Full opinion text
OPINION MYRON H. THOMPSON, District Judge. Petitioner Willie McNair brings this petition under 28 U.S.C.A. § 2254 for a writ of habeas corpus challenging his conviction in Alabama state court for the capital murder of Ella Foy Riley. Pursuant to Rule 8 of the Rules Governing § 2254 Cases, evidence was taken on several claims that had not been defaulted. Briefing by the parties followed, and McNair now maintains 14 separate grounds for relief. For the reasons that follow, the court finds that McNair is entitled to relief on one ground: ineffective assistance of counsel during the penalty phase of his trial. On all other grounds, his petition is denied. I. PROCEDURAL BACKGROUND The complicated procedural history of this case is concisely summarized in McNair v. State, 706 So.2d 828, 831-33 (Ala.Crim.App.1997). McNair was convicted on April 18,1991, for the capital offense of murder committed during the commission or attempt of a robbery in the first degree. McNair was first sentenced on May 16,1991, when the trial judge adopted the jury’s majority recommendation that McNair be sentenced to death. The sentence was thrice remanded to the trial court for a proper sentencing order. On February 26, 1993, after the first remand, McNair was again sentenced to death after the trial judge rejected the new sentencing jury’s recommendation of life without possibility of parole. Two remands later, the state trial court entered an acceptable sentencing order. The appeals court affirmed the conviction and sentence on January 21, 1994, McNair v. State, 653 So.2d 351 (Ala.Crim.App.1994), and the Alabama Supreme Court likewise affirmed on September 2, 1994, Ex parte McNair, 653 So.2d 353 (Ala.1994). The United States Supreme Court denied a certiorari petition on February 21, 1995. McNair v. Alabama, 513 U.S. 1159, 115 S.Ct. 1121, 130 L.Ed.2d 1084 (1995). McNair filed a petition for post-conviction review under Ala. R.Crim. P. 32 on July 5, 1995. The state trial court dismissed all but three claims as proeedurally barred: (1) ineffective assistance of counsel; (2) withheld exculpatory evidence; and (3) racially-biased imposition of the death penalty. At the Rule 32 hearing, the court also allowed testimony concerning another of McNair’s claims. This claim was raised in McNair’s second amended petition for Rule 32 relief and challenged his conviction on the ground that the jury considered extraneous evidence during its deliberations. All of McNair’s remaining claims were denied on November 13,1995, and the state appellate court affirmed the denial on July 3, 1997. McNair v. State, 706 So.2d 828 (Ala.Crim.App.1997). McNair filed the present § 2254 petition for writ of habeas corpus on August 18, 1998. This court determined that the case should proceed in two stages: in Stage I, the court determined which claims had been proeedurally defaulted and which non-defaulted claims merited evidentiary hearings. McNair v. Haley, 97 F. Supp.2d 1270 (M.D.Ala.2000). Now, in Stage II, this court reaches the merits of the non-defaulted claims. II. LEGAL STANDARD This court’s review of claims adjudicated on the merits in state court is governed by § 2254(d), as modified in 1996 by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Relief from this court shall not be granted unless that adjudication: “(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.” 28 U.S.C.A. § 2254(d). For claims that have not been adjudicated on the merits in state court, and are otherwise validly before the federal court for review, the court can make its own determination of the merits. Williams v. Head, 185 F.3d 1223, 1226 (11th Cir.1999); Moore v. Gibson, 195 F.3d 1152, 1163 (10th Cir.1999). The Supreme Court recently clarified the applicable standards of review under § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The “clearly established law” requirement allows this court to grant a petition for habeas corpus only if the state court decision violates, or is an unreasonable application of, clearly established Supreme Court precedent. Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523-24. A decision is “contrary to” clearly established law if “a 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 on a set of materially indistinguishable facts.” Id. at 412, 120 S.Ct. at 1523. A decision is an “unreasonable application” of clearly established law “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. In so holding, the Williams Court rejected the more deferential standard that an unreasonable application can occur only if all reasonable jurists would come to a conclusion different from that of the state court, and held the standard to be one of objective reasonability. Id. at 409, 120 S.Ct. at 1521; see also McIntyre v. Williams, 216 F.3d 1254, 1256 (11th Cir.2000). With these standards in mind, the court turns to the 14 grounds on which McNair currently seeks relief. III. DISCUSSION A. BATSON In McNair’s first claim, he contends the exclusion of ten of the 11 Afrh can-American jurors through peremptory challenges by District Attorney Valeska violated his Fourteenth Amendment rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The right of a criminal defendant to be tried by a jury chosen free from racial discrimination has long been clearly established by the United States Supreme Court. Batson, 476 U.S. at 85, 106 S.Ct. at 1716; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). McNair raised his Batson claim on direct appeal to the Alabama Court of Criminal Appeals, McNair, 653 So.2d at 323, and the Alabama Supreme Court, Ex parte McNair, 653 So.2d at 354-55. Both courts denied relief. Upon consideration of these decisions, and an independent review of the record, this court finds McNair is due no relief for the exclusion of these jurors. In Batson, the United States Supreme Court outlined a three-step process for evaluating claims that a prosecutor used peremptory challenges in a manner violating the equal protection clause of the Fourteenth Amendment. First, the defendant must make a prima-facie showing that the prosecutor exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, if both parties meet their burdens under steps one and two, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24. However, once a prosecutor has offered a race-neutral explanation and the court has resolved the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima-facie case becomes moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). The trial judge never made a finding that McNair established a prima-facie case of race discrimination. Ex Parte McNair, 653 So.2d at 355. Nonetheless, he required the prosecutor to articulate his reasons for striking the 11 African-American jurors in question. Those reasons were: Juror McAllister: “not being in Henry County.” Juror Boatwright: “based on information provided by Durrell Whiddon, assistant DA, ... who knows everybody. This defendant [sic] Allen Boatwright has a misdemeanor in the past.” Juror Marsh: “based on [assistant District Attorney Durell Whiddon] knowing him ... his reputation in the community.” Juror Kelley: “ ‘unstable per family members,’ that he was not a stable individual in relationship, in his demeanor, appearance, or actions.” Jurors Brackin, Rivers, Thomas, and Brady: all struck for being close to defendant’s age. Juror Ford: “ ‘many criminal violations and anti-law per LE (law enforcement).’ ” Juror Chitty: “[H]e was before the Court before. He said that his brother was recently convicted here.” A prosecutor meets his burden at the second stage of the Batson test by offering a merely plausible explanation for the strike. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). At issue in stage two is only the facial validity of the prosecutor’s explanation, as the burden of proof remains on the defendant to prove intentional discrimination. Id. “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral.” Id. at 768, 115 S.Ct. at 1771. McNair does not argue that any of the government’s explanations is facially invalid, and this court agrees. Thus, the government has met burden at this stage of the court’s inquiry. Accordingly, as is usually the case with Batson challenges, the court turns to the ultimate question of discrimination, that is, whether the proffered reasons for any, or all, of the strikes were merely pretextual. In the final stage of the Bat-son analysis, “the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869. This is a question of fact, of the sort given great deference on review. It is also a question which must be answered with an eye to the totality of circumstances of the jury-selection process. The strength of a criminal defendant’s Batson claim will largely depend on the credibility of the prosecutor and, in turn, of his proffered explanations. Id. A pattern of dubious explanations will cast doubt on the entire process.' So too may a reliance on facially neutral explanations that result in a disparate racial impact— although not conclusive, these “should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent.” Id. at 362, 111 S.Ct. at 1867. However, a court’s conclusion about the totality of the circumstances is only one aspect of its analysis. “[T]he Federal Constitution is designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race.” Batson, 476 U.S. at 99 n. 22, 106 S.Ct. at 1724 n. 22 (emphasis added); see also Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1369-70, 113 L.Ed.2d 411 (1991). In other words, even if McNair fails to present persuasive evidence that the jury-selection process was characterized by racial animus, he can still prevail if he can establish that the prosecutor struck any one juror because of his or her race. Establishing racially charged or .otherwise constitutionally suspect circumstances overall will help McNair’s argument, but it is not decisive. 1. McNair’s Challenge to the Jury-Selection Process as a Whole McNair advances three theories to cast doubt on the racial neutrality of the entire .jury-selection process. First, he notes that the strikes of five jurors— Marsh, Ford, Boatwright, Kelley and McAllister — were based on notations on the strike sheet made by Assistant District Attorney Durr ell Whiddon. McNair describes these notations as “vague and cursory hunches,” made with full knowledge of each juror’s race because Whiddon was initially a member of the venire and thus had occasion to learn the race of each potential juror. Second, McNair questions the sincerity of the prosecutor’s reasons for striking ■ those African-American jurors who-were not asked any questions during voir dire, much less questions that probed the reasons ultimately proffered by Valeska. Finally, McNair recounts what he describes as a “documented history of racially discriminatory peremptory challenges by the District Attorney’s Office.” Each of McNair’s arguments has legal merit and, to- varying' degrees, casts doubt on the overall constitutional validity of the jury-selection process. None, though, is unequivocal. Courts have found that vague and unsupported, assertions can, in light of surrounding circumstances, be found not credible grounds for striking a juror.. .See, e.g., Bennett v. Collins, 852 F.Supp. 570, 583 (E.D.Tex.1994). Whiddon’s notes on the strike sheets are, in fact, vague. However, vagueness alone cannot shift the burden of proving that a race-neutral reason is pretextual from McNair. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. Similarly, when a prosecutor fails to question, African-American members of a venire, he misses an opportunity to develop racé-neutral reasons for his strikes and may subsequently be unable to rebut a prima-facie case of discrimination. See, e.g., Morrison v. Jones, 952 F.Supp. 729, 733 (M.D.Ala.1996) (finding the State had not rebutted the prima-facie case established by the exclusion of 20 of 21 African-American jurors where the prosecutor asked virtually no questions during voir dire, and the record contained no other evidence to rebut this prima-facie showing). The failure of the prosecutor to use voir dire to support his ultimate reasons for striking nine of the ten jurors challenged here is plain from the record and not disputed. Indeed, most, if not all, of these Batson challenges could have been resolved by one question to each juror during voir dire. However, McNair has not brought to the attention of the court any case in which the failure by a prosecutor to ask pertinent questions during voir dire, where legitimate, race-neutral reasons were subsequently proffered, was alone sufficient to justify an inference of discrimination. Finally, the Eleventh Circuit has held that testimony documenting the informal practice of a district attorney’s office can be sufficient to establish discriminatory intent and a Batson violation. Cochran v. Herring, 43 F.3d 1404, 1410 (11th Cir.1995). McNair also cites to the court six cases since 1991 in which convictions won by this district attorney’s office have been overturned on appeal for Batson violations. However, past instances of discriminatory practices by a district attorney are less persuasive than the direct evidence of discriminatory intent such as that held sufficient to establish the inference of discrimination in Cochran. See 43 F.3d at 1412 (noting evidence that district attorneys followed an informal policy of striking black jurors because of their race and testimony from the actual prosecutor that race played a factor in the exercise of peremptory challenges). McNair’s challenge to the prosecutor’s credibility, and to the neutrality of the jury-selection process overall, is countered, significantly so, by the racial composition of the venire and the ultimate composition of the petit jury. Eighteen of 65 jurors (28%) originally seated in the venire for McNair’s case were African-American. The prosecution struck 11 African-Americans from the venire, or 61% of all African-Americans in the venire. Ultimately, seven of the 12 jurors (58%) who sat on McNair’s jury were African-American. By comparison, at least 30% of Henry County was African-American at the time of McNair’s trial. Considering these data, the Court of Criminal Appeals concluded that, “Although some of the State’s explanations for its peremptory strikes may be suspect under other circumstances ... and despite the lack of ‘meaningful’ voir dire concerning the basis for the strikes ... we find no inference of racial discrimination because of the statistical evidence present in this case.” McNair, 653 So.2d at 323. In light of all of these factors, this court cannot conclude that the Alabama state courts either were clearly erroneous or unreasonably interpreted the law or facts by finding that a significant inference of an intent to discriminate in the overall process had not been established. This court’s review of the record finds that factors weigh both for and against such an inference and that the state courts should not be found in error under the standards governing relief under § 2254(d). 2. McNair’s Challenge to the Strikes of Individual Jurors It remains possible that a Batson violation may be established on any one of the prosecutor’s strikes of the African-American members of the venire. This court’s review of the state courts’ findings takes as correct their initial premise that McNair has not established that the jury-selection process was generally infected by racial bias; absent an underlying inference that the process was tainted, the court will assume that the state courts were generally reasonable to conclude in close cases, where the credibility of the prosecutor weighs most heavily, that the background circumstances of the selection process did not necessarily imply discrimination. With this as a starting point, the court now turns to McNair’s ten, individual challenges offered in support of his Batson claim. James McAllister: The race-neutral reason given by the State for juror McAllister’s exclusion from the jury is a notation by, Whiddon that McAllister was not from Henry County. The Alabama Supreme Court, without analysis, found this to be a “legitimate • nondiscriminatory reason.” Ex Parte McNair, 653 So.2d at 357. The state, court- came to this conclusion in spite of clear facts in the record indicating that McAllister was, in fact, a resident of Henry County: Nonetheless, as to the question of discrimination, the state court’s conclusion was neither unreasonable nor contrary to clearly established law. At the beginning of voir dire, the entire venire was asked the following question by the court: “Has anyone on the panel not resided in Henry County, Alabama, for the previous twelve months?” No member of the venire responded, leading to the unmistakable conclusion that all of the potential jurors had lived in Henry County for the last twelve months'. The State now argues that what appears' clear on its face is really not: “McAllister made a statement during voir dire which supports the prosecutor’s offered reason for the strike. In identifying himself, McAllister stated the following: ‘My name is James E. McAllister. I live at Route 3, Box 605. I work at Holiday Shores in Eufaula.’ Tr. at 39. Since Eufaula is located in Barbour County, the prosecutor’s reason for striking McAllister for not ‘being in Henry County’ is supported by the record ....” In fact, the prosecutor’s reason is not supported by the record. Route 3, Box 605 is, indeed, in Henry County. The record makes clear that District Attorney Yaleska was presented with contradictory evidence concerning McAllis-ter’s residence. On one hand he had the note from Assistant District Attorney Whiddon that McAllister was not “in Henry County”; on the other hand he had McAllister’s own statement of his address, and silent affirmation during voir dire that he lived in the county. Valeska did nothing to resolve this contradiction. In fact, had questioning shown that McAllister was actually not a resident of the county, the district attorney could have struck McAl-lister for cause. See 1975 Ala.Code § 12-16 — 60(a)(1). This contradiction alone, however, does not establish by clear and convincing evidence that the state court’s determination was unreasonable or contrary to federal law. If McAllister had been the only African-American in the venire, or if all other African-American jurors had been struck, a race-neutral reason otherwise unsupported by the record would provide strong evidence of intentional discrimination. For example, in McClain v. Prunty, 217 F.3d 1209, 1221-22 (9th Cir.2000), the Ninth Circuit Court of Appeals concluded that where two reasons given by the prosecutor to strike an African-American juror were objectively contrary to the facts, the trial court’s determination that the defendant had not proven intentional discrimination was an unreasonable determination of the facts. But in McClain, all three prospective African-American jurors were removed from the venire by peremptory strikes, establishing an inference of purposeful discrimination that has not been comparably established here. 217 F.3d at 1224. Despite the fact that the proffered reason is factually incorrect, given the totality of the circumstances, the court cannot say that the state court determination was unreasonable or contrary to law. Accordingly, McNair is not entitled to a new trial based on the strike of juror McAllis-ter. Allen Boatwright: Juror Boat-wright was struck from the venire because of a previous misdemeanor. McNair argues that this reason was pretextual because the district attorney earlier asked the venire if any of them, their families, or close friends had been prosecuted by the district attorney’s office. When asking this question, the district attorney explicitly stated that he was not interested in misdemeanor convictions. Noting' that striking a juror for his past criminal history is race-neutral, and that a white juror was also struck by Valeska for his past criminal history, the Alabama Supreme Court found that the apparent contradiction did not indicate a pretext for discrimination. Ex Parte McNair, 653 So.2d at 356. The state court’s decision was a reasonable one, supported by the law, and should not be overturned here on review. The State’s explanation of the apparent contradiction is plausible and race-neutral. The district attorney questioned venire members about prior prosecution by the district attorney’s office to determine if there existed bias against the prosecutors. Indeed, by asking potential jurors not only about themselves, but family and Mends, the question implies this broader meaning. Even if this conclusion is incorrect, the constitution requires racial neutrality, not consistency. Just because Valeska framed his question to specifically exclude misdemeanors does not preclude him from a later strike for the race-neutral reason of a prior criminal history. McNair has provided no evidence otherwise to show this reason to be pretextual. David Marsh: Valeska struck juror Marsh from the venire based on information from Whiddon about Marsh’s “reputation in the community.” The Alabama Supreme Court upheld this strike finding that Whiddon’s “knowledge of Marsh’s apparently bad reputation within the community” was a “legitimate nondiscriminatory” reason for removing Marsh. Ex Parte McNair, 653 So.2d at 357. McNair contends that this conclusion was unreasonable because the state court’s finding that Marsh’s reputation was “apparently bad” was not supported by any facts in the record. This court finds the proffered reason to be a weak one, but not so unreasonable as to warrant a reversal of the state courts under § 2254. Were prosecutors allowed to circumvent the requirements of Batson by reliance on vague and unsubstantiated claims of reputation, constitutional protection of the jury-selection process would be eviscerated. But Batson does not go so far as to require prosecutors to articulate a. reason for the strike that would otherwise be sufficient to support a challenge for cause, or require them to develop a supporting evidentiary record. The burden to prove discrimination rests with McNair. In this case, the evidence supports the reasonable conclusión that Wfiiiddon knew many individuals in Henry County and their reputations. The Alabama Supreme Court also found that Whiddon offered negative recommendations to both black and white members of the venire, and that McNair provided no factual evidence to show that these recommendations were pretextual. Ex Parte McNair, 653 So.2d at 357. All told, there is enough evidence here to prevent this court from disturbing the state court’s conclusion about the Marsh strike. Scottie Kelley: Juror Kelley was struck because “notes submitted by law enforcement” indicated that he was “ ‘unstable per family members’ ” and that “he was not a stable individual, in relationship in his demeanor, appearance, or actions.” The Alabama Supreme Court did not find a Batson violation here, concluding that a “juror’s demeanor or attitude may be a racially neutral consideration.” Ex Parte McNair, 653 So.2d at 357. McNair argues that this reason should be rejected because “there is no fact in the record that supports a finding that Mr. Kelley was unstable,” and that “in light of the totality of facts and circumstances” the reason is “a mere pretext for discrimination.” This court disagrees. • ' McNair’s argument incorrectly shifts the burden of proof to the State.. The “ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (emphasis added). Thus, it is not for the prosecutor to provide an evidentiary basis for his strike, but for McNair to establish that the reason is pretextual. As this court noted at the outset, the state court was reasonable in starting from the premise that McNair failed to establish, as a general matter, that the jury-selection process was infected by racial bias. Therefore, the state court was reasonable in concluding in the absence of evidence to the contrary that McNair did not meet his burden on the Kelley strike. Barbara Brackin, Barbara Rivers, Diane Thomas, and Ronnie Brady: These four potential jurors were struck from the venire because of their age; each was born in the 1960s and was close in age to McNair. The State found that age “may serve as a legitimate racially neutral reason for a peremptory strike.” Ex Parte McNair, 653 So.2d at 357. McNair contends that age, though not necessarily indicative of racial intent, is a group-based justification that can only be assumed to be race-neutral if the State shows the stricken juror was indeed biased in the manner anticipated. In some situations, the court may be inclined to agree with McNair that a group-based strike, in the absence of other evidence to show prejudice, is suspicious. That situation does not exist here because McNair has not established a general inference of discriminatory intent in the selection process. Age, alone, is race-neutral. The burden remains upon McNair to show specifically that the use of age for the strike was pretextual. It is uncontested that the prosecutor struck all members of the venire, African-American and white, who were born in the 1960s. McNair cannot prevail with a merely con-clusory allegation that these strikes were pretextual, especially when Valeska treated jurors of all races identically. Given this record, the Alabama Supreme Court’s finding was reasonable. M.C. Ford: Juror Ford was struck from the venire because the prosecutor had been informed that Ford had “many criminal law violations” and was “anti-law.” McNair, once again, challenges the evidentiary basis for this peremptory strike. Because the reason is race-neutral, and the burden remains on McNair to prove that the proffered reason was pretextual, the Alabama Supreme Court came to a reasonable conclusion that McNair had not met his burden in establishing a Batson violation. Accordingly, this court will not disturb that conclusion here. Johnny Chitty: Juror Chitty was struck from the venire because his brother had recently been convicted, Chitty listed the home of this same brother as his home address, and Whiddon knew and apparently raised concerns about him. McNair concedes that the prosecutor developed the basis for this strike during voir dire and has produced no evidence to show that this otherwise race-neutral reason was pretex-tual. This court has already found that the Alabama Supreme Court was reasonable in determining that there was no inference of racial discrimination in the jury-selection process in its entirety. The Alabama Supreme Court was further justified in crediting the prosecutor’s reasons and rejecting McNair’s argument that Chitty’s strike was infected by implication from the entire process. Accordingly, this court will not disturb the state court’s conclusion. B. EXTRANEOUS EVIDENCE DURING JURY DELIBERATION The evidence shows that during jury deliberations in the guilt phase of McNair’s trial, Les Davis, the jury foreman and a minister, brought a Christian Bible into the jury room, prayed aloud, read scripture, and led the jurors in prayer. McNair claims that because the Bible had not been admitted into the record, it was extraneous evidence and that its presence in the jury room deprived him of his Sixth Amendment right to a fair trial. After an Ala. R.Crim. P. 32 evidentiary hearing, the Court of Criminal Appeals found that McNair “failed to meet his burden of making a factual showing from which it could be reasonably concluded that the jury might have been unlawfully influenced in arriving at its verdict.” McNair, 706 So.2d at 8381 McNair argues here that this decision was contrary to and an unreasonable application of federal law, as well as an unreasonable interpretation of the facts, invoking all three tests in § 2254(d)(1) and (2). • Before addressing the merits of this claim, the court will first discuss its procedural posture. The issue before this court now is whether the presence of the Bible in the jury room, along with jurors joining together in prayer during their deliberations, deprived McNair of his right to a fair trial under the Sixth Amendment to the United States Constitution. McNair argued to the state court that the “jury improperly considered and relied on extraneous evidence during its guilt phase deliberations in violation of Alabama law.” The record is clear that the state court addressed McNair’s claim under state-law principles. McNair, 706 So.2d at 835-838 (analyzing the question within the framework of Ex parte Troha, 462 So.2d 953 (Ala.1984), and Roan v. State, 225 Ala. 428, 143 So. 454 (Ala.1932)). Because McNair had an opportunity to raise the federal constitutional issue, but did not, it was procedurally defaulted. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995). Nonetheless, it is still properly before the court because the State has waived procedural default as a defense. See Esslinger v. Davis, 44 F.3d 1515, 1524 n. 32 (11th Cir.1995). In its answer, identification of procedurally defaulted issues' and briefs for both the prior Stage I determination of procedural defaults, and this Stage II determination on the merits of the non-defaulted claims, the State failed to identify the Sixth Amendment issue as procedurally defaulted. Failure to assert the defense of procedural default constitutes a waiver. See id. Indeed, the State has consistently argued the extraneous-evidence issue on its federal merits. Because of McNair’s procedural default and the State’s waiver, this federal constitutional claim is now properly before the court; it has been fully briefed by both parties and will be heard on the merits. Now, the court must ascertain the standard of review for a state-court decision based on state law, which did not address the presently valid federal constitutional claim. Under AEDPA, a federal court can grant habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.A. § 2254(d). It is impossible to conclude that the state court in this instance unreasonably applied federal law when it, in fact, applied state law. The other two AEDPA tests, however, are not analytically foreclosed. Thus, this court will address (1) whether the state-court decision was “contrary to” federal law, that is, Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) and United States v. Martinez, 14 F.3d 543 (11th Cir.1994), or (2) whether the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” With respect to the second test, the court accords the state-court factual determinations a presumption of correctness. 28 U.S.C.A. § 2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). Before reaching the merits, the court must also determine what evidence it may properly consider. The parties do not dispute that Jury Foreman Davis’s testimony at the Rule 32 hearing is properly considered by this court. McNair also asks the court to consider the affidavits of three other jurors: Mamie Feggins, Mildred Pelham and Tony Thornton. These were not admitted into evidence at the Rule 32 hearing, but McNair contends that they should be considered by this court because “the state court relied upon them to deny relief.” This characterization of the state court’s decision is not accurate. The court’s analysis was based solely on the testimony of Davis; the only mention made by the Court of Criminal Appeals of the three affidavits was its conclusion that, “even if [the affidavits] had been admitted [by the trial court], [they] would not change or alter our decision.” McNair, 706 So.2d at 838. Accordingly, in discussing the merits of this claim, this court relies upon Davis’s Rule 32 testimony alone. It is clearly established law that extrinsic evidence, that is, evidence that does not “come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel,” is presumptively prejudicial. Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965); see also Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Martinez, 14 F.3d at 550. “The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that [contact with the extrinsic evidence] was harmless.” Remmer, 347 U.S. at 229, 74 S.Ct. at 451. In other words, McNair’s burden is simply to show that extraneous evidence reached the jury. Then, a heavy burden shifts to the government to rebut the presumed prejudice. See Martinez, 14 F.3d at 550. A court must review the totality of the circumstances around the introduction of purportedly prejudicial evidence to determine its effect on the jurors. Remmer v. United States, 350 U.S. 377, 378, 76 S.Ct. 425, 426, 100 L.Ed. 435 (1956). The Eleventh Circuit has identified several factors relevant to this analysis, “including the heavy burden on the government, the nature of the extrinsic information, the manner in which the information reached the jury, and the strength of the government’s case.” Martinez, 14 F.3d at 550; see also United States v. Rowe, 906 F.2d 654, 657 (11th Cir.1990). The only evidence presented by either party on this issue was the testimony of Davis at the Rule 32 hearing. • On direct examination, Davis readily admitted that he brought his pocket Bible into the jury room and that he read from that Bible to the other jurors. “Q: [AJfter you heard all the evidence in the case, after the evidence was presented and the lawyers made arguments and you went back to deliberate, did you have your Bible with you then? “A: Yes, I did. “Q: Did you read from the Bible? “A: Yes. “Q: Did you read out loud? “A: Yes. “Q: Were the other jurors listening to what you were reading? “A: Yes. “Q: Did reading the Bible help you decide whether Willie McNair was guilty or not? “A: Yes.” Davis specifically remembered reading out loud two passages: Luke 6:37 and Psalm 121. Luke ,6:37 (King James) provides: “Judge not, and ye shall not be judged: condemn not, and ye shall not be condemned: forgive and ye shall be forgiven.... ” Psalm 121 (King James) provides: “I will lift up mine eyes unto the hills, from whence cometh my help. “My help cometh from that Lord, which made heaven and earth. “He will not spffer thy foot to be moved: he that keepeth thee will not slumber. “Behold, he that keepeth Israel shall neither slumber nor sleep. “The Lord is thy keeper: the Lord is thy shade upon thy right hand. “The sun shall not smite thee by day, nor the moon by night. “The Lord shall preserve thee from all evil: he shall preserve thy soul. “The Lord shall preserve thy going out and thy coming in from this time forth, and even from evermore.” Davis noted that he read other passages as well. These other passages were never identified. Davis’s testimony makes clear that he and at least some of the other jurors relied upon the Bible in their deliberations. “Well, like I said again, after we heard both testimonies, both sides, you know, then we prayed. And, like I said, we prayed. And, you know, the only thing in the testimony and the prayer was the binding tie, you know, mixture. And we came up with the decisions. I mean it had a lot to do with praying, and a lot to do with what we heard.” In light of the heavy burden on the State to prove that the use of the Bible by the jury was harmless to McNair, the state court’s failure to find harm here may have been an unreasonable application of federal law. The State introduced no evidence to rebut the presumption that, given the totality of the circumstances, consideration of the Bible did not improperly influence the jurors. It remains uncontested that Davis read the Bible aloud in the jury room and led others in prayer during their deliberations. It also remains uncontested that this evidence was not properly before the jury. And, most significantly, it remains uncontested that the Bible “helped” Davis “decide whether Willie McNair was guilty or not.” The state court’s finding that McNair “failed to meet his burden of making a factual showing from which it could be reasonably concluded that the jury might have been unlawfully influenced in arriving at its verdict,” McNair, 706 So.2d at 838, altogether ignores the presumption of prejudice that exists in federal law. However, as noted earlier, the state court did not apply federal law; therefore, the court will not focus on the reasonableness of the state court’s application of federal law. Rather, this court’s inquiry must focus on the state court’s result. Under § 2254(d)(1), the precise question before the court is whether McNair has shown, by clear and convincing evidence, that the result reached by the state court was contrary to the result that would have been reached under clearly established federal law. The court cannot say he has. Understandably, McNair’s claim started from a weaker position in state court because the state court did not find the presumption of prejudice at the outset of its analysis that a court properly applying federal law would have found; under Alabama law, no such presumption exists, for a new trial is warranted if, simply, “the misconduct might have unlawfully influenced the verdict.” Ex Parte Troha, 462 So.2d at 954 (emphasis in original). But the totality of circumstances, of which the heavy burden against the State is a significant but not exclusive element, do not weigh clearly and convincingly in McNair’s favor. In this case, the evidence did not have the imprimatur of the state court, that is, the court did not approve of its use. The facts of the case were not seriously disputed and the evidence against McNair was overwhelming. Also there is no evidence before this court, other than Davis’s testimony, that any jurors were actually influenced by Davis’s Bible reading. By way of comparison, the court in Martinez — a case not governed by AEDPA — found a reasonable probability of prejudice on a record which included testimony by other jurors about the specific effects of extraneous evidence on their deliberations. 14 F.3d at 550-51. That court found that extraneous evidence led to “an atmosphere of coercion ... during the jury’s deliberations.” Id. at 552. The present record is far too thin, and lacks crucial information about the effect of the extraneous evidence, for this court to conclude that the decision violated clearly established law. This court also cannot find by clear and convincing evidence that the state court made an unreasonable determination of the facts under § 2254(d)(2). The state court’s “inescapable” conclusion about the effect of the Bible and prayer on the jurors — that the jury did not do “anything other than base its verdict on the evidence presented in open court in the trial of the case,” 706 So.2d at 838—does demonstrate a remarkable lack of appreciation for the complexity, and diversity of religious beliefs. Lacking evidence of the actual effect of the cited Bible passages on the jurors, the state court substituted its own religious interpretation of these passages for that of each member of the jury. Davis’s admission that he read other passages — -which could just as well have been of the “vengeful” sort — only compounds the potential for error in the state court’s undertaking. But without clear and convincing evidence that the readings contradicted the court’s instructions or the law as it was to be applied in this case, this court cannot find the state court came to an unreasonable determination of the facts under § 2254(d)(2).. Accordingly, the court concludes that habeas relief is due to be denied on this claim. C. INEFFECTIVE ASSISTANCE OF COUNSEL — PENALTY PHASE McNair’s third claim challenges the effectiveness of his legal representation during the penalty phase of his trial. Under the authority of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Williams, 529 U.S. at 412, 120 S.Ct. at 1523, McNair argues that his rights under the Sixth Amendment were violated by defense counsel’s unreasonable and prejudicial failure to introduce mitigating evidence in the form of (1) expert testimony describing his crack-cocaine addiction; and (2) additional character testimony from family and friends. The procedural history of McNair’s ineffective-assistanee-of-counsel claim has a significant bearing on the merits currently before this court; accordingly, this discussion begins with a summary of background relevant to the claim. 1. Procedural History McNair was first sentenced on May 16, 1991, when the trial judge adopted a jury’s 10-to-2 recommendation that McNair be sentenced to death. After finding that improper evidence was admitted at sentencing, the Court of Criminal Appeals remanded the case for resentencing. McNair v. State, 653 So.2d 320, 329 (Ala.Crim.App.1992). A second sentencing jury was empaneled in Montgomery County after change of venue was granted. At the second sentencing hearing, trial counsel for McNair called seven witnesses: Moses Knight, football coach for Abbeville High School; Barbara Fields, then-current guidance counselor of Abbeville High School; Bruce Starling, Chief Jailer for the Henry County Sheriffs Office; Robert Anderson and Simon Griffith, two of McNair’s former employers; Annie Glan-ton, McNair’s mother; and Andrew Williams, McNair’s uncle. Knight testified that McNair was a quiet and agreeable student in school but admitted that he had not seen or had any dealings with McNair since he was expelled in the early 1980s. Fields testified and relied on McNair’s high school records; she had been employed at Abbeville High School for only two and a half years at that point and had no personal knowledge of McNair. Both employers testified in general terms that McNair was a good employee. Anderson testified that he had not seen McNair since 1986. Griffith noted that McNair was once fired for arguing with a supervisor but was eventually rehired. Griffith also testified that, in the period directly before McNair was arrested for Riley’s murder, he regularly asked for advances on his paycheck. Neither was asked about knowledge or suspicions they may have had about McNair’s use of drugs. McNair’s mother, Annie Glanton, did testify about McNair’s drug use, explaining that she first became aware that he was on drugs when he was expelled from high school. She also testified that she believed his drug use continued until the murder of Riley. Shortly before he committed this crime, Glanton attempted to get McNair into drug-treatment programs but could not because McNair did not have insurance and she did not have money for treatment. Williams testified that on the evening before Riley’s murder, he found McNair with a butcher knife acting as if he was going to kill himself. Williams was aware of McNair’s drug problem and testified that he occasionally lent him money. Based on this evidence, the second sentencing jury returned an 8-to-4 recommendation that McNair be sentenced to life without parole. Nonetheless, the state trial judge, who also presided over the guilt phase and initial sentencing, rejected the jury recommendation and again sentenced McNair to death. The second sentencing order was reversed and remanded twice. The first remand ordered the state trial court to reconsider its finding of the aggravating circumstance that the event was “especially heinous, atrocious, or cruel,” and to provide a specific written finding regarding the mitigating circumstance that defendant had no significant prior criminal history. McNair v. State, 653 So.2d 343, 347 (Ala.Crim.App.1993). The second remand issued five instructions to the lower court: (1) to examine and reconsider whether death was the correct sentence and whether the jury recommendation should be rejected; (2) to reweigh the aggravating and mitigating circumstances; (3) to enter a new, independent, self-sufficient sentencing order; (4) to set forth in writing specific findings as to each statutory and non-statutory aggravating and mitigating circumstance; and (5) to state reasons why any aggravating circumstance- or circumstances outweighed any mitigating circumstance or circumstances. McNair v. State, 653 So.2d 347, 350-51 (Ala.Crim.App.1993). On the third appeal, the Alabama Court of Criminal Appeals affirmed the conviction and sentence, McNair, 653 So.2d at 361-62, and the Alabama Supreme Court subsequently affirmed it as well, Ex parte McNair, 653 So.2d at 359-60. McNair filed a petition for post-conviction review, under Ala. R.Crim. P. 32 and an evidentiary , hearing was held on his ineffective-assistance-of-counsel claims, among others. Nevertheless, attorneys for McNair did not produce any witnesses or other evidence on the ineffeetive-assis-tance-of-counsel claims. Accordingly, the trial judge rejected these claims, and was affirmed by the Court of Criminal Appeals, which noted that McNair “has continued to halfheartedly assert his claim of ineffective counsel before this court.” McNair, 706 So.2d at 840. McNair raised ineffective-assistance-of-counsel claims in his habeas-corpus petition to this court and again requested an evidentiary hearing. The State did not object to the magistrate judge’s recommendation that the claim' had not been defaulted but did object to her recommendation allowing an evidentiary hearing. Upon consideration of recommendations of the magistrate judge, this court found that § 2254(e)(2), as modified by AEDPA, allowed for a hearing to develop evidence. McNair, 97 F.Supp.2d at 1279-80 (finding that petitioner’s failure to develop evidence on his ineffective-assistance-of-counsel claim in state court should not be attributed to him because “the state court had foreclosed the petitioner’s attempts to develop the requisite expert testimony”). 2. Evidentiary Hearing At this court’s evidentiary hearing, McNair presented 11 witnesses: two lawyers, two experts, and seven individuals who were either family members or personally acquainted with McNair. The State presented an expert of its own and a lawyer from the firm of one of McNair’s trial counsel. The lawyers who testified for McNair — J. Earl Smith and Charles Decker — were his court-appointed counsel during the guilt and penalty phases of the trial. Smith has been a member of the Alabama Bar since 1964 and at the time of the trial devoted about 30% of his time to criminal practice. Decker had been practicing law for less than five years when he was appointed to McNair’s case and, at the time of the trial, also devoted approximately 30% of his time to criminal cases. Smith, by state law, was first chair because of Decker’s limited experience. 1975 Ala.Code § 13A-5-54. Decker, however, conducted almost all the pretrial investigation, prepared and drafted motions, and was the primary contact with the District Attorney’s Office. Despite having primary responsibility for developing the case, Decker testified that he felt his firm prevented him from devoting the amount of time he believed necessary to adequately represent McNair. He claimed the constraint was financial. “At the time I wasn’t able to do the things that I would normally have done for Mr. McNair that I felt were necessary, because the firm prevented me from doing it. An example would be if I needed to go see him, he was in the county jail in Henry County, that’s a thirty minute drive one way, that’s an hour away from the office. Not to mention the time that I had to spend with him. I could not make a regular trip to see him. It wasn’t like [walking across] the street to go to the Houston County Jail. You know, I was limited in the time I could spend with him to discuss the case with him.” Despite Decker’s claims, Jere Segrest, a partner in Decker’s firm, denied that he ever put pressure on Decker to devote less time to McNair’s case. Segrest also made clear, however, that in light of this low statutory compensation and the firm’s emphasis on civil work, Decker’s work on criminal cases was not encouraged. Smith testified that at the time, there was nothing that Decker could have or should have done differently under the circumstances. Decker, though, was critical of his own ability to represent McNair: “Q: So did you or did you not adequately represent your client? “A: I don’t think so.... I’ve handled more capital murder cases than any other lawyer in Houston County right now ... [and] I have been able to do far more in cases than I was able to do for Mr. McNair. “Q: Do you feel that you violated any of your ethical obligations under the Alabama Supreme Court rules in failing to adequately represent your client? “A: Not intentionally. “Q: Not intentionally, but unintentionally? “A: It’s quite possible because of the constraints that were placed on me by my firm that I was not able to do what Mr. McNair wanted me to do because of what Mr. Segrest was doing to me.” One area in which Decker neglected to perform a follow-up investigation was McNair’s addiction to crack. At sentencing, testimony from McNair’s mother and uncle mentioned his use of drugs at the time of the crime, but neither described changes in his behavior nor could they testify as to the medical aspects of McNair’s condition. Decker claimed that because of a lack of funds, he could not “check into [McNair’s] background concerning his drug use.... We had to rely on what information was provided to us from the Sheriffs office in that regard.” Decker further testified that having more resources — time and money — would have enabled him to devote more time to McNair’s case, identify and call expert witnesses to testify about McNair’s drug problem, and expand on the character evidence presented at the penalty phase. Both of McNair’s experts at the hearing addressed the medical and behavioral aspects of McNair’s addiction to crack-cocaine. Dr. Alexander Morton, a psychiatric pharmacist with experience treating individuals with substance-abuse problems, testified generally about the biological effects of crack-cocaine, and in particular about the effects of crack addiction on McNair. Dr. Morton explained the cravings for crack that an addict, like McNair, would experience and the possible biological changes in brain chemistry that would affect the behavior of an addict and prevent him from being able to control his drug use. “That is what a crack addict would think about, how to get the drug. That’s probably all they would be able to think about.... [A] lot of people see this as a voluntary action when it’s really a biological brain disease of craving and compulsive use.... [Crack addicts will] do whatever they need to in order to get the drug. Impulsive behavior.” After interviewing McNair and members of his family, and reviewing court records, Dr. Morton concluded that McNair, at the time of the murder, exhibited behavior consistent with “classic cocaine addiction.” After conducting a psychological and forensic examination, Dr. Randolph Waid, an expert in clinical psychology, agreed with Dr. Morton’s assessment of McNair. Dr. Waid described McNair’s adult life as a downward spiral of drug addiction, beginning with atypical personal behavior and work problems and leading to the commission of petty crimes to obtain money for more drugs. Dr. Waid offered his expert opinion of McNair’s behavior on the night in question, noting that McNair initially approached Riley with the intent to borrow money from her in order to procure crack, but that once he realized she would not lend it to him and that he would be blocked from his goal, his intent changed to robbery; his goal of obtaining crack, however, remained central throughout and motivated his behavior. Dr. Waid noted that the changed intent of McNair was “one of those impulsive, irrational, not well thought out things.... I don’t think he had a predetermined plan in any way to be vicious and violent in his behavior.” McNair’s remaining witnesses — family and friends — offered testimony at the evi-dentiary hearing that was, in part, duplica-tive of testimony given by Glanton and Williams at the first and second sentenc-ings about McNair’s upbringing and personality before his involvement with drugs. New character testimony, however, corroborated the expert testimony regarding McNair’s change from a pleasant pre-ad-diction person to a person who increasingly isolated himself socially, lost weight, and became a petty thief. McNair’s aunt, Margie Warren, with whom he lived for one year in Florida, testified that while McNair lived with her he was more nervous than she had known him to be previously, that he sold his house furniture because of his drug habit, and that he was eventually arrested for stealing a purse. McNair subsequently moved back to Alabama, where he again stole a purse. The hearing testimony was significant and differed from that at sentencing because it also corroborated how an addiction to crack-cocaine changed a generally pleasant person, free of criminal activity, into a person whose actions were often motivated by his biological need for crack. The State’s expert in rebuttal, Dr. Bark-land, testified that it was his opinion that McNair knew right from wrong at the time of the murder. It was Dr. Kirkland’s conclusion that McNair was coming down from a crack-cocaine high when he committed the murder. He found it significant that McNair had a complete memory of his behavior during the offense, which indicated an “awareness of criminality.” McNair’s awareness of the criminality of his behavior was not precisely addressed by either Drs. Morton or Waid. To the extent that McNair’s expert testimony leads to the conclusion that his acts were irrational, though, it contradicts Dr. Kirkland’s opinion that the act exhibited the “elements of. rational planning.” Dr. Kirkland did not address medical aspects of crack-cocaine addiction, or their specific manifestation in McNair’s case. 3. Strickland Analysis No Alabama court has ruled on the merits of this claim with the evidence currently before this court. Therefore, this court does not have before it an adjudication on the merits by a state court, is not constrained by § 2254(d), and reviews this claim independently. For the reasons that follow, this court finds that the representation McNair received during sentencing was constitutionally ineffective. For McNair to succeed on an ineffective-assistance-of-counsel claim he must show two things: (1) that the performance of his counsel fell below the standard of a reasonably competent attorney; and (2) that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Williams, 529 U.S. at 390, 120 S.Ct. at 1511; Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir.2000) (en banc). The Eleventh Circuit has set forth a framework for evaluating claims involving a failure to present mitigating evidence at sentencing. First, “it must be determined whether a reasonable investigation should have uncovered such mitigating evidence.” Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir.1991) (quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988)). If so, then the court must determine “whether the failure to put this evidence before the jury was a tactical choice by trial counsel.” Id. Furthermore, if it was a tactical choice by counsel, the “choice must be given a strong presumption of correctness, and the inquiry is generally at an end.” Id. Finally, “it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.” Id. a. Performance Whether a Reasonable Investigation Should Have Uncovered the Mitigating Evidence: Where the petitioner alleges that the failure to produce mitigating evidence constituted deficient performance of counsel, a petitioner must demonstrate that a reasonable investigation should have uncovered the mitigating evidence. Blanco, 943 F.2d at 1500. Furthermore, when the mitigating evidence in question includes expert testimony, a petitioner must show a “reasonable likelihood that an ordinarily competent attorney conducting a reasonable investigation would have found an expert similar to the one eventually produced.” Elledge v. Dugger, 823 F.2d 1439, 1446 (11th Cir.1987). The court finds that the proposed testimony of friends and family, as well as the expert testimony, could have been procured with reasonable investigation prior to sentencing. Testimony about the effects of drug addiction, though important, was not so unique as to be unknown to the reasonably competent criminal-defense lawyer in Alabama in 1990-1991. Both Smith and Decker testified that they were aware of such expert testimony during their trial preparation, and Decker testified he would have called this type of witness. Dr. Morton testified that research into the addictive effects of crack-cocaine was available as far back as the mid-1980s. In addition, Drs. Morton and Waid both stated that they would have been available to testify at the time of trial. Based on this evidence, the court concludes that the expert testimony similar to that presented at the evidentiary hearing would have been found through a reasonable investigation by an ordinarily competent attorney in 1990 and 1991. Reasons behind Sentencing Strategy: Having determined that the mitigating evidence at issue (or similar evidence) would have been available at McNair’s sentencing, the court must now determine whether the failure to offer this evidence was a tactical choice by trial counsel. Blanco, 943 F.2d at 1500. If so, that tactical choice will be given a strong presumption of correctness. Id. Numerous tactical decisions have been given credit as reasonable, often involving the balancing of strategy, possibly damaging cross-examination, and rebuttal witnesses. For instance, in Chandler, the Eleventh Circuit found that counsel was reasonable when counsel chose to focus on lingering doubt at sentencing and did not actively pursue character witnesses for mitigation, other than Chandler’s wife and mother, out of fear of damag