Full opinion text
MEMORANDUM OPINION DAVIS, United States Magistrate Judge. The magistrate judge filed a report and recommendation on February 11, 2004, recommending this petition for writ of ha-beas corpus filed pursuant 28 U.S.C. § 2254 be granted. Petitioner and respondent filed objections. The court has carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections thereto. The objections of each party shall be addressed separately, beginning with petitioner’s objections. Petitioner’s Objections I. Rule 32 Order Petitioner contends the magistrate judge erred when he recommended the findings made by the Rule 32 trial court in its order denying petitioner relief constituted an “adjudication” within the meaning of 28 U.S.C. § 2254(d), which petitioner contends is defined in Black’s Law Dictionary as “ .... the process of judicially deciding a case.” (Document # 27, at 17-18). Petitioner argues that “the Circuit Court merely signed [an] order [drafted by the state], without adding or deleting a word or comma.” Id. at 18. Thus, he concludes the Circuit Court did not adjudicate {e.g., engage in the process of judicially deciding) this case. Petitioner cites Helton v. Secretary for Dept. of Corrections, 233 F.3d 1322, 1326-27 (11th Cir.2000), to support this conclusion, in which he argues the state court “correctly concluded that federal law was ignored in state court habeas summary denial decisions which contained, ‘no reasoning, analysis, findings of fact, or legal basis for denial of ... claims.’ ” (Document # 27, at 18) (citing Helton, 233 F.3d at 1326-27). Petitioner’s claims are without merit. The Circuit Court in petitioner’s case did not summarily deny his Rule 32 petition. The Circuit Court signed a sixty-seven (67) page Order ruling on the issues presented by petitioner in his Rule 32 petition. The content of that Order contains reasoning, analysis, findings of fact and legal analysis. What petitioner is truly complaining about is the trial court’s adoption of an order proposed by the state. Such action does not translate into a failure by the trial court to make its own decisions concerning the issues presented in the Rule 32 petition. II. Batson Petitioner also presents three reasons why he believes the magistrate judge erred in failing to recommend relief based upon his Batson claim. Petitioner contends he has provided prima facie evidence the prosecutor used “its peremptory ch'al-lenge[s] ... to exclude 8 out of 14 black venire members (57%) but struck only 1Ó out of 24 white venire members (29%) who were qualified to serve as jurors.” Id. at 19. However, the magistrate judge discounted this evidence by misconstruing the record on appeal, thus recommending that any prima facie evidence of discrimination was eroded because petitioner also struck black venire-members and because three black venire-members were chosen to serve on the jury.' With regard to the first reason, petitioner contends the facts “before the court on direct appeal were the same as the facts on collateral review and in federal court.” Id. at 21. Petitioner argues he did not introduce new facts into the record. Instead, counsel contends he is permitted to “analyze [those facts] in any way which a court finds persuasive.” Id. (citing Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908)(the Brandéis brief)). ‘ Petitioner declares his analysis of the Batson issue in this case shows the magistrate judge should have considered petitioner’s proposed method of statistical analysis to be in the nature of a “Brandéis brief.” Id. Moreover, the magistrate judge should have found “[i]t ... useful to compare” the number of jurors struck in Mhxine Walker’s (petitioner’s co-defendant) trial to those struck in petitioner’s trial. In Maxine Walker’s case (which involved the same District Attorney who prosecuted petitioner’s case), the Court of Criminal Appeals found a prima facie case of discrimination because D.A. Rumsey “struck 11 of the 15 black venire members (73%) as contrasted with 9 of the 36 white venire members (25%)”, .... “even though four blacks served on Walker’s jury.” Id. at 24 (citing Walker v. State, 586 So.2d 49 (Ala.Cr.App.1991)). Second, petitioner contends the fact petitioner struck three potential black venire members himself is irrelevant to the question of whether petitioner has established a prima facie case of discrimination. Bui v. Haley, 279 F.3d 1327, 1339 n. 17 (11th Cir.2002). Finally, petitioner contends that the magistrate judge’s reliance on Central Alabama Fair Housing Center v. Lowder Realty Co., 236 F.3d 629, 638 (11th Cir.2000)(“Central ”), is misplaced, as that court’s assertion “that the unchallenged presence of a particular race on a jury substantially weakens the basis of a prima facie case of discrimination under p[e]r-emptory striking of jurors of that race[,]” is mere dicta in light of Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir.1995). Conclusion Petitioner is correct that even if a defendant also arguably has unclean hands because he too struck members of a particular race from a jury venire, same is irrelevant in the consideration of whether petitioner has made a prima facie case of discrimination. Thus, that portion of the magistrate judge’s report and recommendation is due to be rejected. Petitioner now clarifies he only introduced “the Fisher exact test” and the formulation of the jury in Maxine Walker’s casé as “Brandéis brief facts,” not as evidence in support of nor proof of á prima facie case of discrimination. Logiodice v. Trustees of Maine, Cent. Institute, 296 F.3d 22, 30 (1st Cir.2002). He concludes the magistrate judge could have found same to be persuasive or helpful. This court finds a review of the Fisher exact test to be unnecessary because the magistrate judge recommended the percentage of black jury venire-members struck in petitioner’s case should be considered statistically significant. (Report and Recommendation, at 33 (citing Central, 236 F.3d at 637)). “‘[A] challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under [Batson ].’ ” (other citation omitted)). Second, the statistical impact of black venire members struck in Walker’s case was far greater than in petitioner’s case. Further, the magistrate judge’s reliance on Central is not flawed, nor is the material portion of Central to which he referred mere dicta in light of Cochran v. Herring, 43 F.3d 1404, 1411-12 (11th Cir.1995). In Cochran, the Eleventh Circuit quoted United States v. Allison, 908 F.2d 1531, 1537 (11th Cir.1990), cert. denied, 500 U.S. 904, 111 S.Ct. 1681, 114 L.Ed.2d 77 (1991), writing, In Allison, the Government used three out of six peremptory challenges to strike black jurors. However, the [Allison ] court found that the “unchallenged presence of three blacks on the jury undercuts any inference of impermissible discrimination that might arise simply by the striking of other blacks.” The Cochran court went on to state, “although the seating of the jury is a significant fact, it does not bar a finding of racial discrimination. Allison, 908 F.2d at 1537.” Id. at 1412. Petitioner argues Cochran’s holding means “the presence of some blacks on the jury [are] insufficient to rebut [a] prima facie case.” (Document # 27, at 20). Thus, he contends evidence of blacks on the jury can only be rebuttal evidence in response to a prima facie showing of racial discrimination. However, the Cochran court did not find such evidence was only relevant to the state’s burden of showing a racially neutral reason for striking jurors after a prima facie case had been established. Further, the United States Supreme Court in Bat-son instructed trial courts to consider all relevant circumstances when deciding whether a defendant has made a prima facie showing of discrimination. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It wrote, A defendant making allegations regarding the improper use of peremptory strikes against jurors of a suspect class “may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose .... Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.” (emphasis added). Id. at 94, 106 S.Ct. 1712 (citing Washington v. Davis, [426 U.S. 229, 239-242, 96 S.Ct. 2040, 2047-2049, 48 L.Ed.2d 597 (1976)) land Alexander v. Louisiana, [405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972) ]. Elsewhere, the Court repeated that it was the. defendant’s burden to show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Thus, it was in the Alabama Supreme Court’s discretion to review the entire record, and take into consideration the percentage of black venire persons struck by the prosecutor and seated on the jury when considering whether petitioner made a prima facie case of discrimination. It was also within that Court’s discretion to determine, based upon the statistical information and the make up of the jury, that petitioner failed to establish a discriminatory inference created by the prosecution’s use of peremptory strikes. Accordingly, the state court’s decision was not contrary to federal law nor was it an unreasonable interpretation of the facts in light of the evidence before it. III. Second statement Petitioner contends the magistrate judge erred when he recommended petitioner’s' second confession was not obtained in violation of petitioner’s right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) or Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Id. at 26. Petitioner argues his five (5) day isolation and investigator Frankie Wallace’s admonishment that petitioner should “ ‘tell the truth and quit lying,’ ” was a psychological ploy designed to coerce a confession from petitioner in violation of Miranda and Edwards. Petitioner cites two cases in support of his contention that he was coerced by prolonged police custody. In U.S. v. Gtddo, 704 F.2d 675 (2d Cir.1983), the Second Circuit found the defendant’s Miranda rights had not been violated when, after defendant’s arrest and invocation of counsel, he asked what he was arrested for' while in the police car on the way to the jail, and was told it was a drug offense, that he should consider cooperating with the police and that he should consider discussing cooperation with his attorney. Id. at 675. The defendant also began asking specific questions about the details of the drug offense for which he had been arrested in the booking room of the jail, and when he received a response from the police, exclaimed “Oh Christ. Okay. I knew that one was trouble.” Id. The Matter of Appeal in Maricopa County, 139 Ariz. 260, 678 P.2d 445 (1984)(en banc), involved a juvenile offender who, after five (5) days in juvenile detention, was taken to a court hearing at which he asserted his right to remain silent and right to counsel, but then confessed to his parole officer when the officer approached the juvenile immediately after the court hearing and told the juvenile that anything he said would be kept confidential. Neither a suggestion of cooperation nor spontaneous assertion by an adult defendant, much less a confession of a juvenile upon being informed said information would remain confidential, are comparable to the circumstances surrounding petitioner’s confession. Petitioner’s second confession was not attained in violation of his Fifth or Sixth Amendment right to counsel. In fact, his Sixth Amendment right to counsel had not yet attached because he had not been formally charged at the time he made his confession. McNeil v. Wisconsin, 501 U.S. 171, 180, 111 S.Ct. 2204, 2210, 115 L.Ed.2d 158 (1991); and Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 2397, 101 L.Ed.2d 261 (1988). IY. Heinous, Atrocious, and Cruel Petitioner contends the magistrate judge erred when he' found the state court’s finding that the petitioner’s offense was heinous, atrocious and cruel (HAC) to be neither contrary to federal law nor an unreasonable interpretation of the facts presented during state court proceedings. (Document #27, at 29-30). Specifically, petitioner contends the magistrate judge erred when he “asserted that this court is procedurally barred from considering the fact that the HAC factor was not found in either of the two co-defendants’ cases” because petitioner presents this claim for the first time in this petition. Id. Petitioner’s argument is without merit. The HAC factor was presented in the context of the co-defendants’ cases, but only in connection with petitioner’s ineffective assistance of counsel claims, not as part of a claim that the HAC factor is unconstitutionally vague on its face or as applied. Further, the Court of Criminal Appeals only addressed these issues as part of petitioner’s ineffective assistance of counsel claims. Petitioner also contends the magistrate judge was mistaken when he found the Alabama Court of Criminal Appeals was correct in making its harmless error conclusion in connection with the faulty HAC jury instruction. Id. at 30. He believes the case relied on by the magistrate judge “fail[s] to distinguish controlling Supreme Court decisions that make clear that homicides of this nature cannot, as a matter of federal constitutional law, justify the death penalty.” Id. at 31 (citing Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980), Clemons v. Mississippi, 494 U.S. 738, 740, 110 S.Ct. 1441, 1443-44, 108 L.Ed.2d 725 (1990) and Maynard v. Cartwright, 486 U.S. 356, 361-64, 108 S.Ct. 1853, 1857-59, 100 L.Ed.2d 372 (1988)). The aforementioned cases are only material to the extent that they address the potentially unconstitutional overbreadth of a “heinous, atrocious and cruel” jury instruction and the ability of a state appellate court to cure such a deficient HAC instruction if that state has provided adequate constitutional limitations on the application of the factor in that state. Id. Alabama has a limiting construction of the heinous, atrocious and cruel factor. In Alabama, the HAC factor is limited to crimes “of such a nature that [are] ‘conscienceless or pitiless’ and ‘unnecessarily torturous to the victim ....’” Id. at 1174-75 (citing Ex parte Whisenhant, 555 So.2d 235, 244 (Ala.1989), cert. denied 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990), quoting Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981)). Petitioner believes the Court of Criminal Appeals did not cure the trial court’s constitutionally deficient HAC instruction because it did not recognize the proper limiting construction of the HAC factor in Alabama. (Document # 27, at 31). Petitioner has never disputed that his crime was conscienceless or pitiless. Instead, he stresses that for sentencing purposes in Alabama, the “unnecessarily torturous” portion of the HAC factor is analyzed by placing “the emphasis ... on the manner of the killing, not on the defendant’s actual participation.” Id. at 33 (citing Ex parte Bankhead, 585 So.2d 112, 125 (Ala.1991)). Petitioner contends the medical evidence shows the victim’s death in this case was instantaneous and therefore cannot be considered unnecessarily torturous to the victim. Id. at 32. Petitioner also finds fault with the appellate court’s reliance upon Bush v. State, 431 So.2d 555, 560-60 (Ala.Cr.App.1982), in finding petitioner’s crime to be héinous, atrocious, and cruel because he believes Bush is distinguishable from his case. Id. at 33. Specifically, petitioner declares the Bush court found the defendant’s crime to be heinous, atrocious and cruel because the defendant shot a victim in the face to avoid later identification. Id. However, he fails to give proper credence to the appellate court’s finding that such a shooting took place after the victim already had been shot in the chest, and he does not acknowledge the Bush court’s assertion that, “Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel.” Bush, 431 So.2d at 560. Moreover, in Hubbard v. State, 500 So.2d 1204, 1227 (Ala.Cr.App.1986), the Alabama Court of Criminal Appeals found the defendant had committed a murder for pecuniary gain, and that the crime was heinous,. atrocious and cruel because the victim was alive and possibly conscious for a time after being shot in the mouth, lying on the kitchen floor, when the defendant returned and shot her in the head. Id. Regardless of the question of instantaneous death, Alabama law recognizes mental as well as physical torture, and'the state court made it clear when it found the HAC factor in petitioner’s case, it was because the victim’s last minutes of life were filled with terror. Accordingly, the appellate court’s harmless error review was not contrary to nor did it involve an unreasonable application of federal law or constitute an unreasonable determination of the facts in light of the evidence presented in state court.' Finally, this court rejects petitioner’s assertion that the magistrate judge erred when he recommended, as procedurally barred, petitioner’s argument that the HAC factor has been unconstitutionally applied by Alabama courts since the 1990s. First, petitioner admits he could have raised these arguments at sentencing, on a motion for new trial, or on direct appeal, but believes he should be excused from this failure because petitioner “did not know until 1999, when the Court of Criminal Appeals expressly ruled in his case that there was no problem finding HAC for one defendant in a death penalty case and non-HAC for another.” Id. at 34-35. Petitioner’s claim is without merit. “In order to show cause for not raising a claim in an earlier petition, a petitioner must show ‘some external impediment preventing counsel from constructing or raising the claim.’ ” High v. Head, 209 F.3d 1257, 1262 (11th Cir.2000) (quoting McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991)). “Examples of objective factors external to the defense that constitute cause include interference by officials and ‘a showing that the factual or legal basis for the claim was not reasonably available to counsel.’ ” Id. at 1263, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The factual and legal basis for this claim arose when Lawhorn was convicted and sentenced. It was at that point the inconsistent HAC factor findings became apparent. Petitioner could have compared his case to Maxine Walker’s case as persuasive argument to prevent a finding of the heinous, atrocious or cruel factor at his sentencing hearing,' in a motion for new trial or on direct appeal. Further, Law-horn could have presented this claim in his petition for writ of certiorari, and certainly at any level of the state collateral proceedings. Because he has failed to show legal cause for his failure to present this claim prior to the present petition, this court is procedurally barred from considering the merits of same. Y. Ineffective Assistance of Counsel claims. Petitioner claims the magistrate judge erred when he found that the following ineffective assistance of counsel claim was procedurally barred because it was not raised on collateral appeal: “[Fjailure to investigate or present a cohesive defense theory and focus on relevant issues.” (Document #27, at 38). This claim has been waived by Petitioner failure to specifically present it on collateral appeal. Nonetheless, a review of the Court of Criminal Appeals’ opinion on collateral appeal in Lawhorn v. State, 756 So.2d 971, 981 (Ala.Cr.App.1999), shows the appellate court credited the trial court’s finding that “ ‘[tjrial counsel did investigate, prepare and present a coherent theory of defense at the guilt stage .. and did focus on relevant defenses,’ ” when it found that counsel “adequately prepare[d] and adequately presented] a defense for Lawhorn at the guilt stage.” Thus, it can be reasonably concluded that this issue was addressed on the merits by the appellate court, even if petitioner failed to raise it as a discrete issue. However, the fact that said claim was arguably addressed on the merits does not ‘alter the magistrate judge’s recommendation that counsel was not ineffective at the guilt stage. The court agrees with the magistrate judge’s recommendation that the evidence supporting petitioner’s guilt at that phase of the trial was so strong petitioner could not establish he was prejudiced by counsel’s failure to develop a defense theory to a constitutionally significant degree. Further, any factual allegations petitioner would have offered in support of that claim are addressed in various other ineffective assistance of counsel claims discussed by the magistrate judge. Nonetheless, for the sake of clarification, that portion of the magistrate judge’s recommendation, recommending that the aforementioned claim be considered procedurally barred, is due to be rejected. Petitioner finds fault with the magistrate judge’s assertion that ■ petitioner could have questioned counsel about their loyalty to him after he discovered one attorney was a brother to a prosecuting attorney, and further that petitioner did not reveal what information he would have divulged to those counsel if he had trusted them. Id. at 40. Petitioner complains that such a burden should not have been placed on an individual with a ninth grade education. The court is unpersuaded by this argument. Moreover, petitioner has never revealed what information he would have given to counsel had he trusted them. Second, with regard to the issue of involuntary intoxication, petitioner takes issue with the magistrate judge’s finding that even if the evidence presented at the Rule 32 Hearing had been presented at trial, and the trial court allowed a jury instruction regarding voluntary intoxication, there is no reasonable probability that the jury would have accepted the defense of voluntary intoxication. Id. at 45. Petitioner declares that in making this recommendation, the magistrate judge looked at the evidence in a manner most favorable to the state, when it should have been viewed in a light most favorable to petitioner. ■ In Alabama,- “[t]he degree of intoxication required to show that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill.” Ex parte Bankhead, 585 So.2d 112, 121 (Ala.1991). After a review of the factual allegations in support of this claim, and the magistrate judge’s legal conclusions regarding same, this court is satisfied the magistrate judge did not view this claim in a light most favorable to the state. (Document # 22, at 88-91). Petitioner has simply failed to show any reasonable probability the jury would have accepted the defense of voluntary intoxication. Next, petitioner complains the magistrate judge erred when he found counsel was not ineffective for failing to seek expert psychological testimony. (Document # 27, at 46). A review of the record, and the recommendation, shows petitioner’s argument to be without merit. Other than substance abuse, neither expert at the Rule 32 hearing found that petitioner was suffering from a mental disease or defect. One of the experts surmised that petitioner was borderline mentally retarded, while the other found petitioner to be of low average intelligence. The latter differences were based mainly upon disagreement over petitioner’s adaptive skills. Dr. Biedleman did opine that petitioner had a dependent personality, but it was within the trial court’s discretion to credit the testimony of Dr. Renfro over Dr. Beidleman concerning petitioner’s mental health, particularly when the court had an opportunity to view petitioner himself and found him to be a rather articulate individual for someone with an eighth grade education. As such, the state court’s decision was neither contrary to federal law nor was it an unreasonable determination of the facts in light of the evidence before it. Petitioner next objects to the magistrate judge’s recommendation that the state court’s determination that mitigation evidence offered at the Rule 32 hearing was essentially the same as that offered at the sentencing hearing, and his recommendation that the state court correctly ruled trial counsel properly investigated petitioner and other witnesses for testimony, were neither contrary to or involved an unreasonable application of federal law. In support of his objections regarding the cumulative nature of the mitigating evidence offered at sentencing, petitioner contends the following evidence was not presented at trial: an alcoholic father, abusive and alcoholic stepfathers, witness to his stepfather’s shooting death at age 6, an underprivileged childhood where he and his siblings were left to watch themselves while their mother worked or kept company with a boyfriend, transient teenage years in which he rebounded from state to state, various family members and school systems, thus becoming a high school drop out at 16, the testimony of his brother Jerry Lawhorn and aunt Datherline Law-horn, and the fact that he was gainfully employed at the time of the murder. Id. at 54-58. Petitioner specifically complains neither Jerry Lawhorn nor Datherline Lawhorn testified in his behalf because they were never asked, when in fact both were aware of the trial dates but did not come to the trial, and Jerry Lawhorn stated he did not come to the trial because he did not want to miss work. The court does not find petitioner’s objections to be persuasive. Moreover, this court finds it unnecessary to perform a second analysis concerning each and every allegation heretofore listed, particularly when those allegations are adequately detailed and examined in the magistrate judge’s report and recommendation. The remainder of petitioner’s objections consist of complaints that trial counsel failed to investigate and prepare witnesses for trial, including petitioner, petitioner’s mother and the victim’s wife; failed to adequately examine petitioner when he took the stand in his own behalf at the penalty phase; and failed to object to a pre-sentence investigation report. Id. at 59-70. Again, the court does not find petitioner’s objections to be persuasive and finds the magistrate judge’s analysis of these issues to be more than adequate. VI. The Alabama Death Penalty Statute is Unconstitutional As admitted by petitioner, this claim is procedurally barred. Respondent’s objections I. Riverside ■ Respondents contend that petitioner’s Riverside claim is procedurally barred becausesame was not raised at trial or on appeal. (Document #29, at 1-15). This issue was raised before the Alabama Supreme Court, reviewed, and found to harbor no reversible error. Therefore, petitioner’s Riverside claim is not procedurally barred and should not have been deemed barred by the state court during collateral proceedings. Moreover, this court finds it unnecessary to perform a second analysis concerning this claim, particularly when the allegations and issues objected to are adequately detailed and examined in the magistrate judge’s report and recommendation. This court is equally unpersuaded with respondents’ argument that the purpose of Riverside is to deter unlawful police conduct and that due to the length of time which has elapsed since petitioner’s conviction, there would be no deterrent effect by suppressing petitioner’s confession as fruit of the poisonous tree. II. Improper Prosecutorial Argument Respondents contend the magistrate judge erred when he recommended the prosecutor’s remarks on patriotism be found to be improper. Id. at 16-22. First, respondents complain petitioner’s claim is a bare assertion unsupported by facts, and declare petitioner failed to cite that portion of the record to which he is referring. Next, respondents argue the prosecutor’s argument was not improper. After considering same, this court finds petitioner adequately stated the claim in his petition. However, it is not convinced the argument was improper. The magistrate judge relied on Brooks v. Kemp, 762 F.2d 1383, 1412 (11th Cir.1985), as support for his recommendation that the prosecutor’s argument was improper. In Brooks, the prosecutor gave a lengthy argument to the jury about the “war on crime,” and the general criminal element, while comparing the jurors? role to that of a soldier in battle whose duty it is to kill the enemy. In Davis v. Kemp, 829 F.2d 1522, 1527 (11th Cir.1987), the prosecutor also spoke about patriotism and the duty of soldiers. However, unlike Brooks, the prosecutor did not ask the jury to punish the defendant because he was part of a larger criminal element. Instead, he pointed to the defendant personally and individually when arguing that the underlying circumstances of the particular crime he committed merited the death penalty. Like Brooks, the prosecutor in this action made patriotic references. However, he did not inform the jurors that they had a duty to recommend the death sentence as citizen soldiers sworn to ameliorate the criminal element in an ongoing “war on crime.” The court finds the prosecutor’s comments to be more closely akin to those of the prosecutor in Davis v. Kemp. Rumsey did make patriotic statements and referred to the duty of soldiers, but he also pointed to the circumstances surrounding petitioner’s crime and petitioner’s intimate involvement in that crime. Rumsey did not place his comments inside a general diatribe on the “war on crime,” nor did he strongly infer that the jury must return a recommendation of death against petitioner in order to punish the criminal element of society, thus transforming petitioner into a nameless enemy on whose shoulders the entire responsibility for crime lay. Therefore, Rumsey’s remarks did not deprive petitioner of individualized consideration before the jury, and as such, were not improper. III. Clarifícation regarding petitioner’s “R” and “S” claims. The magistrate judge recommended the claims purportedly set out in Sections “R” and “S” of the petition for writ of habeas corpus be denied because same were without sufficient detail or clarity to state a constitutional violation pursuant to § 2254(e)(2). (Document #29, at 23). While respondents agree with the magistrate judge’s recommendation, they also request that this court also deny the claims because same involve only questions of state law. However, respondents fail to divulge the state law(s) for which they desire affirmation. This court declines respondents’ request. IY. Ineffective Assistance of Counsel. Respondents contend the magistrate judge should have recommended petitioner’s ineffective assistance of counsel claim, the underlying basis being failure to raise and argue the Riverside issue on appeal, be denied on the basis that same is proee-durally defaulted. Id. at 23-24. In his report ahd recommendation,' the magistrate judge wrote, The Alabama Court of Criminal Appeals incorrectly concluded that petitioner’s claim of ineffective assistance regarding the Riverside issue was raised for the first time on collateral appeal. Petitioner specifically identified the Riverside violation as an erroneous ruling by the trial court. The statement in paragraph kk, [of the petitioner second amended Rule 32 petition,] also alleges that appellate counsel was ineffective because he failed to brief issues that were identified in the preceding sections of the petition. The undersigned magistrate judge believes this was sufficient to put the respondent on notice that this issue was also being raised as an issue of ineffective assistance. However, for the reason set out above, this error is irrelevant to the court’s recommendation. (Document # 22, at 18, n. 1). This court has carefully reviewed those portions of the Rule 32 petition to which the magistrate judge referred and finds petitioner’s ineffective assistance of counsel claim is not procedurally barred. V. Ineffective Assistance of Counsel U(l). Respondents declare the magistrate judge erred when he recommended that trial counsel’s failure to investigate and develop evidence regarding mitigating evidence was not procedurally defaulted. (Document #29, at 25-26). First, the magistrate judge did recommend the claim, that counsel failed to investigate and develop evidence at the guilt phase, be deemed defaulted. (Document #22, at 81). Further, while the Alabama Court of Criminal Appeals found that the failure to investigate and develop evidence at the penalty phase was defaulted, at least as far as it applied to counsel’s attempt to obtain a psychologist for the benefit of petitioner, it also reviewed the merits of that claim. Lawhorn v. State, 756 So.2d 971, 988-89 (Ala.Cr.App.1999). Under the plain statement rule, a federal district court may consider a claim “when a state court’s decision created an ambiguity over whether the decision was based on the merits or on the application of a procedural bar.” Morrison v. Thigpen, 1995 WL 914616, *6 (M.D.Ala. Jan. 19, 1995) (citing Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Respondents argue the Court of Criminal Appeals did not address the heretofore described claim on the merits, and the magistrate judge took the pertinent portions of the Court of Criminal Appeals’ opinion out of context. Thus, they conclude the magistrate judge’s recommendation was based upon a false ambiguity. Specifically, respondents contend the Court of Criminal Appeals only addressed petitioner’s claim that his trial counsel failed to obtain a psychologist, not a claim that trial counsel failed to have petitioner examined by an expert psychologist. There is no logical reason for arguing that the failure to obtain a psychologist claim is preserved but can only be considered in a vacuum, particularly when the appellate court acknowledged, through the testimony of petitioner’s attorney as accepted by the trial court, that the purpose of obtaining the psychologist was to examine the petitioner to present mitigating circumstances, that there was nothing in the assessment which could have established a mitigating circumstance, and that petitioner was not prejudiced by counsel’s failure. Lawhorn v. State, 574 at 988 (citing Rule 32 transcript, at 466-67). Accordingly, respondents’ objection is without merit. VI. Ineffective Assistance of Counsel U(2) Respondents declare the magistrate judge erred when he recommended petitioner’s claim that trial counsel was ineffective because his consultation with petitioner about his right to testify in his own behalf was procedurally barred. (Document # 29, at 26-27). Respondents admit petitioner raised this claim before the Rule 32 trial court but contend petitioner failed to raise his claim on collateral appeal nor argue the claim in his appeal brief. The magistrate judge acknowledged petitioner did not raise the above claim on collateral appeal, a finding also made by the Court of Criminal Appeals. However, the magistrate also determined the Court of Criminal Appeals addressed the merits of the claim, and therefore recommended that this claim was not procedurally barred. Respondents complain the magistrate judge did not reference the part of the record upon which he made his recommendation. In their opinion, petitioner only argued his attorney was ineffective because he failed to adequately prepare petitioner and other witnesses to testify at the penalty phase of the trial. The court is persuaded by respondents’ objections. The appellate court did not specifically address any failure to adequately consult petitioner about his right to testify at the penalty phase of the trial. To the extent that inadequate consultation was addressed, it was mostly in the context of whether petitioner and his witnesses were prepared in such a manner that more favorable testimony could be elicited about the petitioner’s background for the penalty phase of the trial. Lawhorn v. State, 756 So.2d at 986. However, within the same analysis the appellate court wrote, We too have compared the testimony presented at Lawhorn’s trial and the testimony presented at the Rule 32 hearing and find that the evidence presented was essentially the same. While Lawhorn urges us to believe that more graphic details elicited during the penalty phase may have had an influential impact on the jury, this is pure speculation, especially considering the fact that Lawhorn, himself, and his mother during his trial, begged for mercy. Law-horn has not shown that his counsel’s performance was deficient in this regard; nor has he shown that he was prejudiced by his counsel’s performance. Id. This discussion of damaging details elicited at the penalty phase may have spurned the magistrate judge’s recommendation regarding the adequacy of trial counsel’s explanation and preparation of petitioner concerning his right to testify, especially the consequences of choosing to testify in his own behalf, and the chance that cross-examination could not only result in unfavorable (as opposed to favorable) testimony, but also destroy the benefits of any favorable testimony about his background. However, it appears to the court that this interpretation is simply too remote from the discrete issue actually addressed by the appellate court. Accordingly, the magistrate judge’s recommendation that petitioner’s claim of inadequate consultation about his right to testify at the penalty phase of the trial was not procedurally barred is due to be rejected. VII. Ineffective Assistance of Counsel U(ll) Respondents contend the magistrate judge erred when he recommended that trial counsel’s failure to ask the jury to spare his client’s life was not procedurally defaulted. (Document # 29, at 28-29). Respondents admit the Rule 32 trial court mentioned this failure in its order denying the Rule 32 petition, but they argue it was only addressed within the context of failure to make a closing argument and, in any event, petitioner failed to raise the issue on collateral appeal. In this habeas petition, petitioner argued that his counsel was ineffective for failing to ask the jury to spare his client’s life at the penalty and sentencing phase. Therefore, the magistrate judge addressed the question of procedural default at both stages. The magistrate judge recommended the penalty phase aspect of the claim be found to be procedurally defaulted but did not recommend the sentencing aspect of the claim be found to be procedurally defaulted. (Document # 22, at 79). Further, the magistrate judge did not consider the failure of trial counsel to ask the jury to spare his client’s life as a discrete claim in the report and recommendation. This factual allegation was addressed as part of losses petitioner endured as a result of counsel’s failure to make a closing argument, which is precisely how the state appellate court considered it, a fact which is readily acknowledged by respondents. Lawhorn v. State, 756 So.2d at 987. VIII. Ineffective Assistance of Counsel. U(f) Respondents contend petitioner did not raise counsel’s failure to call the victim’s wife as a witness as a discrete claim in his petition for writ of habeas corpus. (Document #29, at 29-31). A review of the petition for writ of habeas corpus shows petitioner did raise this claim under the heading, “The petitioner was denied his right to effective assistance of counsel at the penalty and sentencing phases and on appeal.” (Document # 1, at 28-29). Underneath that heading, petitioner alleged his trial counsel found the wife’s testimony to be unimportant, and he also alleged Roger Appell, a criminal defense expert, expressed in his professional opinion at the Rule 32 hearing, that the failure to call her as a witness was ineffective assistance of counsel. Id. Further, respondents entered a denial to these allegations in their answer. (Document # 13, at 66). Respondents now argue said allegations were not a discrete claim proffered by petitioner and request permission to amend their answer to the complaint. (Document # 30). Respondents motion is due to be DENIED. However, the only testimony that has been evoked on this matter is from petitioner’s mother and sister. Since the trial court found the testimony of these witnesses to be biased and therefore entitled to less credit, as was within his discretion, petitioner cannot show he was prejudiced by the failure of counsel to present the' victim’s alleged opinion, and as such, he is not entitled to relief on this claim. Accordingly, the magistrate judge’s report and recommendation regarding this claim is due to be rejected. IX. Ineffective Assistance of Counsel U(6) The court has reviewed respondents’ objections to the magistrate judge’s recommendation that counsel’s failure to make a closing argument constituted prejudicial ineffective assistance of counsel, and finds same to be unpersuasive. (Document # 29, at 32-38). Moreover, this court finds it unnecessary to perform a second analysis concerning this claim, particularly when those allegations are adequately detailed and examined in the magistrate judge’s report and recommendation. OPINION For the foregoing reasons, the magistrate judge’s report and recommendation is due to be ADOPTED and his recommendations ACCEPTED, with the exception of the following portions of the recommendation described hereinbelow. The magistrate judge’s report and recommendation is due'to be REJECTED to the extent that the magistrate judge recommended that: (1) petitioner’s act of striking black ve-nire members was relevant to the question of whether petitioner made a prima facie discrimination claim, (2) the prosecutor’s patriotic argument at closing be deemed improper, (3) petitioner’s claim that he was denied ineffective assistance of counsel because of counsel’s failure to develop a cohesive defense theory at the guilt stage was procedurally barred, (4) petitioner’s claim of inadequate consultation about his right to testify at the penalty phase of the trial was not procedurally barred, and (5) failure to bring forth the testimony of the victim’s wife constituted ineffective assistance of counsel. Accordingly, the petition for writ of ha-beas corpus filed by petitioner is due to be GRANTED and RELIEF is due petitioner as follows: 1. Petitioner was subjected to an unconstitutional delay in securing a judicial determination of probable cause for . his warrantless' arrest in violation of the Fourth Amendment to the United States Constitution. The appropriate remedy for this violation is suppression of the confession elicited from petitioner as a result of the delay. Therefore, petitioner’s conviction is due to be VACATED. 2. Petitioner’s trial counsel was ineffective for failing to make a closing argument in petitioner’s behalf at the penalty phase of the trial. Said failure violated petitioner’s right to counsel pursuant to the Sixth Amendment of the United States Constitution. The appropriate remedy for this violation is a new penalty hearing. Therefore, petitioner’s death sentence is due to be VACATED. Finally, respondents’ motion to amend their answer (Document # 30) to the petition is due to be DENIED. An appropriate order will be entered. ORDER In accordance with the Memorandum Opinion entered contemporaneously herewith, it is ORDERED, ADJUDGED and DECREED that the petition for writ of habeas corpus filed by petitioner is GRANTED and RELIEF shall be afforded petitioner as follows: 1. Petitioner was subjected to an unconstitutional delay in securing a judicial determination of probable cause for his warrantless arrest in violation of the Fourth Amendment to the United States Constitution. The appropriate remedy for this violation is suppression of the confession elicited from petitioner as a result of the delay. Therefore, petitioner’s conviction is VACATED. 2. Petitioner’s trial counsel was ineffective for failing to make a closing argument in petitioner’s behalf at the penalty phase of the trial. Said failure violated petitioner’s right to counsel pursuant to the Sixth Amendment of the United States Constitution. The appropriate remedy for this violation is a new sentencing hearing, which must include a new penalty hearing. Therefore, petitioner’s death sentence is VACATED. Finally, respondent’s motion to amend his answer to the petition (Doc. # 30) is DENIED. DAVIS, United States Magistrate Judge. REPORT AND RECOMMENDATION Petitioner, James Charles Lawhorn, (“Lawhorn”), represented by attorney Hank Fannin (“Fannin”) and Mark Nelson (“Nelson”), was convicted in Talladega County Circuit Court of capital murder and sentenced, on June 26, 1989, to death by electrocution by the Hon. William C. Sullivan. His conviction and sentence were affirmed on direct appeal. Lawhorn v. State, 581 So.2d 1159 (Ala.Cr.App.1990), aff'd, 581 So.2d 1179 (Ala.1991). The U.S. Supreme Court denied his petition for a writ of certiorari on November 18, 1991. 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991). Lawhorn filed a petition for relief pursuant to Rule 32, Ala.R.Cr.P., on May 3, 1993. That petition was denied and he appealed to the Alabama Court of Criminal Appeals. That court affirmed the denial of relief. Lawhorn v. State, 756 So.2d 971 (Ala.Cr.App.1999). A petition to the U.S. Supreme Court for a writ of certiorari was denied on June 9, 2000. Lawhorn v. Alabama, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000). Petitioner filed his pending petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 3, 2001. Factual Background The essential facts of this case are recited by the Alabama Court of Criminal Appeals in Lawhorn v. State, 581 So.2d at 1161-62 and Lawhorn v. State, 756 So.2d at 976-78. The state’s evidence reflected that the victim, William Berry, was observed by a police officer on the morning of March 31, 1988, across the street from a gas station in Sylacauga, Alabama where the officer had stopped. Berry appeared to be arguing with two people later determined to be Lawhorn and Lawhorn’s aunt, Altion Maxine Walker. Later that day, a man driving an automobile belonging to Berry was seen following a truck driven by a woman and later identified as belonging to Walker. The vehicles stopped at a store on Highway 148, about one-half mile from Wiregrass Road. After buying sodas from a drink machine outside the store, both got into the truck and drove away, leaving the automobile parked in front of the store. It remained there until it was towed away by police officers on April 2,1988. At approximately 4:00 p.m. on March 31, a man on a dirt road off of Highway 148 observed a truck which resembled Walker’s, turn down the road and come toward him. He observed two men and a woman inside the truck. The men were “fairly young men” with beards. (Lawhorn wore a beard at this time). On April 1, 1988, Walker cashed a check for $800.00 from one account, deposited $600.00 in another account and kept $200.00. At mid-day on April 2, 1988, a hunter discovered the body of William Berry in a wooded area about 70 feet off Wiregrass Road, approximately 2 miles from Sylacau-ga. An autopsy revealed abrasions to Berry’s forehead and 27 gunshot wounds, 16 of which were entrance wounds and 11 of which were exit wounds. Gunshots from a pistol or rifle caused four of the wounds: one entering the left side of the neck; one entering the chin and traveling to the brain causing death instantly; and two entering the left side of the chest, one of which severed the spine and spinal cord, also causing instantaneous death. The remaining wounds were caused by a shotgun. They were to both arms, the upper abdomen, the right side of the chest, the right-leg, and the right upper back. The wounds from either weapon were fatal. Between April 2nd and 4th, officers seized a 12-gauge shotgun, a 12-gauge .00 buck Winchester shell, and an empty box of .00 buckshot from Walker’s residence. A box of Winchester Super-X .25 caliber shells was retrieved from under a shed approximately 50 feet behind the residence. Papers for the operation of a Titan semi-automatic .25 caliber pistol were found between the house and the barn, and a FIE Titan .25 caliber pistol with a clip was recovered in the driveway behind the residence. A firearms expert determined that three spent 12-gauge shotgun shells found off the road near the scene possessed the same class characteristics as the 12-gauge shotgun recovered from the Walker residence, although he could not conclude with certainty that the spent shells had been fired from that particular gun. However, he did determine that the three .25 caliber spent projectiles recovered from the victim’s body and a spent .25 caliber cartridge found at the scene had been fired by the pistol found in Walker’s driveway. Shotgun pellets retrieved from the body and in and around the crime scene were determined to be .00 buckshot. A fingerprint lifted from the exterior door of Walker’s truck belonged to Law-horn. A fingerprint lifted from the box of Winchester shells found under Walker’s shed belonged to Walker. Lawhorn was arrested without a warrant on April 2, 1988. Petitioner was advised of his rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) by Investigator Frankie Wallis at the Sylacauga police department. Lawhorn acknowledged that he understood his rights, stated that he wished to talk, and signed a waiver form. He made no inculpatory statements on that date. However, after some questioning occurred, petitioner asserted his right to counsel and questioning ceased. Petitioner was then held in custody at the Talladega County jail for six days before the police sought a judicial determination of probable cause and obtained an arrest warrant for Lawhorn on April 8, 1988. During this time period he never consulted an attorney. On April 7, 1988, Officer Wallis was walking past petitioner’s cell when Law-horn stated that he wanted to talk to Wallis. Wallis testified that he told petitioner that he could not talk to Lawhorn because of his request for counsel. According to Wallis, Lawhorn said he would waive this right. However, Wallis could not immediately stop and talk to petitioner because of another matter. About 30 minutes later, at approximately 4:00 p.m., Wallis returned and, in the presence of Ann Wallace of the district attorney’s office and Lt. Billy Pope, petitioner was again advised of his rights. Petitioner again acknowledged his understanding of his rights and his desire to talk with the officers. Petitioner also executed a waiver form stating, “I do not want a lawyer.” No one made any threats or any promise or reward to make a statement. He stated that his aunt, Walker, had tried to hire him to kill Berry, but that he did not take any part in it and that he was in Alexander City until 5:00 p.m. on the day of the murder.' Thereafter, petitioner was told that they believed he was lying and that he should tell the truth. Lawhorn testified that he was told by Wallis that things would be better for him if he told the truth. Wallis denied making any such statement. Nevertheless, at approximately 5:40 p.m. Law-horn gave another statement. Petitioner stated that from the Monday before the murder to the Friday after, he stayed with his aunt, Walker. During the week, Walker told him that she was scared of Berry; that she had asked her son, Kilgore, to “beat his ass”, and that she wanted to “get rid” of him. Nearly every day, she asked Lawhorn to get rid of Berry. On Wednesday, she told him she would pay him and he said, “No.” On Thursday, petitioner and Walker, in Walker’s truck, ran some errands in Alexander City. They picked up petitioner’s brother, Mac Lawhorn. On their way back to Syla-cauga, Walker asked Mac if he would be interested in making some money, and he said, “Yes.” He asked what the job was and she told him she wanted him to “get rid of William.” She was willing to pay Mac Lawhorn and the petitioner $100.00 for their services. In Sylacauga, they went to the Otasco hardware store where petitioner retrieved a 12-gauge single-shot shotgun and four shells from the automobile of his cousin Kilgore, Walker’s son. Then, between 4:00 p.m. and 5:00 p.m., the three went to a wooded area, where, according to Walker, she and the victim “go parking.” The petitioner and Mac Lawhorn got out of the truck to wait in the woods until Walker returned with Berry. Petitioner had a pistol in his pocket that he had retrieved from Walker’s truck, and Mac Lawhorn was carrying the shotgun, which he loaded. In less than 30 minutes, Walker returned with Berry. Petitioner and Mac Lawhorn were hiding in the woods. Berry and Walker got out of Walker’s truck, and according to Walker’s version that she later told petitioner and his brother, Walker went across the road to the bushes to “use the bathroom.” Berry went across the road with her, but he then began running up the road. Walker went to the two men and told them that Berry was running up the road. Then, Walker got into the driver’s seat of her truck, the two men lay down in the bed of the truck, and Walker told them that she would slam on the brakes when she caught up with Berry. According to Lawhorn’s statement, when Walker slammed on her brakes, Mac Lawhorn raised up and shot Berry in the shoulder. Berry fell to the ground, yelled, got up, and started running again. Mac Lawhorn then shot him again. Initially, Berry kept running toward the woods, but then fell to the ground. Mac Lawhorn told petitioner to make sure Berry was dead. Petitioner stated that he then walked over to the victim who was making gurgling noises. He saw that Berry fell because his feet had become tangled on a vine. He then pulled out his pistol and shot him approximately three times. They then drove away from the area. After Walker’s son, Kilgore, got off work at 5:30 p.m., he and petitioner went back to the murder scene to look for the shotgun and pistol shells because petitioner did not want to leave any evidence. He could not find any so the two drove to Walker’s house. There, Kilgore told his mother to clean the shotgun. He also told her to get the pistol because she had a permit to carry it, and that “would show instant guilt.” However, Walker had already given the pistol to Mac Lawhorn for disposal.' As a result, petitioner-called his brother around 6:30 p.m. and told him to get the pistol. Telephone records verify that a telephone call was made at 6:40 p.m. on March 31 from Walker’s residence to petitioner’s mother’s residence. Mac Law-horn told him that he, their mother,' and their sister were going to eat and that they would be back later. Walker and petitioner went to the Lawhorns’ mother’s house to get the pistol from Mac Lawhorn. While Walker sat in her truck, petitioner got the pistol. Mac Lawhorn told Walker to ■ bring him his money the following morning, and Walker replied, “I’ll go to the bank in the morning and get the money.” Petitioner and Walker then left and returned to her house between 7:30 p.m. and 8:00 p.m. At that location, Kilgore took the pistol, put it in the trunk of his automobile, and said that he would do something with it. On Friday morning, Walker and petitioner left Walker’s residence and “went straight to the bank” where Walker gave him $50.00 and told him it was payment for “getting rid” of Berry. Procedural Background In addition to the conviction and death sentence received by petitioner, Maxine Walker was convicted and sentenced to death, although the sentencing judge in her case, the Hon. Jerry Fielding, did not find that the crime was “especially heinous, atrocious or cruel.” However, Walker’s conviction was overturned on appeal for a Batson violation and the case has not yet been retried. Walker was the first of the three defendants to be tried. Petitioner was tried next. , The trial lasted a day and a half. Fannin’s fee declaration reflects that, prior to trial, he spent a total of 14.5 hours in out-of-court preparation time. Of these, eight hours were spent on Octojoer 10, 1988, reviewing the death scene and investigation as to which county the crime occurred. The time spent determining which county the crime occurred in turned out to be wasted time. Although the crime occurred close to the Clay County/Talladega County line, under Alabama law a county may prosecute crimes that occur within one mile of its borders. The remaining six and one-half hours were spent in three meetings with Law-horn, once in June 1988, once in July 1988, and once in August 1988, and preparing a motion for psychiatrist and an order appointing an investigator. Fannin filed this motion but never pursued it. Steve Giddens, who was appointed co-counsel with Fannin on May 10, 1988, withdrew on April 3,1989, when he accepted a job at Legal Services Corporation. Mark Nelson was then appointed to represent Lawhorn as co-counsel to Fannin. Nelson opened his file on April 17, 1988, only one week before trial commenced. The main evidence against petitioner was his confession. At the penalty phase, petitioner’s trial (and appellate) counsel, Hank Fannin (“Fannin”), called several witnesses on behalf of petitioner and petitioner also took the stand. However, after the prosecutor made the first part of his opening statement, Fannin waived closing argument based on an erroneous understanding of Alabama law. Fannin believed that if he waived his closing argument, the prosecution could not argue any further in rebuttal. This was incorrect. As a result, the prosecutor made two closing statements at the penalty phase and counsel for petitioner made none. In addition, at sentencing, petitioner and his counsel were presented with a pre-sentence report. Petitioner claims that his trial counsel failed to object to a gratuitous recommendation of death contained in the report, gross factual errors, layers of un-confronted hearsay, and an interview conducted of petitioner without benefit of counsel. He also failed to present any testimony about his upbringing, abuse received as a child, education and other events in his life which petitioner believes would have resulted in a sentence of life without parole. Likewise, although out of jurors who were called to deliberate in this case, the state struck 57% of the black venire members but only 26% of the white venire members, Fannin did not make a Batson argument on direct appeal. The last defendant tried was Mac Law-horn (“Mac”). Mac’s counsel, unlike Fan-nin, did make a closing argument at the sentencing phase and the jury recommended a sentence of life without parole. In this case, also tried before Judge Sullivan, the court did not find the killing to be “especially heinous, atrocious or cruel.” At the Rule 32 hearing, petitioner presented the testimony that before trial, Hank Fannin was visited by Lawhorn’s sister and mother, Shirley Hudson. Hudson told Fannin that she was' approached by the wife of the deceased, who expressed to Hudson that she was very sorry that petitioner and Mac Lawhorn had gotten involved in her husband’s murder. Further, the wife of the deceased was convinced that Maxine Walker was responsible for her husband’s death. Hudson testified that Fannin told her that this information was not important. Attorney Roger Appell, an ex