Holladay v. Haley

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 98-6937
________________________

D. C. Docket No. CV95-PT-2929-M

GLENN WILLIAM HOLLADAY,

Petitioner-Appellant,

versus

MICHAEL W. HALEY, Commissioner,
Alabama Department of Corrections,
ATTORNEY GENERAL OF THE STATE
OF ALABAMA,

Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 19, 2000)

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

2
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 (1989), and his

petition for rehearing, Holladay v. Alabama, 493 U.S. 1095 (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.

1
Rule 20 has since been finalized as Rule 32 of the Alabama Rules of Criminal
Procedure.

3
Crim. App. 1992), cert. denied, 629 So.2d 673 (Ala. 1993). The United States

Supreme Court denied his petition for writ of certiorari. Holladay v. Alabama, 510

U.S. 1171, 114 S. Ct. 1208 (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.

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

4
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

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).

5
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 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

6
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. 1992), and Turpin v.

Lipham, 270 Ga. 208, 510 S.E.2d 3962 (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 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

7
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,

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.

8
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 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

9
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 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

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.

10
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

11
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

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

12
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. 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

13
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

14
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.

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

15
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,

16
that he told them of his prior treatment.5 As in Funchess, the report of the lunacy

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

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. 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).

17
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 it himself. In the first instance, counsel

was attempting to elicit Holladay’s criminal history on direct examination6 and then

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.

18
changed her topic by stating, “let me ask you this.”7 She then asked when he resumed

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

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.
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].

19
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.

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

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].

20
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 (1977), or a fundamental

miscarriage of justice, see Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558 (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

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 (1991). Rule 32.2(a)(5)
provides such grounds.

21
neglected to raise this issue on appeal. Next, if Holladay 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 (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

22
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 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

23
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 (1986)(quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.

Ct. 1930, 1934 (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 (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

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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 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.

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 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 (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,

1999 WL 982402 at *74 (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, No. 93-2054, 1998 WL 802619 (Ala.Crim.App. Nov. 20,

1998). In light of the circumstances in this case 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

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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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