Hallford v. Culliver (379 F. Supp. 2d 1232, 2004)

MEMORANDUM OPINION

COODY, Chief United States Magistrate Judge.

I. INTRODUCTION

On November 1, 1995, the Petitioner, Phillip Hallford, an Alabama inmate under sentence of death, filed a petition in this court seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In its answer to the petition, the State of Alabama responded that many of the claims raised by Hall-ford were precluded from review because they were procedurally defaulted. On June 11, 1999, the court directed that this case proceed in two stages, the first of which was to determine which claims should be denied on procedural default grounds and which non-defaulted claims required an evidentiary hearing. The second stage would then determine the merits of the non-defaulted claims. The determination of stage I issues was referred to the undersigned. After the determination of the stage I issues, the parties on May 21, 2002, pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, consented to the United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment. On May 23, 2002 this case was reassigned to the undersigned for dispositive resolution.

Following an evidentiary hearing on two of Hallford’s claims, the court received and has carefully considered the briefs from both Hallford and the State. Based on the arguments of the parties, the record, and all of the evidence, the court, after exhaustive consideration of all Hallford’s claims, concludes that Hallford’s petition is due to be denied in all respects.

A. FACTS

On March 4, 1987, Hallford was convicted of the capital offense of murder committed in the course of a robbery. See Ala. Code § 13A-5-40(a)(2). The Alabama Court of Criminal Appeals summarized the facts of the case as follows:

The state’s evidence at the guilt phase of [Hallford’s] trial tended to show that in the early morning of April 13, 1986, [Hallford] forced his daughter [Melinda] to entice her boyfriend, Charles Eddie Shannon to a secluded bridge. He then shot Shannon once in the roof of the mouth. While Shannon was still alive, [Hallford] dragged him to the side of the bridge and shot him two more times, once in the front of the left ear and once in the forehead. [Hallford] then threw the body over the bridge railing and into the water.

Sometime after the shooting, [Hall-ford] returned to the scene of the crime to remove the blood from the bridge. The next day [Hallford] burned the victim’s wallet and its contents. These events were witnessed in part by [Hall-ford’s] daughter and his son, who testified against him at trial. While [Hall-ford] was burning the victim’s wallet he commented that the victim was a “cheapskate” because he said he found no money in the wallet. However, the victim’s father testified that he had given the victim money on the afternoon of his disappearance. The victim’s badly decomposed body was discovered in the water approximately two weeks after the shooting.

[Hallford] maintained at trial that he did not kill the victim and that he was nowhere near the bridge when the murder occurred.

Hallford v. State, 629 So.2d 6, 7 (Ala.Crim.App.1992).

After finding Hallford guilty of the capital offense of murder committed in the course of a robbery, the jury, by a vote of 10-2, returned a verdict recommending that Hallford receive the death penalty. On April 16, 1987, following a hearing, the trial court sentenced him to death. Hall-ford’s conviction and death sentence were affirmed on direct appeal. Hallford v. State, 548 So.2d 526 (Ala.Crim.App.1988), aff'd, 548 So.2d 547 (Ala.) cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989).

Hallford filed pursuant to ALA. R.CRIM.P. 32 a motion for state post-conviction relief, and a hearing was conducted by the trial court (hereinafter “Rule 32 hearing”). Post-conviction relief was denied; the denial was affirmed by the Alabama Court of Criminal Appeals. Hallford v. State, 629 So.2d 6 (Ala.Crim. App.1992), cert. quashed, No. 1920735, 1993 Ala. LEXIS 1420 (Ala. Dec. 10, 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994). This is the first petition for federal habeas corpus relief filed by Hallford.

B. GENERAL STATEMENT OF THE LAW

A district court must resolve all claims for relief raised in a petition for writ of habeas corpus. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992). Because Hallford filed his habeas corpus petition on November 1, 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case is governed by pre-AEDPA law. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under pre-AEDPA law the state court’s findings of fact are entitled to a presumption of correctness. To overcome this presumption, the petitioner must show with clear and convincing evidence that the state court’s finding was not “fairly supported by the record.” See Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir.2001). Questions of federal law or mixed questions of law and fact, however, are not subject to the presumption. Hardwick v. Crosby, 320 F.3d 1127, 1159 (11th Cir.2003). There are numerous claims contained in Hallford’s habeas petition which are properly before the court for a determination on their merits. However, before the court reaches the merits of these claims, the court must address a preliminary question of whether Hallford’s Brady v. Maryland claim is barred from review. The essence of this claim is that the prosecution failed to disclose to Hall-ford that his daughter, a key witness, was offered lenient treatment in her criminal case in exchange for her testimony against Hallford.

II. WHETHER THE BRADY CLAIM IS PROCEDURALLY DEFAULTED

A. THE DOCTRINE OF PROCEDURAL DEFAULT

As explained below, Hallford’s Brady claim relating to the suppression of impeaching evidence is procedurally defaulted. The procedural default doctrine ensures that “state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that a federal court’s consideration of the merits of a claim in a petition for habeas corpus can be barred by the petitioner’s failure to comply with state procedural rules, unless the petitioner makes a showing of cause for the failure and prejudice resulting from the failure. Under the doctrine of procedural default, claims which have never been presented to a state court or claims which were not fully exhausted in state courts are procedurally defaulted if presentation of the claims in state court would be barred by state procedural rules. Collier v. Jones, 910 F.2d 770 (11th Cir.1990). This court may consider Hallford’s procedurally defaulted claims on the merits only if he shows either (1) cause for the procedural default and actual prejudice arising out of the violation of federal law, Wainwright, 433 U.S. at 87, 97 S.Ct. 2497, or (2) a resulting fundamental miscarriage of justice if the court does not consider the claims. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

To demonstrate cause for a procedural default, a habeas petitioner must establish that some objective factor external to the defense impeded his efforts to raise the claim in state court and that this failure cannot be fairly attributable to his own conduct. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). 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 a claim was not reasonably available to counsel.” Id.

To demonstrate prejudice, a habeas petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Johnson v. Alabama, 256 F.3d at 1171. Prejudice in the context of a Brady claim about undisclosed information means that “ ‘there is a reasonable probability’ that the result of the trial would have been different if the suppressed ... [information] had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

B. FACTS PERTAINING TO THE BRADY CLAIM

1. Procedural History of the Brady Claim

At Hallford’s trial, his daughter Melinda gave damaging testimony describing how Hallford got her to entice the victim to come to the bridge and how Hallford killed him. Hallford claims in this court that the prosecution violated the duty imposed by Brady v. Maryland by suppressing evidence that his daughter Melinda agreed to testify against him only in exchange for lenient treatment related to her involvement in the murder. In his state post-conviction petition filed on October 4, 1990, Hallford made the following general, as well as obviously speculative, Brady claim:

Claim X.

Due Process requires the prosecution to disclose to the defense any and all evidence that is favorable to the accused and material either to guilt or punish-inent. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Hallford requires an evidentiary hearing in order to discover whether any exculpatory evidence which should have been disclosed to him was withheld.

R. Ex. P-90 at p. 47. During the post-conviction proceeding, Hallford never amended this general Brady claim to allege a claim containing the factual allegations set forth in the federal habeas petition now before this court. On appeal from denial of Rule 32 relief, Hallford failed to raise any Brady claim in his brief filed in the Alabama Court of Criminal Appeals.

In this case, Hallford makes the following fact specific Brady claim:

H. Hallford’s Rights Guaranteed By the Sixth, Eighth And Fourteenth Amendments To The United States Constitution Were Violated By Alabama’s Suppression of Material Evidence.

I. Failure to Disclose Promises Made to a Material Witness in Exchange for her Testimony.

143. Due Process requires the prosecution to disclose to the defense any and all evidence of promises made by the state to a witness in exchange for her testimony. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (citing Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).

144. Melinda was charged with and pleaded guilty to charges of Criminally Negligent Homicide in the Juvenile Division of the District Court of Dale County, Alabama, for acts arising out of the same series of events that Alabama alleges resulted in [the] {sic} death of Shannon, the events for which Hallford has been convicted of capital murder and sentenced to die. Melinda was committed to the custody of the Alabama Department of Youth Services for one year.

145. Before entering a plea of guilty to the charges of criminally negligent homicide, Melinda had insisted that she and her father had nothing to do with Shannon’s death. (Trial Exhibits D-2 and D-3; see SE1496-SE1497; SE 1498).

146. Melinda has stated that Walter Ford, the Dale County Sheriffs chief investigator of the murder of which Hallford was convicted, threatened her with time in prison if she did not provide information about Eddie Shannon’s death. (Trial Exhibit D-3; see SE1498).

147. On information and belief, Melinda was released from the custody of the Alabama Department of Youth Services after serving only six weeks of her one year commitment.

148. On information and belief, Melinda agreed to testify against Hallford after receiving a promise of favorable treatment with respect to her adjudication on the charge of Criminally Negligent Homicide.

149. Melinda provided critical testimony against Hallford at the guilt and penalty phases of his trial. See Paragraphs 135-36, swpra.

150. Hallford requires discovery and an evidentiary hearing to substantiate his claim that the State failed to disclose evidence of promises made to a material witness in exchange for her testimony.

This claim has not been amended. In its April 12, 2002 Memorandum Opinion and Order, this court concluded that this Brady claim is procedurally defaulted because it was abandoned in the appeal from the Rule 32 proceedings in state court. The court, however, further concluded that Hallford was entitled to an opportunity to present evidence to establish cause and prejudice for this default. On December 3, 2002, this court held a hearing on the cause and prejudice questions pertaining to the Brady claim and on the merits of the Brady claim itself.

2. Facts Concerning the Deal unth Melinda Hallford

Hallford’s Brady claim revolves around an agreement the prosecution made with Melinda Hallford in exchange for her testimony against her father about Eddie Shannon’s murder. On May 16, 1986, Walter Ford, the lead investigator of Shannon’s death, secured an arrest warrant for Hallford and a juvenile petition regarding Melinda, which alleged that Hallford and Melinda “did intentionally cause the death of another person, Charles E. Shannon, by shooting him with a pistol, in violation of Title 13A-6-2 of the Code of Alabama.” R. Ev.Hr’g. Pet’rs. Ex. D (Juvenile Petition.) On May 23, 1986, Hall-ford and Melinda were arrested. R. Ex. P-2 at 356-361. At that time, Ford attempted to interview Melinda, but she refused to speak to him. R. Ex. P-2 at 141-42, 326. The evidence adduced at trial shows that prior to her arrest Melinda was reluctant to provide information to Ford. Indeed, when Ford interviewed Melinda on May 2, 1986, prior to the execution of the arrest warrant and the juvenile petition, she denied calling Shannon to ask him to come to the bridge, having sexual contact with Shannon, or being with Shannon at the bridge where he was killed. R. Ex. P-94 at 251, 254-256.

William Matthews, Jr., who was then an Assistant District Attorney, handled the State’s case against Melinda. Ev. Hr’g Tr. at 13, 15. Matthews testified at the evi-dentiary hearing held in this court that he intended to certify Melinda as an adult and prosecute her for intentional murder if she did not agree to testify against Hallford. Id. at 16-18. Shortly before the juvenile court held a hearing on Melinda’s petition, Matthews learned from Ford and Melinda’s attorney, Robert G. Robinson, that a plea agreement had been reached with Melinda, and Matthews approved the agreement. Id. at 16-18, 20. Matthews further testified that if Melinda had failed to testify against Hallford, the plea agreement contemplated that the State could move to revoke her guilty plea in juvenile court and charge her with murder as an adult. Id. at 19, 48. Robinson testified similarly that “I am certain that the reason [Melinda] was allowed to stay in the juvenile system was her promise to testify as she did.” Id. at 53. If Melinda had not agreed to testify, Robinson understood that the State “would have proceeded on to have her certified as an adult and tried her for murder.” Id. This agreement, however, was never memorialized in writing in any way. Id.

Matthews left office in January 1987, approximately two months before Hall-ford’s trial. Ev. Hr’g Tr. at 14, 38. Neither Matthews nor Robinson told David Emery, the newly elected District Attorney who ultimately tried Hallford for capital murder, or anyone in Emery’s office that Melinda had agreed to testify against Hallford pursuant to a plea agreement that allowed her to avoid being tried on intentional murder charges as an adult. Id. at 22, 55-56. Emery denied the existence of any deal with Melinda, but acknowledged that he did not ask Matthews about how the charges against Melinda or Hallford had been handled, and that he was not in office when Melinda’s plea agreement was negotiated, explaining, therefore, why he did not know if a deal had been made. Id. at 172-73,175,183.

On June 25, 1986, Melinda pleaded guilty to juvenile delinquency based on a charge of criminally negligent homicide for her involvement with Shannon’s death. Ev. Hr’g. Pet’rs Ex. D (Decree of Judgment). Criminally negligent homicide is a Class A misdemeanor punishable by imprisonment for not more than one year. Ala. Code §§ 13A-6-4, 13A-5-7. Although Melinda was committed to the custody of the Alabama Department of Youth Services for one year, she was released to her mother after only five weeks in custody. Ev. Hr’g. Pet’rs. Ex. D (Aftercare Order).

3. Requests for Brady Information

Seven months before Hallford’s trial, Bill Kominos, Hallford’s trial counsel, filed a motion requesting that the State “provide the Defendant with all exculpatory or otherwise favorable information or evidence as provided by Brady v. Maryland.” Ev. Hr’g. Pet’rs. Ex. A¶ 1; Ev. Hr’g. Tr. at 79-80. About a week before Hallford’s trial, Kominos and David Emery, the District Attorney, had a pretrial conference with the trial judge. Kominos sought the court’s assistance in ensuring that he had all information he was entitled to receive before trial, including any Brady material. Id. at 80-82, 83 S.Ct. 1194. In the presence of Kominos and Emery, the trial judge “flipped through” Emery’s file and instructed Emery to make copies of a “few things.” Id. at 82-83, 83 S.Ct. 1194. The materials Kominos received made no reference to any plea agreement with Melinda. Id. at 83, 182-83, 83 S.Ct. 1194. In spite of Kominos’ pretrial requests for Brady information, no evidence of Melinda’s deal was disclosed prior to Hallford’s trial.

At Hallford’s trial, Kominos asked Walter Ford, “Did you ever tell Melinda that she could possibly go to jail for her involvement in this case?” Ford replied, “Yes, sir.” Kominos then asked “Did you ever tell Melinda that if she told the truth and she cooperated that she would not go to jail?” Ford replied, “No sir.” Finally, he asked “Did you ever tell Melinda to help you put Phillip Hallford away?” Ford replied, “No, sir.” R. Ex. P-3 at 566. Thus, the jury heard no testimony during either the guilt or penalty phases of Hall-ford’s trial that Melinda was testifying pursuant to a plea agreement or that Melinda had originally been charged with the intentional murder of Shannon.

In November 1990, during the state post-conviction proceeding, Hallford’s Rule 32 counsel filed a motion for discovery, requesting all information and material to which Hallford was entitled under Brady. Ev. Hr’g Pet’rs Ex. B at 1, 2, 5. In its response, the State failed to disclose Melinda’s plea agreement. Ev. Hr’g Pet’rs Ex. C; Ev. Hr’g Tr. at 113-14. In December 1990, Rule 32 counsel inquired again about his Brady requests. Ev. Hr’g Tr. at 114-15. At a meeting of counsel during a status conference, the District Attorney responded that all Brady information had already been disclosed to Hallford’s trial counsel. Id. at 115-116. In April 1991, Rule 32 counsel reviewed the files of the Alabama Attorney General, District Attorney Emery who prosecuted Hallford, and the Dale County Sheriffs Department. Id. at 140,147-48. During this review, the State advised Rule 32 counsel that all information relevant to Hallford’s case had been disclosed. Id. On the last day of Hallford’s Rule 32 hearing, Hallford received Melinda’s juvenile court records pursuant to a subpoena served on state agencies. Pet’rs. Ev. Hr’g. Ex. D; Ev. Hr’g Tr. at 120, 129-30, 142. Rule 32 counsel moved them into evidence over the State’s objection on the basis of relevancy. Ev. Hr’g Tr. at 129, 131-32, 144-45; Ex. P-92 at 427.

4. The Juvenile Court File

Nothing in the juvenile court records disclosed that Melinda’s testimony was obtained in exchange for the State’s agreement not to certify her as an adult and prosecute her for intentional murder. Ev. Hr’g Pet’rs Ex. D; Ev. Hr’g Tr. at 130-131, 143-44. The juvenile court file did indicate that Walter Ford executed a juvenile petition on Melinda alleging that she and Hallford “did intentionally cause the death of another person, Charles E. Shannon, by shooting him with a pistol, in violation of Title 12A-6-2.” Ev. Hr’g Rsp Ex. 1. These records further show that about a month later, a Dale County District Judge entered a decree confirming that Melinda pleaded guilty to juvenile delinquency based on the lesser offense of criminally negligent homicide. Ev. Hr’g. Rsp. Ex. 11. The file also made reference several times to R.G. Robison, Melinda’s lawyer, who lived in Dale County where the state post-conviction proceedings were pending. He was, however, never contacted by Hallford’s Rule 32 counsel. Ev. Hr’g Tr. at 65, 137, 164-65. The file also refers to Chief Deputy Walter Ford who played a substantial role in negotiating the agreement with Melinda. Ev. Hr’g Tr. at 15-18, 29, 37, 44-45, 51-53. There is no evidence that Rule 32 counsel sought to interview Ford. Rule 32 counsel also failed to contact William Matthews, the District Attorney who approved the plea agreement. Ev. Hr’g. Tr. at 127-28,164. Matthews testified at the evidentiary hearing before this court that he practiced law in Ozark, Alabama at the time the Rule 32 proceedings were pending and that he would have discussed Melinda’s case with Rule 32 counsel, but was never contacted. Ev. Hr’g. Tr. at 38.

5. Melinda’s Testimony Against Hall-ford

During the guilt phase of Hallford’s trial, Melinda gave an eyewitness account implicating Hallford in the shooting death of Shannon and testified that Hallford burned Shannon’s wallet the day after the shooting. R. Ex. P-2 at 464-79. Melinda was the only witness the State called during the penalty phase of Hallford’s trial. R. Ex. P-7 at 717-20. She testified that she had a sexual relationship with Hallford when she was seven or eight years old, that she had a sexual relationship with Hallford in 1985 that included sexual intercourse, and that Hallford did not want her to see-Shannon. Id. at 718-20.

C. DISCUSSION OF PROCEDURAL DEFAULT OF BRADY CLAIM

1. The Cause Inquiry

It is undisputed that the State failed to disclose evidence of Melinda Hall-ford’s deal even after the requests from Hallford’s trial and Rule 32 counsel. Hallford argues that this suppression constitutes “some objective factor external to the defense [which] impeded counsel’s effort to comply with the State’s procedural rule.” Strickler, 527 U.S. at 283 n. 24, 119 S.Ct. 1936. Furthermore, Hallford argues that, as in Strickler, it was reasonable for his defense counsel to rely on the prosecutor to fully perform his duty to disclose all exculpatory materials. Id. at 284, 119 S.Ct. 1936. Likewise, Hallford argues that it was reasonable for his defense counsel to rely on the representation that all existing exculpatory materials were included in the open files tendered by the prosecution. Id.

As noted above, Hallford’s Rule 32 counsel included a general Brady claim in the Rule 32 petition. During the evidentiary hearing before the Rule 32 court, counsel received Melinda’s juvenile court file and admitted it into evidence. Counsel then failed to include any Brady claim in his brief on appeal to the Alabama Court of Criminal Appeals. At the evidentiary-hearing before this court, Hallford’s counsel testified that they did not assert a Brady claim on appeal from the Rule 32 proceeding because the juvenile court file documents themselves did not say there was any deal, and there were representations made throughout the proceedings that all Brady information had been provided. Ev. Hr’g Tr. at 130-131.

Respondents argue, however, that Hall-ford’s counsel had the tools available to them to present a Brady claim. The respondents rely on the contents of the juvenile court file including the juvenile petition executed by Walter Ford on Melinda alleging that she and Hallford intentionally murdered Shannon and the judicial decree showing that Melinda pleaded guilty to the lesser offense of criminally negligent homicide. Ev. Hr’g. Rsp. Ex. 11. The respondents argue that while these documents do not on their face demonstrate the existence of a deal, they do demonstrate that Melinda plead guilty to a far less serious offense than the original charge, and they contain the names of individuals who had information about the juvenile proceedings and the undisclosed deal. Respondents argue that through minimal investigation counsel could have discovered the factual basis for a Brady claim and, therefore, contend that Hallford cannot demonstrate cause for his default.

Whether Hallford has established cause for his procedural default of his Brady claim is governed by Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In Kyles, the Court considered a defaulted Brady claim concerning evidence favorable to the defendant which was never disclosed by the prosecution. Initially, the Court emphasized that a “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more.” Id. at 437,115 S.Ct. 1555.

We have never held that the Constitution demands an open file policy (however such a policy might work out in practice), and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.

Id.

However, the Kyles Court definitively assigns to the prosecution two salient duties for Brady purposes. First, the prosecutor must “gauge the likely net effect of all ... evidence [favorable to and unknown by the defense] and make disclosure when the point of ‘reasonable probability’ is reached” Id. A “reasonable probability” is a probability “that, had the evidence been disclosed to the defense, the results of the proceeding would have been different.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. Second, an “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. at 437, 115 S.Ct. 1555.

[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that “procedures and regulations can be established to carry [the prosecutor’s] burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

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Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.

Kyles, 514 U.S. at 438-439, 115 S.Ct. 1555.

In Strickler v. Greene, supra, the Court reiterated that mere nondisclosure is not a Brady violation and clarified the nature of a Brady violation.

[T]here is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

527 U.S. at 281-282, 119 S.Ct. 1936.

For analytical purposes, it is the facts of Strickler which are important in Hallford’s case. Strickler was convicted of abduction, robbery and capital murder and was sentenced to death. A key prosecution witness at trial was Ann Stoltzfus, an eye witness to the victim’s abduction. Not until the federal habeas court ordered the production of all police and prosecution files did Strickler learn of documents that impeached significant parts of Stoltzfus’ testimony. Strickler freely acknowledged that his Brady claim was defaulted because it was never raised in state court. Id. at 282, 119 S.Ct. 1936. The state argued Strickler could not demonstrate cause for the default because the claim could have been raised in state collateral proceedings “through the exercise of due diligence, but was not.” Id. at 283, 119 S.Ct. 1936. Notably, even though the prosecutor maintained an “open file” policy, the favorable evidence was not included in the prosecutor’s file. The Supreme Court describes the prosecutor’s argument thusly:

[T]he factual basis for the assertion of a Brady claim was available to state habe-as counsel. He presses two factors to support this assertion. First, he argues that an examination of Stoltzfus’ trial testimony, as well as a letter published in a local newspaper, made it clear that she had had several interviews with Detective Claytor. Second, the fact that the Federal District Court entered an order allowing discovery of the Harri-sonburg police files indicates that diligent counsel could have obtained a similar order from the state court.

527 U.S. at 284-285, 119 S.Ct. 1936 (footnotes omitted).

The Supreme Court found these arguments unpersuasive.

Although it is true that petitioner’s lawyers — both at trial and in post-trial proceedings — must have known that Stoltz-fus had had multiple interviews with the police, it by no means follows that they would have known that records pertaining to those interviews, or that the notes that Stoltzfus sent to the detective, existed and had been suppressed. Indeed, if respondent is correct that Exhibits 2, 7, and 8 were in the prosecutor’s “open file,” it is especially unlikely that counsel would have suspected that additional impeaching evidence was being withheld. The prosecutor must have known about the newspaper articles and Stoltzfus’ meetings with Claytor, yet he did not believe that his prosecution file was incomplete.

Id. at 285, 119 S.Ct. 1936 (footnote omitted).

Of considerable importance to the Court in its consideration of the facts in Strickler was the presumption that a prosecutor would carry out his duty to disclose all exculpatory evidence and “the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination ...” Id. at 284, 119 S.Ct. 1936. Concluding that defense counsel’s reliance on these facts was reasonable, the court found that it was not incumbent on counsel to search for evidence which the prosecution indicated did not exist.

Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor, in our opinion, should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support.... The presumption, well established by “ ‘tradition and experience,’ ” that prosecutors have fully “ ‘discharged their official duties,’ ” ... is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.

527 U.S. at 286-287, 119 S.Ct. 1936 (citation omitted).

Distinguishing Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996), and McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), on the basis that in those cases the petitioner was “previously aware of the factual basis for his claim but failed to raise it,” the Court found that “a defendant cannot conduct the ‘reasonable and diligent investigation’ mandated by McCleskey to preclude a finding of procedural default when the evidence is in the hands of the State.” Id. at 288, 119 S.Ct. 1936.

In Banks v. Dretke, supra, the Court again confronted a case in which the prosecution had suppressed evidence favorable to the defense. As described by the Court, the Fifth Circuit concluded that petitioner Banks failed to overcome his default because he had not been diligent.

In the Fifth Circuit’s view, Banks should have at that time attempted to locate Farr and question him; similarly, he should have asked to interview Deputy Sheriff Huff and other officers involved in investigating the crime.... If such efforts had proved unavailing, the Court of Appeals suggested, Banks might have applied to the state court for assistance .... Banks’s lack of diligence in pursuing his 1992 state-court plea, the Court of Appeals concluded, rendered the evidence uncovered in the federal habeas proceeding procedurally barred.

540 U.S. at 687, 124 S.Ct. at 1270.

Cryptically, the Supreme Court was unimpressed with this rationale, exclaiming that “[w]hen police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” 540 U.S. at 674-75, 124 S.Ct. at 1263. Elaborating further, the Court discussed the applicability of Strick-ler.

This case is congruent with Strickler in all three respects. First, the State knew of, but kept back, Farr’s arrangement with Deputy Sheriff Huff.App. to Pet. for Cert. C43; Tr. of Oral Arg. 33; cf. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (prosecutors are responsible for “any favorable evidence known to the others acting on the government’s behalf in the case, including the police”). Second, the State asserted, on the eve of trial, that it would disclose all Brady material. App. 361, n. 1; see supra, at 1264. As Strick-ler instructs, Banks cannot be faulted for relying on that representation. See 527 U.S., at 283-284, 119 S.Ct. 1936, 144 L.Ed.2d 286 (an “open file policy” is one factor that “explain[s] why trial counsel did not advance [a Brady ] claim”).

540 U.S. at 692, 124 S.Ct. at 1273.

In Banks, the Court once again found lack of due diligence arguments unpersuasive. The State argued that Banks could have attempted to locate a witness or could have interviewed investigating officers to learn about the witness. The Court held that these arguments, accepted by the Fifth Circuit, erroneously focus on the conduct of the defendant instead of the conduct of the prosecutor.

Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. As we observed in Strickler, defense counsel has no “procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” ... The “cause” inquiry, we have also observed, turns on events or circumstances “external to the defense.”

540 U.S. at 695-96, 124 S.Ct. at 1275.

The Court also disparaged the argument that a defendant has the burden to discover favorable evidence so long as it might have been detected, saying that a “rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Id.

Relying on the Eleventh Circuit’s opinion in High v. Head, 209 F.3d 1257 (11th Cir.2000), the respondents in Hallford’s case make arguments similar to those made by the Strickler and Banks’ respondents. In High, the court found that Strickler was not controlling because High’s “collateral counsel had actual knowledge or reasonably could have discovered knowledge clearly suggesting that the prosecution may have misinterpreted ... evidence as nonexculpatory.” Id. at 1265. The respondents argue that Hallford had access to the juvenile court file containing the same documents that caused Hallford’s federal habeas counsel to raise the Brady claim. Moreover, the respondents suggest that Hallford’s state collateral counsel sought admission of that file without even reading it.

If they had read the file, it contained information that Melinda was initially charged with intentional murder but was adjudicated delinquent for the lesser charge of criminally negligent homicide. Melinda’s juvenile court file also contained the name of her lawyer, who was available to testify, but never contacted.

Resp’s Br. at 181 (doc. # 154).

The court rejects the respondents’ arguments that Hallford had the tools to construct his Brady claim and should have been aware of its factual basis. As noted above, nothing in the juvenile file shows that a deal was made with Melinda. Thus, counsel would have had to suspect that Melinda received favorable treatment in return for her agreement to testily and would have had to conduct further investigation based on this inference. Counsel was under no duty to do so.

Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor, in our opinion, should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support.

Strickler, 527 U.S. at 286, 119 S.Ct. 1936.

This conclusion is reinforced by the context in which the prosecutor’s representations about the existence of exculpatory materials arose. The prosecutor’s response to an admittedly general Brady motion was not merely a response to opposing counsel. Rather, the representations about the prosecutor’s compliance with his Brady responsibility were also made in the presence of the trial court during a pretrial conference. Hallford’s counsel at trial as well as his collateral counsel were certainly entitled to rely on the verity of a representation made in the presence of the court.

At base, the respondents’ argument here devolves into a contention that armed with the juvenile file, collateral counsel should have ignored the prosecution’s representation about compliance with its duty, and interviewed everyone involved with Melinda’s juvenile case to find out what would lead her to testify against her father. The underlying fallacious assumption grounding that argument is that no child would testify against her father who killed her boyfriend unless the child received something in return. Finding such a duty on the part of any of Hallford’s counsel certainly is inconsistent with Banks and Strickler, In Strickler, the court notes that although the defendant’s counsel surely knew that Stoltzfus was interviewed by police, “it by no means follows that they would have known that records pertaining to those interviews ... existed and had been suppressed.” 527 U.S. at 285, 119 S.Ct. 1936. In its discussion of this question, the Strickler Court directly links an inference to be drawn from knowledge of an interview to “[mjere speculation,” insufficient to support either a discovery request or the imposition of “a duty on counsel to advance a claim for which they have no evidentiary support.” 527 U.S. at 286, 119 S.Ct. 1936. In the same way, even if counsel had speculated that a deal with Melinda had been made, that speculation unsupported by fact is insufficient to impose a duty of investigation on counsel; therefore, it is likewise insufficient to demonstrate a lack of due diligence.

As briefly discussed above, Banks also involved an argument that a habeas petitioner failed to show cause because of a lack of due diligence. In Banks, contrary to a prosecution representation of disclosure of all evidence to which the petitioner was entitled, the prosecution did not disclose that one of two crucial witnesses was a paid informant and the other witness was intensively coached by prosecutors and the police. 540 U.S. at 674-75, 124 S.Ct. at 1263. But again, even in the face of information possessed by the petitioner’s counsel from which he might have constructed a claim, the court, citing Strickler, concluded that “defense counsel has no ‘procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.’ ” 540 U.S. at 695-96, 124 S.Ct. at 1275.

In this case, Hallford’s collateral counsel’s reading of the juvenile file might have led him to a suspicion that some agreement was made with Melinda. But, there is nothing in the file confirming that suspicion. Counsel’s mere suspicion, had he formed it, is insufficient to give rise to a duty on his part to prove the prosecutor’s representations false. See Banks, 540 U.S. at 697-98, 124 S.Ct. at 1276. The court concludes that Hallford has demonstrated cause for his failure to present his Brady claim based on the failure of the prosecution to advise him about the agreement with Melinda.

To save the Brady claim from procedural default, Hallford must demonstrate both cause and prejudice. See Wainwright, 433 U.S. at 82, 97 S.Ct. 2497. Since the court has concluded that Hallford has demonstrated cause, the court must now evaluate whether he was prejudiced by the prosecution’s failure to reveal its agreement with Melinda whose testimony could have been impeached with this information.

2. The Prejudice Inquiry

Sufficient prejudice exists to excuse a proeedurally defaulted Brady claim if “the favorable evidence could reasonably be taken to put the case in such a different light as to undermine the confidence of the verdict.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). The “question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 289-290 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555.) This is essentially the same criterion used to determine whether materiality exists under Brady. Id. at 280-82, 289-96; Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir.2002) (“In determining whether sufficient prejudice has been shown to excuse the default of a Brady claim, both the Supreme Court and this Court have conflated to a large extent the prejudice inquiry with the materiality standard required to obtain relief under Brady.”) Impeachment evidence is material, and constitutional error results from its suppression by the State, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Hallford argues that if the State had disclosed Melinda’s plea agreement there is at least a reasonable probability that the result of Hallford’s trial would have been different because the plea agreement could have been used to impeach Melinda’s testimony both at the guilt phase, which was essential to the prosecution’s robbery case, as well as impeach her testimony at the penalty phase, where she was the prosecution’s only witness. With respect to the guilt phase, Hallford argues that he could not have been convicted of capital murder and become death-eligible unless the prosecution proved beyond a reasonable doubt that he had committed a robbery and that Shannon’s murder had occurred during the robbery. See Connolly v. State, 500 So.2d 57, 62 (Ala.Crim.App.1985)(citing Ala. Code § 13A-5-39(2)). The essence of Hallford’s guilt phase argument is that if he could have impeached Melinda’s testimony, there is a reasonable probability that he would not have been convicted of robbery-murder and, therefore, not eligible for the death penalty.

3. The Guilt Phase Testimony

The facts of the murder as related by Melinda were corroborated at trial by the testimony of Sammy Robbins, her step brother, who also was present and witnessed the shooting and disposal of the body, R. Ex. P-2 at 261-295. The evidence that Hallford shot and killed Eddie Shannon is overwhelming. However, Melinda was the sole witness who identified the wallet that Hallford burned the day after the murder as the wallet belonging to Shannon. Melinda testified that on the day following the murder she saw Hallford outside their house burning a wallet that belonged to Shannon, that Hallford said to her that Shannon was a “cheapskate” because he did not have any money in the wallet and that Hallford showed her a picture of another girl from the wallet claiming that Shannon was unfaithful to her. Ex. P-2 at 477-80. The question which the court must confront is whether there is a reasonable probability that had the suppressed agreement with Melinda been disclosed to Hallford, the results of the guilt phase of the trial would have been different because he could have discredited her testimony which connected him and Shannon’s missing wallet. Expressed differently, the court must decide if the suppression of the impeaching evidence puts the whole robbery-murder case in such a different light as to undermine confidence in the verdict. Strickler, 527 U.S. at 289-290, 119 S.Ct. 1986; Kyles, 514 U.S. at 434-435, 115 S.Ct. 1555.

Sammy Robbins testified that on the morning after Shannon’s murder Hallford instructed him to get a shotgun and to drive with him to the bridge where the night before Hallford had dumped Shannon’s body. Hallford’s purpose was to confirm that the body was not floating and did not need to be sunk by a gun shot. R. Ex. P-2 at 294-295. Afterward, they returned home where Hallford instructed Robbins to build a fire. Robbins then watched Hallford go through a wallet and burn it and everything in it. Robbins saw a military ID card that was orange and white, but did not see the name or the picture on it because Hallford had his thumb over it. R. Ex. P-2 at 297-298. Olen Johns, Shannon’s adoptive father, testified that Shannon had a wallet in which he carried his military ID card, but that he had not seen the wallet since the night Shannon went missing. R. Ex. P-2 at 520-521.

This testimony, inferentially connecting the wallet Hallford burned the morning after the murder to Shannon, corroborates Melinda’s testimony, but it is, of course, circumstantial. However, under Alabama law, that distinction is not material.

A defendant’s guilt may be established by circumstantial evidence as well as by direct evidence. Chafin v. State, 333 So.2d 599 (Ala.Cr.App.) cert. denied, 333 So.2d 609 (Ala.1976). As long as the circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence. Agee v. State, 470 So.2d 1331 (AIa.Crim. App.1985). In reviewing a conviction based on circumstantial evidence, “[t]he test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” Cumbo v. State, 368 So.2d at 874. See also Ward v. State, 557 So.2d 848, 850 (Ala.Cr.App.1990).

McMillian v. State, 594 So.2d 1253, 1263 (Ala.Cr.App.1991).

Moreover, even if the jury had discounted Melinda’s testimony, there is other testimony about the wallet from which a jury could reasonably conclude that the wallet Hallford burned the day after Shannon’s murder belonged to Shannon. First, Robbins’ testimony about the timing of the disposal of the wallet in the fire by Hall-ford on the morning following the murder points to the conclusion that it was the victim’s wallet. Second, Robbins’ and Johns’ testimony about the contents of the wallet Hallford burned and the contents of Shannon’s wallet were consistent. Johns testified that Shannon carried a military ID card in his wallet, and Robbins testified that he saw Hallford take a military ID from the wallet and burn it in the fire. Third, Robbins’ testimony about the burning of the wallet was consistent with Johns’ testimony that Shannon’s wallet had not been seen since his disappearance. The court concludes that on the basis of Robbins’ and Johns’ testimony alone “a jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt.” Id. More to the point, the court concludes that had the impeachment evidence of Melinda’s deal been disclosed and Melinda’s testimony discredited at trial, “there is [not] a reasonable probability that the result of the proceeding would have been different.” Bagley, 473 U.S. at 678, 105 S.Ct. 3375. A jury reasonably could conclude even in the absence of Melinda’s testimony that Hall-ford was guilty of the capital crime of murder committed during the course of a robbery. The undisclosed agreement with Melinda and its consequences for the trial do not undermine the court’s confidence in the verdict of guilt.

4. The Penalty Phase

It is beyond argument that a state has a constitutional responsibility to tailor and apply its capital punishment law in a manner that avoids an arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). At the penalty phase of Hallford’s trial only two witnesses testified. Melinda testified on behalf of the State solely about her longstanding incestuous relationship with Hall-ford and Hallford’s jealousy of Shannon. R. Ex. P-7 at 718-720. Hallford’s mother, Mertie Boyd, testified about the care Hall-ford provided for his children. She also called him a “good son,” described briefly how he always helped her and begged the jury to show him mercy. R. Ex. P-7 at 720-724. The Alabama Court of Criminal Appeals considered and upheld the admissibility of Melinda’s testimony under state law.

We find the testimony that Melinda Hallford had been having an incestuous relationship with her father prior to the killing was relevant and of probative value in the sentencing aspect of the trial. It was relevant to negate any claim by appellant that he had no significant history of prior criminal activity. § 13A-5-51(l). In addition, appellant had testified during the guilty phase of the trial that he had given his children, including Melinda, a home and had taken care of them when no one else would. This testimony was before the jury for their consideration of a proper sentence. § 13A-5^45(c). Thus, the testimony of the incestuous relationship was also admissible for the purpose of negating appellant’s testimony, which obviously had been offered in an effort to portray himself as a good father and therefore a person of good character. § 13A-5-52.

Hallford v. State, 548 So.2d 526, 537 (Ala. Crim.App.1988). Moreover, the admissibility of this type of testimony is consistent with the Constitution.

We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. See Payne v. Tennessee, 501 U.S. at 825, 111 S.Ct. at 2608 (“[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in”) (internal quotation marks omitted); id., at 860, 111 S.Ct. at 2625 (STEVENS, J., dissenting).

Dawson v. Delaware, 503 U.S. 159, 167, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992).

Criminal conduct, even absent a conviction, is relevant and properly considered by the jury. See Tucker v. Kemp, 762 F.2d 1480, 1487 (11th Cir.1985) {en banc) (“In addition to previous convictions, it is acceptable to consider evidence of crimes for which a defendant has been indicted but not convicted. Activities for which there has been no charge filed can be considered as well. In general, the relevant inquiry is whether it is reliable.”) (citations omitted), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), reinstated, 802 F.2d 1293 (11th Cir.1986) (en banc) (per curiam). See also Devier v. Zant, 3 F.3d 1445, 1464 -1465 (11th Cir.1993). In sum, one of the tasks of the sentencing jury in the penalty phase of a capital case is to carefully consider the character of a defendant in reaching its decision. Imposition of the death penalty must be “directly related to the personal culpability of the criminal defendant,” and “reflect a reasoned moral response to the defendant’s background, character, and crime.” California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). ‘What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion). Lockett forbids precluding a jury “from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See also Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (O’Connor, J., concurrence) (“This stage enhances reliability by ensuring that the sentencer has considered all relevant factors pertaining to the individual’s culpability and character before making its ‘reasoned moral response.’ ”).

Hallford argues that his inability to impeach Melinda’s testimony about her sexual relationship with him and his jealousy of Shannon, resulted in a sentence unworthy of confidence because it was based on unreliable evidence. Hallford argues further that prejudice ensued because of the manner in which the trial court instructed the jury that the penalty phase evidence could be considered by them. In part, this is what the trial court instructed the jury.

The law of this State provides that the punishment for the capital offense for which you have convicted the Defendant is either by death by electrocution or life imprisonment without eligibility for parole.

The law also provides that which of those two punishments should be imposed upon the Defendant depends upon whether any aggravating circumstances exist, and if so, whether the aggravating circumstances out weigh any mitigating circumstances.

An aggravating circumstance is a circumstances specified by law which indicates or tends to indicate that the Defendant should be sentenced to death.

A mitigating circumstance is any circumstance that indicates or tends to indicate that the Defendant should be sentenced to life imprisonment without parole instead of death.

The issue at the sentencing hearing concerns circumstances of aggravation and circumstances of mitigation that you should consider and weigh against each other in deciding what the proper punishment is in this case.

In making your recommendation concerning what the punishment should be, you must determine whether any aggravating circumstances exist, and if so, you must determine whether any mitigating circumstances exist. In making your determination concerning the existence of aggravating and mitigating circumstances, you should consider the evidence presented at this sentencing hearing. You should also consider any evidence that was presented during the guilt phase of the trial that is relevant to the existence of any aggravating or mitigating circumstances.

R. Ex. P-9 at 725-727.

The court then charged the jury that the law provided a list of aggravating circumstances, of which there were only two to consider in Hallford’s case. Id. at 728. The first circumstance described by the court was that the “capital offense was committed while the Defendant was engaged in or attempting to commit a flight after committing, or attempting to commit a robbery.” Id. The second aggravator described by the court was that “the capital offense was especially heinous, atrocious or cruel compared to other capital offenses.” Id.

The term “heinous” means extremely wicked or shockingly evil. The term “atrocious” means outrageously wicked and violent. The term “cruel” means designed to inflict a high degree of pain with other indifference to or even enjoyment of the suffering of others.

R. Ex. P-9 at 729.

After hearing the testimony of Melinda and Hallford’s mother during the penalty phase, the jury recommended by a vote of 10-2 that a sentence of death be imposed. This is the minimum vote by which a death sentence may be recommended. Ala. Code 13A-5-^46(f). After the conclusion of the sentencing hearing, the trial judge determined that two aggravating circumstances — (1) that the capital offense was committed while Hallford was engaged in or attempting to commit a robbery, and (2) that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses — outweighed any mitigating circumstances and imposed a sentence of death. R. Ex. P-12 at 761-765.

Hallford argues that his inability to discredit Melinda’s testimony about her sexual relationship with him, which was admitted without a limiting instruction, affected the jury’s determination of the existence of the heinous, atrocious or cruel aggravating factor, the consideration of which should have been limited to the facts of the crime. In support of this position, Hallford points to the court’s general instructions about aggravating and mitigating circumstances where the court twice instructed the jury that in determining the existence of aggravating and mitigating circumstances, the jury should consider the evidence presented at the guilt stage of the trial and at the sentencing hearing. R. Ex. P-12 at 727 and 731.

Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), holding that a sentencer’s weighing among others of a vague aggravating factor taints a death sentence, demonstrates the importance of the weighing process which a sentencing jury must undertake.

Since Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ], our cases have insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.

Id. at 362, 108 S.Ct. 1853.

In sum “above all, capital sentencing must be reliable, accurate, and nonarbi-trary.” Saffle v. Parks, 494 U.S. 484, 493, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). In Alabama, the jury has an essential role in the sentencing process. Brownlee v. Haley, 306 F.3d 1043, 1078 (11th Cir.2002). The Alabama courts characterized the incest evidence presented through the testimony of Melinda as relevant to negate Hallford’s claim of no significant criminal history and his portrayal of himself as a good person. The gravamen of Hallford’s argument is that his inability to impeach Melinda goes directly to the reliability of her testimony and, consequently, the reliability of the jury’s verdict. After a careful review of all the evidence, the court concludes there is no reasonable probability that the results of the jury’s recommendation or the trial judge’s sentence would have been different if Hallford had known of Melinda’s agreement and discredited her with that information.

It is important to remember that the trial judge instructed the jury during the penalty phase that they were to consider all of the evidence presented in both phases of the trial. The court will do likewise. From that review, it is patently obvious that Melinda’s credibility was already at issue and had been at issue throughout the entire trial. W