[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ FEB 3, 2009
THOMAS K. KAHN
No. 04-15810 CLERK
________________________
D. C. Docket No. 02-00397-CV-WS-C
THOMAS WARREN WHISENHANT,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner, Alabama
Department of Corrections
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 3, 2009)
Before EDMONDSON, Chief Judge, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
This is a death penalty case in which petitioner-appellant, Thomas Warren
Whisenhant, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for
federal habeas relief. Whisenhant raises four claims in this appeal: (1) his counsel
was ineffective at his 1981 guilt phase trial for failing to present his only defense
of insanity; (2) the state failed to disclose exculpatory evidence during the 1981
trial and a 1987 penalty phase trial; (3) the prosecutor’s closing argument at the
1981 trial was fundamentally unfair; and (4) the trial judge’s ex parte dealings
with prosecutors prior to the 1987 penalty phase trial violated Whisenhant’s due
process right to an impartial judge. We conclude that the district court properly
denied habeas relief and AFFIRM.
I. BACKGROUND
On a rainy night in October 1976, Whisenhant abducted 24-year-old Cheryl
Lynn Payton at gunpoint from a convenience store in Theodore, Alabama, where
she was working alone.1 Whisenhant drove her to a remote area, raped her in his
truck, and then took her into the woods where he shot her in the head, killing her.
He later returned twice to the woods and mutilated Payton’s body with his knife.
After police officers apprehended him, Whisenhant confessed to the rape, killing,
1
A detailed statement of facts set forth in Whisenhant v. State, 370 So. 2d 1080, 1081-86
(Ala. Cr. App. 1979), was adopted by the Alabama Supreme Court in Ex Parte Whisenhant, 555
So. 2d 235 (Ala. 1989).
2
and mutilation of Payton. He also confessed to killing within the past year two
other female convenience store clerks and mutilating one of them.2
At the 1977 trial for Cheryl Payton’s murder, Whisenhant presented
numerous witnesses to establish an insanity defense. In particular, a noted
psychiatrist, Dr. Claude L. Brown, testified that Whisenhant had a mental disease
and that he had lost the power to distinguish right from wrong when he had killed
Payton. Whisenhant, 370 So.2d at 1089. The jury rejected the insanity defense,
and Whisenhant was convicted and sentenced to death. The Alabama Court of
Criminal Appeals reversed his conviction, however, based on the prosecutor’s
improper closing argument and a fatal variance between the indictment and
judgment. Whisenhant v. State, 370 So.2d 1080, 1103 (Ala. Cr. App. 1979), cert.
denied, 370 So. 2d. 1106 (Ala. 1979).
A second jury trial was held in 1981. Prior to trial, Whisenhant’s attorneys
filed a motion for $3500 to hire two psychiatrists who had evaluated Whisenhant
before the 1977 trial, and a more general motion for funds for expert witnesses.
The trial court denied the first motion and granted the statutory cap of $500 for the
second motion. Whisenhant’s counsel firmly believed the trial court committed
2
Whisenhant pled guilty in 1981 to the first-degree murders of Venora Hyatt and Patricia
Hitt and received a sentence of life without parole for each offense.
3
reversible error by denying Whisenhant’s motion for funds for the psychiatrists,
and decided not to present any evidence of insanity. Whisenhant was again
convicted and sentenced to death.
On appeal, Whisenhant raised the perceived error of the trial judge’s denial
of his motion for funds, but the Alabama Court of Criminal Appeals found no
constitutional violation. Whisenhant v. State, 482 So. 2d 1225, 1228-30 (Ala. Cr.
App. 1982). Although the Alabama court affirmed his conviction, it reversed his
death sentence based on the prosecutor’s improper opening statement at the
sentencing phase, which mentioned other crimes allegedly committed by
Whisenhant that were not introduced at trial. Id. at 1239-40. After further
appellate review, the Alabama Supreme Court declared the error was not harmless
and remanded the case for a new sentencing trial. Ex Parte Whisenhant, 482 So.
2d 1247, 1249 (Ala. 1984) (per curiam).
In 1987, a third penalty phase proceeding occurred. At this proceeding,
Whisenhant again presented evidence of mental illness but a jury unanimously
voted to sentence Whisenhant to death for the third time. The Court of Criminal
Appeals affirmed the death sentence, as did the Alabama Supreme Court.
Whisenhant v. State, 555 So. 2d 219 (Ala. Cr. App. 1988); Ex Parte Whisenhant v.
State, 555 So. 2d 235 (Ala. 1989). The United States Supreme Court denied
4
Whisenhant’s petition for writ of certiorari. Whisenhant v. Alabama, 496 U.S.
943, 110 S. Ct. 3230 (1990).
Whisenhant then began state habeas corpus proceedings by filing an
Alabama Rule of Criminal Procedure Rule 32 petition. During discovery,
Whisenhant received two FBI reports made after the murder of Venora Hyatt,
which provided speculative profiles about the unidentified killer. Whisenhant also
discovered a statement made to police officers by his co-worker Sandra Heverly
who described Whisenhant as “weird.” R1-14, Exh. Vol. 39 at 362-67. Based on
these documents, Whisenhant amended his complaint in 1995 to include a
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
Shortly before the Rule 32 hearing in October 1996, Whisenhant discovered
a draft order granting Whisenhant’s motion for funds to hire a psychiatrist. Prior
to the 1987 trial, prosecutor Chris Galanos had given this proposed order to the
trial judge, Circuit Judge Ferrill D. McRae, but not to defense counsel. Judge
McRae entered an order the next day similar to the draft order but increased the
amount of funds to $2,200. Based on this discovery, Whisenhant added a claim of
judicial bias to his state habeas petition and moved to recuse Judge McRae from
the Rule 32 proceedings. Judge McRae granted the motion for recusal “out of an
abundance of caution and to avoid all appearance of impropriety.” R1-14, Exh.
5
Vol. 36 at 319. After the Rule 32 hearing, Judge Braxton Kittrell denied the
habeas petition in its entirety. The Alabama Court of Criminal Appeals affirmed
the denial in an unpublished memorandum. The Alabama Supreme Court denied
Whisenhant’s petition for a writ of certiorari.
Having exhausted state court post-conviction remedies, Whisenhant filed a
federal habeas petition pursuant to 28 U.S.C. § 2254. In a detailed 81-page order,
the district court analyzed each of Whisenhant’s fourteen claims before denying
habeas relief. Whisenhant filed a motion for a certificate of appealability (COA),
which the district court denied in part and granted on four grounds: (1) whether
the trial court’s denial of his motion for funds to employ psychiatrists prior to the
1981 guilt phase trial violated Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087
(1985); (2) whether the prosecution’s failure to disclose two FBI profiles and
Sandra Heverly’s statement until after the 1987 penalty phase trial violated Brady;
(3) whether the inclusion of venire members at the 1981 trial who knew that
Whisenhant had been convicted at his 1977 trial violated Irvin v. Dowd, 366 U.S.
717, 81 S. Ct. 1639 (1961); and (4) whether the trial judge’s ex parte dealings with
prosecutors prior to the 1987 penalty phase trial concerning the proposed order for
funds violated In re Murchison, 349 U.S. 133, 75 S. Ct. 623 (1955).
6
Whisenhant then filed in this court an application for a COA on two of his
denied claims: (1) ineffective assistance of counsel at the 1981 guilt phase trial for
failure to present an insanity defense, and (2) prosecutorial misconduct at the 1981
trial based on the prosecutor’s closing argument that no co-worker had testified
Whisenhant was insane. We granted a COA on these two issues.
In his § 2254 appeal brief, Whisenhant states he has dropped the issues of
whether the trial court’s denial of his motion for funds violated Ake, and whether
the jury composition violated Irvin. Because he does not raise these claims in his
brief to us, these claims are abandoned. See Hendrix v. Secretary, Florida Dep’t.
of Corr., 527 F.3d 1149, 1154 (11th Cir. 2008) (per curiam). We turn now to his
remaining four claims for habeas relief.
II. DISCUSSION
A. Claim of Ineffective Assistance of Counsel
Whisenhant contends that he received ineffective assistance of counsel at
his 1981 guilt phase trial because his attorneys failed to present any evidence that
he was insane. He concedes that this decision was strategic - counsel believed the
trial judge’s denial of their motion for funds for psychiatrists was a locked-in error
that would be disturbed if they presented evidence of insanity. Whisenhant argues
that this strategy was unreasonable, however, in light of the voluminous evidence
7
from the 1977 trial and his prior medical records. Morever, Whisenhant asserts
that he was prejudiced by his attorneys’ deficient performance because there was a
reasonable probability of a different result had they presented the 1977 trial
evidence, coupled with the two FBI reports and Sandra Heverly’s statement that
the state should have disclosed.
In order to obtain federal habeas relief under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Whisenhant must show that the state court
decision adjudicating his claims (1) was contrary to, or involved an unreasonable
application of, clearly established Supreme Court precedents, or (2) unreasonably
determined the facts in light of the evidence presented in the state courts. 28
U.S.C. § 2254 (d). The first prong means that a state court identified the correct
governing legal principle but unreasonably applied it to the facts of a petitioner’s
case. Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534-35 (2003). To
satisfy this standard, the state court’s application must have been “‘objectively
unreasonable,’” not just incorrect or erroneous. Id. (quotation omitted).
The state habeas court and the Alabama Court of Criminal Appeals correctly
analyzed Whisenhant’s claim under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984). Strickland requires the petitioner to show both that his counsel’s
performance was deficient, and that the deficiency prejudiced his defense. 466
8
U.S. at 687, 104 S. Ct. at 2064. Both state courts found that trial counsels’
strategy was reasonable, and that the result of the proceeding would not have been
different if evidence of insanity had been presented.
An attorney’s performance is deficient if the acts or omissions of counsel, in
light of all the circumstances and facts of the particular case fall “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.
Ct. at 2066. The Supreme Court cautioned appellate courts not to second-guess
counsel’s assistance, noting how easy it is to view counsel’s performance as
unreasonable after an unsuccessful defense. Id. at 689, 104 S. Ct. at 2065. “Even
the best criminal defense attorneys would not defend a particular client in the same
way.” Id. at 689, 104 S. Ct. at 2065. To counteract the distorting effects of
hindsight, the defendant bears the burden of overcoming a strong presumption that
the challenged action is sound trial strategy. Id. at 689, 104 S. Ct. at 2065.
Whisenhant concedes that his trial attorneys made a strategic decision not to
present any evidence of insanity but argues that this decision was unreasonable.
Whisenhant argues that because trial counsel could have presented evidence of
insanity, he should have. He asserts that trial counsel could have subpoenaed Dr.
Brown, could have called a former police officer to testify about Whisenhant’s
behavior as a youth, could have read into evidence testimony and medical reports
9
introduced at the 1977 trial, could have used the $500 granted by the trial court to
hire experts instead of obtaining a serologist’s report, and could have presented
Whisenhant’s federal prison medical records. Because this evidence was available
to trial counsel, Whisenhant argues that it was unreasonable not to use it.
Whisenhant’s argument ignores the fact that his attorneys’ decision was
made after substantial investigation into plausible lines of defense. Morris Dees,
an experienced lawyer who founded the Southern Poverty Law Center, was lead
counsel in all three of Whisenhant’s trials. After investigating the case prior to the
1977 trial, he concluded insanity was Whisenhant’s best defense. Dees felt that
psychiatric testimony would be the linchpin because Whisenhant’s mental illness
would not be readily apparent to his friends and neighbors. Dees had serious
doubts that jurors at the 1981 trial would accept an insanity defense, however,
because “this was a case in their backyard where women were being killed and left
dead all around the county.” R1-14, Exh. Vol. 38 at 213-14. Unlike the first trial
which was held in another county, the 1981 trial was held in the same county the
murder had occurred. Dees’s assisting trial counsel, John Carroll, also doubted that
a jury would accept an insanity defense based on the jurors’ strong reactions at the
1977 trial to the horrific details of the murder. As a result, Dees felt that a jury
surely would not find Whisenhant insane without live psychiatric testimony.
10
Dees believed it was “fundamentally unfair” and a violation of due process
for the state not to provide an indigent with adequate funds for essential experts.
R1-14, Exh. Vol. 38 at 216-17, 219. Dees’s foresight proved correct when the
Supreme Court decided in Ake that, pursuant to the Fourteenth Amendment’s due
process guarantee of fundamental fairness, the state must assure access to a
psychiatrist if an indigent defendant’s sanity is likely to be a significant factor in
his defense. Ake, 470 U.S. at 74, 83, 105 S. Ct. at 1091-92, 1096. Although Ake
was decided four years after the 1981 trial, Dees was aware of literature and laws at
that time supporting his views, and he investigated the issue of the state’s
obligation to provide funds for an indigent. Based on his research, Dees believed
the trial court’s denial of the motion for funds for a psychiatrist was a “locked-
down, lead-pipe, four-square” error in the record. R1-14, Exh. Vol. 39 at 327.
Once an error is locked down, Dees explained his trial strategy is to “leave it there
because, you know, the idea is to give your client a fair trial; and if the State has
messed up by committing an error, then you would be guilty of malpractice if you
didn’t win on that error.” R1-14, Exh. Vol. 38 at 272.
After the trial court denied his motion for funds for a psychiatrist, Dees
decided not to present any evidence of insanity. This is why he did not subpoena
Dr. Brown to testify or pay Dr. Brown’s fee out of his own pocket. Dees also
11
considered but rejected the idea of reading into the record the testimony and reports
of witnesses from the 1977 trial. Whisenhant’s sister could no longer testify at the
1981 trial because of emotional problems, and Dees believed that her dramatic,
emotional testimony at the 1977 trial would not be evident from merely reading her
prior statements. Moreover, Dees felt that reading testimony into the record from
the experts or their reports would have been “virtually useless” when the state was
presenting live witnesses. Id. at 228-29. He also decided not to call Captain
Bryant as a witness because his lay opinion about things that happened when
Whisenhant was a child would serve little or no purpose without the psychiatric
testimony. Given that the $500 granted by the trial court was insufficient to cover
the fees for Dr. Brown testifying at trial, Whisenhant decided instead to use the
money to test the victim’s undergarments for sperm. Dees hoped to find evidence
that Whisenhant did not rape the victim, which would provide a critical defense to
the charge of capital murder.
In light of all these circumstances, trial counsel’s decision not to present any
evidence of insanity was a sound trial strategy that “falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Trial counsel made an informed, reasonable judgment after thoroughly
investigating the law and facts relevant to Whisenhant’s case. Such strategic
12
choices are “virtually unchallengeable.” Id. at 690, 104 S. Ct. at 2066. The state
courts’ decisions that counsel’s performance was not deficient comports with
Supreme Court precedent.
Because Whisenhant has failed to satisfy the first requirement of Strickland,
he cannot succeed on a claim of ineffective assistance of counsel and we, therefore,
need not address whether counsel’s performance prejudiced the defense. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (“Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.”). Habeas
relief is denied on this claim.
B. Brady Claim
A COA was also issued on whether the State’s failure to disclose two FBI
profile reports and a statement by Sandra L. Heverly violated Whisenhant’s rights
under Brady. Both the state habeas court and the Alabama Court of Criminal
Appeals determined that the undisclosed documents were not material, which under
Brady means that Whisenhant has failed to show a reasonable probability of a
different result had the documents been disclosed. United States v. Bagley, 473
U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). The Supreme Court has clarified that
a defendant need not show he would have received a different verdict with the
13
evidence, but rather that the suppressed evidence “could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995). In determining
whether the defendant received a fair trial, a court should consider the suppressed
evidence “collectively, not item by item” since “the Constitution is not violated
every time the government fails or chooses not to disclose evidence that might
prove helpful to the defense.” Id. at 434, 436-37, 115 S. Ct. at 1567.
The FBI reports were generated to assist authorities in finding the unknown
killer of Venora Hyatt, who was murdered about six months before Cheryl Payton.
The first report, based on crime scene photographs, speculates that “[i]f perpetrator
is truly schizophrenic, initial attack would probably have taken place in or around
the store and would have been both sudden and fatal.” R1-14, Exh. Vol. 39 at 356.
The second report references the autopsy results and opines that the probable
subject suffers from simple schizophrenia and has usually been in contact with the
victim on a number of previous occasions. The third undisclosed document is a
statement by Sandra Heverly, a co-worker who dated Whisenhant for a few months
in 1974. Heverly stated that Whisenhant would wiggle his feet when watching
television and giggle even though nothing was funny; his eyes would sometimes
get “glassy looking”; he would watch her drive and “grin up a storm”; he was
14
“weird”; and all the people who used to work with him at the ship yard “knew how
weird he was.” Id. at 363-67.
With respect to the materiality of these three documents at the 1981 guilt
phase trial, trial counsel testified that he would not have used them given his
strategic decision not to offer any evidence of insanity. Because the disclosure of
these documents could not have affected the outcome of Whisenhant’s 1981 trial,
the Alabama Court of Criminal Appeals correctly determined that these documents
were not material. Bagley, 473 U.S. at 682, 105 S. Ct. 3383.
Nor were the undisclosed documents material to the 1987 penalty phase
trial. Whisenhant’s counsel presented numerous witnesses at the 1987 trial who
testified about Whisenhant’s personality and mental state. Dr. Brown explained in
detail how Whisenhant’s troubled childhood and domineering mother resulted in a
history of violence against women. Dr. Brown diagnosed Whisenhant as a schizoid
personality with a mental disease that people around him in daily life would be
unlikely to notice given its episodic manifestations. Dr. Brown’s conclusions were
corroborated by another expert, Dr. Tanay, whose report was read partly into
evidence. In summarizing the insanity evidence presented, the district court found
that “the defense constructed a detailed mosaic of evidence advancing its position
that Whisenhant was under the duress of an extreme mental disturbance, that he
15
was unable to appreciate the criminality of his conduct, and that he otherwise
suffered from psychological and emotional problems when he raped and murdered
Payton.” R1-22 at 34.
In light of all the evidence at the 1987 penalty trial, the marginal value added
by the two FBI profile reports and Heverly’s statement would not have “put the
whole case in such a different light as to undermine confidence in the verdict.”
Kyles, 514 U.S. at 435, 115 S. Ct. at 1566. The FBI reports were speculative
profiles involving a different victim that included opinions which both matched
and did not match certain aspects of Whisenhant’s character and his murder of
Cheryl Payton. At best, they would have been cumulative of some of Dr. Brown’s
expert testimony. Likewise, Heverly’s lay opinion that Whisenhant was weird
would not have significantly bolstered Dr. Brown’s testimony. This is especially
true given that Heverly’s descriptions contradict Dr. Brown’s opinion that
Whisenhant’s co-workers would not readily notice any strange behavior. It is thus
highly unlikely that disclosure of these documents would have changed the
outcome of the 1987 trial. The Alabama Court of Criminal Appeals’ decision
reasonably applied Brady and its progeny in determining that the undisclosed
information was immaterial and that no Brady violation occurred.
16
C. Prosecutorial Misconduct Claim
Whisenhant next challenges the prosecutor’s closing argument at his 1981
guilt phase trial that no co-worker testified Whisenhant was insane. In his closing
argument, the prosecutor remarked as follows:
If these three fine criminal defense lawyers had found any doctor, any friend,
any co-worker, anyone that knew the Defendant and they said he was insane,
don’t you think you would have heard from them? You haven’t heard a
word, and these three lawyers are very very good. Nobody has come in here
and said that Tommy ran around eating dirt, did they, running naked and
jumping on women at bus stops and that he was insane. No. The reason is
simply this, they couldn’t find anybody to say it.
Mr. CARROLL: Objection, Judge that’s not true.
THE COURT: He has a right to argue his inferences.
R1-14, Exh. Vol. 16 at R618-19. At the same time the prosecutor made this
statement, Whisenhant alleges the prosecutor knew the state had deceptively
suppressed co-worker Sandra Heverly’s statement that Whisenhant was weird.
Whisenhant asserts that the prosecutor biased the jurors against a finding that
Whisenhant was mentally ill and deprived him of the opportunity to object to the
improper statement, thereby violating his due process rights under Darden v.
Wainwright, 477 U.S. 168, 106 S. Ct. 2464 (1986).
In Darden, the Supreme Court recognized that a defendant’s due process
right to a fair trial is not infringed by a prosecutor’s remarks that are “undesirable
17
or even universally condemned.” 477 U.S. at 181, 106 S. Ct. at 2471 (citation and
punctuation omitted). Instead, the comment must have infected the trial with such
unfairness that the conviction constitutes a denial of due process. Id. at 181, 106 S.
Ct. at 2471 (citation and punctuation omitted). Any challenged remarks must be
evaluated in context based upon the defense argument that preceded it. Id. at 179,
106 S. Ct. at 2470. Where the “objectionable content was invited by or was
responsive to the opening summation of the defense,” a reviewing court must
determine the comment’s effect on the trial as a whole. Id. at 182, 106 S. Ct. at
2472.
As in Darden, the prosecutor’s challenged comment here was responsive to
the defense’s closing argument and did not misstate the evidence. Whisenhant’s
attorney argued that Whisenhant was insane, as evidenced by the brutal facts of the
murder, and Whisenhant’s confession that he did not know why he killed the victim
and could not control his actions. The prosecutor then responded by pointing out
that no co-workers had testified Whisenhant was insane. This comment did not
misrepresent Heverly’s statement, which never characterized Whisenhant as insane,
only “weird.” R1-14, Exh. Vol. 39 at 365. Heverly denied that Whisenhant ever
threatened her, used any violence against her, or even made any sexual advances
toward her. Moreover, Heverly lost contact with Whisenhant in 1975 and his
18
allegedly strange behavior occurred while they were dating in 1974, approximately
two years before Cheryl Payton’s murder in 1976. Based on the foregoing, the
Alabama Court of Criminal Appeals correctly found that the prosecutor’s argument
was correct because the “behavior described by Sandra Heverly clearly fell short of
insanity.” R1-14, Exh. Vol. 42, R44 at 4.
Whisenhant argues that the prosecution’s suppression of Heverly’s statement
precluded him from objecting to the improper statement. As noted, however,
Whisenhant’s attorney did object to the prosecutor’s comments that the defense
could not find anybody to say Whisenhant was insane, but the trial judge overruled
the objection as a permissible argument. In light of the overwhelming evidence of
Whisenhant’s guilt and defense counsel’s tactical decision not to present any
evidence of insanity, the likelihood that the jury’s decision was influenced by the
prosecutor’s isolated comment is minimal. See Darden, 477 U.S. at 182, 106 S. Ct.
at 2472 (heavy weight of evidence against petitioner reduced the likelihood that an
improper closing argument influenced the jury).
Viewing the trial as a whole, we conclude the prosecutor’s invited response
about the lack of insanity testimony by a co-worker did not render Whisenhant’s
trial fundamentally unfair. See United States v. Frazier, 944 F.2d 820, 825-26
(11th Cir. 1991) (no due process violation where defense invited prosecutor’s
19
rebutting argument and there was overwhelming evidence of defendant’s guilt).
Whisenhant is, therefore, not entitled to habeas relief on his claim of prosecutorial
misconduct.
D. Claim of Judicial Bias
In his final claim for habeas relief, Whisenhant asserts that the trial judge’s
bias and his appearance of partiality at the time of the 1987 penalty phase trial
violated In re Murchison, 349 U.S. 133, 75 S. Ct. 623 (1955). Specifically,
Whisenhant alleges that Judge McRae had an ex parte communication with the
prosecution before the 1987 trial in order to cover up a potential error that occurred
in the 1981 trial. This purported scheme between Judge McRae and the
prosecution deprived him of his constitutional right to an impartial judge.
Prior to the 1987 penalty phase trial, Whisenhant filed a motion for funds for
a psychiatrist. Chris Galanos, the Mobile County District Attorney in 1987, gave
Judge McRae a draft order granting that motion. Galanos attached a handwritten
cover note stating that the order “enumerates facts intended to preclude Ake error
during the guilt stage, but I am not sufficiently familiar with the facts to determine
the accuracy of the order. Let me know what you want to do.” R1-14, Exh. Vol.
36 at 314. After making some minor revisions and increasing the amount of the
20
funds from $2000 to $2200, Judge McRae entered an order the next day granting
Whisenhant’s motion.
The state habeas court found that this claim was procedurally defaulted and,
alternatively, lacked merit because even assuming the trial judge had ex parte
communications with the prosecutor, the result was that Whisenhant received the
money he had requested. The Alabama Court of Criminal Appeals only considered
the claim on its merits. It found there was no evidence that the trial judge knew the
motion was not served on the defense. There was also no potential error to be
covered up because Judge McRae’s denial of the 1981 motion for funds had
already been affirmed on appeal before the draft order was submitted. See
Whisenhant v. State, 482 So. 2d 1225, 1228-30 (Ala.Cr.App. 1982). Finally, the
trial judge’s order granted the funds Whisenhant had sought. Based on the
foregoing, the Alabama Court of Criminal Appeals determined that Whisenhant
failed to offer any evidence that the trial judge was personally biased or partial.
Whisenhant challenges the finding by the Court of Criminal Appeals that
Judge McRae did not know the motion was not served on the defense. He claims
this finding is based on an unreasonable determination of the facts in light of the
evidence presented at the Rule 32 proceeding. Factual findings by a state court are
presumed correct unless the appellant rebuts the presumption by clear and
21
convincing evidence. See 28 U.S.C. § 2254(e)(1); Henyard v. McDonough, 459
F.3d 1217, 1240 (11th Cir. 2006) (per curiam), cert. denied, ___ U.S. ___, 127 S.
Ct. 1818 (2007). Whisenhant had a full and fair opportunity to present evidence on
this issue at the state habeas hearing. At that hearing, Whisenhant called as a
witness Chris Galanos, who admitted he did not serve Whisenhant’s trial attorneys
with a copy of the draft order. Whisenhant did not ask Galanos whether he told
Judge McRae that fact, however. Nor did Whisenhant call Judge McRae as a
witness. Although the habeas judge stated that Judge McRae should only be called
as a witness if “absolutely essential,” the habeas judge did not forbid Whisenhant
from doing so. R1-14, Exh. Vol. 37, State Habeas Corpus Hearing on 24 October
1996 at 1-2. Without Judge McRae’s testimony, we can only speculate as to what
he knew and did not know. The burden was on Whisenhant to prove his claimed
violation, and he has failed to do so. See Hendrix, 527 F.3d at 1153 (state court’s
finding was a reasonable determination of the facts where petitioner failed to
present evidence at the state habeas hearing to support his claim). Thus,
Whisenhant has not presented clear and convincing evidence to rebut the
presumption of correctness afforded to the state court’s factual finding.
Even if Judge McRae had known that the defense did not receive a copy of
the draft order, Whisenhant has failed to establish a constitutional violation. To the
22
extent that Whisenhant argues that Judge McRae’s “appearance of partiality”
violates his due process rights, we have held that “there is no Supreme Court
decision clearly establishing that an appearance of bias or partiality, where there is
no actual bias, violates the Due Process Clause or any other constitutional
provision.” Id. at 1153; see also Davis v. Jones, 506 F.3d 1325, 1336-37 (11th Cir.
2007) (no due process violation where petitioner claims only an appearance of
partiality and not actual bias). Thus, in so far as Whisenhant claims the trial court’s
ex parte actions created an appearance of partiality, we conclude that the state
courts’ rejection of Whisenhant’s claim of judicial bias was not contrary to, or an
unreasonable application of, clearly established federal law as determined by the
Supreme Court. See 28 U.S.C. § 2254 (d)(1).
With respect to Whisenhant’s claim of actual bias, he fares no better. It is
long established that “[a] fair trial in a fair tribunal is a basic requirement of due
process.” In re Murchison, 349 U.S. at 136, 75 S. Ct. at 625. The Supreme Court
has identified various situations in which “the probability of actual bias on the part
of the judge or decisionmaker is too high to be constitutionally tolerable.”
Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464 (1975). Such cases
include those in which the judge has a pecuniary interest in the outcome or has
been personally abused or criticized by the party before him. Id.
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None of the cases cited by Whisenhant are analogous to his own. In re
Murchison involved a judge acting under state law as a one-man grand jury who
later charged the witnesses with contempt based on their grand jury testimony, then
tried and convicted them. 349 U.S. at 134-35, 75 S. Ct. at 624-25. The judge
based his judgment of contempt on his own personal knowledge and impressions of
what had occurred in the grand jury room, including his opinions that the witness
was insolent and defiant, even though the judge’s opinions could not be cross-
examined. Id. at 138, 75 S. Ct. at 626. The Supreme Court held that it was a
violation of due process for “a judge to act as a grand jury and then try the very
persons accused as a result of his investigations.” Id. at 137, 75 S. Ct. at 625.
Three other cases cited by Whisenhant also involved criminal contempt
proceedings in which the Court held that a judge other than the one reviled by a
contemnor should decide the contempt issue. In Offutt v. United States, 348 U.S.
11, 12, 75 S. Ct. 11, 12 (1954), a trial judge repeatedly clashed with defense
counsel throughout a 14-day trial, ending in a finding of criminal contempt against
trial counsel, which the Supreme Court reversed. In concluding that the trial judge
was biased and not impartial, the Supreme Court emphasized that this was “not a
rare flareup,” but rather a “continuous wrangle on an unedifying level between the
two.” Id. at 17, 75 S. Ct. at 15. Likewise, in Taylor v. Hayes, 418 U.S. 488, 501,
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94 S. Ct. 2697, 2705 (1974), a running controversy between the trial judge and
defense counsel escalated during a 10-day trial to the point that the trial judge’s
“mounting display of an unfavorable personal attitude toward petitioner, his ability,
and his motives” had left personal stings on both sides. In contrast, the trial judge
in Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 505 (1971), was
not “an activist seeking combat” like the judge in Offutt or Taylor. Nevertheless,
the defendant’s cruel slanders so vilified the trial judge that the judge “necessarily
becomes embroiled in a running, bitter controversy,” requiring a new judge to
preside over a contempt proceeding. Mayberry, 400 U.S. at 466, 91 S. Ct. at 505.
It is clear that the judicial bias cases cited by Whisenhant involve totally
different facts from his own case. There is no evidence that Judge McRae was
involved in a “running controversy” with Whisenhant or Whisenhant’s attorneys.
Neither side made personal attacks against the other, and Judge McRae never
displayed an inappropriate or hostile attitude toward the defense. Moreover, the
order granting Whisenhant’s motion for funds benefitted the defense. The cover
letter by Chris Galanos does not establish that Judge McRae was in cahoots with
the prosecution, nor that he signed the order granting the motion for funds in order
to protect against a potential Ake error in the 1981 trial. As the district court
adroitly concluded,
25
Under the circumstances, Whisenhant’s accusations of a
judicial/prosecutorial conspiracy in a smoke-filled backroom are
not credible where the “conspiracy”’s object was an
unremarkable order that gave the defense exactly what they
wanted and made accurate observations about evidence
available to the defense in earlier proceedings. Had a
“conspiracy” truly been hatched, the [c]ourt suspects it would
not have been used as a vehicle to grant a defense motion and
make uncontroversial observations about evidence available in
1981. If Judge McRae and Galanos had ex parte dealings
regarding the psychiatrist order, such interactions, without
more, are in no way symptomatic of the kind of prejudice,
hostility and antagonism required to support a finding of
judicial bias.
R1-22 at 58 n.71. Based on a thorough review of the record, we conclude that the
Alabama courts’ denial of Whisenhant’s judicial bias claim was neither contrary to,
nor involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court. We therefore deny relief on this claim.
III. CONCLUSION
Whisenhant filed this appeal seeking federal habeas relief from his second
conviction and third death sentence for the 1977 murder of Cheryl Payton. We
hold that Whisenhant received effective assistance of counsel at his 1981 trial
because trial counsel made a reasonable, strategic decision not to present evidence
of insanity. In addition, the FBI profile reports and a co-worker’s statement were
not material to either the 1981 guilt phase trial, where no evidence of insanity was
26
presented, or to the 1987 penalty phase trial, where abundant evidence of mental
illness was presented. The prosecutor’s closing argument that no co-worker had
testified that Whisenhant was insane did not misstate the evidence and properly
responded to the defense’s closing argument. Finally, the trial judge did not evince
bias or partiality against Whisenhant when it signed an order prior to the 1987 trial
granting Whisenhant’s motion for funds for a psychiatrist. As Whisenhant is not
entitled to relief on any of his claims, the judgment of the district court is
AFFIRMED.
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