Thomas J. Fortenberry v. Michael W. Haley

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 17, 2002
THOMAS K. KAHN
No. 01-12553 CLERK
________________________
D. C. Docket No. 96-N-1016-M

THOMAS J. FORTENBERRY,
Petitioner-Appellant,
versus
MICHAEL W. HALEY, Commissioner,
Alabama Department of Corrections,
Respondent-Appellee.

________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 17, 2002)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
Thomas Fortenberry, an Alabama prisoner under sentence of death, appeals

the denial of his petition for a writ of habeas corpus. The district court rejected

eighteen constitutional claims, seven of them on the merits and the remaining

eleven because of procedural default. The district court granted a Certificate of
Appealability (“COA”) with respect to all issues, three of which Fortenberry raises

here. Fortenberry argues (1) that the prosecution used its peremptory challenges to
discriminate unconstitutionally on the basis of race; (2) that the trial court’s

“heinous, atrocious and cruel” instruction to the jury was unconstitutional; and (3)
that defense counsel rendered ineffective assistance at the guilt and penalty phases

of Fortenberry’s trial. For the reasons set forth below, we AFFIRM.
I. BACKGROUND

On August 25, 1984, four people were shot and killed at the Guest Service

Station in Attalla, Alabama. The victims were Ronald Guest, Wilbur T. Nelson,

Bobby Payne, and Nancy Payne. In late March 1985, a local resident found a
pistol on the bank of Black Creek, in nearby Alabama City. Ballistic evidence
showed that the pistol had been used to commit the Guest murders. Because the

pistol was found without grips, it was impossible to lift any fingerprints from it;
however, the police were able to trace it to a gun repair business that was partly
owned by Fortenberry’s father and a man named Jerry Gable. In addition, the

sheriff’s office obtained statements from three people who had seen the pistol in
Fortenberry’s possession shortly before the Guest murders. Based on this

evidence, officers went to Fortenberry’s home on May 2, 1985, and brought him to
the courthouse for questioning. They arrived at the courthouse at about 6:45 p.m.
Fortenberry signed a waiver of rights form. Officers questioned Fortenberry about

the pistol used in the four murders at the Guest Service Station, and Fortenberry

admitted taking it from his father and Gable. At around midnight, Fortenberry

showed the investigators where he said he had disposed of the pistol, which was
the same spot where it had been found. Then, over the next two days, Fortenberry

2
provided several inconsistent accounts of what had happened at the Guest Service

station. We describe these statements in some detail here because they were
central to the prosecution’s case against Fortenberry, and because he now claims

that he is innocent of the murders.

On May 3, at about 12:50 a.m., Fortenberry made a taped statement in which
he explained that, on the day of the murders, he was riding in his brother’s green

Chevrolet truck with the stolen pistol, when he came upon a man named Harvey

Underwood and “this other guy” in the woods. Fortenberry stated that the “other
guy” was “passed out,” and that Underwood was drinking beer and smoking
marijuana. Fortenberry stated that he and Underwood decided to ride together to

Albertville, but that they stopped at the Guest Service Station on the way because
they had run out of beer. Fortenberry stated that, while they were at the station, he
sat in the truck while Underwood robbed the station and committed the murders.

Fortenberry said that he returned Underwood to the place where he had met him
and that Underwood kept the gun until Fortenberry got it from him a few days later

and threw it into Black Creek. He said he never told the police because he was
frightened of Underwood.
On the same day at 5:25 p.m., Fortenberry made a written statement in

which he contravened his taped statement. This time Fortenberry explained that he

had gone to the Guest Service Station on the evening of the murders, intending to

steal money for gambling. After he took some money from Nelson, he went
outside, and Guest and Bobby Payne walked in front of him. Fortenberry stated

3
that he shot the two men, and went back in the station and shot Nelson. Then he

came back outside and saw Nancy Payne running up the hill, and shot her.
Fortenberry explained that he left with $240 of stolen money, threw the gun away,

and went to a pool hall to provide himself an alibi. He also declared that his earlier

statement blaming the murders on Harvey Underwood was false.
On the following day, May 4, Fortenberry gave a sworn statement before a

court reporter in which he provided a third, more detailed account. Fortenberry

now explained that on the day of the murders he had gone looking for a place to
rob for gambling money, when he came upon the Guest Service Station. He pulled
up in front of the station in his brother’s green and white Chevrolet truck, went in,

pulled his gun on Nelson and demanded money. He also held his gun on Bobby
Payne, who had just driven up to the station and come inside during the course of
the robbery. Another car pulled up, Fortenberry said, and Guest opened the station

door to enter. Fortenberry hid his gun from Guest, but Guest turned away and left
after Nelson whispered something to him. Fortenberry then got money from

Nelson and was leaving when Bobby Payne followed him out of the store. Guest
then came up beside him and said “Tommy, put down the gun.” Fortenberry said
that he panicked and ordered Bobby Payne to give him money, whereupon Payne

said Fortenberry would have to kill him to get his money. Fortenberry then shot

Bobby Payne and Guest, and went back inside the station and shot Nelson. Then,

Fortenberry explained, he went back out to his truck, saw a woman running, and
shot her. Fortenberry stated that he got into his truck and drove northbound for a

4
while until he came to a turnaround and then headed back toward Attalla.

Fortenberry said that he took $240 from Nelson, but nothing from anyone else. He
drove out to an area near the Black Creek, threw the gun into the woods, and went

to a pool hall in order to establish an alibi. Fortenberry repeated that his earlier

story that Underwood had committed the murders was false.
Fortenberry was indicted under the Alabama Death Penalty Act for two

counts of “[m]urder wherein two or more persons are murdered by the defendant

by one act or pursuant to one scheme or course of conduct,” Ala. Code § 13A-5-40
(a)(10) (1975), and “[m]urder by the defendant during a robbery in the first degree
or an attempt thereof committed by the defendant,” Ala. Code § 13A-5-

40(a)(2)(1975). The court appointed Stephen Harrison to represent Fortenberry at
trial, and Walden Buttram to assist him. Neither Harrison nor Buttram had
previously tried a capital case. Fortenberry pleaded “not guilty,” and the case went

to trial.1
At trial, Fortenberry testified that he had not committed the murders.
Fortenberry said that he was driving through the woods one evening and came

upon “the fire place where everybody partied at.” He stated that he had the pistol
under his car. He saw Underwood drinking beer and another man who was

“passed out.” Fortenberry stated that he noticed that a truck was parked there, but

he did not know if it was Underwood’s. Fortenberry testified that he had tried to

1
While awaiting trial, Fortenberry escaped from jail. On January 1, 1986, having been
recaptured, Fortenberry gave a statement to police investigators in which he again admitted
having committed the Guest Station murders.

5
sell the gun to Underwood. Underwood said he could not afford it, but that he

knew some “boys” in Albertville who might want to buy it. Underwood then
proposed that he and Fortenberry go to Albertville together in Fortenberry’s car to

meet the potential buyers. Fortenberry testified that he declined to drive, protesting

that he did not have a spare tire, so Underwood then suggested that they take the
truck parked nearby.

Fortenberry testified that he and Underwood were on their way to see the

potential gun buyers when they stopped for beer at the Guest Service Station.
Fortenberry went in and purchased some beer, and then walked out as Underwood
started going through the store’s cooler. Fortenberry was in the truck when Guest

pulled up and started to go into the store. Nelson stopped Guest at the door,
however, and Guest returned to his car. Fortenberry testified that he then got out
of the truck and walked back into the service station, where he saw Underwood

threatening Nelson with a knife. Underwood instructed him to get back in the
truck, which he did, and Guest then backed his car and reentered the service

station. At this point Bobby and Nancy Payne arrived, and Bobby Payne went into
the service station. At some point, Fortenberry said, Underwood returned to the
truck and exchanged his knife for the murder weapon.

Fortenberry testified that the three men were in the station for a minute, after

which Guest walked back out to his car and bent over inside of it. Fortenberry said

a woman then got out of Guest’s car and “ran up the back of the store,” and Guest
started walking back to the station. Fortenberry then heard a shot, and saw

6
Underwood exiting the store, followed by Bobby Payne, who was shouting at him.

Payne walked in front of Underwood, and Guest came up on the other side of him.
Fortenberry testified that Bobby Payne then started calling Underwood names and

cursing him. Underwood asked Payne to shut up and said he was leaving. When

Bobby Payne then told Underwood that he would have to wait for the police,
Underwood shot him and Mike Guest. Then, when Nancy Payne ran toward the

woods, Underwood shot her. Fortenberry testified that they then returned to the

woods where Fortenberry’s car was parked. Underwood instructed him to throw
the gun in Black Creek, which Fortenberry did. Fortenberry testified that
Underwood warned him not to tell anyone about the murders.

The State’s case at trial relied heavily on Fortenberry’s prior confessions,
and the prosecution argued to the jury that Fortenberry’s in-court explanation was
riddled with inconsistencies. In addition, the prosecution established Fortenberry’s

access to the gun used in the murders, and a defense witness testified that
Fortenberry had tried to sell it to him. Prosecution witness Tracy Henry Wood

testified that she and her boyfriend at the time, Mike Guest, had arrived at the
station shortly before the murders occurred, and that Guest had gone inside to get a
coke while she waited outside. Wood testified that she had seen a blue and white

pickup truck with some people inside. She also testified that after Guest went into

the station, a tall, tanned man with a large stomach came out of the station holding

two beers. She testified that Guest then came out, and told her to get his father
Alvis, who lived in the house behind the station, and to tell Alvis to bring a gun,

7
because “there was going to be trouble.” Wood testified that when she got to the

Guest home she heard two shots, and then two more on her way back to the station.
When she arrived, she found the four victims. At trial Wood was shown a

photograph of Underwood, but she could not recall if she had ever seen him before.

Wood never identified Fortenberry as having been at the station, but the

prosecution argued that her account of events was more consistent with

Fortenberry’s confessions than his trial testimony. In response, defense counsel
pointed to the fact that in both her statement to the police and her testimony at trial,
Wood had described the man with the large stomach, who did not fit Fortenberry’s

description. Defense counsel argued to the jury that this man actually committed
the crime, consistent with Fortenberry’s testimony regarding Underwood.2 The
defense also presented testimony from several of Fortenberry’s family members,

who testified that Fortenberry was not experienced at firing pistols. Jerry Gable,
however, testified that Fortenberry was skilled enough to have committed the four
murders with the pistol.

The jury returned a verdict at 6:00 p.m. on Saturday, February 15, 1986,
convicting Fortenberry on both counts of the indictment. The trial court then

polled the jury about whether it was prepared to move immediately to the penalty

phase. When the jury indicated that it wished to proceed, defense counsel moved

for a continuance before beginning the penalty phase, arguing that defense counsel

2
The prosecution argued that this person was probably Bobby Payne.

8
was unprepared and would “be much better able to present [its] position for

mitigation” if a continuance were granted until the following Monday. The court
denied this motion and immediately began the penalty phase of trial.

During the penalty phase, which lasted approximately forty-five minutes, the

prosecution argued for the death penalty based on two aggravating factors: first,
that the capital offense was committed in the course of robbery or attempted

robbery; and second, that the offense was especially heinous, atrocious or cruel

(“HAC”). Adopting the evidence presented during the guilt phase, the prosecution
argued that the jury should find the robbery factor because it had already convicted
Fortenberry of murder in the course of a robbery, and the HAC factor because

Fortenberry had committed a multiple “execution style slaying.”
To make out a mitigation case, Fortenberry’s counsel called Fortenberry’s
father to testify as the only witness. Fortenberry’s father gave fourteen lines of

testimony, in which he stated that his son was a twenty-two-year-old graduate of
nursing school, with no adult criminal record. After the close of its mitigation

case, defense counsel again moved for a continuance, “on the grounds stated
earlier, on the basis that we have not had sufficient time to prepare any evidence or
argument for this phase of the trial.” The court denied the motion. After receiving

instructions and deliberating, the jury returned a verdict recommending that

Fortenberry receive the death penalty.

Two weeks later, at the separate sentencing hearing before the trial judge,
the court refused defense counsel’s request for a postponement of sentencing or a

9
new sentencing hearing before a jury. The judge then sentenced Fortenberry to

death. The Alabama appeals courts affirmed the conviction and sentence, and the
United States Supreme Court denied Fortenberry’s petition for writ of certiorari.

Fortenberry v. State, 545 So. 2d 129, 145 (Ala. Crim. App. 1988); Ex parte

Fortenberry, 545 So. 2d 145 (Ala. 1989); Fortenberry v. Alabama, 495 U.S. 911

(1990).
Fortenberry filed a petition for post-conviction relief pursuant to Ala. R.

Crim. P. Temp. 20, represented by the law firm that currently represents him in this

appeal.3 In that petition, Fortenberry raised forty-five issues. The Rule 20 court
denied Fortenberry’s petition following an evidentiary hearing. The Alabama

Court of Criminal Appeals affirmed the denial of post-conviction relief.
Fortenberry and the State of Alabama filed applications for rehearing in that court,
in response to which the Alabama Court of Criminal Appeals withdrew the original

opinion and substituted a new opinion affirming the denial of the Rule 20 petition.
Fortenberry v. State, 659 So. 2d 194 (Ala. Crim. App. 1994). The Alabama
Supreme Court then denied Fortenberry’s petition for writ of certiorari to the

Alabama Court of Criminal Appeals. The United States Supreme Court denied
Fortenberry’s petition for writ of certiorari on the collateral claims. Fortenberry v.
Alabama, 516 U.S. 846 (1995). Fortenberry then filed a petition for writ of habeas

corpus in the federal district court, along with a second Motion Requesting an

Evidentiary Hearing and a Motion to Expand the Record. The district court denied

3
This rule has subsequently been replaced by the permanent Ala. R. Crim. P. 32. For
convenience, we refer to these proceedings throughout as “Rule 20.”

10
the writ and motions.

Fortenberry now appeals, asserting that he is entitled to relief on three
grounds. First, Fortenberry argues that the district court concluded wrongly that he

was procedurally barred from presenting his claim that he was deprived of a fair

trial by the prosecutor’s use of racially discriminatory peremptory challenges.
Second, Fortenberry asserts that the district court wrongly determined that he was

procedurally barred from presenting his claim that the jury instruction regarding

one of the aggravating factors—that the crime was heinous, atrocious and
cruel—was unconstitutionally vague and violated due process and the prohibition
against cruel and unusual punishment. Third, Fortenberry argues that trial counsel

rendered ineffective assistance during the guilt phase, by failing adequately to
investigate and present exculpatory evidence, and during the sentencing phase, by
failing adequately to investigate or present mitigating evidence. We consider these

grounds sequentially below.
II. STANDARD OF REVIEW

We review de novo a district court’s denial of a habeas corpus petition.
Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). A district court’s

dismissal of a habeas claim for procedural default is likewise reviewed de novo.
Baily v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). An ineffective assistance of

counsel claim presents mixed questions of law and fact, which we review de novo.

Dobbs v. Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998). Because Fortenberry filed
his petition prior to April 24, 1996 it is not governed by the Anti-terrorism and

11
Effective Death Penalty Act (“AEDPA”). Rather, both the district court and this

court must apply pre-AEDPA law. Under the pre-AEDPA standard applicable to
factual determinations, we are bound by the state court’s findings of fact unless

they are not “fairly supported by the record.” 28 U.S.C. § 2254(d)(8). We will not

disturb the district court’s findings of fact unless they are clearly erroneous.
Williams v. Turpin, 87 F.3d 1204, 1209 (11th Cir. 1996).
III. DISCUSSION

1. Peremptory Challenges
Fortenberry first contends that the district court wrongly concluded that a
procedural bar precluded his claim that he was deprived of a fair trial by the

prosecutor’s use of racially discriminatory peremptory challenges. See Batson v.
Kentucky, 476 U.S. 79 (1986). Fortenberry is white, and contends that the
prosecutor in his case unconstitutionally used peremptory strikes to eliminate

African-Americans from the jury. In order to make this claim, Fortenberry relies
on Powers v. Ohio, 499 U.S. 400 (1991), in which the Supreme Court extended
Batson to such a case.
The district court determined that Fortenberry’s Batson claim was

procedurally barred under Alabama law because Fortenberry had not raised it at
trial or on direct appeal. Fortenberry argues that in fact the Court of Criminal

Appeals reached the merits of the Batson claim, thus obviating the procedural bar,

and in the alternative that, even if the state court did find his Batson claim
procedurally barred, he falls within each of three exceptions to procedural default.

12
First, he argues, Alabama courts have not consistently applied procedural default to

Batson claims. Second, Fortenberry contends that he can show “cause and
prejudice” for the failure to raise the Batson claim on direct appeal. Third,
Fortenberry avers that a “fundamental miscarriage of justice” would result from
applying precedural default in this instance.

As we explained in Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir.

1995):
A federal court may not reach a federal question on collateral review of a
state conviction if the state court’s opinion “contains a ‘plain statement’ that
[its] decision rests upon adequate and independent state grounds.” A state
procedural bar constitutes an adequate and independent state ground, thereby
precluding federal habeas review, only if the last state court rendering a
judgment in the case clearly and expressly states that it rests its judgment on
the procedural default.
(Internal citations omitted). In this case, the Alabama Court of Criminal Appeals,

citing Alabama rules of criminal procedure, stated: “The following issues are
procedurally barred from this court’s review . . . The appellant’s claim that he was
denied a fair trial based on the state’s use of its peremptory strikes.” Fortenberry v.
State, 659 So. 2d 194, 196–97 (Ala. Crim. App. 1994). Fortenberry, however,
argues that a later passage in that opinion discussed the merits of the Batson claim,

and that therefore “the consideration of comity and federalism which would
ordinarily preclude federal review of procedurally defaulted issues no longer

apply.” Horsley v. Alabama, 45 F.3d 1486, 1489–90 (11th Cir. 1995); see also

Cooper v. Wainwright, 807 F.2d 881, 886 (11th Cir. 1986) (explaining that by
deciding a constitutional question when it does not have to, a state court

13
“necessarily holds that the policies underpinning its procedural rule are unworthy

of vindication under the particular circumstances of the case before it”).
Fortenberry points to the following passage in the Alabama Court of Criminal

Appeals opinion:

The appellant further argues that he was deprived of a fair trial
because, he argues, the prosecutor used his peremptory strikes in a
racially discriminatory manner violating the United States Supreme
Court’s holding in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), and that his appellate counsel’s performance
was ineffective because counsel failed to raise this issue. The
appellant is a white male. The appellant’s direct appeal was final in
1990. Batson was extended by the United States Supreme Court to
whites in Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed.
2d 411 (1991). “Powers . . . cannot be applied retroactively on
collateral review of convictions that were final before Powers was
decided.” Parker v. State, 599 So. 2d 76, ___ (Ala. Cr. App. 1992).
Therefore, Powers, which was decided in 1991, was not applicable to
the appellant’s case. Appellate counsel’s performance was not
ineffective for failing to raise this issue on appeal.

Furthermore, there is absolutely no indication in the record that
any violation of Batson occurred. The appellant’s only grounds for
support of this assertion is that some blacks were struck from the
venire. As stated previously, the petitioner in a post-conviction
proceeding bears the burden of pleading and proving his allegations
by a “preponderance of the evidence.” Rule 32.3 Ala.R.Crim.P. The
appellant failed to allege in his petition who was struck from the
venire or any other information concerning the composition of the
venire or the composition of the jury. The appellant has failed to meet
his burden.

Fortenberry v. State, 659 So. 2d at 200.
As Fortenberry observes, this passage appears to be a merits determination

on Fortenberry’s procedurally barred Batson claim.4 But even if the state court in

4
In fact, the above-quoted opinion, issued on September 9, 1994, supplanted the Court of
Criminal Appeals' original July 29, 1994 opinion. In the original opinion, the court held on the
merits that there had been no Batson violation in Fortenberry's trial. The State then applied for

14
fact reached the merits of the issue, or if Fortenberry were otherwise able to

overcome the procedural bar under any of the three exceptions he invokes, the
outcome would be the same. This Court has held that Powers created a new rule
that cannot be applied retroactively on collateral review to cases that became final
before Powers was decided. See Farrell v. Davis, 3 F.3d 370, 372 (11th Cir. 1993);

Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).5 Because Fortenberry’s

appeal became final in 1989, two years before the Supreme Court decided Powers,
and because “Batson clearly limited its application to defendants of the same race
as the excluded jurors,” Farrell, 3 F.3d at 372, Fortenberry’s Batson claim would
necessarily fail even if it were to fall within one of the exceptions to procedural

default.
2. Jury Instructions at the Penalty Phase

Fortenberry argues next that the jury instruction regarding whether the
capital offense was “especially heinous, atrocious or cruel” was unconstitutionally

vague and violated due process and the prohibition against cruel and unusual
punishment.6 The district court concluded, as had the Alabama Court of Criminal

rehearing, and urged the court to hold that the Batson claim was procedurally barred. In
response, the court reissued its opinion on September 9, 1994. Nonetheless, the ambiguity
remains.
5
Fortenberry mistakenly cites United States v. Rodriguez, 935 F.2d 194 (11th Cir. 1991),
for the proposition that Powers is retroactively applicable. Rodriguez, however, was pending on
direct appeal when Powers was decided, so Teague was not applicable. Rodriguez is therefore
inapposite.
6
The trial court instructed the jury that it should consider whether two aggravating
circumstances had been proven beyond a reasonable doubt: first, whether “the capital offense
was committed while the defendant was engaged in or was an accomplice in the commission of,
or an attempt to commit, or flight after committing, or attempting to commit robbery”; and

15
Appeals, that this claim was procedurally defaulted under state law because

Fortenberry could have but failed to raise it at trial or on direct appeal. In addition,
the district court held that Fortenberry could not overcome the procedural default

under either of the two recognized exceptions to the rule. First, a petitioner may

obtain federal review of a procedurally defaulted claim if he can show both cause
for the default and actual prejudice resulting from the default. See Murray v.

Carrier, 477 U.S. 478, 488 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977);

Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir. 1989). A petitioner can
establish cause by showing that a procedural default was caused by constitutionally

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
690 (1984). See Carrier, 477 U.S. at 488. Second, a federal court may also grant a
habeas petition on a procedurally defaulted claim, without a showing of cause or

prejudice, to correct a fundamental miscarriage of justice. See Carrier, 477 U.S. at

495–96 (explaining that a “fundamental miscarriage of justice” occurs “in an

extraordinary case, where a constitutional violation has resulted in the conviction
of someone who is actually innocent”). To meet this standard, a petitioner must
“show that it is more likely than not that no reasonable juror would have convicted

him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In
addition, “‘to be credible,’ a claim of actual innocence must be based on reliable

second, whether “the capital offense was especially heinous, atrocious, or cruel compared to
other capital offenses.” The court explained that “[t]he term heinous means extremely wicked or
shockingly evil; the term atrocious means outrageously wicked and vile; the term cruel means
designed to inflict a high degree of pain with utter indifference to, or enjoyment of, the suffering
of others.”

16
evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998)

(quoting Schlup, 513 U.S. at 324).
Fortenberry argues that the district court erred because he satisfies both of
these exceptions. We disagree. Fortenberry has not presented persuasive evidence

of his actual innocence, and thus we reject his fundamental miscarriage of justice

claim. Fortenberry argues that he can establish cause because, he says, his counsel

rendered ineffective assistance by failing to raise the HAC issue at trial and on
appeal. Fortenberry argues that he can demonstrate prejudice because he is likely

to have succeeded on the claim. Neither argument is persuasive because it is clear
that the HAC claim is ultimately without merit.
Under Alabama’s current death-penalty statute, following a jury verdict in

the guilt phase, the trial court conducts a sentencing phase in which the jury is
presented with evidence of aggravating and mitigating factors. See Ala. Code

1975 § 13A-5-46. Having considered this evidence, the jury then issues an

“advisory verdict.” Id. Then, in a separate sentencing hearing, the judge weighs
the aggravating and mitigating factors to arrive at a sentence. Ala. Code 1975 §

13A-5-47(a) et seq. In so doing, the judge must “consider” the jury’s
recommendation, but is not bound by it. See Ala. Code 1975 § 13A-5-47(e). In
addition, the judge must issue, in writing, specific findings with regard to each of

the aggravating and mitigating factors that lead to the sentence. See Ala. Code

1975 § 13A-5-47(d).
There is no dispute in this case that the sentencing judge did not find the

17
HAC factor; the judge determined that a single aggravating factor—that

Fortenberry committed murder in the course of a robbery—outweighed the
mitigating factors presented in the case. Although the prosecution did not waive

the HAC factor at the hearing before the sentencing judge, it pointed out to the

judge that it thought that the robbery factor would be sufficient to outweigh the
mitigating evidence, and that the judge did not need to find the HAC factor in order

to sentence Fortenberry to death. The sentencing judge obviously agreed, issuing

the following written sentence:
From the evidence presented at the trial and at the sentence
hearing and from a review of the pre-sentence investigation report, the
Court finds that the Defendant, Tommy J. Fortenberry, did
intentionally murder two or more persons, being Wilbur T. Nelson,
Ronald Michael Guest, Robert William Payne, and Nancy Payne, by
one act or pursuant to one scheme or course of conduct. The Court
further finds that the Defendant, Tommy J. Fortenberry, did
intentionally murder Wilbur T. Nelson during a robbery in the first
degree. The Court further finds as a statutory aggravating
circumstance, that the intentional murder was committed while the
Defendant was engaged in the commission of a robbery in the first
degree.
The Court in considering and weighing mitigating
circumstances, finds that the Defendant has no significant history of
prior criminal activity, having only one (1) prior conviction for
Burglary third degree. The Court finds no evidence that the Defendant
was acting under the influence of extreme mental or emotional
disturbance or that he lacked the capacity to appreciate the criminality
of his conduct or to conform to the requirements of law. The Court
further finds no evidence that the victims participated in the
Defendant’s conduct or consented to it or that the Defendant was an
accomplice to another who committed the offense and that his
participation was relatively minor. The Court further finds no
evidence that the Defendant acted under duress or under the
substantial domination of another person.
The age of the Defendant at the time of the commission of the

18
 crime was twenty (20) years of age and the Court determines that this
is a mitigating circumstance to be considered and weighed. In addition
to consideration of the statutory mitigating circumstances, the Court
finds that the Defendant has studied for and become licensed as a
practical nurse. The Court specifically determines the Defendant’s
training and licensing as a nurse is a mitigating circumstance which is
herein considered and weighed.

The Court finds from a consideration of the evidence taken on
the trial of the case and at the sentencing hearing that the aggravating
circumstance listed in Section 13A-5-49(4) exists in this case and is
sufficient to support the sentence of death. It is the opinion of the
Court that the mitigating circumstances heretofore enumerated are
insufficient to outweigh the aggravating circumstance. The Court
therefore, finds that the punishment of this Defendant should be fixed
by the Court at death.
Fortenberry v. State, 545 So. 2d 129, 143 (Ala. Crim. App. 1988) (citations

omitted).

Relying on Espinosa v. Florida, 505 U.S. 1079 (1992), Fortenberry argues
that despite the judge’s sentencing order, counsel was nonetheless ineffective for

failing to challenge the HAC instruction. In Espinosa, the Supreme Court held
that, in a state that places sentencing authority in more than one actor, the

sentencing judge’s proper re-weighing of aggravating factors is insufficient to cure
constitutional defects in the sentencing jury’s consideration of an improper

aggravating factor. Id. at 1082–83. Instead, jury consideration of an improper
factor is imputed to the sentencing judge. Fortenberry argues that the jury was

wrongly instructed with regard to the HAC aggravating factor, and therefore,

Espinosa would mandate reversal of his conviction if he could overcome the
procedural default.

This argument falters because the Supreme Court has held that Espinosa

19
announced a new rule that cannot be applied retroactively to cases on collateral

review. See Lambrix v. Singletary, 520 U.S. 518 (1997). Because Fortenberry’s
conviction became final before Espinosa, his Espinosa claim is thus Teague-barred.
See id.; Teague v. Lane, 489 U.S. 288, 310 (1989). Therefore in this case, even

assuming that the jury was improperly instructed to consider an unconstitutional
HAC instruction, that error is not prejudicial if the sentencing judge properly re-

weighed only the constitutionally applicable factors. See Glock v. Singletary, 65
F.3d 878, 880, 882–83 (11th Cir. 1995) (en banc).7
Because the trial court found the existence of only one statutory aggravating
circumstance—that “[t]he capital offense was committed while the defendant was

engaged in the commission of . . . robbery”—we must conclude that the HAC
factor played no role in Fortenberry’s sentence.8 Therefore, defense counsel’s

7
We assume arguendo that Espinosa applies to the Alabama death penalty statute. As the
Supreme Court explained in Harris v. Alabama, 513 U.S. 504, 509 (1995), the current Alabama
scheme differs from the Florida scheme Espinosa considered in that Florida requires the judge to
give the jury’s recommendation “great weight” in reaching a conclusion as to the proper
sentence, while in Alabama the judge need only “consider” the jury’s recommendation. Ala.
Code 1975 § 13A-5-47(e). Although the applicability of Espinosa was not at issue in Harris, the
Supreme Court went on to explain that consequential Espinosa “error attaches whenever the jury
recommendation is considered in the process, not only when it is given great weight by the
judge.” Id. at 513. This strongly suggests that Espinosa applies to Alabama’s death penalty
statute even though in Alabama the jury has less “capital sentencing authority” than it has in
Florida. Espinosa, 505 U.S. at 1082; but see Glock, 65 F.3d at 883 (“to put Espinosa’s rule
another way, a trial judge in a trifurcated sentencing procedure may not cure the jury’s
consideration of an invalid circumstance if, as in Florida, the trial judge owes the jury
deference.”).
8
Ala. Code § 13A-5-47(d) specifically directs that

Based upon the evidence presented at trial, the evidence presented during the
sentence hearing, and the pre-sentence investigation report and any evidence
submitted in connection with it, the trial court shall enter specific written findings
concerning the existence or nonexistence of each aggravating circumstance
enumerated in Section 13A-5-49, each mitigating circumstance enumerated in
Section 13A-5-51, and any additional mitigating circumstances offered pursuant

20
failure to object to the HAC instruction at trial or to raise the issue on appeal were

ultimately inconsequential.
3. Ineffective Assistance of Counsel

Under the Sixth Amendment, a criminal defendant is entitled to receive

effective assistance of counsel in conducting a defense. In order to show a
violation of this right sufficient to merit reversal, a defendant must satisfy the

familiar two-prong test that the Supreme Court articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984):
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires a showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
Under this test, the proper standard for attorney performance is that of “reasonably
effective assistance”—conduct we evaluate on the facts of the particular case, as

viewed at the time of counsel’s actions, to determine if the performance fell within
the wide “range of professionally competent assistance.” Id. at 687, 690. With
regard to the second prong of the test, Strickland explains that prejudice exists

where “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 690.

to Section 13A-5-52. The trial court shall also enter written findings of facts
summarizing the crime and the defendant’s participation in it.

In light of this requirement, we could not possibly find that the sentencing judge used the HAC
factor to arrive at Fortenberry’s sentence.

21
 Most of Fortenberry’s allegations of ineffective assistance concern defense

counsel’s alleged failure to perform an adequate investigation prior to trial, a duty
Strickland addresses with specificity. Strickland explains that
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.

Id. at 691.9

In this case, Fortenberry argues that he received ineffective assistance during
both the guilt and penalty phases of his trial. We consider these claims separately.

A. Guilt Phase
Fortenberry first asserts that his attorneys were ineffective during the guilt
phase of his trial because they failed to investigate Harvey Underwood, and

because they failed to investigate and present exculpatory evidence from various
potential witnesses whom they would have discovered had they investigated
Underwood. In particular, Fortenberry contends that, had Buttram and Harrison

conducted an adequate investigation, they would have uncovered three

9
An attorney has a duty to investigate “the circumstances of the case and explore all
avenues leading to facts relevant to the merits of the case and the penalty in the event of
conviction.” A.B.A. Standards for Criminal Justice 4-4.1 (3d ed. 1993). Furthermore,

The investigation should include efforts to secure information in the possession of
the prosecution and law enforcement authorities. The duty to investigate exists
regardless of the accused’s admissions or statements to defense counsel of facts
constituting guilt or the accused’s stated desire to plead guilty.

Id.

22
witnesses—Tammy McCoy, Philip Shadwrick, and William Pruitt—all of whom

testified during the Rule 20 proceedings that Underwood admitted to them that he
had committed the Guest Service Station murders.

McCoy testified that she had known Fortenberry and Underwood since

childhood, and that Underwood confessed to her three or four weeks after the
murders. She explained that Underwood had threatened to kill her and her children

if she spoke to anyone about it, so she kept the secret until she finally revealed the

confession to Buttram in 1991. Shadwrick and Pruitt testified that Underwood
confessed to them while they were sitting around drinking in the woods.
Fortenberry next asserts that, had trial counsel performed an adequate

investigation, they would have uncovered and called to testify the allegedly
exculpatory witnesses Rachel Parks, Donna Ogle, and Willard Yates. The record
shows that defense counsel obtained the names of these witnesses on the Friday

before the trial on Monday, and that they attempted without success to subpoena
them. At the Rule 20 hearing, Parks and Ogle both testified that they had

approached the Guest Station shortly after the crime, and observed two people in a
blue truck travelling at great speed in the opposite direction.10 Yates testified that
when he arrived at the station, Alvis Guest told him that it did not look like a
robbery had occurred because Nelson, the cashier, still had money in his pocket

and there was still money in the cash drawer. This testimony would have been

10
This testimony would have been important, according to Fortenberry, because in his
confessions, Fortenberry stated that he and Underwood had gone to the Guest Service Station in
Fortenberry’s brother’s green and white truck, while in his several denials he stated that they had
taken a different vehicle.

23
crucial, Fortenberry claims, because it would have contradicted Alvis Guest’s trial

testimony that a robbery had occurred.
Finally, Fortenberry faults trial counsel’s handling of Tracy Henry Wood,

who was the only witness at the murder scene. Prior to trial, defense counsel had

obtained Wood’s police statement, which contained a description of an
unidentified man at the scene who was tall, tanned, with a large stomach and sandy

hair. At trial, Wood gave a similar description. According to Fortenberry, trial

counsel knew that this description did not match Fortenberry; yet they did not
interview Wood before trial. When they did interview her prior to her testimony,
trial counsel chose not to show her a photograph or composite sketch of

Underwood, even though they believed at the time that Underwood was the
murderer. Fortenberry avers that these actions amounted to ineffective assistance
of counsel entitling him to a reversal of his conviction.

In general, defense counsel renders ineffective assistance when it fails to
investigate adequately the sole strategy for a defense or to prepare evidence to

support that defense. See Code v. Montgomery, 799 F.2d 1481, 1483-84 (11th Cir.
1986). The duty to investigate requires that counsel “conduct a substantial

investigation into any of his client’s plausible lines of defense.” House v.

Balkcom, 725 F.2d 608, 617-18 (11th Cir. 1984). Although a defendant’s actions

or directions may in some instances render a failure to investigate reasonable,

see Strickland, 466 U.S. at 691, there is no per se rule absolving counsel of its duty
to examine facts simply because a defendant suggests another course. See

24
Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (“[Attorney’s]

explanation that he did not investigate potential mitigating evidence because of
Thompson’s request is especially disturbing in this case where [attorney] himself

believed that [defendant] had mental difficulties.”). Indeed, even when a defendant

tells his attorney that he wishes to plead guilty, defense counsel must still make an
independent examination of the facts and circumstances of the case. See Agan v.

Singletary, 12 F.3d 1012, 1018 (11th Cir. 1994) (finding defense counsel

ineffective where it failed to investigate conflicting statements to police suggesting
possibility that defendant was accepting blame for murder to cover for actual
murderer, despite defendant’s guilty plea). Specifically, we have held assistance

ineffective when counsel ignored “red flags” that any reasonable attorney would
have perceived to demand further investigation. See Cunningham v. Zant, 928
F.2d 1006, 1018 (11th Cir. 1991).

Alabama argues that trial counsel’s failure to investigate Underwood more
fully cannot have been ineffective assistance of counsel, because up until the eve of
the trial Fortenberry maintained his own guilt, and the reasonableness of the

investigation was therefore “determined or substantially influenced by the
defendant’s own statements or actions.” Strickland, 466 U.S. at 691. Fortenberry
answers that his trial counsel never believed that he had committed the murders,

and suspected all along that his admission was an attempt to cover for someone
else.11 Fortenberry argues that because trial counsel knew that Fortenberry had

11
Harrison and Buttram testified in the Rule 20 proceedings that they had not believed
Fortenberry’s statements that he had committed the murders, and that they always thought that

25
pointed to Underwood in some of his statements to the police, it was unreasonable

not to investigate Underwood’s possible role even though Fortenberry claimed to
be guilty. Moreover, Fortenberry points out that when, on the eve of the trial, he

eventually told his counsel that he was innocent, counsel still failed to investigate

Underwood.
Whether or not defense counsel’s investigation was in fact unreasonable

under Strickland, we find that the testimony Fortenberry argues should have been

discovered and offered to the jury is insufficient to undermine confidence in his
conviction. See Strickland, 466 U.S. at 694 (explaining that a “reasonable
probability” of a different result is a probability sufficient to undermine confidence

in the outcome of the case). First, Tammy McCoy’s testimony shows that she did
not reveal Underwood’s alleged confession until many years after Fortenberry’s
conviction, and Fortenberry has not shown that a reasonable investigation of

Underwood would have uncovered her. Second, as the district court noted, the
Rule 20 court determined that Shadwrick and Pruitt were unreliable witnesses.
This determination is presumed correct,12 and therefore their testimony will not

he was covering up for someone else.
12
The pre-AEDPA version of 28 U.S.C. § 2254 stated that

(e) In any proceeding instituted in a Federal court by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual issue, made by a State
court of competent jurisdiction in a proceeding to which the applicant for the writ
and the State or an officer or agent thereof were parties, evidenced by a written
finding, written opinion, or other reliable and adequate written indicia, shall be
presumed to be correct, unless the applicant shall establish or it shall otherwise
appear, or the respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court

26
support a reversal of Fortenberry’s conviction.13 Third, Parks and Ogle’s

hearing;
(2) that the factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court
hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the
person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his
constitutional right, failed to appoint counsel to represent him in the State court
proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the
State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State
court proceeding;
(8) or unless that part of the record of the State court proceeding in which the
determination of such factual issue was made, pertinent to a determination of the
sufficiency of the evidence to support such factual determination, is produced as
provided for hereinafter, and the Federal court on a consideration of such part of
the record as a whole concludes that such factual determination is not fairly
supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof
of such factual determination has been made, unless the existence of one or more of the
circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is
shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the
court concludes pursuant to the provisions of paragraph numbered (8) that the record in
the State court proceeding, considered as a whole, does not fairly support such factual
determination, the burden shall rest upon the applicant to establish by convincing
evidence that the factual determination by the State court was erroneous.
13
Fortenberry also argues that the district court erred when it denied his request for an
evidentiary hearing to determine when Underwood’s alleged confession to Shadwick and Pruitt
occurred. The district court relied on the Rule 20 court’s finding that “there ha[d] been no
showing that the testimony of [Pruitt] concerned an event which pre-dated the defendant’s trial.”
Fortenberry argues that this conclusion is flawed for two reasons. First, he contends that the
Rule 20 court’s findings are not supported by the record as a whole, and that in fact the record
makes clear that Underwood confessed to Pruitt in 1985, before Fortenberry’s trial. Thus, he
argues, the Rule 20 court’s findings are not entitled to a presumption of correctness. See
Townsend v. Sain, 372 U.S. 293 (1963). Second, Fortenberry argues that the Rule 20 court
simply adopted the state’s proposed findings of fact, and that therefore there was no credible
independent judicial determination regarding the issue. In addition, Fortenberry states that the
district court’s own analysis, in which it stated that “it is not clear from the evidence . . . that
Underwood made this alleged admission before the petitioner’s trial . . .”

means that the court should have held a hearing to resolve the issue. Id. After reviewing the
Rule 20 record, we conclude that the factual determination is supported by the record as a whole.
Fortenberry is therefore not entitled to an evidentiary hearing on this issue.

27
testimony regarding the color of the truck they passed on the road is simply too

insubstantial to create any doubt in Fortenberry’s conviction. Fourth,
although Yates would have testified that he had heard Guest make a statement

suggesting that no robbery had taken place, there was conclusive evidence

produced at trial that a robbery had occurred; thus, the absence of Yates’ testimony
is unlikely to have produced a different outcome. Last, there is no evidence that

Tracy Henry Wood would have provided any additional or different testimony

even had trial counsel interviewed her prior to the beginning of the trial. Defense
counsel did interview prior to her testimony and cross examined her fully at trial,
and the alleged failure to interview her earlier was indisputably inconsequential.

It is worth reiterating that the absence of exculpatory witness testimony from
a defense is more likely prejudicial when a conviction is based on little record
evidence of guilt. See Strickland, 466 U.S. at 695–96 (“a verdict or conclusion

only weakly supported by the record is more likely to have been affected by errors

than one with overwhelming record support.”). In this case, although there was no
conclusive forensic or eyewitness evidence establishing Fortenberry’s guilt, the
jury had before it Fortenberry’s multiple uncoerced confessions, along with strong

evidence that placed him in possession of the murder weapon. We find that no
reasonable likelihood that the jury would have discredited this evidence had it

heard the testimony Fortenberry says his lawyers should have discovered and

presented. Accordingly, we find that trial counsel’s alleged failure to perform an

adequate investigation of Underwood did not prejudice Fortenberry’s conviction.

28
 B. Sentencing Phase
Fortenberry next asserts that his counsel were ineffective during the

sentencing phase of his trial because they failed to investigate and discover
mitigating evidence about Fortenberry’s psychological problems, alcoholism and

good character. In addition, Fortenberry points to defense counsel’s failure at the

sentencing phase to present the scant mitigating evidence they did discover:

defense counsel presented only fourteen lines of unprepared testimony from
Fortenberry’s father—testimony that was itself cumulative of evidence already

presented during the guilt phase.14

As with a claim of ineffectiveness during the guilt phase, to succeed on a
claim of ineffective assistance during the penalty phase a petitioner must show

both deficient performance and prejudice under Strickland. See Williams v.

Taylor, 529 U.S. 362, 390 (2000); Lambrix v. Singletary, 72 F.3d 1500, 1504 (11th
Cir. 1996). The Supreme Court explained in Williams that where a petitioner’s
counsel was deficient at sentencing, the relevant question for determining prejudice

is whether the
entire postconviction record, viewed as a whole and cumulative of
mitigation evidence presented originally, raised a reasonable
probability that the result of the sentencing proceeding would have
been different if competent counsel had presented and explained the
significance of all the available evidence.

529 U.S. at 399 (internal marks omitted).

14
Testimony presented during the trial showed Fortenberry’s age, his lack of a significant
prior criminal record, and that he was a nursing student. At the penalty phase, trial counsel
adopted this evidence, and then elicited testimony from Fortenberry’s father that showed the
same facts.

29
 Trial counsel’s performance is deficient if counsel fails to make a reasonable

investigation of possible mitigating evidence in preparation for the penalty phase
of a capital trial. See Lambrix v. Singletary, 72 F.3d 1500, 1504 (11th Cir. 1996);
Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986). Counsel’s

performance is unreasonable where counsel fails altogether to make an
investigation, or where counsel makes only a desultory or cursory effort to find

mitigating evidence. See Lambrix, 72 F.3d at 1504; Armstrong v. Dugger, 833
F.2d 1430, 1433 (11th Cir. 1987) (counsel’s investigation consisted only of
consultation with probation officer and one interview with defendant and parents)).
Under some circumstances, reasonable strategic considerations may

convince an attorney that presentation of mitigation evidence would be unfruitful
or even harmful. Thus, for example, in Waters v. Thomas, 46 F.3d 1506, 1511
(11th Cir. 1995) (en banc), we held that trial counsel had reasonably made the

decision to present some but not all of the available mitigating evidence. Strategic
considerations may even reasonably lead defense counsel to conclude that
presenting no mitigating evidence is to the defendant’s benefit. For example, in

Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court denied an ineffective
assistance claim where defense counsel had concluded, based on sound
professional judgment and substantial investigation, that the petitioner’s interest

would not be served by presenting the available mitigating evidence. Most

recently, in Bell v. Cone, the Supreme Court recently upheld a state court
determination that defense counsel’s decision to present no mitigation evidence or

30
closing argument at the sentencing stage was not objectively unreasonable, where

defense counsel was fearful that presenting mitigating evidence would present the
prosecution an opportunity to put on a damaging attack. 122 S. Ct. 1843, 1854

(2002).

Absent any viable strategic reason, however, the failure to present available
mitigating evidence renders assistance constitutionally ineffective. For example, in

Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir. 1999), we found trial counsel’s

actual presentation of mitigation evidence deficient where trial counsel called ten
witnesses but elicited “very little relevant evidence about [petitioner’s] character.”
Similarly, in Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991), we explained
that in order to determine if a failure to present mitigating evidence is reasonable

it must be determined whether a reasonable investigation should have
uncovered such mitigating evidence. If so, then a determination must
be made whether the failure to put this evidence before the jury was a
tactical choice by trial counsel. If so, such a choice must be given a
strong presumption of correctness, and the inquiry is generally at an
end.

Id. at 1500 (quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988)
(emphasis in original; citation omitted)). We determined that the failure to present

available evidence was not based on a tactical decision, and that the performance
was sufficiently deficient so as to require granting relief. The facts of Blanco are

similar enough to those of the present case that they are worth recounting here:

Following the jury’s guilty verdict, defense counsel Rodriguez
informed the court that he was not prepared for the penalty phase and
needed a continuance to locate witnesses. The trial court stated that
he had previously informed counsel that the sentencing phase would
commence immediately after the guilt phase was completed. The trial

31
 court nevertheless continued the trial for four days, informing the jury
that Blanco needed time to produce witnesses.

The next court proceedings were held on the evening before the
sentencing phase was to begin. During this charge conference, the
trial court queried counsel and Blanco as to the efforts that had been
made to locate witnesses. The transcript of the charge conference and
attorney Rodriguez’ testimony at the collateral hearings are not clear
as to what further steps, if any, counsel took over the four-day
continuance. Although counsel did attempt to subpoena Blanco’s
brother to testify, it appears that counsel for the most part waited for
the witnesses that Blanco and counsel previously had attempted to
contact during an overnight recess in the guilt phase to return their
calls . . . . Counsel never managed to meet with any of these
witnesses over the continuance to determine what their testimony
might be. With the exception of Blanco’s brother, counsel had not
talked to any of these witnesses. The record reflects that counsel and
Blanco had further conversations concerning the witnesses who would
be called during sentencing, and that Blanco indicated he did not want
any evidence offered on his behalf . . . . Counsel essentially
acquiesced in Blanco’s defeatism without knowing what evidence
Blanco was foregoing. Counsel therefore could not have advised
Blanco fully as to the consequences of his choice not to put on any
mitigation evidence.
Blanco, 943 F.2d at 1500–1501 (notes omitted).
The circumstances of the present case lead us to conclude that trial counsel’s

failure adequately to investigate or present mitigating evidence was unreasonable.
The jury convicted Fortenberry at approximately 6:01 on a Saturday evening. At

that time, the trial court informed the jury that the court would not be in session on
Sunday, and that the jury would be required to return the following Monday if no

sentence was obtained right away. The jury indicated that it was ready and able to

proceed. Trial counsel immediately moved for a continuance until the following

Monday. In support of its request, trial counsel cited the late hour and fatigue, and
more importantly, trial counsel specifically stated that they were not prepared.

32
Trial counsel reiterated this later when, in a renewed request for a continuance,

Harrison stated, “And we would renew our motion for a continuance on the
grounds stated earlier, on the basis that we have not had sufficient time to prepare

any evidence or argument for this phase of the trial.” Nonetheless, the trial court

denied the request for a continuance.
Regardless of whether the trial court should have granted a continuance to

allow defense counsel to prepare,15 defense counsel should have known that a
sentencing hearing might follow close on the heels of a conviction. Any
reasonable attorney would have prepared at least a minimal penalty case before the
conclusion of the guilt phase of the trial. Here, the trial transcript shows that

Fortenberry’s attorneys failed to present any useful mitigating evidence to the jury
beyond what had come out during the guilt phase. Unlike even the performance of
defense counsel in Williams, where the “record establishe[d] that counsel did not

begin to prepare for that phase of the proceeding until a week before the trial,” here

the record shows that trial counsel spent virtually no time preparing for the penalty
phase. This neglect was not based on a tactical decision by trial counsel; as they
told the court in requesting a continuance, “we have not had sufficient time to

prepare any evidence or argument for this phase of the trial.” Thus, as was true in
Blanco, Fortenberry’s trial counsel did not interview or prepare a single witness

prior to the hearing; the only witness who did testify on Fortenberry’s behalf, his

15
We note that the Alabama courts determined that the trial court did not abuse its
discretion by refusing to grant a continuance, and Fortenberry does not challenge that
determination here.

33
father, stated at the Rule 20 hearing that he had no idea why he was testifying or

what was the purpose of the sentencing hearing.
The lack of preparation is evident in the trial transcript. After telling the

court that it was adopting those mitigating factors proved during the guilt

phase—which included that Fortenberry was young when he committed the
murders, that he lacked a significant criminal record, and that he was a nursing-

school graduate—defense counsel called Fortenberry’s father to testify. The

following is the totality of all the testimony presented in the penalty phase on
Fortenberry’s behalf:
Q: Would you state your name, please, sir?
A: Jerry Verben Fortenberry.
Q: And you are Tommy Fortenberry’s father?
A: Yes, sir, I am.
Q: And Mr. Fortenberry, do you know how old your son is right now?
A: Yes, sir, he was twenty-two yesterday.
Q: Twenty-two yesterday?
A: Yes, sir.
Q: And how old would your son have been in August of 1984?
A: Nineteen.
Q: Now, has your son graduated from high school?
A: Yes, sir.
Q: What high school?
A: Emma Sansom.
Q: Has he had any education or training since then?
A: Yes, sir, we went through nursing school together, graduated together.
Q: You went through nursing school together?
A: Yes, sir.
Q: When did you graduate?
A: In 1984.
Q: Do you remember the month?
A: I am rather shook up right now, no, sir.
Q: Okay, but it was in 1984?
A: Yes, sir.
Q: Do you know if your son has had any convictions as an adult before
he got in this trouble?

34
 A: He had—you know, he was a minor, he did, but nothing as an adult.
Q: All right. And he did graduate from nursing school?
A: Yes, sir, he did.
Q: Did your son take his state boards to be a nurse after school?
A: Yes, sir, he did.
Q: Do you know if he passed that?
A: Yes, sir, he did, eventually passed the state boards.
Q: He is a licensed practical nurse?
A: Yes, sir, he is.
Q: I think that’s all.
As we have stressed before, “[t]he purpose of a sentencing hearing is to

provide the [sentencer] the information necessary for it to render an

individualized sentencing determination . . . [based upon] the character and
record of the individualized offender and the circumstances of the particular

offense.” Collier v. Turpin, 177 F.3d at 1202. See also Dobbs v. Turpin, 142
F.3d 1383, 1386–87 (11th Cir. 1998); Cunningham v. Zant, 928 F.2d 1006, 1019
(11th Cir. 1991). Despite the fact that his father was Fortenberry’s only

character witness, trial counsel failed to ask any questions that might have
conveyed to the jury any sense of “what type of person [Fortenberry] was.”
Fortenberry’s father testified at the Rule 20 hearing that defense counsel had not

interviewed him in advance, advised him that he would be called, prepared him
to testify, or even explained the procedure of the sentencing phase to him.

Rather than elicit testimony that might have conveyed a sense of Fortenberry’s

“character and record,” Collier, 177 F.3d at 1202, to offset the apparently
aberrational events of the night of the murders, trial counsel simply asked
questions regarding information that had been shown during the guilt phase.

Even the prosecution acknowledged the lack of mitigation evidence by stating,
“We submit that there haven’t been, he hasn’t offered anything outside of a

35
grieving father.” Thus, the record reveals that counsel’s actual performance

during the sentencing phase was deficient.
Despite our conclusion that Fortenberry received ineffective assistance at

the penalty phase, we are unable to find prejudice in this case, because there is

nothing in the record that we can consider to support Fortenberry’s assertion that
with adequate representation he would have presented additional mitigating

evidence sufficient to undermine confidence in his conviction. Fortenberry

argues that had trial counsel effectively represented him, they would have
located and proffered the testimony of additional family members, friends, high
school and nursing school classmates, and that had these witnesses been called,

the jury would have heard testimony of Fortenberry’s accomplishments and acts
of kindness. In support, Fortenberry attempted to present to the district court
affidavits from a number of witnesses to substantiate the availability of this

mitigating evidence. We do not doubt that these witnesses would have testified
on Fortenberry’s behalf. The district court, however, correctly held that under

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), Fortenberry is not entitled to an
evidentiary hearing on these affidavits without a showing of cause and prejudice,

because they are material facts not presented or adequately developed at the

state-court hearing,16 and, thus, we cannot consider them in our prejudice

analysis.

16
Fortenberry responds that the affidavits are new evidence, and thus that he is entitled to
a hearing under Townsend, 372 U.S. at 317 (“Where newly discovered evidence is alleged in a
habeas application, evidence which could not reasonably have been presented to the state trier of
facts, the federal court must grant an evidentiary hearing.”). Fortenberry does not even attempt,
however, to explain why these affidavits could not reasonably have been presented to the state
habeas court; therefore, the district court did not err in declining to hold an evidentiary hearing to
consider them and we cannot consider them here.

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 In addition, Fortenberry argues that trial counsel should have presented

evidence from the Lunacy Commission Report ordered to determine
Fortenberry’s competency to stand trial, prepared by Taylor Hardin Hospital

(“Taylor Hardin Report”). That report showed that Fortenberry had been an

alcoholic who drank for most of his life, and also revealed “significant
psychological problems” and a personality disorder characterized by lack of

judgment and poor self control. We cannot say that the nature of this evidence is

likely to have altered the sentence in this case. Fortenberry has not provided any
other evidence of what his counsel could have presented during the sentencing
phase that might have altered the result. As a consequence, we cannot say that

Fortenberry was prejudiced by counsel’s allegedly ineffective performance at the
sentencing phase.
IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of
Fortenberry’s petition for writ of habeas corpus.

AFFIRMED.

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ANDERSON, Circuit Judge, concurring:

I concur in all of the opinion for the court, except that portion addressing
the performance prong of the analysis of ineffective assistance of counsel at the

sentencing phase. Because Fortenberry cannot satisfy the prejudice prong, as

pointed out by the court’s opinion, I need not address the performance prong.

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