad-
dressed below and the substantive issue is easily decided against
Carruth, we decline to engage in the procedural bar analysis.
Evaluating the claim on the merits, Carruth still fails under
AEDPA deference. We have held that denying relief under Rule
32.7(d) is a merits determination. Williams v. Alabama, 791 F.3d
1267, 1271 (11th Cir. 2015). As the ACCA noted, Carruth’s ineﬀec-
tive assistance claim was denied under Rule 32.7(d). Therefore, we
review this merits determination through the lens of AEDPA def-
erence.
Under § 2254(d)(1), this determination did not run contrary
to federal law, and fairminded jurists could disagree. When assert-
ing his claim, Carruth asserted misconduct by “telling the jury dur-
ing his closing argument that death would not be a possible pun-
ishment unless the jury convicted Mr. Carruth of capital murder.”
Carruth argued that, although counsel raised an objection to that
comment, they were ineﬀective for failing to obtain a ruling. Car-
ruth contended that the prosecutor’s comment created a risk that
the jury convicted Carruth of the capital oﬀenses “because they
were worried that otherwise he would not be punished severely
enough, rather than because they were convinced of his guilt be-
yond a reasonable doubt.” Furthermore, Carruth argued that the
statement was highly prejudicial “because the jury cannot consider
punishment during the guilt/innocence phase.” Carruth made
only a bare assertion that the prosecutor’s statements put undue
pressure on the jury; he failed to plead any speciﬁc facts suggesting
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22-13548 Opinion of the Court 27

that the jury was actually inﬂuenced by this isolated comment. Ac-
cordingly, Carruth failed to plead facts that, if true, would have en-
titled him to relief under a prosecutorial misconduct theory or,
necessarily, a connected ineﬀective assistance theory.
The ACCA did not unreasonably apply Donnelly by ﬁnding
that counsel did not ask the jury to consider punishment in the
guilt-phase. The court could be giving heavy weight to counsel’s
statement that the jury was “not even considering [the death pen-
alty] now.” And because the facts supporting Carruth’s guilt were
numerous and formidable, it cannot be said that one statement in-
fected the entire trial. The jury was death-qualiﬁed and therefore
aware of the potential penalties in this case.
And while Carruth still asserts his appellate counsel was in-
eﬀective for not raising an “apparent” meritorious claim, the law
he references is not on point. Importantly, the case law Carruth
cites addresses Batson claims—not what is at issue here, rendering
it inapposite. 11 Further, the evidence against Carruth was likely in-
surmountable: the money traced to him, a victim’s blood on his
clothing, and testimony from Butch made the case against him
overwhelmingly strong. Thus it cannot be said that, even if the

11 The two cases cited by Carruth address Batson violations. See Davis v. Sec’y

for Dep’t. of Corr., 341 F.3d 1310, 1315–17 (11th Cir. 2003) (per curiam) (holding
that making a Batson objection at trial, but failing to renew the objection to
preserve it for appeal constituted ineffective assistance); Eagle v. Linahan, 279
F.3d 926, 943 (11th Cir. 2001) (determining that not noticing and raising a mer-
itorious Batson claim from the record constituted ineffective assistance).
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28 Opinion of the Court 22-13548

comment was improper, it “infected the trial with unfairness” so
signiﬁcantly that Carruth was denied due process.
Because the prosecutorial misconduct claim fails, the at-
tached ineﬀective assistance of appellate counsel claim is also mer-
itless; counsel could not have been ineﬀective for omitting a non-
meritorious point from their argument and, similarly, their perfor-
mance also could not have been prejudicial. United States v. Nyhuis,
211 F.3d 1340, 1344 (11th Cir. 2000) (“Appellate counsel is not inef-
fective for failing to raise claims reasonably considered to be with-
out merit.” (quotations omitted)).
D. Ineffective Assistance: Procedural Default & Failure to Present
Mitigating Evidence
Carruth argues that his counsel performed deﬁciently by
failing to adequately investigate his background and failing to lo-
cate and call supporting witnesses during the penalty phase. The
Rule 32 court denied this claim on the merits, but Carruth’s counsel
failed to appeal that denial to the ACCA. Carruth argues that the
district court erred in concluding that this claim was procedurally
defaulted because any procedural default should be excused due to
his postconviction counsel’s ineﬀective assistance during the Rule
32 proceedings by failing to appeal the denial of this claim.
Ineﬀective assistance of counsel normally does not consti-
tute cause for procedural default; cause must be traced to an out-
side circumstance preventing counsel from presenting the claim.
Coleman, 501 U.S. at 753. But the Supreme Court recognized a nar-
row exception to this rule in Martinez: ineﬀective assistance of
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22-13548 Opinion of the Court 29

counsel at initial-review collateral proceedings may establish cause
for procedural default of ineﬀective assistance at trial. 566 U.S. at 9.
The defendant must show that his counsel was deﬁcient under
Strickland and that the defaulted claim is “substantial,” i.e., likely
meritorious. Id. at 14.
Counsel in capital cases have an “obligation to conduct a
thorough investigation of the defendant’s background.” Wiins,
539 U.S. at 522 (quotation marks omitted). But counsel is not bound
“to investigate every conceivable line of mitigating evidence no
matter how unlikely the eﬀort would be to assist the defendant at
sentencing.” Id. at 533. In addition, Strickland does not force coun-
sel to oﬀer mitigating evidence in every case’s sentencing phase. Id.
Instead, strategic choices made “after less than complete investiga-
tion” will be deemed reasonable only to the extent that “reasonable
professional judgments support the limitations on investigation.”
Id. at 521. And reasonableness can be aﬀected by the defendant’s
own statements or actions. Strickland, 466 U.S. at 691.
Ineﬀective assistance of trial counsel arises under the Sixth
Amendment and is evaluated using the two-pronged analysis estab-
lished in Strickland:
First, the defendant must show that counsel’s perfor-
mance was deﬁcient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defend-
ant by the Sixth Amendment. Second, the defendant
must show that the deﬁcient performance prejudiced
the defense. This requires showing that counsel’s
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30 Opinion of the Court 22-13548

errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.
466 U.S. at 687. We are deferential to an attorney’s real-time deci-
sions when examining their performance. Id. at 689. In determining
any error’s prejudicial eﬀect, the petitioner bears the burden of
showing more than “some conceivable adverse eﬀect on the de-
fense from counsel’s errors.” Id. at 682. Instead, the defendant must
show that, but-for the counsel’s errors, the proceeding’s outcome
would have diﬀered. Id. at 694. Speciﬁcally, when a petitioner chal-
lenges a death sentence, the inquiry turns on whether “‘there is a
reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and mitigat-
ing circumstances did not warrant death.” Stewart v. Sec’y, Dep’t of
Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466
U.S. at 695). AEDPA provides an even higher standard petitioner
must meet: “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisﬁed Strickland’s deferential
standard.” Harrington, 562 U.S. at 105 (emphasis added).
Carruth argues that his claim of ineﬀective assistance sur-
vives procedural default due to the Martinez exception. He claims
that counsel knew the State would object to the mitigation special-
ist’s testimony as hearsay, and counsel should have had live wit-
nesses or “request[ed] to bring them in later.” Carruth does not
acknowledge that the mitigation specialist’s proﬀer consisted of a
recitation of witnesses and documents mentioned in his amended
Rule 32 petition and that the mitigation specialist received
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22-13548 Opinion of the Court 31

conﬁrmation from the witnesses and documents what was alleged
in the amendment was true.
Claiming that he survives the procedural bar, Carruth fur-
ther claims that his trial counsel was ineﬀective at the penalty phase
by not introducing family testimony or other facts regarding his
character and life experience, including, but not limited to, the fol-
lowing: participating in Future Farmers of America, undergoing
brain surgery as a toddler, having one leg that was shorter than the
other, coming from a stable home, exhibiting high intelligence and
graduating at the top of his high school class, being well-liked, ex-
periencing a contentious divorce, and not involving himself much
in his children’s lives. He asserts that, had these facts been consid-
ered along with the stipulation of no signiﬁcant criminal history,
there is a reasonable probability he would not have been sentenced
to death.
Under de novo review, Carruth’s claim is procedurally
barred and, assuming arguendo it was not, his claim would still fail.
As the district court found, Carruth did not preserve the ineﬀec-
tiveness claim on appeal at the state level. Carruth only argued on
appeal to the ACCA that the mitigation expert’s testimony should
have been admitted under Alabama Rule of Evidence 102; he did
not argue the merits of his penalty phase ineﬀective assistance
claim that undergirded the necessity for the mitigation expert.
Again, he abandoned the ineﬀectiveness claim in his petition for
certiorari, where he instead focused on the mitigation expert’s tes-
timony, claiming it was not hearsay. As such, Carruth did not
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32 Opinion of the Court 22-13548

invoke one complete round of the State’s established appellate re-
view process prior to federal habeas review, violating O’Sullivan.
526 U.S. at 845. And the Martinez exception does not apply in his
case. Therefore, as the issue is procedurally barred and no excep-
tion applies, we do not consider it.
Because the ACCA did not rule speciﬁcally on the penalty
phase ineﬀectiveness claim, de novo review of the district court’s
ruling applies. Under de novo review, Carruth fails on the merits
due, in part, to his own actions—his indication to counsel that there
was nothing in his background to assist in mitigation eﬀorts. His
counsel perhaps satisﬁed Strickland by not expending extra eﬀort
into mitigation when Carruth indicated that such a search would
be fruitless. See Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008)
(“In evaluating the reasonableness of a defense attorney’s investi-
gation, we weigh heavily the information provided by the defend-
ant.”). Furthermore, counsel arranged for witnesses to testify dur-
ing the penalty phase, but was blindsided when Carruth’s family
changed their minds at the last minute. Although Carruth faults
counsel for not having subpoenaed them in advance of the penalty
phase, there was nothing to indicate to counsel that subpoenas
were needed because they had voluntarily agreed to attend.
But, even if counsel’s performance was deﬁcient in failing to
investigate further, there is little evidence that Carruth was preju-
diced by the omission of his family’s testimony and other infor-
mation regarding his upbringing. See Harrington, 562 U.S. at 112
(“The likelihood of a diﬀerent result must be substantial, not just
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22-13548 Opinion of the Court 33

conceivable.”). The mitigation evidence was minimal at best and
paled in comparison to the brutal nature of the crime—the victim
was a 12-year-old boy who was kidnapped from his home with his
father over money and then was shot multiple times, killed, and
thrown into a shallow grave—and the four statutory aggravating
factors. The facts of this case are horriﬁc, and the jury was resolute
on his punishment as they returned a unanimous recommendation
of death. See Brooks, 719 F.3d at 1302–03 (holding no prejudice from
counsel’s failure to present evidence that defendant was nice, good-
natured, non-violent, and suﬀered from alcoholism, in light of the
heinous nature of the crime); Boyd v. Allen, 592 F.3d 1274, 1303 (11th
Cir. 2010) (ﬁnding no prejudice given “the overwhelming power of
the aggravating evidence” when compared to the totality of the
mitigation evidence). Since, even assuming deﬁcient performance,
counsel’s actions were not prejudicial, Carruth’s claim must fail.
III. Conclusion
For these reasons, we affirm the district court’s denial of Car-
ruth’s petition for a writ of habeas corpus.
AFFIRMED.