Luther Jerome Williams v. Richard F. Allen

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12691 ELEVENTH CIRCUIT
August 2, 2006
________________________
D. C. Docket No. 01-00780-CV-J-W THOMAS K. KAHN
CLERK

LUTHER JEROME WILLIAMS,

Petitioner-Appellant,

versus

RICHARD F. ALLEN,
Commissioner, Alabama Department
of Corrections,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 2, 2006)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

DUBINA, Circuit Judge:
 Petitioner, Luther Jerome Williams (“Williams”), a death row inmate,

appeals the district court’s order denying him federal habeas relief pursuant to 28

U.S.C. § 2254. For the reasons that follow, we affirm the district court’s order.

I. BACKGROUND

A. Facts

The facts are taken verbatim from the opinion of the Alabama Court of

Criminal Appeals on Williams’s direct appeal.

On January 22, 1988, a 1981 dark blue Oldsmobile
Regency automobile was stolen from a motel parking lot
in Birmingham, Alabama. In the trunk of this vehicle
was, among other items, a .22 caliber pistol. A dark blue
car arrived at the Smithfield housing project in
Birmingham later that same evening and the appellant
was identified as the sole occupant. On the morning of
January 23, 1988, John Robert Kirk was on his way
home from work. He stopped his vehicle – a red 1984
Chevrolet pickup truck with a camper on the back – near
the West Blocton exit on Interstate 59 South in
Tuscaloosa County. The appellant and two men were
traveling south on Interstate 59 in the stolen Oldsmobile.
After noticing the victim’s vehicle beside the road, they
stopped and confronted him. The appellant led the
victim to a nearby wooded area and shot him once in the
left side of the head, ‘execution style,’ with the .22
caliber pistol which had been in the trunk of the stolen
Oldsmobile. The victim’s body was left at the site of the
shooting, and his money and vehicle were taken.

Later that same morning, several witnesses identified the
appellant as the driver of a red ‘camper truck’ which was
parked at the Smithfield housing project. One of these

2
witnesses, Priscilla Jones, a relative of the appellant’s,
testified that the appellant had visited her on the day of
the murder. She stated that the appellant told her that ‘he
had killed a white man and stole his truck,’ and that he
proceeded to show her the weapon, which she described
as having a white handle.

On the night of January 24, 1988, after responding to a
call placed by a Rosie Mims, members of the
Birmingham Police Department interviewed Priscilla
Jones regarding the appellant. During this interview, the
Birmingham police learned of the appellant’s statement
to Ms. Jones concerning the shooting of a white man.
They were also informed that he was staying at an
apartment in the housing project, and that he was an
escapee from the supervised intensive restitution (SIR)
program.

During the very early morning hours of January 25,
1988, after verifying that the appellant had indeed
escaped from the SIR program and that a warrant was
still outstanding, the Birmingham police went to the
apartment in the Smithfield housing project where the
appellant was reportedly staying. The officers talked
with the lessee of the apartment, Margie Bush. They
inquired as to the whereabouts of the appellant and his
girlfriend, Debra “Bootsie” Bush. Margie Bush turned
toward a curtain which separated the front of the
apartment from the back bedroom and shouted for
Bootsie, who then appeared from behind the curtain.
Bootsie stated that she did not know where the appellant
was at that time. However, one of the officers happened
to look behind the curtain and saw the appellant lying in
the bed. After a struggle, the appellant was taken into
custody.

The supervising officer then informed Margie Bush that
the appellant was thought to have a gun and requested

3
 permission to search the apartment for it. Margie Bush
gave her permission. During the search, Bootsie stated
that the appellant had hidden the gun in the bedroom.
The murder weapon was found inside a black purse
located on top of a dresser in the room in which the
appellant was apprehended.

The appellant was indicted on April 29, 1988, for the
murder of John Robert Kirk during a robbery. After his
indictment, the appellant was sent at his own request to
the Taylor Hardin Secure Medical Facility for an
evaluation of his mental competency to stand trial.
Evidence was presented at trial that while at Taylor
Hardin, the appellant made the statement ‘I have killed
one white m___ f____; I’ll kill another one.’ However,
there was some conflict regarding the person to whom
the statement was directed. The appellant was found to
be competent to stand trial and was discharged from the
facility on December 23, 1988.

Williams v. State, 601 So. 2d 1062, 1065-66 (Ala. Crim. App. 1991).

B. Procedural History

A Tuscaloosa County, Alabama, grand jury indicted Williams for capital

murder on April 29, 1988. The Honorable Joseph Colquitt appointed Al Vreeland

and Bobby Cockrell Jr. to represent Williams; however, these attorneys withdrew

in March 1989, and the trial court appointed John Bivens (“Bivens”) to represent

Williams. Bivens retained Dr. William A. Formby (“Dr. Formby”) as his guilt

phase investigator and hired Dr. Ray Sumrall (“Dr. Sumrall”), a licensed social

worker and partner at Veritas, Inc., a firm that provides investigatory and analytical

4
services to lawyers who represent defendants in capital cases, to conduct his

mitigation investigation.

Williams’s trial commenced on November 27, 1989, and three days later, the

jury returned a guilty verdict on the charge of capital murder. After the sentencing

phase of Williams’s trial, the jury recommended, by a 10-2 vote, that the trial court

impose the death penalty. After weighing the aggravating 1 and mitigating

circumstances,2 the trial court followed the jury’s recommendation and sentenced

Williams to death.

The Alabama Court of Criminal Appeals affirmed Williams’s conviction and

death sentence on direct appeal. See Williams, 601 So. 2d at 1087. The Supreme

Court of Alabama denied Williams’s petition for a writ of certiorari. See Ex parte

Williams, 662 So. 2d 929 (Ala. 1992). The United States Supreme Court denied

Williams’s petition for a writ of certiorari on November 2, 1992. See Williams v.

Alabama, 506 U.S. 957, 113 S. Ct. 417 (1992). Williams then filed a Rule 32 post-

conviction petition with the Tuscaloosa circuit court, raising numerous claims for

1
The trial court found in aggravation that the offense was committed while Williams was
under sentence of imprisonment for a previous offense, § 13A-5-49(1), Code of Alabama 1975,
and that it was committed during the course of a robbery, § 13A-5-49(4), Code of Alabama
1975. [R. Vol. 7 p. 1430.]
2
The trial court found, as nonstatutory mitigating circumstances, that Williams had an
antisocial personality, that he did not have a significant prior history of assaultive or violent
conduct, that he had not had a stable family environment during his formative years, and that he
had extensively abused alcohol and drugs since he was about 16 years old. [R. Vol. 7 p. 1433.]

5
relief. See Ala. R. Crim. P. 32. Following an evidentiary hearing on the Rule 32

petition, then Tuscaloosa Circuit Judge Robert Harwood Jr.3 denied Williams’s

petition for post-conviction relief. The Alabama Court of Criminal Appeals

affirmed the trial court’s order denying Williams’s Rule 32 petition. See Williams

v. State, 783 So. 2d 108 (Ala. Crim. App. 2000). The Alabama Supreme Court

denied Williams’s petition for a writ of certiorari.

Williams filed the present federal habeas petition on March 29, 2001, and

amended his petition on June 7, 2001. The district court denied Williams’s request

for an evidentiary hearing and denied Williams’s petition for habeas relief.

Williams filed an application for a certificate of appealability (“COA”) which this

court initially denied. Upon reconsideration, this court granted a COA on three

grounds of ineffective assistance of counsel.

II. ISSUES

1. Whether Williams received ineffective assistance of counsel because

counsel allegedly failed to review the Taylor Hardin file before trial.

2. Whether Williams received ineffective assistance of counsel at the

penalty phase because his counsel allegedly failed to investigate adequately

Williams’s background for potential mitigation evidence.

3
Today, Judge Harwood is an associate justice on the Alabama Supreme Court.

6
 3. Whether Williams received ineffective assistance of counsel at the guilt

phase because his counsel allegedly failed to investigate adequately and present

substantial evidence to support Williams’s reasonable doubt defense.

III. STANDARDS OF REVIEW

We review for clear error the district court’s findings of fact and review de

novo both questions of law and mixed questions of law and fact. Nyland v. Moore,

216 F.3d 1264, 1266 (11th Cir. 2000). An ineffective assistance of counsel claim

is a mixed question of law and fact that the court reviews de novo. See Rolling v.

Crosby, 438 F.3d 1296, 1299 (11th Cir. 2006), cert. denied, ___ S. Ct. ___ (Jun.

26, 2006). Since Williams’s petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act (“ AEDPA”), we, in essence,

review the decisions of the state courts. Pursuant to AEDPA

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d). Furthermore, a state court’s factual findings are presumed

correct, unless rebutted by the petitioner with clear and convincing evidence. Id. at

§ 2254(e)(1).

Under the contrary to clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Court has on a set of materially indistinguishable
facts. Under the unreasonable application clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Under either standard the appropriate measuring stick is clearly
established federal law, which means the holdings, as opposed to the
dicta, of the Supreme Court’s decisions as of the time of the relevant
state court decision.

Schwab v. Crosby, No. 05-14253, ___ F.3d ___, 2006 WL 1642757, at *14 (No.

05-14253) (11th Cir. June 15, 2006) (internal quotations, citations, and brackets

omitted).

IV. DISCUSSION

“It is well established that the Supreme Court’s decision in Strickland [v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] is the

‘controlling legal authority’ to be applied to ineffective assistance of counsel

claims.” Marquard v. Sec’y for Dep’t of Corrs., 429 F.3d 1278, 1304 (11th Cir.

2005), cert. denied, 126 S. Ct. 2356 (2006). Under this standard, in order to show

8
deficient performance, the petitioner must show that, in light of all the

circumstances, counsel’s performance was outside the wide range of professional

competence. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The court’s

review of counsel’s performance should focus on “not what is possible or what is

prudent or appropriate, but only [on] what is constitutionally compelled.”

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)

(internal quotations omitted). The court’s review of counsel’s performance must

be highly deferential, and the court must avoid second-guessing counsel’s

performance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Further, the courts

must make an objective inquiry into the reasonableness of counsel’s performance.

Chandler, 218 F.3d at 1315. There are no absolute rules dictating what is

reasonable performance because absolute rules would restrict the wide latitude

counsel have in making tactical decisions. Id. at 1317.

A. Review of the Taylor Hardin 4 file

Williams asserts two claims of ineffective assistance regarding his counsel’s

alleged review of his Taylor Hardin file. First, Williams claims that at the guilt

phase, Bivens failed to read or review the file, and that this prejudiced Williams

4
Taylor Hardin Secure Medical Facility is a psychiatric facility located in Tuscaloosa,
Alabama, that primarily evaluates individuals in a trial status and provides treatment for the
mentally ill defendant.

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because Bivens (1) did not raise all the appropriate objections to Williams’s

inculpatory statement to Danny Hubbard, (2) did not introduce extenuating

evidence to place Williams’s words in context, and (3) failed to locate and

introduce substantive evidence of chronic alcohol and drug use noted in the file

that would have supported the defense theory that Williams was incapacitated at

the time of the crime. Second, Williams raises a penalty phase ineffectiveness

claim, arguing that Biven’s failure to read and review the file prejudiced him

because the file contained information that would have been useful during his

presentation of mitigation evidence.

We turn first to the claim of ineffectiveness at the penalty phase. In state

court, Williams did not raise a penalty phase ineffectiveness claim regarding

counsel’s failure to read and review the Taylor Hardin report. Rather, Williams’s

claim of ineffectiveness at sentencing related to counsel’s failure to investigate and

present sufficient mitigation evidence, albeit information Bivens allegedly could

have gleaned from his reading of the Taylor Hardin report. However, the specific

issue raised here was never fairly presented to the state courts. As such, the claim

is precluded from federal review. See Henry v. Dep’t of Corrs., 197 F.3d 1361,

1366 (11th Cir. 1999) (“a petitioner’s constitutional claims [must] be ‘fairly

presented’ to the state courts such that they have ‘an opportunity to apply

10
controlling legal principles to the facts bearing upon them’”) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 513, 30 L. Ed. 2d 438 (1971)).

In state court, Williams did raise at the guilt phase his claim of ineffective

assistance of counsel for failure to read the report. The Alabama Court of Criminal

Appeals found as follows with regard to this claim:

Fifth, the appellant contends that his attorneys rendered
ineffective assistance because they allegedly did not examine the
records furnished by the State and therefore did not discover that he
had made a statement to an employee at Taylor Hardin to the effect
that he had killed one white man and would kill another. He also
argues that counsel should have objected to the admission of the
statement on the ground that it was not relevant. In addressing these
contentions, the circuit court made the following findings.

The thrust of Williams’ treatment of this contention in his
post-hearing brief is that [trial counsel] erred by not
interposing a relevancy objection to this testimony of Mr.
Gaskin . . . .

Indisputably, [trial counsel] was surprised by Mr.
Gaskin’s testimony concerning the statement made in his
presence by Williams, because neither Dr. Sumrall nor
Dr. Formby had noted it or called it to his attention. Dr.
Formby testified that he had gone through the records in
question but ‘just simply didn’t pick up on it.’ (EH 414).

The Court of Criminal Appeals analyzed the content and
context of the statement attributed to Williams by Gaskin
in its opinion, although it did so in connection with
responding to Williams’ contention that the statement
should have been excluded because he had not been read
his Miranda rights prior to making the statement.

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 Nonetheless, at the end of the entire opinion, after having addressed
all issues which had been specifically raised, the court declared, ‘. . .
We have searched the entire record for any error which may have
adversely affected the appellant’s substantial rights and have found
none.’ 601 So. 2d at 1087. As previously noted, ‘[a] finding of no
plain error is one factor to consider when assessing the performance
of trial counsel.’ Hallford v. State, 629 So. 2d 6, 10 (Ala. Crim. App.
1992).

...

. . . Likewise, this court finds in this case that any
deficiency in the records review, or investigation
otherwise, by Dr. Formby, Dr. Sumrall, and/or [trial
counsel] did not result in the requisite degree of
prejudice. Unless a defendant satisfies both the deficient
performance prong and the prejudice prong of Strickland,
‘it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.’ Strickland, 466 U.S. at
687[, 104 S. Ct. 2052] . . . . [T]he court finds that there is
no reasonable probability that a relevancy objection
would have been sustained, nor that overruling it would
have constituted reversible error. The testimony of Mr.
Gaskin followed immediately after the testimony of
Priscilla Jones. She had testified that when she
encountered Williams at her apartment project the
morning of Saturday, January 23, 1988, he had made the
statement to her in the course of their conversation that
he had killed a white man. (R. 479-80). When
questioned further as to whether Mr. Williams had told
her: ‘I just killed a white man,’ she confirmed that as his
statement to her. (R. 502). On the heels of that
testimony, Mr. Gaskin testified that Williams had stated
in the course of an argument with another patient at
Taylor Hardin Secure Medical Facility, in Mr. Gaskin’s
presence and hearing, on December 12, 1988, ‘I have
killed one white m___ f____; I’ll kill another one.’ (R.

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 515-17, 537-38). The patient with whom Williams was
arguing was white and Mr. Gaskin is black. (R. 549).
Mr. Gaskin recorded that statement in the ‘SOAP notes’
portion of Mr. Williams’ record at Taylor Hardin (R.
539-43; State’s Exhibit 3 at the evidentiary hearing).
Williams had been arrested during the early morning
hours of January 25, 1988, and had been incarcerated at
various locations at all times between then and the date of
the statement overheard by Mr. Gaskin. Presumably
there would have been no opportunity to kill undetected a
white person, or any other person, during that time frame.
Accordingly, the statement made by Williams in the
hearing of Gaskin would have related to an event
preceding January 25, 1988. Consequently, it is not
‘remote’ to the January 23, 1988, incident, and
statements that date to Priscilla Jones. The court finds
the testimony was relevant. ‘The rule is stated to be that
the acts, declarations and demeanor of an accused before
or after the offense whether a part of the res gestae or not
are admissible against him, but unless a part of the res
gestae are not admissible for him.’ . . .

Accordingly, the court concludes that the statement was
not objectionable on grounds of relevancy, and also
concludes that the Court of Criminal Appeals would have
noted it to have been thus objectionable, under the
‘search the record for error’ rule of review attending
capital murder appeals, were that not so.

783 So. 2d at 127-29. The Alabama Court of Criminal Appeals agreed with the

circuit court’s findings and adopted them as part of the appellate decision. Id. at

129.

Assuming arguendo that Williams’s counsel was deficient for failing to

thoroughly review the Taylor Hardin file in order to prepare for a response to Mr.

13
Gaskins’s testimony, Williams cannot satisfy the prejudice prong of Strickland.

The state trial court found that Williams could not prove prejudice because “there

is no reasonable probability that a relevancy objection would have been sustained,

nor that overruling it would have constituted reversible error.” Williams, 783 So.

2d at 128-29. Under AEDPA, these findings are entitled to a presumption of

correctness. See 28 U.S.C. § 2254(e)(1). Williams cannot demonstrate that the

state courts’ decisions were either contrary to, or involved an unreasonable

application of, federal law. Therefore, Williams is entitled to no relief on this

claim.5

B. Failure to investigate and present sufficient mitigation evidence

Williams contends that the Supreme Court’s decision in Wiggins v. Smith,

539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), requires that this court

grant him habeas relief because his defense team insufficiently investigated

potential mitigation evidence to present at sentencing. Both the state trial court and

the state appellate court rejected this claim on both prongs of Strickland. The state

courts found as follows:

5
Furthermore, Williams is not entitled to relief on his other prejudice arguments that were
not raised and addressed in the state courts: (1) that Bivens was ineffective because he did not
place Williams’s statement “in context” at trial; and (2) that Bivens was ineffective for failing to
use evidence of Williams’s chronic alcohol and drug abuse to prove that Williams was
incapacitated at the time of the murder. See Henry, 197 F.3d at 1366.

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 First, the appellant contends that his attorneys rendered
ineffective assistance because they allegedly did not investigate and
present sufficient mitigating evidence during the penalty phase of his
trial. Specifically, he contends that counsel should have called
witnesses who could have testified about his background and
upbringing, including the ‘personal hardships and severe deprivations’
he suffered.

...

The record from the appellant’s direct appeal shows that Dr.
Raymond O. Sumrall testified before the jury during the penalty-phase
proceedings. Dr. Sumrall, who was a professor at the School of Social
Work at the University of Alabama and an associate professor with
the University’s Department of Criminal Justice, testified that he spent
ten hours interviewing the appellant and that he had reviewed the
appellant’s background. He testified that the appellant’s mother
deserted him when he was very young; that he lived with his maternal
grandmother; that, at age seven, when his maternal grandmother died,
he moved in with his aunt; that he did not have a stable home
environment; that he had not had any relationships with significant
adult and stable women in his life; that he did not have a relationship
with his father because his father left when the appellant was two
years old; that, from the ages of nine to twelve, ‘he was pretty much a
street kid who came and went without very much supervision from
anybody’ (Trial R. 1026); that he could not discipline himself; and
that he had been extensively involved in the use of drugs and other
substances since he was sixteen. Dr. Sumrall also testified that he had
not observed any pattern of behavior in the appellant that was
assaultive or violent and that committing murder was not consistent
with the appellant’s prior behavior, which involved only property
offenses.

There was also testimony that the appellant had been evaluated at the
Taylor Hardin Secure Medical Facility (“Taylor Hardin”) by several
doctors. Using that evaluation, Dr. Bernard E. Bryant, a psychiatrist,
testified that the appellant had an antisocial personality and that he
showed remorse about the offense.

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Finally, the trial court held a separate bench sentencing hearing after
the jury had returned its recommendation and after the presentence
investigation had been completed. At this hearing, Reverend Charles
Hunter testified that he had known the appellant since the appellant
was a child and that he was not a violent person. The appellant also
testified at the hearing that he was the type of person who liked to
help people and ‘look out’ for people. He further testified that he did
not have a history of violence and that he had never previously been
convicted of a violent crime.

When addressing this claim, the circuit court made the following
findings:

In his Post-Hearing Brief, Williams contends that
testimony could have been adduced by defense counsel
through Herbert Echols, Debra Grenshaw (spelled
‘Grinshaw’ in the transcript of the evidentiary hearing),
Jesse Hill [the appellant’s stepfather] and/or Laura
Williams to paint a picture of Luther Williams’ deprived
and impoverished childhood. There is some question as
to Mr. Echols’ accessibility and availability during the
period of [trial counsel’s] representation of Williams,
inasmuch as Mr. Echols testified at the evidentiary
hearing that he was living in Detroit from 1988 to 1990,
and even his brother did not really know how to find him,
because at one point in time he was homeless. (EH 145).
Nonetheless, the testimony elicited from him and from
the other aforementioned witnesses at the evidentiary
hearing related to information essentially cumulative to
that provided the jury by Dr. Sumrall. Williams argues
in his Post-Hearing Brief that those witnesses could have
acquainted the jury with the fact that his mother had
deserted him and his siblings when he was still very
young; that his father likewise had abandoned him; that
he thereafter was raised by Laura Wilkins; and that he
was often locked out of her house and forced to fend for
himself. In his testimony at the evidentiary hearing,
Luther Williams explained that when Ms. Wilkins would

16
lock him out, for two to three days at a time, he would
live ‘over [at] other friends’ houses.’ (EH 189-90). The
contention is made in the Post-Hearing Brief that
testimony could have been presented through Mr. Echols
that Luther, along with Mr. Echols, was regularly
whipped by Mr. Hill with switches, belts, and extension
cords. Williams himself testified at the evidentiary
hearing that he had a good relationship with Mr. Hill
when he didn’t whip him, and Luther still loved him.
(EH 190). Dr. Sumrall put before the jury that Luther
Williams’ ‘mother deserted him at a very young age’ and
that he lived with a maternal grandmother for a while but
that she died when he was seven, leaving Luther with an
aunt who apparently adopted him when he was about
nine; that ‘from his birth to age nine he had no stable
environment’; that he had ‘no relationship with
significant adult and stable women in his life’; that he
had no relationship with a significant father figure in his
life[]; that his father had left him when he was only two
years old; and that from about nine to twelve years of age
‘he was pretty much a street kid who came and went
without very much supervision from anybody.’ (R. 1025-
26). When Williams’ present counsel called Jesse Hill to
the stand at the evidentiary hearing, he was not asked any
questions concerning any alleged mistreatment of Luther
by him. Further, Mr. Hill was asked virtually no
questions at that hearing concerning Luther Williams’
impoverished or deprived background, other than
concerning the undisputed fact that Luther’s mother and
father were not involved in his life after his early years.
(EH 163). With respect to the argument made in the
post-hearing brief that use of a psychologist, such as Dr.
Barbara Tarkin, could have paved the way for
presentation of significant non-statutory mitigation
evidence, the testimony she presented was not in
disagreement with that of Dr. Sumrall or the State’s
penalty-phase expert, Dr. Bernard E. Bryant. The
contention is made in the post-hearing brief that ‘Dr.

17
 Tarkin, or another qualified psychologist, could have
offered an opinion, consistent with that of Taylor
Hardin’s psychiatrist, that Mr. Williams’ condition was a
condition that developed in all probability by virtue of
his very early childhood deprivation.’ (PHB, p. 17). Dr.
Bryant, who testified that he was employed at Taylor
Hardin from April 1 of 1986 through August 31 of 1989,
opined that Williams had an antisocial personality (R.
108). He explained that it is a ‘characterological or
personality’ disorder developed during a person’s
formative years, of ages ‘2, 3, 6, 7, 8 years old,’ whereby
‘the person has ended up with this personality.’ (R.
1082). Dr. Bryant acknowledged during cross-
examination by [trial counsel] that an unstable family
could, if there were not a proper male or female role
model, contribute to a person having antisocial
characteristics. (R. 1097). He further acknowledged that
‘substance abuse does exacerbate[.]’ (R. 1098).

The court does not find that the failure to utilize the
witnesses now suggested by Williams constituted
ineffective assistance of counsel. . . . The pertinent
information was presented to the jury through Dr.
Sumrall, without the risk being run of possibly harmful
information being elicited from those witnesses on cross-
examination. Furthermore, even if [trial counsel’s]
preparation and presentation were deficient in this regard,
Williams has failed to show the requisite second prong of
prejudice. He has not met the Strickland test of showing
a reasonable probability that, absent the error in question,
the sentencer would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death; he has not shown a probability sufficient to
undermine confidence in the outcome.

We agree with the circuit court’s findings and adopt them as
part of this opinion. In addition, we note that the trial court found, as
nonstatutory mitigating circumstances, that the appellant had an

18
 antisocial personality, that he did not have a significant prior history
of assaultive or violent conduct, that he had not had a stable family
environment during his formative years, and that he had extensively
abused alcohol and drugs since he was about 16 years old. (Trial R.
1433)[.] For the above-stated reasons, the appellant has not shown
that counsel rendered ineffective assistance in the preparation and
presentation of mitigating evidence. See Strickland, supra.

Williams v. State, 783 So. 2d at 115-121.

Our review of this claim is limited to whether the state courts unreasonably

applied Strickland to the facts of this case. Although Williams urges us to apply

Wiggins to his case, the controlling Supreme Court precedent with regard to claims

of ineffective assistance of counsel is Strickland. See Marquard, 429 F.3d at 1304

(noting that Strickland is “the ‘controlling legal authority’ to be applied to

ineffective assistance of counsel claims”). As the district court found, the state

courts did not unreasonably apply the Strickland standard to Williams’s claim of

ineffective assistance for failing to investigate and present sufficient mitigation

evidence at the sentencing phase.

Bivens hired Dr. Raymond O. Sumrall (“Dr. Sumrall”) to investigate and

conduct his mitigation defense. Dr. Sumrall presented evidence to the jury that

assisted Bivens in his mitigation strategy. Dr. Sumrall testified that Williams

came from a disadvantaged background that led to his alcohol and drug abuse and

property crimes, which were not violent in nature. This testimony allowed Bivens

19
to argue to the jury that Williams was not a violent person, and a sentence of life in

prison would be more appropriate for him. Also, Dr. Sumrall stated that he spent

ten hours with Williams, recounting his family history, educational history, and

criminal history. Dr. Sumrall also reviewed Williams’s mental health, police,

probation, and parole records. Dr. Sumrall’s testimony led the trial court to find as

mitigation that Williams had a poor family history, a history of non-violent crimes,

an extensive history of drug and alcohol abuse, and an anti-social personality

disorder.

Assuming this investigation was deficient, Williams cannot show how the

alleged deficient investigation prejudiced him at sentencing. At the Rule 32

hearing, Williams’s expert psychologist, Dr. Barbara Tarkin (“Dr. Tarkin”),

testified that she spent approximately nine hours meeting with Williams. She

stated that she read virtually the same files as Dr. Sumrall; she talked to only one

family member over the phone; and she was not “intimately familiar” with the

facts of the case. [R. Vol. VI, Rule 32 hearing p. 284-91, 299, 315-17.] In her

expert opinion, Dr. Tarkin found that Williams suffered from an anti-social

disorder and Bivens should have argued in mitigation that Williams was suffering

from a mental disturbance; that Williams was too passive to be anything but an

accomplice; and that Williams was shaped by the poor environment in which he

20
was raised. Dr. Tarkin’s conclusions are essentially the same as Dr. Sumrall’s

conclusions, to which he testified at sentencing.

In addition to Dr. Tarkin, Williams presented several other witnesses at the

Rule 32 evidentiary hearing to testify to mitigation evidence not previously

presented at trial. Herbert Echols (“Echols”) testified that Williams’s mother was

an alcoholic, and that Williams did not know his biological father. He also stated

that Williams’s step-father, Jesse Hill, whipped Williams if he did something

wrong, but that these whippings never required medical attention. [R. Vol. V, Rule

32 hearing p. 140-151.] Deborah Greenshaw (“Greenshaw”) testified that she had

known Williams since he was 16 years old. Greenshaw stated that Williams’s aunt

would often lock him out of her house for several days when Williams did not do

what she asked. [Id. at 155, 160.] Jesse Hill (“Hill”) testified that Williams’s

mother moved to New York when Williams was about ten years old, and that he

only met Williams’s father once or twice. No attorney asked Hill about his alleged

whippings of Williams. [Id. at 161-68.] Laura Williams (“Laura”), Williams’s

sister, testified that their mother left them at an early age, and they lived with their

aunt, Laura Wilkins (“Ms. Wilkins”). Laura stated that Ms. Wilkins was “always

good.” [Id. at 169-70.]

21
 Under the prejudice prong of Strickland, “the question is whether there is a

reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69. Under this

standard, it is apparent that “[a] petitioner cannot establish ineffective assistance by

identifying additional evidence that could have been presented when that evidence

is merely cumulative.” Van Poyck v. Fla. Dep’t of Corrs., 290 F.3d 1318, 1324 n.7

(11th Cir. 2002). This is exactly what happened at Williams’s Rule 32 hearing.

He presented evidence that was cumulative. The witnesses may have elaborated on

prior mitigation evidence, but no witness testified to any new mitigating factors.

Each witness presented cumulative evidence that merely re-established the

mitigating circumstances previously argued by Bivens at trial and considered by

the trial court at sentencing: (1) an anti-social personality disorder, (2) a non-

violent criminal history, (3) an unstable family life, and (4) an extensive alcohol

and drug abuse problem. There can be no reasonable probability that this

cumulative testimony of mitigating factors already presented to and considered by

the trial court to be “weak and unpersuasive” would have tipped the sentencing

scales, especially when the trial court noted that the statutory aggravators far

outweighed the mitigating factors. [R. Vol. 7 p. 1427.] Thus, Williams cannot

22
demonstrate that the state courts’ determination that he failed to prove prejudice

under Strickland was objectively unreasonable. Accordingly, Williams is not

entitled to relief on this claim of ineffective assistance of counsel at sentencing.

C. Failure to investigate adequately the guilt phase defenses

Williams argues that his counsel rendered ineffective assistance because he

did not reasonably investigate Williams’s guilt phase defenses that he was

incapacitated at the time of the murder, and that there was “reasonable doubt” that

Williams committed the murder because there were two other individuals involved.

Both the state trial court and appellate court rejected Williams’s claim under

Strickland. See Williams, 783 So. 2d at 123-26. Specifically, both courts found

that Dr. Formby was a well qualified investigator who reasonably investigated

Williams’s guilt phase case, and that Williams presented no evidence at the Rule

32 hearing that would have affected the outcome of the trial. Id.

The Alabama Court of Criminal Appeals stated the following:

First, the appellant contends that his attorneys rendered ineffective
assistance because they allegedly did not properly investigate the case
and interview potential witnesses. The circuit court made the
following findings concerning this contention:

[Trial counsel] principally relied on Dr. Formby, who
had been engaged by his predecessor counsel, to conduct
the case investigation and witness interviews. Dr.
Formby was well qualified for that role by virtue of many
background attributes, as detailed by his testimony at the

23
evidentiary hearing and his ‘vitae’ introduced as State’s
Exhibit 6 to the same. During the time of his
engagement on the case, he was also a co-principal with
Dr. Sumrall in the forensic services firm of Veritas, Inc. .
. . Dr. Formby testified that he ‘probably put in easily
200 hours’ on the investigation, having commenced it in
the service of [Williams’s] predecessor attorneys and
therefore having been on the case ‘essentially longer than
anybody else.’ (EH 398). Dr. Formby ‘spent a good bit
of time talking with Luther [Williams]’ and spent a good
bit of time talking to potential witnesses in the Smithfield
Apartments area of Birmingham. (EH 378). He visited
with some of Williams’ family members in the Titusville
projects and Debra Bush in the Avondale projects. (EH
378). He went to see Margie Bush, the grandmother of
Debra Bush and she admitted him to her apartment where
Luther had been apprehended, showing him the bedroom.
Dr. Formby spent many hours ‘just walking around that
area talking to people.’ (EH 380). For various reasons
adequately explained in his testimony, he did not keep
detailed records of everyone he interviewed or of all the
time he devoted to the case. He interviewed Priscilla
Jones and DeWayne Pierce. (EH 382-83). A lot of his
investigation and interviewing was devoted to trying to
develop connections between Williams’ co-defendants
and the property stolen from Mr. Kirk, and other
evidence against the co-defendants. (EH 381, 384). He
went to the Titusville projects and spent approximately
two hours interviewing Williams’ grandmother and one
of his sisters. (EH 384) . . . . As the District Attorney’s
office provided the defense with more and more
discovery materials, Dr. Formby ‘would go back to
Luther and talk to him again to see if he could push me or
give me leads in other directions.’ He talked to Williams
a lot. (EH 388). Dr. Formby went to the crime scene on
a couple of occasions. (EH 388-89). He attempted to
follow the route that Williams and his two co-defendants
had traversed at different points during the incidents in

24
 question. (EH 389). He and [trial counsel] routinely
‘would have meetings probably twice a week up until the
last few weeks before trial, and then we met virtually
every day.’ (EH 389-90). Dr. Formby would brief [trial
counsel] on all that he had developed, and [trial counsel]
would provide guidance in terms of things that he felt
were important that Dr. Formby needed to follow up on.
(EH 390). . . . For his part, [trial counsel] personally tried
to locate witnesses who could corroborate Mr. Williams’
claim that he was incapacitated by intoxication on the
night of the murder[.] (EH 79-80).

The appellant also contends that his attorneys rendered ineffective
assistance because they did not interview and present witnesses who
he alleges could have rebutted most of the circumstantial evidence
presented in the case. Specifically, he asserts that there were
witnesses who could have placed his codefendant in the victim’s truck
on the day of the murder and who could have impeached Priscilla
Jones, the appellant’s sister, who testified that the appellant told her
that he had killed a white man. In regard to this issue, the circuit court
made the following findings:

Williams argues in his Post-Hearing Brief that [t]o
counter the damaging evidence that Mr. Williams was
seen driving Mr. Kirk’s truck, trial counsel could have
offered testimony through Laura Williams or Sandra
King that Albert Carmichael had been seen driving the
red truck, that he smelled of gasoline and that Mr.
Carmichael had white man’s cigarettes on him Saturday
evening, just hours after Mr. Kirk was murdered. (PHB,
p. 12). Ms. Williams and Ms. King testified at the
evidentiary hearing that they were at Ms. King’s
apartment house on a Saturday night when they observed
Albert Carmichael in a red truck parked in the parking lot
by Priscilla Jones’ house. As far as the date on which
that occurred, Ms. Williams was only asked if she
remembered being at Ms. Kings’ ‘a few days before the
time that Luther was arrested for the murder,’ and she

25
identified it as a Saturday night, and Ms. King was asked
if she could remember being at home with Laura visiting
her ‘January 23, I believe a Saturday night, Saturday
afternoon or Saturday night. I may be wrong on the day,
but I think that is the date, January 23. Do you remember
being home on that date?’, to which she answered in the
affirmative. (EH 181). Both testified that Carmichael
came into King’s apartment and they were then able to
notice the smell of gasoline on him. Ms. Williams
testified that he ‘had some cigarettes that he didn’t
smoke,’ which were ‘a white man’s kind of cigarettes.’
Asked what brand they were, she testified that they were
‘Merit or something like that. I can’t really remember
what kind they were,’ whereas Carmichael usually
smoked Kools. Ms. King testified that Carmichael
usually smoked ‘Kools or either Newport 100s’ and that
the cigarettes he had with him on the occasion in
question were not ‘the same kind’ but she could not state
what brand they were. (EH 175-76, 183-84).

....

Considering all of the interviewing of Williams and his
family members conducted by Dr. Formby, and
considering all of the evidence showing the involvement
of Albert Carmichael and Trosky Gregory in various
critical events of the weekend in question, the court does
not find that Williams has carried his burden of proving
that a failure to use Laura Williams or Sandra King as
defense witnesses constituted ineffective assistance of
counsel; or that the omission of their testimony
prejudiced the defense in the way required by the
Strickland test. Under Strickland, it is not enough to
show that trial errors ‘had some conceivable effect on the
outcome of the proceeding,’ rather 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.’ (Strickland, 466

26
U.S. at 693-94 . . . . (Emphasis added). That Albert
Carmichael was observed in the red camper truck at the
apartment complex during the night of Saturday, January
23rd, after Luther Williams had been observed to have
been involved with it at earlier points in time that day,
would not have altered the impact or implication of any
of the State’s critical evidence. There is no indication
that either Laura Williams or Sandra King ever told
anyone before Williams’ trial that they had seen Albert
Carmichael in the red truck. . . .

Williams asserts in his post-hearing brief that defense
counsel should have countered the damaging testimony
of Priscilla Jones by eliciting testimony from her father,
Jesse Hill, that she was ‘a big liar.’ Under Rule 608(a) of
the Alabama Rules of Evidence . . ., a witness may
impeach the credibility of a witness who has testified by
offering the second witness’s opinion regarding the first
witness’s untruthfulness. The Alabama Rules of
Evidence did not become effective until January 1, 1996,
however, and the law of evidence existing at the time of
Williams’ trial restricted the testimony of an impeaching
witness to the limited fact of the other witness’ general
reputation in the community for untruthfulness. Before a
witness can testify concerning the reputation in the
community for the truthfulness or untruthfulness of
another witness, a predicate must be laid establishing that
the impeaching witness actually has knowledge of the
other witness’s reputation for truthfulness or
untruthfulness in the first witness’s community. That
was the evidentiary point addressed by the court in its
comments to counsel during Mr. Hill’s testimony. (EH
164-66). Although the question put to Mr. Hill was
rephrased so as to properly inquire as to ‘reputation,’ Mr.
Hill persisted in expressing the matter in terms of his
own personal knowledge of her lack of veracity. His
testimony as ultimately offered related to his own
personal assessment or opinion of her history of

27
untruthfulness, rather than relating it to her reputation in
the community. He expressed his opinion that Priscilla
‘had come down here and told the people out here a
bunch of – to me, it is a bunch of fairy tales.’ (EH 166).
Mr. Hill conceded, however, that he [had] no knowledge
about the evidence in the case and that it was his
testimony that Priscilla was telling the people in
Tuscaloosa ‘fairy tales’ because ‘that is my daughter, and
I know what she is capable of doing. My daughter would
do anything, say anything to anybody.’ (EH 167). When
asked how, if he did not know anything about the facts of
the case, he could attack the credibility of her testimony,
he answered that Priscilla was ‘a big liar,’ and that she
‘never tells the truth about a lot of things.’ (EH 168).
Accordingly, as the record stands, there is no affirmative
showing that Mr. Hill could have offered testimony that
would meet the foundational requirement of showing that
it related to Priscilla Jones’ reputation for
truthfulness/untruthfulness in her community in 1989. . . .
[Trial counsel] impeached Priscilla Jones with respect to
the inconsistencies between her trial testimony and her
preliminary hearing testimony, and her testimony on
several important points was corroborated by that of
Teresa Ann Evans. One of the critical features of
Priscilla Jones’ testimony was that Luther Williams told
her, on the occasion that he came to her apartment
building the morning of Saturday, January 23rd, in the
‘red and white camper truck,’ that he had killed a white
man (R.479), that ‘I just killed a white man.’ (R.502).
She did not believe him at the time. (R.480, 502).
Immediately prior to making that statement, he had
hugged her and apologized to her for the altercation
between them the preceding night. (R.476, 502). He had
the odor of gas on him. (R.480). When she returned to
her apartment, he followed her and showed her ‘a pistol
and some bullets,’ with the pistol having ‘a clear handle,’
meaning that it was ‘white.’ (R.480). As the only other
participant to that conversation, Williams was the only

28
 person who could have contradicted Jones’ testimony
about it, but he did not testify and the trial strategy
decision in that regard is not challenged in this
proceeding. The court does not consider the fact that Mr.
Hill might have testified that he had knowledge of his
daughter’s reputation for truthfulness, and that her
reputation was bad in that regard and she had a reputation
for untruthfulness, would have been of such import as to
impeach her as a witness to the extent that the outcome of
the trial would have been different.

We agree with the circuit court’s findings as to these claims and adopt
them as part of this opinion. Because the appellant has not established
that his attorneys rendered ineffective assistance in these instances, he
is not entitled to relief on these claims. See Strickland, supra.

Williams, 783 So. 2d at 123-26.

As the state courts found and the record reflects, Bivens and Formby

reasonably investigated both theories of defense. Bivens testified at the Rule 32

hearing that the incapacitation theory of defense “probably” came from Williams.

[R. Vol. IV, Rule 32 hearing p. 63-64.] Bivens attempted to find information that

could prove or support the incapacitation theory, but was unable to do so. [Id. at

30, 80-81.] Once he could not find anything to support the incapacitation theory,

Bivens was left with a “reasonable doubt defense” – attacking the State’s case that

Williams committed the murder through “innuendos and assumptions.” [Id. at 62-

63.]

29
 Dr. Formby testified that his primary goal was to find any evidence that

would develop stronger connections between the other individuals involved in the

murder and the actual murder. Like Bivens, Dr. Formby twice traveled to the

murder scene to see if any argument could be made concerning the trajectory of the

bullet. [R. Vol. VI, Rule 32 hearing p. 25-26, 388.] He also followed the same

route Williams and the other individuals took the day of the murder, and he viewed

the videotaped statements of the other individuals to search for anything

exculpatory to Williams. [Id. at 389, 416-17.] Dr. Formby also visited the

Smithfield project several times to talk with people in the area and to interview

Williams’s family members. [Id. at 382-84.] He also viewed the scene of the

arrest and interviewed the women who were present at the time of Williams’s

arrest. [Id. at 384.] Moreover, when Williams’s initial trial attorneys received a

letter from a former client claiming that one of the other individuals involved

admitted to committing the murder, Dr. Formby investigated that lead and found

the letter to be false. [Id. at 379.] When Wallace Gaskin testified concerning

Williams’s inculpatory statement to Danny Hubbard, Dr. Formby traveled to

Taylor Hardin to search for Danny Hubbard. [Id. at 392.] In addition, Bivens

testified that he reviewed the entire State’s file, viewed the State’s physical

evidence, and reviewed the Taylor Hardin reports to determine whether some type

30
of mental health defense was possible. [R. Vol. IV, Rule 32 hearing p. 14-16, 19,

20, 37-39, 66.]

Based on the record, the state courts correctly found that Bivens and Dr.

Formby performed a reasonable investigation of Williams’s case and possible

defenses. These findings are entitled to a presumption of correctness by our court.

See 28 U.S.C. § 2254(e)(1). Williams presents nothing to rebut these findings.

Therefore, Williams cannot show that the state courts unreasonably applied

Strickland’s performance prong to this issue.

Assuming arguendo that Williams could show that his counsel was deficient

for not thoroughly investigating his potential defenses for trial, he cannot show that

any deficient performance prejudiced his defense. At the Rule 32 hearing,

Williams presented the testimonies of Sandra King (“King”) and Laura Williams,

both of whom testified to seeing another individual involved in the case driving

Mr. Kirk’s red truck on the night of the murder and smoking a “white man’s”

cigarette. [R. Vol. V, Rule 32 hearing p. 168-185.] As the state court noted, this

testimony “would not have altered the impact or implication of any of the State’s

critical evidence.” Williams, 783 So. 2d at 125. Nothing in these testimonies

refutes the fact that Williams was seen driving the truck alone shortly after the

murder and leaving in the truck later that same day. [R. Vol. 3, Trial transcript p.

31
457-61.] Williams also presented the testimony of Jesse Hill who testified that

Priscilla Jones, a trial witness, was a “big liar” and told “fairy tales” during the

trial. [R. Vol. V, Rule 32 hearing, p. 166-68.] However, Hill could not testify that

he had knowledge of Jones’s general reputation for truthfulness in the community,

which was the standard of admissibility in Alabama at the time of Williams’s trial.

See Williams, 783 So. 2d at 125-26. Rather, Hill’s testimony was based on his

personal opinion. Moreover, Hill admitted that he had no knowledge of the

circumstances of the case. [Id. at 167.]

Williams cannot show that “there is a reasonable probability that the

outcome of the proceeding would have been different,” Callahan v. Campbell, 427

F.3d 897, 936 (11th Cir. 2005), pet. for cert. filed, (No. 05-10404) (Apr. 13, 2006),

by adding two witnesses who corroborate the State’s theory and another witness

who has no knowledge of the circumstances of the case and can only present

inadmissible opinion testimony. Thus, Williams cannot demonstrate prejudice

under Strickland. Accordingly, Williams cannot show that the state courts

unreasonably applied Strickland’s prejudice prong in his case, and, therefore, he is

not entitled to habeas relief.

32
 V. CONCLUSION

Because Williams fails to demonstrate that the state courts unreasonably

applied the Strickland standard to his claims of ineffective assistance of counsel,

we affirm the district court’s judgment denying Williams habeas relief.

AFFIRMED.

33
BARKETT, Circuit Judge, concurring:

I concur because the majority opinion correctly resolves the legal issues

before us. Williams argues that his trial counsel was ineffective by failing to read

the Taylor Hardin file, in which he would have discovered the basis for Gaskin’s

unequivocally damaging testimony — viz., that Williams told Gaskin that he killed

a white man — and would have been able to object to the testimony on relevancy

grounds. Given the proceedings in the Alabama state courts, Williams cannot

satisfy the prejudice prong of Strickland on the strength of the relevancy objection

alone, see Ante at 14 n.5, and that is the only issue, with respect to the guilt-phase,

for our review.

I write separately only to note that Williams has not argued in the state

courts that counsel should have been better prepared to mount an adequate defense

notwithstanding the success vel non of the objection to Gaskin’s testimony. For

example, had counsel known of Williams’ inculpatory statement, he most certainly

would have discussed it with Williams and attempted to ascertain the

circumstances under which the statement was made, the purposes for which it was

made, and any other information that might have mitigated the statement. See

-34-
Rompilla v. Beard, 545 U.S. 374 (2005).1 Because our review is limited, however,

to the grounds identified by the majority, I must concur.

1
Contrary to the state’s argument on appeal, Rompilla and Wiggins v. Smith, 539 U.S.
510 (2003), although they post-dated the relevant state-court proceedings, are relevant to our
consideration of Williams’s Strickland claim, for they both clarify Strickland’s applicability.
See, e.g., Wiggins, 539 U.S. at 521 (“While Williams [v. Taylor, 529 U.S. 362 (2000)] had not
yet been decided at the time the Maryland Court of Appeals rendered the decision at issue in this
case, Williams’ case was before us on habeas review. Contrary to the dissent’s contention, we
therefore made no new law in resolving Williams’ ineffectiveness claim. In highlighting
counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as
guides, we applied the same “clearly established” precedent of Strickland we apply today.”). I do
not take our decision in this case as holding to the contrary.

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