Full opinion text
MEMORANDUM OPINION AND ORDER ALBRITTON, Senior District Judge. I. INTRODUCTION The Petitioner, Holly Wood, an Alabama inmate under sentence of death, filed a petition in this court for writ of habeas corpus under 28 U.S.C. § 2254. Initially, the court entered an order directing that this case should proceed in two stages, the first of which would be to determine which claims should be dismissed on procedural default grounds and which non-defaulted claims require an evidentiary hearing, and the second of which would be to determine the merits of the non-defaulted claims. As a part of this process the court ordered counsel for the parties to file a Joint Report which states each claim raised in the petition using a mutually consensual numbering system, states each claim the state contends is procedurally defaulted and the grounds upon which the petitioner relies to overcome the procedural default, and states the parties’ positions as to whether an evidentiary hearing is required and whether any discovery is required to develop the claim. At a point after the Joint Report was filed, the court ordered briefing on the procedural issues. The court then altered its procedures for disposition of death penalty cases and determined that this case should be briefed on the merits as well as on the procedural default issues. The case is now before the court on the issues of entitlement to an evidentiary hearing, procedural default issues, and the merits of the claims identified in the Joint Report. II. FACTS AND PROCEDURAL HISTORY The Petitioner, Wood, was tried in the Circuit Court of Pike Count, Alabama for capital murder of his former girlfriend, and was convicted on October 20, 1994. The murder was charged as capital murder because Wood was found to have broken into the home of his former girlfriend, Ruby Gosha, with the intent to kill. The evidence presented at trial was that Wood went inside the home and shot Ruby Go-sha while she was asleep. Following a sentencing hearing on October 21, 1994, the jury recommended, by a vote of ten to two, a sentence of death and the trial judge later sentenced Wood to death. The Court of Criminal Appeals and the Alabama Supreme Court affirmed the conviction and death sentence. Wood v. State, 715 So.2d 812 (Ala.Crim.App.1996), aff'd, Ex parte Wood, 715 So.2d 819 (Ala.1998), cert. denied, 525 U.S. 1042, 119 S.Ct. 594, 142 L.Ed.2d 586 (1998). Wood filed a petition for relief from judgment pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The Rule 32 court held an evidentiary hearing and denied the petition. The Rule 32 court did not allow testimony from an expert witness offered by Wood, a Dr. Faye Sultan, whom Wood offered as an expert psychologist. The State had indicated in correspondence to the expert that she could be prosecuted for practicing psychology in Alabama without a licence. On appeal, the Alabama Court of Criminal Appeals reversed the refusal to allow the expert testimony and remanded the case for the Rule 32 court to conduct an eviden-tiary hearing and to make findings as to whether Wood was mentally retarded and as to whether his attorneys rendered ineffective assistance of counsel because they did not develop and present evidence that he is mentally retarded. Wood v. State, 891 So.2d 398 (Ala.Crim.App.2003). Upon remand from the Alabama Court of Criminal Appeals, the Rule 32 court held an evidentiary hearing. The expert witness originally offered by Wood, Dr. Sultan, did not appear at the hearing on the advice of her independent counsel. Another expert offered by Wood, however, Dr. Karen Salekin, testified that Wood is mentally retarded. Experts offered by the State, Dr. Harry McClaren and Dr. Gregory Prichard, came to the opposite conclusion. The Rule 32 court found that Wood is not mentally retarded, and rejected Wood’s claims. This determination was affirmed on appeal. Wood v. State, 891 So.2d 398 (Ala.Crim.App.2003). III. STANDARD A district court must resolve all claims for relief raised in a petition for writ of habeas corpus whether habeas relief is granted or denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992), cert. denied, 513 U.S. 1162, 115 S.Ct. 1127, 130 L.Ed.2d 1089 (1995). A claim for relief is deemed to be any allegation of a constitutional violation. Id. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this court’s review in this case. Under the AEDPA, (d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254. The United States Supreme Court has interpreted the provisions regarding a state court decision that is “contrary to” or an “unreasonable application of’ clearly established federal law. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court determined that under the “contrary to” clause, a federal habeas court may grant a writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the Respondent court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Id. at 405, 120 S.Ct. 1495. A state court decision is contrary to clearly established Supreme Court precedent if the state court applies a rule that contradicts the governing law set forth in Supreme Court precedent. Id.; see also McIntyre v. Williams, 216 F.3d 1254 (11th Cir.2000). Under this standard, an unreasonable application is an objectively unreasonable application of the federal law set forth in decisions of the United States Supreme Court. McIntyre, 216 F.3d at 1257. IV. DISCUSSION The court will address the issues pending before it in the following order: Wood’s entitlement to an evidentiary hearing on claims which are not defaulted, issues of procedural default, and the merits of claims which either are not defaulted or for which there is cause and prejudice to excuse the default. A. Evidentiary Hearing Issues The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) set out the following standard for evidentiary hearings in death penalty cases. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). Wood seeks an evidentiary hearing on his claims of ineffective assistance of counsel at the penalty phase of his trial, his claim that he is mentally retarded and therefore ineligible for the death penalty, and his claim that his due process rights were violated by a threatened prosecution of his expert psychologist. The Respondents argue that Wood is not entitled to an evidentiary hearing on any of these claims because he has already received a full and fair hearing in the state courts, and that to the extent that he failed to develop the record in state court, he cannot do so now. Failure to develop the factual basis of a claim has been interpreted to mean that a petitioner did not fail to develop the factual basis of a claim if he was diligent in his efforts to do so. Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Diligence means that he made a reasonable attempt in light of the information available at the time. Id. A petitioner does not fail to develop the factual basis of his claim when his diligent efforts are thwarted by another. Id. It is clear from the record in this case that Dr. Sultan, an expert initially offered by Wood at the Rule 32 hearing, was precluded by the state from testifying. The Alabama Court of Criminal Appeals, however, reversed the exclusion of the testimony. The court stated that the “circuit court erred when it refused to allow Dr. Sultan to testify as an expert in this case on the grounds that she was not licensed to practice psychology in Alabama and that practicing psychology in Alabama without a license is a misdemeanor.” Wood v. State, 891 So.2d 398, 410 (Ala.Crim.App.2003). As will be discussed at greater length below, although authorized to do so, Dr. Sultan did not testify on remand to the Rule 32 court. Putting aside the question of whether Dr. Sultan’s refusal is sufficient to support Wood’s claim of diligence, this court cannot conclude that Wood has otherwise established that he is entitled to an evidentiary hearing before this court. Dr. Karen Salekin was called by Wood at the Rule 32 evidentiary hearing and testified during that hearing. During the Rule 32 hearing, Dr. Salekin was asked what she was asked to do as part of her retention as an expert in the case. Dr. Salekin answered that she “was asked to do an evaluation of mental retardation for Mr. Wood, look at adaptive functioning and intellectual functioning.” Vol. 28 at page 80. Dr. Salekin testified at the Rule 32 hearing that she reached an opinion on the issue of whether Wood was mentally retarded and concluded that “he falls within the mild mental retardation range, which is two domains of adaptive functioning having deficits and an IQ below 70 and above 50 to 55.” Id. at page 104. Therefore, expert testimony regarding mental retardation was presented by Wood at the Rule 32 hearing, and is currently in the record for this court’s consideration. The court does not have any report by Dr. Sultan before it. The court’s only knowledge of what Dr. Sultan would have added to the Rule 32 proceedings is Wood’s representation in his brief that “evidence that was readily available to Wood’s counsel should have put them on notice that Wood had ... a childhood that was marred by poverty, abuse, and alcoholism.” Petitioner’s Response Brief Addressing Stage I Arguments at page 21. There is no evidence before the court that Dr. Sultan was prepared to offer an opinion regarding whether Wood is mentally retarded. The Respondents have pointed out that the Eleventh Circuit has affirmed a determination of the district court that a ruling could be based on the record alone where the petitioner did not suggest that evidence from the witness could add anything to the record which would be non-cumulative. Young v. Zant, 727 F.2d 1489, 1492 (11th Cir.1984). In this case, while Wood has argued that Dr. Sultan’s testimony would have added to his claim, at least with respect to the mental retardation claims, he has not demonstrated that any determination by Dr. Sultan as to Wood’s status would not be cumulative of Dr. Sale-kin’s expert opinion that Wood is mentally retarded. Accordingly, even if an eviden-tiary hearing is not barred by AEDPA as to the mental retardation claims, no hearing is required in this court. To the extent that it would be within this court’s discretion to conduct an evidentiary hearing on the mental retardation claim, the court will not do so, since there has been no showing that the evidence presented would add to the court’s inquiry, rather than merely being cumulative of Dr. Salekin’s determination. Wood also argues that because the testimony that Dr. Sultan was prepared to give at the hearing covered areas about which Dr. Salekin was not prepared to testify, Wood could not fully present evidence in support of his ineffective assistance of counsel and mental retardation claims. The purpose of hiring Dr. Sultan was, according to Wood, to have her evaluate Wood and to provide a clinical diagnosis and testimony based on her evaluation. Petitioner’s Response Brief Addressing Stage I Arguments at page 3. The testimony pointed to by Wood which would have been offered by Dr. Sultan, and not Dr. Salekin, is evidence regarding Wood’s special education background, physical mental and emotional abuse, and the extreme poverty in which he was raised. This evidence, therefore, presents an issue of diligence which is separate from expert opinion regarding mental retardation. That is, the evidence of his poverty, violence and physical abuse, exposure to alcohol and Petitioner’s having Fetal Alcohol Syndrome, childhood traumatic experience with death, his educational background and school experiences, and Wood’s relationship with his son are matters separate from mental retardation. In McNair v. Campbell, 416 F.3d 1291 (11th Cir.2005), the Eleventh Circuit reviewed a decision to hold an evidentiary hearing. The court recognized that a Rule 32 court’s ruling impeded the presentation of expert testimony, but concluded that the factual predicate of an ineffective assistance of counsel claim could have been established in other ways. Id. at 1300. The court reasoned that the petitioner could have testified himself at the Rule 32 hearing, or had family members testify, about his drug abuse, and could have adduced evidence about the effects of drug addiction from treatises. Id. The Eleventh Circuit concluded that this factor, along with counsel’s untimely filing of motions and failure to present the issue of the denial of those motions to the Alabama Court of Criminal appeals, “[t]aken cumulatively, ... demonstrate that [the petitioner] was not diligent.” Id. at 1300. The court’s conclusion, therefore, was that the petitioner may have been prevented from obtaining expert testimony, but his failure to seek that testimony in a timely manner or to raise that issue on appeal, and his failure to present any other evidence in support of that claim meant that his actions were not diligent. Evidence regarding poverty, abuse, exposure to alcohol, traumatic experience with death, education, and Wood’s relationship with his son could have been, and to at least some extent was, however, presented at the initial Rule 32 hearing on September 22, 2001, and at the hearing on remand from the Alabama Court of Criminal Appeals, despite any limitation in the remand order to issues of mental retardation. Alfreida Griffen, who knew Wood during childhood testified about Wood’s experiences in special education. Vol. 16 at pages 132-133. Maeola Wood, Wood’s sister, also testified about the children’s living conditions while growing up, about the death of Wood’s mother and brother, and about Wood’s young son. Id. at pages 152-60, 164, 166-67, 196. Janet Penn, Wood’s special education teacher, also testified at the initial Rule 32 hearing. Id. at pages 209-15. Johnnie Pearl also testified during the Rule 32 hearing about Wood’s relationship with his son. Vol. 17 at page 120. In her testimony, Dr. Salekin testified about her interview with Wood’s sisters, Johnnie Pearl and Maeola, and her interview with Charles Sport, principal of Wood’s school. Vol. 28 at pages 86-87. All three of the factors relied on in McNair in determining that there was no entitlement to an evidentiary hearing may not be present in this case, but this court draws from the determination in McNair that merely because expert testimony is precluded does not mean that the petitioner satisfies the diligence standard, if evidence to support the claim could have been presented by other means. In this case, if Wood wanted to put on additional testimony about his poverty, violence and physical abuse, exposure to alcohol, childhood traumatic experience with death, educational background and school experiences, and the relationship with his son, that evidence could have been developed through the witnesses who were called at the initial Rule 32 hearing, and other witnesses besides Dr. Sultan. Wood also could have explained the effects of such factual evidence through a mechanism other than an expert witness. McNair, 416 F.3d at 1300. Wood has not demonstrated that Dr. Sultan’s expert testimony was needed on these points. Under McNair, therefore, the court cannot conclude that Wood has made an adequate showing as to diligence with respect to this evidence. Alternatively, the court cannot conclude that Wood has demonstrated that Dr. Sultan’s testimony would be “non-cumulative.” As stated earlier, the court does not have any report by Dr. Sultan before it. The court’s only knowledge of what Dr. Sultan would have added to the Rule 32 proceedings is Wood’s representation in his brief that “evidence that was readily available to Wood’s counsel should have put them on notice that Wood had ... a childhood that was marred by poverty, abuse, and alcoholism.” Petitioner’s Response Brief Addressing Stage I Arguments at page 21. Whether or not evidence should have put counsel on notice does not appear to be the proper subject of testimony by a psychologist. The court does not know what Dr. Sultan’s opinion would have been. To the extent that Dr. Sultan’s testimony would have been that Wood in fact had a childhood in which he experienced poverty, abuse, and alcoholism, that testimony would have been cumulative to factual testimony on those points which was presented. Wood has also argued that he was precluded from presenting evidence to support his due process claim. He states that if Dr. Sultan had testified, she would have testified that it was the actions of the state which prevented her from testifying at the Rule 32 hearing. Wood’s argument is that Dr. Sultan’s testimony was needed during the Rule 32 hearing to establish that the reason that she did not testify at that hearing was due to actions by the Respondent. The court concludes that Dr. Sultan’s testimony would be cumulative of the evidentiary exhibits in the record documenting Petitioner’s counsel’s attempts to receive assurances that Dr. Sultan would not be prosecuted, so that Wood is not entitled to an evidentiary hearing on this claim. Again, to the extent that it would be within this court’s discretion to conduct a hearing on these claims, the court will not do so because there has been no showing that the evidence presented would add to the court’s inquiry, rather than merely being cumulative of evidence already in the record. B. Procedural Default Issues Unless a habeas petitioner shows “cause and prejudice,” a court may not reach the merits of new claims not previously raised, or procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. See Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Respondents have asserted that several of Wood’s claims are subject to procedural default, including the following claims: ineffective assistance of counsel claim that Wood’s trial counsel were per se ineffective based on inexperience and the circumstances of the appointment of counsel, a claim that the state courts failed to apply the appropriate mental retardation standard, a claim that the mental retardation standard applied would result in the execution of the mentally retarded, a claim that the jury should decided the mental retardation question, a claim of prosecuto-rial misconduct for improperly addressing the question of punishment during the guilt phase, a claim of prosecutorial misconduct for improperly arguing facts not in evidence, a claim that Alabama’s burglary statute is unconstitutionally arbitrary and vague, a Brady claim, a claim that the state’s notice of intent to rely on an aggravating circumstance was unconstitutionally inadequate, a claim based on the failure to remove jurors for cause, a claim that the jury failed to truthfully answer voir dire questions, and a claim that the sentence was imposed in a racially discriminatory manner. The court will address each of these claims in turn. 1. Per Se Ineffective Assistance of Counsel Wood has argued that his claim in Claim B of the Joint Report that counsel was per se ineffective based on lack of experience is not procedurally defaulted because in his state Rule 32 petition he alleged that he received ineffective assistance of counsel during the penalty phase, and because, during the evidentiary hearings, he introduced evidence that the trial counsel who had handled the penalty phase of the trial, Kenneth Trotter, had been practicing law for less than one year at the time he represented Wood, and that he did not properly prepare for the penalty phase. Wood also states that he included Claim B in his post-hearing brief filed with the Circuit Court and the state did not object to his amending the Rule 32 petition to conform to the evidence. The Respondents argue that Wood raised this claim for the first time in the post-hearing brief he filed in the Rule 32 court. The Alabama Court of Criminal appeals held that the claim was not timely-raised, stating that the claim was not presented in any of the petitions or during the Rule 32 hearing, but was only raised in the post-hearing brief. Wood, 891 So.2d at 414. The Respondents cite to a decision from the Alabama Court of Criminal Appeals holding that a Rule 32 petitioner may not raise a claim for the first time in his Rule 32 post-hearing brief. See McGahee v. State, 885 So.2d 191, 192 (Ala.Crim.App.2003). Wood argues that the claim was not merely stated in the brief, but that he attempted to amend his petition to include this claim and that the State did not object to its inclusion. On page 1 of his 157 page brief filed in support of the Rule 32 Petition, Wood states that to the extent that the court considers anything within the brief to be outside of the petition, “we hereby seek leave to amend the petition to conform to the evidence....” Vol. 23 at page 1. The brief was entered on the court’s docket as a brief, with no notation of a pending motion, and the next entry is for the Final Order by the court. Id. at page 1229. There is no indication that the statement within the brief was construed as a motion, or that Wood was given leave to amend his petition. Therefore, the court cannot conclude that the state courts’ determination that the claim was not raised in the Rule 32 was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court concludes, therefore, that the claim is procedurally defaulted and no cause and prejudice have been established to excuse the default. 2. Claims That the Pike County Circuit Court applied an Incorrect Standard of Review The Respondents also argue that claims D(l) and D(2) identified in the Joint Report are procedurally defaulted. The Respondents contend that claim D(l) of the Joint Report, wherein Wood argues that the Pike County Circuit Court did not apply the standard of review required by the Supreme Court of Alabama when it reviewed and rejected his claim that mental retardation renders him ineligible for the death penalty, raises an issue of state law and, therefore, cannot be reviewed by this court. Wood argues in response that the state court’s failure to follow the Alabama Supreme Court’s standard for mental retardation was a violation of his Fourteenth Amendment due process rights, because he had an interest in his expectation that the Respondent court would apply the standard determined by the Alabama Supreme Court to be controlling. This court agrees that insofar as Wood is challenging the fact that the standard was not applied as being a due process violation, he has alleged a violation of federal, not state, law. Wood also argues that the circuit court misapplied the applicable standard by looking at strengths, rather than deficits, in adaptive functioning. Wood argues that there is no rule of Alabama procedure that would, or could, have required him to raise the claims in D(l) and (2) because he could not have been expected to object to the circuit court’s misapplication of the mental retardation standard before the order was issued. Wood argues that federal courts do not have to honor state procedural bars in cases where the default is premised on a failure to assert a claim based on judicial error prior to the occurrence of that error. The Respondents contend that when the case was remanded from the Court of Criminal Appeals to the Rule 32 court for a hearing on the mental retardation issue, Wood could have requested a ruling at that point from the Rule 82 court on the standard which would be applied. Without some showing that Wood should have had reason to think that the Rule 32 court was going to apply a standard other than that mandated by the Alabama Supreme Court, however, it would seem that there would have been no reason for Wood to request such a determination ahead of time. Cf. Cola v. Reardon, 787 F.2d 681, 694 (1st Cir.) (“to require defendants to object to appellate tribunal errors prior to the appellate opinion itself is, in our view, to impose unreasonable demands of foresight.”), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). There is a complicating factor in this analysis. The Alabama Court of Criminal Appeals in reviewing Wood’s collateral appeal determined that these claims were not presented to the circuit court and, therefore, the claims were not properly before the circuit court. Wood, 891 So.2d at 413. In Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Supreme Court applied the Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), plain statement rule, and held that if a state court issues a plain statement that its decision rests on independent and adequate state grounds, a federal court should not address the merits of the federal claim. In this case, however, Wood contends that a rule that a claim based on a court’s ruling must be advanced before the ruling is issued or else it will be proeedurally barred is a new rule not previously applied. Only a firmly established and regularly followed state practice may bar subsequent review in federal court. Ford v. Georgia, 498 U.S. 411, 423-23, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). This court agrees and, therefore, the court concludes that claims D(l) and D(2) are not proee-durally defaulted and may be addressed on the merits. 3. Violation of Sixth Amendment Right to Trial By Jury The Respondent argues that Claim G, that Wood’s Sixth Amendment right 'to trial by jury was violated when the Pike County Circuit Court, rather than a jury, determined that he was not mentally retarded, is procedurally defaulted because it could have been raised during the Rule 32 proceedings. As with claims discussed above, the Alabama Court of Criminal Appeals determined that this claim was not properly raised before it because it had not been raised before the Rule 32 court. Wood argues that the claim could not have been raised before the Rule 32 court on remand because the Court of Criminal Appeals narrowly defined the issues to be presented on remand, and this claim was not one of those issues. Wood contends that a state rule that a Rule 32 petitioner is required to raise claims outside of the scope of review as defined by the appeals court is not firmly established and regularly followed law. The court need not reach the procedural default issues as to this claim, however, because the claim itself is without merit, as is discussed below. 4. Prosecutorial Misconduct In Claim J, Wood has raised several instances of prosecutorial misconduct. The Respondents have contended that two of Woods’ claims of prosecutorial .misconduct are procedurally defaulted; namely, J(l)(b) that the prosecutor improperly addressed the question of punishment during the guilt phased on the trial and J(l)(d) that the prosecutor argued facts not in evidence. The Respondents further contend that one of those claims raises only an issue of state, rather than federal, law. Wood argues that the claims ought not to be separated out, but should be treated as one claim of prosecutorial misconduct and further, that that claim is not procedurally barred. Only aspects of prosecutorial misconduct which were fairly presented to the Respondent court may be considered as claims in a federal habeas corpus proceeding. Those aspects of alleged prosecutorial misconduct which have been identified as separate claims, J(l)(b) and J(l)(d), were not fairly presented to the state courts, are procedurally defaulted, and no cause and prejudice have been established to excuse the default. 5.Burglary Statute is Unconstitutionally Vague In Claim K, Wood has asserted that the burglary statute pursuant to which Wood was charged with capital murder is arbitrary and vague and fails to channel the discretion of law enforcement and juries. The Respondents contend that this claim is procedurally defaulted because it was not raised at trial or on direct appeal. Wood argues that he can demonstrate cause and prejudice with respect to Claim K because it was a meritorious claim that a competent attorney would have raised on direct appeal, so that ineffective assistance of counsel provides cause and prejudice to excuse the procedural default. Wood has not responded, however, to the assertion that the claim is procedurally barred because it was not raised at trial. Claim K is, therefore, procedurally barred. 6. Brady claim Claim L is a claim asserted under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Wood alleges that he was not advised that Calvin Salter, a witness who testified for the prosecution at Wood’s trial, was being prosecuted for assault at the time. The Respondents contend that this claim was procedurally defaulted because it was not raised at trial or on appeal. Wood responds that this claim was unambiguously raised on direct appeal and was reviewed on direct appeal, and so was not procedurally defaulted. In the Joint Report filed in this case, however, Wood took the position that this claim was procedurally defaulted and that cause and prejudice existed to excuse the default. See Joint Report (Doc. # 36) at page 75. Furthermore, although Wood purports to cite to a portion of his appellate brief in which he raised this claim on direct appeal, upon review of his direct appeal brief there is no mention of a failure to disclose Calvin Salter’s prosecution within the pages cited by Wood, or anywhere else in the direct appeal brief. Vol. 13, Direct Appeal Brief, pages 1-33. While the Respondents have pointed out that, in the brief in support of a petition for writ of certiorari to the Alabama Supreme Court, Wood argued that information had been withheld by the state, even in that brief the information identified is evidence of intoxication and mental illness, not Calvin Salter’s prosecution. Vol. 14, Brief in Support of petition for Writ of Certiorari, page 29. Therefore, the court concludes that this claim is procedurally barred. 7. Due Process Violation In Claim M, Wood alleges that his due process rights were violated because he was not given adequate notice of the prosecution’s intent to prove a fourth aggravating circumstance. The Respondents contend that this claim is procedurally defaulted because it was not raised on direct appeal. Wood argues that he has cause and prejudice to excuse his procedural default on this claim, but only states that his counsel were ineffective, which prejudiced him. This showing is not sufficient. In order demonstrate cause and prejudice based on a claim of ineffective assistance, a petitioner must show that counsel’s performance was so ineffective as to violate the federal constitution. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). In other words, a petitioner seeking to show ineffective assistance as the cause of a default must prove that his counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. at 684, 104 S.Ct. 2052 (1984). Wood’s conclusory statement that counsel was ineffective is not sufficient. 8. Violation of Right to Impartial Jury by Refusal to Remove Jurors for Cause In Claim N, Wood has raised a claim that his right to an impartial jury was violated by the trial court’s refusal to remove jurors for cause, which the Respondents state is procedurally defaulted because it was not raised on direct appeal. Wood does not dispute the assertion of procedural default, but argues that he can establish cause and prejudice to excuse the default because his counsel were constitutionally ineffective. For the reasons discussed above, this conclusory assertion is not sufficient to excuse the default. 9. Violation of Right to Impartial Jury by Failure of Juror to Truthfully Answer Questions and Racially Discriminatory Imposition of Death Sentence Claim O asserts a violation of Wood’s constitutional rights on the basis that he was denied his right to exercise peremptory strikes, to challenge jurors for cause, and that he was denied his right to a fair trial because a juror failed to truthfully answer voir dire questions. Claim P alleges that Wood’s death sentence is unconstitutional because it was imposed in a racially discriminatory manner. Wood has claimed that he has established cause and prejudice to excuse the procedural default of both of these claims. Again, as was discussed earlier with respect to other defaulted claims, Wood cannot discharge his burden to establish cause and prejudice by merely stating in a conclusory fashion that his counsel was ineffective. Furthermore, with respect to claims O and P, the Respondents argue that the claims are procedurally defaulted because they could have been, but were not, raised at trial or on direct appeal. Wood claims that there is cause for the procedural default on this claim based solely on the failure to raise the claims on direct appeal and establishes no cause for the failure to raise the claims at trial. Therefore, these claims are procedurally barred. C. Merits Issues The court will now address the issues argued in the parties’ briefs. 1. Constitutional Violations Resulting from Determination that Wood is Not Mentally Retarded Wood has argued that the state courts’ adjudication of his claim that his execution would violate the Fifth, Eighth and Fourteenth Amendments because he is mentally retarded was an unreasonable application of Atkins v. Virginia and an unreasonable determination of the facts. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment prohibits the execution of persons who are mentally retarded. The Court held that it is up to the states to develop “appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. The Alabama Court of Criminal Appeals has recently summarized the law of Alabama in this area as follows: Our Legislature has not established a method for deciding whether a capital defendant is mentally retarded as contemplated by Atkins and therefore not eligible for the death penalty. At most, Alabama has the “Retarded Defendant Act,” § 15-24-1 et seq., Ala.Code 1975. Section 15-24-2(3), Ala.Code 1975, defines a mentally retarded person, for purposes of the Act, as “[a] person with significant subaverage general intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period, as measured by appropriate standardized testing instruments.” Finally, in Ex parte Perkins, 851 So.2d 453, 456 (Ala.2002), the Alabama Supreme Court held: “[A] defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).” Smith v. Alabama, No. CR-97-1258, 2006 WL 2788994, *4-5, — So.2d-,-(Ala.Crim.App. Sept. 29, 2006). It is, therefore, within the context of this definition by the State of Alabama, and the definition applied in Atkins, that the court evaluates Wood’s claims. Wood contends that it is uncontested that his IQ. is below 70 and that he has significant limitations in one area of adaptive functioning — functional academics, and that these deficits manifested prior to the age of eighteen. Wood contends that the only issue, therefore, is whether he has at least one more limitation in adaptive functioning. Wood says that the evidence shows that he has significant limitations in the areas of communication, social skills, and self-direction and that the state courts’ determination ignored evidence of his limitations and focused on evidence of his strengths. For the reasons discussed above, the court finds itself constrained by the record in this case not to hold an evidentiary hearing on the issue of mental retardation. The court has thoroughly reviewed the record evidence of mental retardation which was presented to the state courts during the Rule 32 hearing, and particularly the evidence presented upon remand from the Alabama Court of Criminal Appeals, in evaluating the reasonableness of the state courts’ determination of Wood’s claims. The Rule 32 court stated that Wood had probably established that his intellectual functioning fell within the mild mental retardation range. Vol. 41 at page 2403. This finding is supported by the record. There is also evidence in the record that Wood’s functional academics area of functioning was substantially limited. Yol. 28 at page 186. Dr. Karen Salekin testified on behalf of Wood at the Rule 32 hearing that Wood suffered deficits in more than one area of adaptive functioning. The Rule 32 court determined that Dr. Salekin’s opinion regarding Wood’s adaptive functioning was not to be credited because it was based on information obtained from Johnnie Pearl Wood, his sister, which would indicate that Wood was functioning at the level of a five or six year old. Vol. 41 page 2404, 2407. The Rule 32 court found credible the testimony of Dr. Harry A. McClaren and Dr. Gregory A. Prichard, who based their opinions on the administration of tests to several persons, and who concluded that Wood does not have substantial deficits in his adaptive functioning. Id. at 2407-09. Dr. McClaren testified that the “totality of the evidence was that the adaptive behavior measures did not support that his adaptive behavior caused two of the areas to fall so low as to justify a diagnosis of mental retardation.” Vol. 28 at page 189. When asked to clarify what would be “so low,”, he explained that he meant “two standing deviation median.” Id. The Rule 32 court also highlighted aspects of the testimony regarding Wood’s adaptive functioning. Wood argues that the Rule 32 court wrongly focused on his abilities and ignored evidence of his deficiencies. Wood points to the following as evidence of deficiencies in his adaptive skill areas: the Vineland questionnaire completed by Wood’s former girlfriend, Barbara Siler, which he says showed that he had deficits in the areas of communication and socialization; the Vineland questionnaire completed by Wood’s former teacher, Hilda Maddox, which he says showed he had deficits in communication and socialization; the responses to the Vineland questionnaire completed by Wood’s former school teacher, Janet Penn, which he says showed he had limitations in the area of communication; the responses to the SIB-R completed by a corrections officer, which he says showed he had limitations in seven areas; testimony of Wood’s trial counsel that he was passive and non-communicative during the trial; and Dr. Salekin’s testimony that Wood’s encounter with a detective showed he had impaired judgment and was not acting rationally. The results of the Vineland and the SIB-R tests pointed to by Woods, however, were administered by the professionals who testified on behalf of the State. The Rule 32 court rejected the only expert testimony that Wood is mentally retarded as being incredible because it was based on information which was inconsistent with his actual functioning in the community. Vol. 41 at page 2407. Wood argues that this court should reject as unreasonable the Rule 32 court’s reliance on expert testimony that he is not mentally retarded, but also seeks to rely on evidence from tests upon which those experts based their opinion. See Petitioner’s Reply Brief at page 34. To rely on Dr. Salekin’s opinion that Wood is mentally retarded would be, according to the evidence in the record, to accept that Wood was functioning as a five or six year old. It was not inappropriate for the state courts to point to evidence of Wood’s abilities to drive a fork lift, to manage money, to maintain a relationship with his girlfriend, and other similar evidence, to conclude that Dr. Salekin’s opinion was not based on reliable evidence. Furthermore, the state courts did not fail to properly consider areas of limitation, but instead found credible expert opinion which concluded, as stated above, that the “totality of the evidence was that the adaptive behavior measures did not support that his adaptive behavior caused two of the areas to fall so low as to justify a diagnosis of mental retardation.” Vol. 28 at page 189. Therefore, this court cannot conclude that the state courts’ decision was an unreasonable application of federal law, or based on an unreasonable determination of the facts. Wood raises additional claims, which this court has concluded are not procedurally defaulted, that the State courts failed to adopt the Alabama Supreme Court’s definition of mental retardation in violation of his due process rights, and that the standard adopted by the State court would allow for the execution of mentally retarded Defendants. The basis of Wood’s arguments is that the state courts focused on Wood’s strengths and ignored evidence of his deficits in adaptive behavior. Wood states that the state court adopted a broader test which did not evaluate the adaptive functioning prongs of the American Association on Mental Retardation or the American Psychiatric Association’s definitions of mental retardation referred to in Atkins. As stated above, Dr. McClaren offered his opinion as to Wood’s adaptive functioning in terms of whether his functioning was low in two areas. Vol. 28 at page 189. This was consistent with the approach outlined in Atkins. Also as stated above, making findings as to Wood’s strengths was not inappropriate, given the expert testimony offered by Wood which was based on testing which would have been inconsistent with those strengths. Therefore, the court determines that the state courts’ decision is not an unreasonable application of federal law. As referenced above, in claim G, Wood has advanced a claim based on an alleged Sixth Amendment violation because the determination that he is not mentally retarded was made by the Rule 32 court rather than a jury. The Fifth Circuit has determined that “because Ap-prendi does not apply retroactively ... and Ring, even if retroactive, does not render the absence of mental retardation an element of the sentence that is constitutionally required to be determined by a jury, there is no showing of a constitutional violation.” United States v. Webster, 392 F.3d 787, 792 (5th Cir.2004). The court agrees and, therefore, finds that Wood is not entitled to relief on this claim. 2. Claims Arising From July Selection a. In Claim H of the Joint Report, Wood has claimed that the state courts’ conclusion that the prosecutor in his trial did not violate the Fourteenth Amendment by striking potential jurors was unreasonable in light of the facts, and that the decision was contrary to established Supreme Court precedent. Under Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant must make a prima facie case of racial discrimination in jury selection and then the burden shifts to the state to come forward with a race-neutral explanation for challenging black jurors. Wood argues that at least eight times, the State’s proffered reason for striking black prospective jurors in his case also applied to white prospective jurors who ultimately sat on the jury and, therefore, were a pretext for discrimination. Wood relies on the following analysis by the Supreme Court in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005): “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Wood states that the State offered as the reason for striking black prospective jurors, for example Christine B. Jones, that the prospective jurors said they did not believe in an eye for an eye, or in capital punishment, see Yol. 2 page 362, but did not strike other white prospective jurors who also said they did not believe in an eye for an eye. In Hightower v. Terry, 459 F.3d 1067 (11th Cir.2006), the Eleventh Circuit considered a case in which a petitioner argued, under Miller-El, that race-neutral explanations were evidence of discrimination when similarly situated white persons were not stricken for cause. The Eleventh Circuit, however, stated that the comparison between the prosecutor’s handling of white and black jurors was not briefed before the Georgia Supreme Court on appeal in the state courts. The court concluded, therefore, that because the claim was not properly raised in the state courts, and no claim for ineffective assistance of counsel for failing to advance the comparison was raised in federal court, the petitioner was not entitled to relief on the Batson claim. Id. at 1071-72. What the Eleventh Circuit held, therefore, is that within a Batson claim, there may be theories not presented in state court which are themselves procedurally barred. It is with that understanding that the court approaches Wood’s Batson claim here. The State court opinion in this case concluded that the prosecutor’s explanation was race-neutral. Wood, 715 So.2d at 815. Wood’s appellate brief filed in state court identified several jurors as having been struck because they were opposed to the death penalty and did not believe in an eye for an eye. Vol. 13, page 20. He argued that the reasons were not adequate because just being opposed to capital punishment does not disqualify one from sitting on a capital case. Id. at page 21. This court has been pointed to no argument, however, that similar opinions were expressed by white jurors who were not struck. Under Hightower, the court must conclude that Wood’s argument before this court that racial discrimination should have been inferred based on a comparison with the treatment of white prospective jurors is procedurally barred in this case. Wood also identifies another reason for strikes by the prosecutor that was common to several jurors. Wood points to Azaline Brooks as having been struck because she had a nephew in prison, a sister who was a defendant in a criminal case, she wanted off duty because of a dental appointment, and she touched the defendant on the arm on the way to pick up the jury questionnaire. Wood also points to Stevie Scott, whom the prosecutor said he struck as being related to a drug defendant and who himself had contact with the police department under suspicious circumstances. Vol. 2 at 364. Wood says that the trial court ruled that suspicious circumstances contact is not a race neutral reason and that the only remaining reason was being related to a drug defendant. George Bowens was a prospective juror whom the prosecution said was struck because he was a student and wanted to be excused, he seemed to have trouble with the idea of rehabilitation in prison, and he seemed to be irritated with the clerk of the court. Id. at 360. Marcus L. Thomas had relatives who had been prosecuted, he did not want to serve because he was a student, his brother had been prosecuted by the prosecution’s office' and was serving time. The prosecution said it struck Alvin Rodgers because he had a brother who was a child support defendant and he said on his questionnaire that under no circumstances would he vote for the death penalty. Id. at 363. Stanley Scott was struck because he had been prosecuted by the prosecutor’s office for a bad check, he was emphatic in his response that he did not believe in an eye for an eye, and a family member had been caught stealing. Id. at 363-64. Wood argues that the failure to question the panelists about the reasons the prosecutor gave for striking them is evidence suggesting that the explanation is a sham, citing Miller-El, 125 S.Ct. at 2329. Wood also points to Frank Paul, a white person on the jury panel, who had an aunt convicted of manslaughter and who was working out of town in North Carolina, although his permanent residence was still in the Troy area, and he said that serving on the jury would pose a hardship. Vol. 1 at 111. Finally, Wood says that the Pike County District Attorney had demonstrated a pattern and practice of striking black citizens from juries in capital cases, citing two cases. The difference between Wood’s argument with respect to these prospective jurors and the prospective jurors who were struck because they said they did not believe in an eye for an eye is that the comparison with a white juror who was not struck was raised before the appellate court. In his appellate brief, Wood argued that if the state court were to compare Juror No. 2Q and Juror No. 99, the court would see based on questionnaire forms that those prospective jurors also had relatives who had been prosecuted, but that those white jurors had not been stricken. Vol. 13 at page 20. Although this claim is therefore different from the claim the court has concluded is barred under the Hightoiver ruling, habeas relief is nevertheless due to be denied as to this claim. The inquiry in a Batson claim has been described by the Supreme Court as follows: On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. 352, 364-366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)(holding that evaluation of a prosecutor’s credibility “lies ‘peculiarly within a trial judge’s province’ ”). Under AED-PA, however, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Thus, a federal habeas court can only grant Collins’ petition if it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by “clear and convincing evidence.” § 2254(e)(1). See Miller-El, supra, at 240, 125 S.Ct., at 2325. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006). The Eleventh Circuit has recently addressed a claim and has explained the role of the defendant in presenting comparative evidence in the context of a Batson claim. In Atwater v. Crosby, 451 F.3d 799 (11th Cir.2006), a defendant objected at trial to the state’s use of a peremptory challenge to remove the only African American from the jury venire. The state gave a reason for the strike as being the juror’s reluctance, which the court accepted. Id. at 805. In his petition for habeas relief, the petitioner argued that the trial court’s application of Batson was unreasonable because other non-African American jurors expressed reluctance to serve, so that a comparative juror analysis led to the conclusion that the African American was struck on the basis of race. Id. The Eleventh Circuit noted that the comparative juror argument was not made at the time the Batson challenge was made at the trial court. Id. The Eleventh Circuit explained that at the third step of Batson analysis the persuasiveness of the prosecutor’s justification for a peremptory strike is the critical issue, and the burden of persuasion regarding possible racial motivation “rests with, and never shifts from, the opponent of the strike.” Id. at 806 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)(per curiam)). In the case before it, the Eleventh Circuit stated that the trial judge upheld the strike after agreeing that the potential juror had difficulty with her response to the prosecution and that the “defendant failed to follow through, or come forward with any concrete pretext evidence or argument.” Id. at 807. The court noted that although the defendant “presented comparative evidence of discrimination to the post-conviction courts and in his petition for habeas relief, conspicuously absent from the trial record is some argument or evidence of comparability at the time that the Batson challenge was made to refute the prosecutor’s reason for the strike.” Id. Without comparison evidence, the petitioner’s Batson claim failed. Id. This court finds that Atwater controls in this case. The court has reviewed the transcript of the Batson challenge at the trial court, the articulated reasons, the defense’s response, and the court’s analysis. See Vol 2 at pages 356-392. As reasons were articulated by the prosecutor, the trial court determined that they were race neutral. The court finds no reference by defense counsel at the time the Batson challenge was made to any argument or evidence of comparability between the potential African American jurors who were struck and any white potential jurors who were not struck by the defense. The court concludes pursuant to Atwater, therefore, that denial of his Batson claims was not an unreasonable application of federal law, or based on an unreasonable determination of the facts. b. Refusal to Remove Jurors for Cause In Claim N, Wood states that venire members Betty Fowee, Johnny Leverett, James Jinright, Cary Maulden, and Glen-nie Helms said that they believed in an eye for an eye, and should have been removed for cause. As stated above, this claim is procedurally defaulted and Wood has not established cause and prejudice for the default. 3. Ineffective Assistance of Counsel at the Guilt Phase Claims The Respondents contend that Wood identified fourteen ineffective assistance of counsel claims during the guilt phase. The Respondent contends that in his brief in support of the merits of his claims Wood only points to evidence of a few instances of alleged ineffectiveness and has abandoned his fourteen claims. Whether Wood’s brief should properly be characterized as abandoning any claims or not, the court will only address the claims for ineffectiveness of counsel at the guilt phase to the extent that Wood himself has addressed them. In his reply, Wood insists that no claim has been abandoned and that he has specifically pointed to evidence that counsel failed to adequately prepare for trial or investigate exculpatory evidence, that Wood’s counsel made prejudicial remarks during voir dire, that counsel failed to adequately challenge various aspects of the State’s case, and that counsel failed to move for disqualification of the judge. The court will address each of these in turn. Wood says that his counsel was inadequately prepared for the suppression hearing held in his case and so failed to present evidence that Wood was subjected to a custodial interrogation in a coercive environment, that he was intoxicated on the day of his arrest, and that he is mentally retarded and did not knowingly waive his rights. The Rule 32 court determined that Wood did not carry his burden of proof on this claim because the evidence demonstrated that Wood made statements voluntarily without ever being questioned by authorities. Yol. 24 at page 20. The Alabama Court of Criminal Appeals affirmed this determination. As will be discussed at greater length below, the court does not find this determination to be an unreasonable determination of facts. Wood has also identified in his brief as being ineffective assistance of counsel his counsel’s remarks during voir dire that criminals sentenced to life without parole are released on parole and that Wood was guilty. The Rule 32 court evaluated this claim and determined that it was reasonable for counsel to explore with jurors whether they did not believe life without parole meant life without parole, and that the jury would not have been swayed by an intimation that Wood was guilty when counsel spent the entire trial rejecting the argument by the State that Wood was guilty. Vol. 24 at pages 23-24. This court cannot conclude that that determination is an unreasonable application of federal law. Wood also states that his counsel failed to object to hearsay testimony offered by the State’s witnesses to burglary, and intentional murder, and failed to adequately examine those witnesses. The Rule 32 court examined these claims. As to the objection to hearsay by Ruth Gosha and Calvin Salter, the court concluded that reasonably competent counsel could have concluded that the command to stay away from the house was not an assertion offered to prove the truth. The court also concluded that with regard to the alleged failure to object to hearsay by Ruth Gosha on the pages of the record which were cited, the record did not support Wood’s argument because counsel did raise two objections, one of which was sustained and one of which was specifically made on hearsay grounds. The Rule 32 court’s determination was affirmed on appeal. This court cannot conclude that the state courts’ decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood next argues that counsel failed to adequately investigate or present exculpatory evidence to negate the intent element of murder, including evidence of intoxication and emotional stress and failure to request a jury instruction on intoxication. The Rule 32 court determined that the choice to pursue a defense that the evidence was merely circumstantial evidence, rather than that the intent element should be negated, was a reasonable choice. This court cannot conclude that the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood also challenges counsel’s failure to object to aspects of the prosecutor’s conduct, including misstatin