Full opinion text
Table of Contents I. Procedural History.1314 A. Trial and Direct Appeal.1314 1. Trial Evidence.1314 2. Proceedings on Direct Appeal.1316 B. Post-Trial Proceedings in State Court.1317 C. The Federal Petition for a Writ of Habeas Corpus .1324 II. Analysis of the Claims.1327 A. Introduction .1327 B. Intent, participation, and the “Third Man” Defense.1329 1. Sufficiency of the Evidence.1331 i. Procedural Default on the Sufficiency of the Evidence Claim.1331 ii. Merits of the Claim .1332 2. Ineffective Assistance of Counsel.1334 i. Claims of Ineffective Assistance at Trial Generally.1334 ii. Counsel’s Alleged Failure to Understand an Essential Element of Capital Murder.1335 iii. United States v. Cronic.1337 iv. Strickland v. Washington.1339 a. Petitioner’s Allegations.1342 b. Ineffective Trial Strategy.1342 (1) Pre-Trial Choice of Strategy.1343 (2) Failure to Argue Intent During Trial.1344 c. Failure of Argue Intent to the Judge.1346 d. Defense Counsel’s Argument to the Jury.1349 e. Failure to Object to the Prosecution’s Improper Closing Argument.1350 f. Accumulated Attorney Error.1351 v. Failure to Give a Felony Murder Instruction .1352 vi. The Actual Innocence Exception to Procedural Default.1352 C. Other Claims of Ineffective Assistance of Counsel.1353 1. Other Claims of Trial Counsel Error.1353 i. Cross-examination of David Lindsey.1353 a. Allegedly Contradictory Statements .1355 b. Counsel’s Efforts to Undermine Lindsey’s Character.1356 c. Failure To Present Conflicting Witness Testimony.1356 ii. Ineffective Assistance Because of Claimed Improper Objection to Statistical Evidence.1357 2. Claims of Ineffective Assistance of Counsel on Appeal.1359 i. Adequacy of Statement of Facts On Appeal.'..1360 ii. Adequacy of Issues Presented on Appeal.1360 iii. Brief to Alabama Supreme Court on Direct Appeal.1362 D. The Brady Claim.1362 1. The “Exculpatory Evidence” Requirement.1363 2. The Suppression Requirement.1363 3. The Materiality Requirement.1364 E. The Cage Claim .1365 1. Procedural Default.¡.1366 2. The Merits of the Claim.1366 F. Fourth Amendment Claim.1373 1. Procedural Default.1373 2. Stone v. Powell .1374 3. Merits of the Claims.1376 i. The Bullet.1376 ii. The .357 Magnum Revolver .1378 III. Conclusion.1381 Memorandum of Opinion EDWIN L. NELSON, District Judge. The court has for consideration the petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 on behalf of Anthony Keith Johnson, an Alabama state prisoner, convicted of capital murder and sentenced to death. On this petition Johnson is represented by counsel from the firm of Covington & Burling. Counsel for the State of Alabama have filed a Habeas Corpus Checklist, a voluminous record of the proceedings from the Alabama trial and appellate courts, a revised Habeas Corpus Checklist, and an answer to the petition. The court has conducted a hearing on the narrow issue of what information the petitioner conveyed to his trial counsel upon which they relied in formulating their trial strategy. Among other things, the petitioner has alleged that his trial attorneys rendered him ineffective assistance by choosing a flawed defense strategy based upon a mistaken understanding of the law and that the trial judge gave a constitutionally flawed jury instruction defining reasonable doubt. The court will address these and other matters infra. I. Procedural History. A. Trial and Direct Appeal. 1. Trial Evidence. On direct appeal, the Alabama Court of Criminal Appeals set forth the facts established at trial as follows: The record reveals that on the evening of March 11, 1984, the victim, Kenneth Cantrell, and his wife, Nell Cantrell, were at their home in Hartselle, Alabama. The Cantrells had been in the jewelry business for 24 years and at this time were conducting the business from their home. Mrs. Cantrell received a phone call from a person identifying himself as Bill Spears from Florence, Alabama, and he asked to speak to Mr. Cantrell. He told Mr. Cantrell that he would like to purchase some jewelry from him, and they arranged a meeting a short time thereafter at the Cantrell home. Mr. Cantrell was apparently suspicious of the caller, because he asked his wife to hide his wallet and bring him his .38 caliber pistol. When Mrs. Cantrell heard a knock at the door, which led from their carport into the combined living room and dining room area of their home, she went to answer it. She observed that the man already had the storm door open, but she had to open the door to hear what he had to say. When she opened the door she encountered a man between 45 and 50 years of age who identified himself as Bill Spears. She noticed that he held one hand behind his back and she asked if he was concealing something. He said that he was not and showed her his hand. At the same time he motioned for another man who had been hiding in the carport to come forward. At this, the man already at the door grabbed Mrs. Cantrell, and the other man, wearing a blue bandana over his face and brandishing a “real shiney” gun in his hand, announced “This is a holdup.” Johnson v. State, 521 So.2d 1006, 1007-08 (Ala. Crim. App.1986). At that point, according to the testimony at trial, Mrs. Cantrell broke free from the man holding her, eluded a second attempt by the first man to grab her, and fell at her husband’s feet between the couch and coffee table. The first man crossed the room and positioned himself behind a couch he had overturned. The second man then entered the house and began shooting. During or just before the gunflght, Mr. Cantrell said, “Freeze ... I have got you covered,” to which one of the men replied “No, we have got you, Cantrell.” While on the floor, Mrs. Cantrell was able to observe that one of the men wore a pair of brown boots. She also testified that only two guns were fired during the exchange, and that the shots fired at her husband appeared to come from the direction of the second intruder. After several shots had been fired, there was a pause in the gunfire. One of the men said, “Come on in, Bubba ... we have got him.” As the two men in the room made their way to the door, but before they reached it, Mr. Cantrell fired one final shot and someone said. “Oh.” Mrs. Cantrell then heard the sound of shuffling feet, as if one of the intruders was being assisted out of the house. Tr. at 364-388. Mrs. Cantrell waited a moment after the intruders left, looked up at her husband, noticed that he had blood all over him and that she had blood all over her but that she was not shot. She then called an ambulance and police to the scene. Mr. Cantrell sustained six gunshot wounds in the exchange, three in the right side of his chest, one in the left side of his chest, one on the back of his right arm, and one to his right middle finger. The bullets which struck him in the chest passed through his lungs and the large arteries from the heart, causing rapid death. On the evening of March 12, 1984, the day after the murder, appellant went to the home of David Lindsey, who was a friend, in Newell, Alabama. Appellant told Lindsey that he had been shot. When Lindsey inquired as to what had happened, appellant stated, “Well you know how it is when you have got the habit.” Appellant told Lindsey that he knew he had been to Vietnam and asked if he knew a medic or someone who could get the bullet out. Lindsey told him that he knew no one who could do that. At appellant’s request, Lindsey, on the morning of March 13, 1984, drove him to a motel in Oxford to meet Gene Loyd. Lindsey testified that Loyd and appellant were glad to see each other, and Loyd asked appellant where he had been. Appellant replied that he “had to get the hell out of Hartselle.” He said that he and some friends had gone into a place to get some gold and that he had been shot. According to Lindsey, appellant stated, “I got shot, but I got off a couple of rounds, and I believe I got that son of a bitch.” Lindsey returned home, where he heard that a murder had occurred in Hartselle, and he contacted authorities. Appellant was arrested on March 14, 1984, at the motel where he had been taken by Lindsey. A pair of brown boots, which appellant claimed to own, were found at the scene of the arrest. A bullet wound was discovered in his back; that wound was 50.5 inches from the ground when appellant was standing. A search warrant was obtained, and the bullet was removed from his back. It was discovered that Mr. Cantrell had fired his R.G. brand revolver six times at the intruders. Most of the shots were in an upward direction from the point where he was sitting on his couch. The revolver was loaded with .38 special C.C.I. Blazer cartridges manufactured by Omark Industries. Four C.C.I. Blazer bullets were recovered from objects which they had struck at the scene. One bullet apparently passed through the ceiling and could not be found. One bullet passed through a pane of glass on the back door 46.375 inches from the ground. A search of cardboard boxes and the wall in this bullet’s path failed to reveal the bullet. The four C.C.I. Blazer bullets found at the scene had the same number of lands and grooves as the bullets test fired from Mr. Cantrell’s R.G. revolver, but it was impossible to definitely make a determination that Mr. Cantrell’s revolver actually fired the bullets. The bullet which was removed from appellant’s back was a .38 special C.C.I. Blazer. The bullet had the same number of lands and grooves as those test fired from Mr. Cantrell’s R.G. revolver and those found at the scene, but again, it was impossible to make a definite determination that Mr. Cantrell’s revolver actually fired the bullet. The bullet which was removed from appellant’s back had glass imbedded in its nose. Test comparisons of the glass removed from the bullet and that found in the pane on the back door, through which the unaccounted-for bullet had passed, revealed that all of their physical properties matched, with no measurable discrepancies. Based upon F.B.I. statistical information, it was determined that only 3.8 out of 100 samples could have the same physical properties, based upon the refractive index test alone, which was performed. Johnson v. State, 521 So.2d 1006, 1008-09 (Ala.Crim.App.1986). 2. Proceedings on Direct Appeal. After the petitioner was arrested as a murder suspect, Attorneys Joseph W. Propst and Thomas M. DiGiulian of Decatur, Alabama, were appointed to represent him. The court conducted a hearing on March 15,1984, at which time the petitioner advised the court that he needed medical attention for a wound in the back, and the District Attorney informed him that the State would attempt to procure any physical evidence from medical treatment or surgical removal of a foreign object from his body for use in its capital murder investigation. After consulting with his court-appointed attorneys, the petitioner refused any medical treatment at that time. Because his medical condition continued to worsen, the petitioner was taken to the Emergency Room at Decatur General Hospital the next day for treatment. An x-ray revealed the presence of an object similar to a bullet in his back, but Johnson refused to allow physicians to remove it. On March 26, 1984, the petitioner was formally charged with capital murder. At the preliminary hearing, conducted on April 19, 1984, the court found probable cause to believe that Johnson had committed the capital murder of Kenneth Cantrell and bound him over to the grand jury. Thereafter, the District Attorney filed an application for a search warrant by which he sought court authorization to have the object surgically removed from Johnson’s back. Following a full hearing on May 18, 1984, the Morgan County Circuit Court granted the application and, on May 22, 1984, Johnson’s attorneys petitioned the Alabama Court of Criminal Appeals to stay the surgery and for a writ of prohibition, asserting that the proposed involuntary surgery would unconstitutionally invade his right to privacy, violate his right against self-incrimination, and violate his Fourth Amendment right against unreasonable searches and seizures. On May 24, 1984, the Alabama Court of Criminal Appeals denied both requests. His application for rehearing was also denied and, on May 28, 1984, Johnson was transported to Decatur General Hospital in Decatur, Alabama, where a bullet was surgically removed from his back. In June 1984, the grand jury in Morgan County charged the petitioner by indictment with the intentional murder of Kenneth Cantrell during the course of a robbery, in violation of Ala.Code § 13A-5-40 (1975). A year later, on June 20,1985, the petitioner was found guilty by a jury of capital murder as charged in the indictment, and on June 21, 1985, the jury voted nine to three to recommend that Johnson be sentenced to life imprisonment without the possibility of parole. At the close of the separate sentencing hearing required by Ala.Code § 13A-5-47 (1975), on November 8, 1985, Morgan County Circuit Court Judge A.L. Hundley rejected the recommendation of the jury and sentenced Johnson to death. Judge Hundley entered findings of fact with respect to both the petitioner’s guilt and sentence of death. Regarding the aggravating circumstances defined at Ala. Code § ISA-5-49, the trial court found that two were applicable: 1. The capital offense was committed by a person under sentence of imprisonment [§ 13A-5-49(l) ]. 2. The capital offense was committed while the defendant was engaged in the commission of a robbery [§ 13A-5-49(4) ]. Moreover, the court found “that there are some statements in the pre-sentence report and some other aspects of the case that have certain mitigating aspects to them [and] [t]hese were considered ... including the jury’s recommendation.” The trial court found no other mitigating circumstances, either those defined by statute or otherwise, stating: The Court finds the aggravating circumstances are substantial and controlling. The mitigating circumstances (other than the jury’s recommendation) can be found only by a strained search and are deemed insubstantial by the Court in the face of the evidence which demonstrates a vicious killing of a man in what should have been the quiet repose and safety of his own home.... B. Post-Trial Proceedings in State Court. On appeal to the Alabama Court of Criminal Appeals, where he was represented by newly appointed appellate counsel, John Mays, the petitioner raised four claims: 1. The trial court erred in permitting the State to challenge juror Carrell for cause (against capital punishment) over the petitioner’s objection. 2. The trial court erred when it refused to instruct the jury that it could not consider the theft by use of force allegation in the capital murder indictment as an aggravating circumstance in the penalty phase of the trial. 3. The trial court erred in refusing the petitioner’s motions for judgment of acquittal on the grounds that there was no proof that he was in Morgan County when the murder was committed and there was no proof that the gun he possessed at the time he was arrested was used in the shooting. 4. The trial court erred when it refused to strike information from the pre-sentence report indicating that marijuana was found at the scene when the petitioner was arrested. The Alabama Court of Criminal Appeals affirmed the conviction and sentence on November 25, 1986, in a written opinion; an application for rehearing was denied on January 27, 1987. The Alabama Supreme Court affirmed both the conviction and the sentence on February 5, 1988, and the United States Supreme Court denied Johnson’s petition for the writ of certiorari on October 3, 1988. Johnson v. State, 521 So.2d 1006 (Ala.Crim.App.1986), aff'd, 521 So.2d 1018 (Ala.1988), cert. denied, 488 U.S. 876, 109 S.Ct. 193, 102 L.Ed.2d 162 (1988). After the direct review process was completed, Johnson’s present counsel then undertook to represent him in post-conviction proceedings and have continued to do so until the present. They filed a petition for relief pursuant to the then applicable rule, Ride 20 of the Alabama Temporary Rules of Criminal Procedure, in the Circuit Court of Morgan County on April 4, 1989, raising sixteen principal claims, some with numerous sub-parts, each challenging either the conviction or the death sentence. They were: 1. The proof at trial failed to demonstrate beyond a reasonable doubt all elements of capital murder. According to Johnson, the State did not: (a) prove beyond a reasonable doubt that he was a participant in the shooting of Mr. Cantrell; (b) offer any evidence that he had the requisite intent to kill; (c) introduce sufficient evidence that the petitioner engaged in a robbery or attempted robbery; (d) prove that Johnson’s gun could have fired the bullets that killed the victim; (e) ask Mrs. Cantrell to identify the petitioner, his boots, or his gun; (f) present evidence that petitioner’s gun was fired; or (g) introduce sufficient evidence to instruct the jury on the theory of complicity. 2. The petitioner received ineffective assistance of trial counsel in a number of respects: (a)His attorneys failed to: (1) demonstrate that the State failed to prove that the petitioner intended to kill the victim; (2) demonstrate that the petitioner was not a participant in the shooting; (3) demonstrate that the State failed to prove the petitioner’s complicity in the killing; (4) adequately investigate the evidence available to the State to see that the fatal flaw in the State’s case was that the petitioner lacked the requisite intent to kill the victim or to aid others in that killing; (5) demonstrate there was no motive to kill the victim; (6) adequately cross-examine Mrs. Cantrell to demonstrate that she could not identify the petitioner; (7) present any analysis of the evidence; (8) present to the jury any theory consistent with the State’s evidence and the petitioner’s innocence; (9) adequately cross-examine David Lindsey to impeach him based on prior convictions; (10) properly highlight the presence of a third person in the robbery; and (11) inform the jury that evidence of the petitioner’s mere presence at the crime scene was insufficient to convict. (b) His attorneys failed to request a jury instruction on the lesser-included offense of felony murder and failed to grasp the difference between felony murder and capital murder; (c) His attorneys failed to file a timely motion to suppress the seizure of the .357 magnum revolver that was found when the petitioner was arrested and introduced into evidence as the gun seen by Mrs. Cantrell in the hand of the “second man”; (d) His attorneys failed to raise intoxication as a basis to negate the intent element required to convict the petitioner of capital murder and failed to request a competency hearing to investigate whether the petitioner’s drug addiction foreclosed him from participating in his own defense; and (e) His attorneys failed to: (1) adequately investigate and prepare for trial; (2) failed to adequately interview key witnesses and potential witnesses; (3) failed to develop facts concerning the petitioner’s drug use, and (4) failed to investigate the basis for the State’s expert-witness testimony. 3. The trial court erred by refusing to provide funds for the appointment of ballistics and glass experts to assist the petitioner in his defense in violation of Ake v. Oklahoma. 4. The State failed to disclose exculpatory evidence prior to trial in violation of Brady v. Maryland: (a) that three or four persons were involved in the robbery; (b) that a suspect had been interviewed and held by the Hartselle Police Department; (c) that Mrs. Cantrell was asked by the State prior to trial to identify certain persons and items and to identify the petitioner as a participant in the crime; and (d) that blood was discovered on a post in the living room, which, if it had been disclosed, could have been tested by the petitioner to demonstrate that he was not the “second man.” 5. The trial court erred when it overrode the verdict of the jury that Johnson be sentenced to a term of life imprisonment without possibility of parole. 6. The trial court erred when it accepted into evidence certain items which had been seized in violation of the petitioner’s Fourth Amendment right to be free of unreasonable searches and seizures. They were: (a) the bullet that was surgically removed from the petitioner’s back against his will; and (b) the .357 magnum revolver that was seized without a warrant at the time of the petitioner’s arrest and was not in “plain view” but was hidden under a mattress. 7. The prosecutors unconstitutionally removed all black persons from the jury panel in violation of Batson v. Kentucky. 8. The petitioner’s appellate counsel was constitutionally ineffective because he failed “to raise numerous meritorious claims that, if raised, would have been grounds for reversal,” such as: (a) the petitioner’s trial counsel was ineffective; (b) the trial court erred by refusing to provide funds in order that Johnson could have obtained the assistance of expert witnesses for the defense; (c) the State failed to disclose certain exculpatory evidence; (d) the State’s removal of a bullet from the petitioner’s back was unconstitutional; (e) the State’s warrantless search and seizure of the gun at the time of the petitioner’s arrest was unconstitutional; (f) the facts found by the sentencing court were not supported by the evidence of record; (g) the facts stated in the pre-sentence report were inaccurate and not supported by the record; (h) the trial court erred in finding that there were no circumstances that mitigated against the death penalty; (i) the trial court unconstitutionally enhanced the petitioner’s sentence because he refused to reveal the identities of the other persons present at the crime, in violation of Johnson’s right to remain silent: (j) the trial court’s imposition of a death sentence was unconstitutional; and (k) the State’s evidence failed to demonstrate that the petitioner was a participant in the shooting and that the petitioner had the intent to kill. 9. The trial court judge improperly imposed the death sentence on the basis of facts and inferences not reasonably supported by the record and the trial court judge’s written findings of fact show a misunderstanding of the evidence at trial and ignored facts that tended to exonerate the petitioner. 10. The pre-sentence report was inaccurate, prejudicial, and contained facts and inferences about the shooting that were unsupported by the record evidence. 11. The trial court failed to find the existence of mitigating factors when sentencing the petitioner to death, such as the fact that he did not have a significant history of criminal activity, his participation in the crime was minor, his addiction to narcotics, his age, and the jury’s recommendation that he be sentenced to life without parole. 12. Johnson’s counsel at sentencing were ineffective because they failed: (a) to present mitigating evidence of the petitioner’s severe chemical dependency and its effects on his actions, and failed to present expert medical testimony on that point; and (b) to object to portions of the pre-sentence report containing factual conclusions about the shooting that were unsupported by any evidence at trial. 13. The trial court judge improperly considered the petitioner’s silence to be a nonstatutory aggravating factor and used it to improperly enhance his sentence to death. 14. The imposition of the petitioner’s death sentence is unconstitutional because there is no evidence to demonstrate beyond a reasonable doubt that the petitioner intended to kill or was a major participant in the killing of the victim. 15. Alabama’s statutory jury override provision is unconstitutional and contains none of the procedural safeguards mandated by the Constitution. 16.The petitioner’s sentence was obtained pursuant to a capital punishment statute that is facially unconstitutional because the trial judge in Alabama, not the jury, determines the existence of aggravating factors required for a capital conviction and this deprived the petitioner of his right to have a jury determination on every element required for capital murder. Johnson’s attorneys filed an amended Rule 20 petition on November 9, 1989, raising additional claims: 1. The evidence at most demonstrated that the petitioner was a “third man” who entered the Cantrell home after the shootout occurred. 2. The prosecutor improperly argued to the jury that only two men were involved in the shooting when in fact the prosecutor knew or had reason to know there were three men involved and that the other two men, Garland and Wayne McCulloch, did the shooting. 3. The State withheld evidence favorable to Johnson in violation of Brady v. Maryland which showed that Garland and Wayne McCulloch actually shot Mr. Cantrell. 4. The trial court erred by failing to instruct the jury on the lesser-included offense of felony murder. On March 16, 1990, the Circuit Court of Morgan County denied the Rule 20 petition without a hearing and without specifying the facts upon which it relied. The Court of Criminal Appeals, acting on the joint motion of the parties, remanded the case on April 10, 1990, instructing the trial court to make and enter specific findings of fact. On April 30, 1990, Judge Hundley recused himself from any further participation in the proceedings and Judge John Jolly, a judge of the Circuit Court of Franklin County, Alabama, was designated to conduct further proceedings on the Rule 20 petition. Judge Jolly conducted a “summary disposition” hearing on August 29,1990, and a full evidentiary hearing on November 15 and December 17,1990. Before any decision could be made, however, the petitioner filed yet another amendment to the Rule 20 petition on March 12,1991, raising three more claims. They were: 1. The trial court erred by improperly instructing the jury on the meaning of “reasonable doubt” in violation of Cage v. Louisiana. 2. The State violated Brady v. Maryland by failing to disclose statements by potential witnesses which tended to impeach the testimony of David Lindsey, one of the State’s key witnesses. 3. The petitioner received ineffective assistance of trial counsel because his attorneys: (a) failed to object to the jury instructions on the meaning of reasonable doubt; (b) failed to object to the trial court sending the capital murder and complicity charges to the jury; (c) improperly stated to the jury that proof of felony murder would support a capital murder conviction; (d) failed to object to the prosecutor’s prejudicial closing argument which misstated the applicable law; (e) inadequately objected to the State’s statistical evidence; (f) ineffectively cross-examined David Lindsey; (g) failed to properly argue at the sentencing hearing that the petitioner’s participation in the killing was relatively minor; (h) failed to raise any objections during the sentencing hearing about the trial court’s incorrect findings of fact; (i) failed to argue at the sentencing hearing that the court was required to find the existence of mitigating circumstances; (j) failed to argue at the sentencing hearing that the petitioner’s sentence was unconstitutional because it was based on erroneous findings of fact and an incomplete and misleading pre-sentence report; and (k) failed to argue at the sentencing hearing that the trial court judge’s override of the jury’s recommended sentence violated the Alabama Constitution and the United States Constitution. On May 23, 1991, Judge Jolly denied the Rule 20 petition stating: Upon consideration of the pleadings of record, oral testimony and exhibits offered in the hearings held in this cause, legal briefs and legal citations of the respective parties to this proceeding, it is ORDERED, ADJUDGED and DECREED by the Court that the petitioner’s Petition for Relief from Conviction and Sentence heretofore filed in this cause on April 3, 1989 is hereby denied and overruled. On appeal, the Alabama Court of Criminal Appeals again remanded the case to the trial court with directions that it make written findings of fact to support its order denying the Rule 20 petition, as required by Rule 20.9(d) of the Alabama Temporary Rules of Criminal Procedure and the prior order of the appellate court. Judge Jolly filed a more specific order on June 17, 1991, denying the Rule 20 petition, stating: In response to the joint motion heretofore filed by the respective parties to this proceeding, the Court hereby makes the following specific findings of fact as to the various issues raised by the appellant in his petition: 1. The following claims by the petitioner are proeedurally barred as they could have been raised at trial or on appeal: a. Search and seizure involving the weapon b. Lesser included offense c. Reasonable doubt jury instruction d. Factual basis of sentence findings e. Pre-sentence report f. Statutory mitigating circumstances g. Intent to kill h. Jury verdict override provision i. Sufficiency of the evidence to sustain the conviction of petitioner j. Search and seizure involving removing the bullet from the petitioner’s body 2. In addition, the above claims 1 a-j also lack legal merit. 3. The following claims by the petitioner are not procedurally barred: a. Brady v. Maryland.claim b. Guilt stage ineffective assistance claim c. Appellate level ineffective assistance claim relating to guilt stage issues d. Sentencing stage ineffective assistance claim e. Appellate level ineffective assistance claim relating to sentencing stage issues 4. The above claims 3 a-e lack legal merit. Therefore, it is hereby ORDERED, ADJUDGED and DECREED by the Court that the petitioner’s Petition for Relief from Conviction and Sentence heretofore filed in this cause on April 3,1989 is hereby denied and overruled. On appeal from the denial of his Temporary Rule 20 motion, Johnson argued: 1.The evidence was insufficient to support the conviction because the State failed to prove every element of capital murder, including arguments: (a) that the record did not establish Johnson’s participation in the crime; (b) that Mrs. Cantrell did not identify the petitioner as a participant; (c) that Mrs. Cantrell’s testimony established that the petitioner was not the “second man”; (d) that the testimony of David Lindsey was not sufficient to counter the record which showed that the petitioner did not participate in the shooting: (e) that the State failed to prove intent to kill; and (f) that the conviction could not be sustained on a mere complicity theory. 2. The State withheld exculpatory evidence from the defense in violation of Brady v. Maryland such as: (a) the investigatory report of the crime prepared by the Alabama Bureau of Investigation which stated that a confidential informant told an investigating officer that Garland and Wayne McCulloch “did the shooting” and that Wayne McCul-loch had a .32 caliber gun; (b) portions of the same document indicating that the victim fired at the robbers first; (c) documentary evidence that the State was investigation two other suspects; (d) statements made by witnesses present with petitioner at the McCombs Motel when he allegedly made incriminating statements to Lindsey and when he was later arrested; (e) other information that could have been used to impeach witness Lindsey; and (f) information that there were three men at the Cantrell house instead of two as alleged by the prosecutor. 3. The trial court erred by not charging the jury on the lesser-included offense of felony murder. 4. The trial court improperly admitted into evidence items that were unconstitutionally seized, such as the bullet that was surgically removed from the petitioner’s back and the .357 magnum revolver that was seized pursuant to an illegal warrantless search at the time of the petitioner’s arrest. 5. The trial court erred by not properly instructing the jury on reasonable doubt. 6. The petitioner was denied the effective assistance of trial counsel because his attorneys: (a) failed to distinguish between felony murder and capital murder and therefore failed to subject the State’s evidence to any meaningful adversarial testing; (b) failed to argue that the petitioner was not a participant in the shooting; (c) failed to object to sending the capital murder and complicity charges to the jury; (d) faded to argue that the petitioner lacked the requisite intent to kill; (e) failed to request a felony-murder jury charge; (f) improperly stated to the jury that proof of felony murder would support a capital murder conviction; (g) failed to object to the prosecutor’s improper closing argument concerning a misstatement of the law and facts that were unsupported by the evidence; (h) inadequately cross-examined witness Lindsey and failed to develop sufficient impeachment material against him; (i) failed to adequately object to the admission of the State’s statistical evidence relating to glass fragments; and (j) did not file a motion to suppress the .357 revolver that was obtained illegally from a warrantless search. 7.The petitioner received ineffective assistance of appellate counsel because his attorney: (a) argued only two frivolous grounds with respect to the petitioner’s guilt; (b) merely photocopied his appellate brief to the Alabama Court of Criminal Appeals and labeled it a petition for writ of certiorari, and therefore failed to make any argument to the Alabama Supreme Court; (c) stated key facts in the brief incorrectly; (d) failed to distinguish between felony murder and capital murder; (e)failed to argue the following issues on direct appeal: (1) the exculpatory nature of Mrs. Cantrell’s testimony, (2) the absence of evidence of specific intent to kill, (3) there was evidence that the petitioner was not a participant in the killing, (4) the State’s failure of proof, (5) the trial judge’s failure to instruct the jury on felony murder, (6) the erroneous admission of prejudicial evidence, (7) the admission of evidence that had been wrongfully seized, (8) the ineffective assistance of counsel at trial and at sentencing, (9) -erroneous information in the pre-sentence report, (10) material errors and omissions in the trial court’s findings of fact on sentencing, (11) the failure to account for petitioner’s drug addiction in sentencing, (12) the existence of mitigating factors ignored by the trial judge, and (13) Alabama’s unconstitutional jury override provision. 8. The trial court judge erred by failing to find the existence of statutory mitigating circumstances such as the petitioner’s lack of a significant history of criminal activity and minor participation in the crime. 9. The pre-sentence report contained inaccurate and prejudicial facts unsupported by the trial record and failed to include evidence that would have been helpful to the petitioner. 10. The sentence was imposed on the basis of facts and inferences not supported by the record. 11. Alabama’s statutory jury override provision is unconstitutional because of the lack of constitutionally required procedural safeguards. 12. The petitioner was denied the effective assistance of counsel at his sentencing hearing because his attorneys: (a) failed to present adequate evidence of Johnson’s drug use as a mitigating factor; (b) failed to object to the incorrect statement of facts in the pre-sen-tence report; (c) failed to adequately argue as a mitigating factor that the petitioner was, at most, a relatively minor participant in the shooting; and (d) failed to object that the petitioner was improperly sentenced based on the trial court’s incorrect findings of fact. The Alabama Court of Criminal Appeals affirmed the denial of the Rule 20 petition on September 18, 1992, in a written opinion. Johnson v. State, 612 So.2d 1288 (Ala. Crim.App.1992). The petitioner’s application for rehearing was denied on November 13, 1992, and the Alabama Supreme Court denied his petition for the writ of certiorari on February 19, 1993. The record does not suggest that Johnson again sought relief by way of a petition for the writ of certiorari in the United States Supreme Court. C. The Federal Petition for a Writ of Habeas Corpus. In the present petition, filed on June 7, 1993, Johnson asserts seven principal grounds for relief. The petition itself is stated in the most conclusory of terms, but adopts specific arguments set forth in the petitioner’s Memorandum, in Support of Habeas Corpus Petition. Those grounds for relief are as follows: 1. There was insufficient evidence to establish the petitioner’s guilt beyond a reasonable doubt. Petitioner’s Memorandum at 20-26. 2. The prosecution withheld material exculpatory evidence prior to trial. Petitioner’s Memorandum at 26-33. 3. The petitioner’s trial counsel were ineffective because they: (a) failed to appreciate the distinction between felony murder and capital murder and, therefore, failed to subject the State’s evidence to meaningful adversarial testing in violation of United States v. Cronic, Petitioner’s Memorandum at 40-42; (b) failed to comprehend that to convict a defendant of capital murder, the State was required to prove that the defendant intended to murder the victim, and as a result, they: (1) failed to argue that the petitioner was not a participant in the shooting, Petitioner’s Memorandum at 42; (2) failed to object to the trial court’s instruction to the jury on capital murder and complicity, Petitioner’s Memorandum at 42-44; (3) failed to argue that the petitioner lacked the requisite intent to kill, Petitioner’s Memorandum at 44; (4) failed to request that the jury be instructed on felony murder as a lesser-included offense of capital murder, Petitioner’s Memorandum at 45-46; (5) improperly stated to the jury in closing arguments that proof of felony murder would support a capital murder conviction, Petitioner’s Memorandum at 46; (6) failed to object to the prosecutor’s improper closing argument on the law of complicity, Petitioner’s Memorandum at 46^48; (b) inadequately cross-examined witness David Lindsey, Petitioner’s Memorandum at 49-50; (c) failed to raise the proper objection to the State’s statistical evidence relating to glass fragments, Petitioner’s Memorandum at 50-52; and (d) failed to file a motion to suppress illegally obtained evidence, Petitioner’s Memorandum at 53-55. 4.Petitioner was denied the effective assistance of appellate counsel because his appellate attorney: (a) submitted an inadequate appellate brief containing a 32-page “mishmash” of facts, omitting some and incorrectly stating others, Petitioner’s Memorandum at 56-60; (b) failed to argue on direct appeal certain meritorious issues while arguing two frivolous issues related to the petitioner’s guilt, Petitioner’s Memorandum at 60-61; and (c)failed to make any argument to the Alabama Supreme Court during its review of the conviction and sentence, Petitioner’s Memorandum at 61-62; 5. The trial court failed to instruct the jury on felony murder as a lesser-included offense of the crime of capital murder. Petitioner’s Memorandum at 34-36. 6. The trial court improperly instructed the jury on the definition of reasonable doubt in violation of Cage v. Louisiana. Petitioner’s Memorandum at 36-39. 7. The trial court improperly admitted certain pieces of evidence that were obtained in violation of the Fourth Amendment. Petitioner’s Memorandum at 62-69. Pursuant to the court’s order dated June 23, 1993, the respondents filed a habeas corpus checklist on July 22,1993, attaching numerous documents and records from the state-court proceedings, and filed a brief on August 23, 1993. The petitioner filed responses on September 21,1993, and September 22, 1993. A hearing was conducted on October 27, 1993, by United States Magistrate Judge Paul W. Greene to determine whether the petitioner and his counsel were aware of the substantial procedural barriers to habeas corpus review in a subsequent petition and the necessity of presenting all claims in a single petition. The petitioner filed a response on June 6, 1994, and the respondents filed a response on July 18, 1994. By order dated June 29, 1994, the court requested from the parties their views regarding the necessity for an evidentiary hearing. The petitioner filed a response on July 22, 1994, asserting that an evidentiary hearing was necessary only “for the court to hear expert testimony that would establish for this federal record standards of counsel effectiveness in death penalty cases that prevail in Alabama state courts.” By order dated August 10, 1995, the court determined that it could address all of the claims presented in the habeas corpus petition on the basis of the state court record without holding an evidentiary hearing. That order also directed the respondents to file an answer to the petition for writ of habeas corpus along with a brief addressing issues of law. The respondents filed an answer to the petition on October 2, 1995. By order of January 16, 1996, the court set an evidentiary hearing for February 29, 1996, on the “ narrow factual issue” concerning “what petitioner told counsel about the crime and his role in it in order to assess whether their strategic and tactical choices were reasonable in the light of the information known to them.” On February 12, 1996, the petitioner filed a motion for reconsideration to set aside the order setting a hearing, which was denied on February 13, 1996. On February 20, 1996, the petitioner “appealed” the order setting the evidentiary hearing to the Eleventh Circuit Court of Appeals, and also moved that court to stay this court’s order setting the evidentiary hearing. By order of February 28, 1996, the Eleventh Circuit stayed the order setting the hearing and directed this court to conduct an in camera hearing in order “to determine whether and to what extent appellant’s communication presumptively protected by the attorney-client privilege is relevant to the specific ineffective assistance of counsel claims raised by appellant in his habeas petition.” An in camera hearing was conducted on February 29, 1996. By order dated March 1, 1996, the petitioner’s trial attorneys were directed to file under seal all materials that contained communications from the petitioner to them concerning his knowledge of or participation in the events surrounding the robbery and murder, and another in camera hearing was scheduled for March 19, 1996. On March 7, 1996, the petitioner’s trial attorneys filed the requested documents under seal. The petitioner again “appealed” to the Eleventh Circuit Court of Appeals, seeking to stay the hearing that was then scheduled for March 19, 1996. On March 7, 1996, the Court of Appeals denied the petitioner’s motion for stay, stating: “Given trial counsel’s apparent failure of memory, the district court’s decision to order production under seal of trial counsel’s notes for purposes of the in camera relevance hearing is reasonable and necessary.” This court then proceeded with the hearing. On April 10, 1996, the petitioner filed a response to the respondent’s memorandum dated April 1, 1996. On October 20, 1997, the petitioner filed a motion to amend his reply brief in support of the petition in order to add as an additional cause of the claimed ineffectiveness of counsel that trial counsel did not permit the petitioner to testify at trial. On March 20, 1998, the court denied the motion to amend. II. Analysis of the Claims. A. Introduction. A state prisoner “in custody in violation of the Constitution or laws or treaties of the United States” may petition an appropriate court of the United States for a writ of habeas corpus to obtain release from his or her unlawful confinement. 28 U.S.C. § 2254(a); See Brown v. Allen, 344 U.S. 443, 485, 73 S.Ct. 397, 407-08, 97 L.Ed. 469 (1953). The writ exists as the appropriate cause of action for a state prisoner seeking to challenge in federal court the “fact or length” of his confinement. Wilson v. Foti, 832 F.2d 891, 892 (5th Cir.1987). The petition for the writ of habeas corpus in a federal court is a collateral attack on the finality of state court proceedings on a matter largely of state concern. See In re Kaine, 55 U.S. 103, 113-14, 14 How. 103, 14 L.Ed. 345 (1852). Therefore, review .of a state court judgment is limited in scope because of demanding interests in federalism and the finality of judgments. See Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“ ‘[T]he Great Writ entails significant costs.’ ... The most significant of these is the cost to finality in criminal litigation that federal collateral review of state convictions entails”); Frank v. Mangum, 237 U.S. 309, 329, 35 S.Ct. 582, 590, 59 L.Ed. 969 (1915) (“[W]here ... a criminal prosecution has proceeded through all the courts of the state, including the appellate as well as the trial court, the result of the appellate review cannot be ignored when afterwards the prisoner applies for his release on the ground of a deprivation of Federal rights sufficient to oust the state of its jurisdiction to proceed to judgment and execution against him. This is not a mere matter of comity, as seems to be supposed. The rule stands upon a much higher plane, for it arises out of the very nature and ground of the inquiry into the proceedings of the state tribunals, and touches closely upon the relations between state and Federal governments.”). To obtain a writ of habeas corpus on a federal claim, a petitioner must overcome a number of procedural and substantive hurdles. These hurdles serve to ensure that the principles of federalism and finality are served by giving state courts due deference in the resolution of habeas claims. First, the petitioner must not have procedurally defaulted his federal claims in the state courts. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The petitioner must give the state courts a full and fair opportunity to consider all of his claims of error, including federal constitutional claims. See also Stone v. Powell, 428 U.S. 465, 494 n. 35, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (“Despite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law”). A procedural default occurs when a federal claim is not raised in such a way as to permit full review by the courts of the state. A habeas petitioner who has failed to follow a state’s procedural rules in presenting his or her federal claims and for that reason is barred from presenting those claims to the appellate courts of the state will also be barred by the procedural default rule from pursuing those claims on collateral review in federal court. Wainwñght, 433 U.S. at 82, 97 S.Ct. 2497. However, if a petitioner defaults on his federal claim in state court, he may nonetheless be heard on that claim in federal habeas court if he either “can show ‘cause’ for the procedural default and ‘prejudice attributable thereto,’ Murray v. Carder, 477 U.S. 478, 485, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986), or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ Id. at 495, 106 S.Ct. at 2649, quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1576, 71 L.Ed.2d 783 (1982).” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). See also Wainwright, 433 U.S. at 90-91, 97 S.Ct. 2497. Second, the petitioner must exhaust the claim in the courts of the state before the district court can address the claim. See Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982); see also Ex parte Royall, 117 U.S. 241, 250-53, 6 S.Ct. 734, 29 L.Ed. 868 (1886). A claim is exhausted if it either has been addressed by or was before the highest state appellate court authorized to hear the claim on its merits or if there no longer exists any available remedy in the state courts. Lundy, 455 U.S. at 515-16, 102 S.Ct. 1198. Finally, as a substantive matter, in addressing a habeas claim the district court must generally defer to the factual findings of the last state court to address the claim. See, e.g., Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Only in certain limited and defined circumstances will a federal court be permitted to disregard factual findings made by the state courts. B. Intent, Participation, and the “Third Man” Defense. As Assistant Attorney General, now Circuit Judge, Edward Carnes aptly observed, “[t]his case ... is in a very unusual posture, because the great majority of the issues raised ... are based upon the Petitioner’s present counsel's] assertion” of an entirely new version of the events of March 11, 1984. Record of Petitioner’s Rule 20 Proceedings (“R20”) at 1713-1714. Specifically, petitioner now suggests (or at least claims that his trial attorneys should have argued) that he was not one of the two robbers described by Mrs. Cantrell at trial. According to petitioner, the evidence supports the conclusion that he was instead a “third man,” involved in the robbery but not in Cantrell’s murder, who entered the house during a lull in the shooting just in time to be caught in the back by the dying Mr. Cantrell’s last shot. This new conception of events has wound its way into almost every argument in this case. In an attempt to untangle the resulting knots, the court will discuss the question of intent and petitioner’s so-called “third man” theory generally before turning to individual analyses of the many issues in which this theory plays a central role. Petitioner’s arguments are built upon a nuance in Alabama’s capital murder scheme. To put the matter simply, in Alabama the age-old felony murder doctrine does not apply in capital cases. See, e.g., Lewis v. State, 456 So.2d 413, 416 (Ala.Crim.App.1984) (“[N]o defendant is guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony murder doctrine.”). Alabama law does list robbery as one of the circumstances which will elevate a murder to capital offense status. See § 13A-5-40(a)(2). However, mere participation in a robbery which leads to a killing is not sufficient for a capital conviction. Alabama’s capital murder statute applies only when the defendant is guilty of an intentional murder. See Ex parte Murry, 455 So.2d 72, 74 (Ala.1984). In this case, the State acknowledges that Mr. Cantrell was actually killed by the unidentified first man, not the petitioner. See, e.g., R20 at 1714-15. The murder element of Johnson’s capital charge can be met by proof of complicity in an intentional murder carried out by another, but this requires more than proof of joint participation in a robbery. “[T]he accomplice liability doctrine may be used to convict a non-triggerman accomplice if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony. An accomplice to the intentional killing is one who aids and abets the killing by any assistance rendered through ‘acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.’ ... [T]here must be sufficient evidence from which a rational jury could conclude that the defendant possessed [a ‘particularized intent’] to kill.” Ex parte Raines, 429 So.2d 1111, 1112-13 (Ala. 1982), cert, denied, 460 U.S. 1103,103 S.Ct. 1804, 76 L.Ed.2d 368 (1983) (quoting Ex parte Ritter, 375 So.2d 270, 274 (Ala. 1979)). Thus, in order to convict Johnson, the State was required to prove that he, with an intent to kill, aided another in killing Mr. Cantrell. See Russaw v. State, 572 So.2d 1288, 1292-93 (Ala.Crim.App. 1990). Petitioner claims that his attorneys failed to challenge this weak link in the State’s case, and that if pressure had properly been brought to bear on this issue a capital conviction could have been avoided. The State’s proof of intent took the form of evidence that the petitioner participated in a shoot-out in which Mr. Cantrell was killed. This evidence was of two kinds. First, the State put Lindsey on the stand to testify that the petitioner had admitted to shooting and perhaps wounding a robbery victim. Second, and more importantly for our purposes, the State attempted to identify Johnson as the second robber in the Cantrell home, and then put on testimony from Mrs. Cantrell that this robber had shot at her husband. As the Alabama Court of Criminal Appeals observed in its decision on Johnson’s Rule 20 petition, proof that Johnson was the second robber would clearly satisfy the capital murder requirements. “While the shots of the second ‘masked’ robber were not the shots that killed the victim, there was no reasonable basis for the jury to doubt that the second robber had the intent to kill, attempted to kill, and actively participated in the killing.” Johnson v. State, 612 So.2d 1288, 1298 (Ala.Crim.App.1992); see also Smith v. State, — So.2d-, 1999 WL 339272 (Ala.Crim.App. May 28, 1999); Watkins v. State, 495 So.2d 92, 102-03 (Ala. Crim.App.1986) (finding the required participation and noting that “ ‘community of purpose may be formed in a flash’ ”). Many of petitioner’s arguments before this court boil down to a claim that his trial attorneys could have and should have challenged the State’s contention that he was that second robber, and so put the State to its proof on the question of his intentional participation in Mr. Cantrell’s murder. As petitioner correctly notes, the State had ample physical evidence that he was present at the scene but little solid evidence pointing to him as the second robber. Mrs. Cantrell did not recognize Johnson, and indicated only that he was about the same height and build as the second robber. Also, while Johnson’s brown boots and “shiny” gun matched Mrs. Cantrell’s general description of the second robber, she never identified these rather common objects as the ones she saw the night of the murder. Thus the State’s main argument on this point was simply that Johnson was there, and there were only two men, so he must have been the second man. This, of course, is where the petitioner’s new “third man” theory comes into the picture. According to Johnson, the evidence at trial could be interpreted to indicate that there were three robbers on the scene, and that Johnson was not the second but the third man to enter the Cantrell home. If so, a properly instructed jury might conclude that he did not participate in the shoot-out with Cantrell, find evidence of intentional murder lacking, and opt instead for felony murder, a non-capital offense. The petitioner bases this theory primarily on discrepancies in Mrs. Cantrell’s testimony at trial. Her testimony was a bit confused and difficult to follow, as well as inconsistent with the physical evidence in some significant respects. However, her story was essentially this. Two intruders pushed past her into the house. The first man in the door turned over a couch in the living room and took up a position behind it. Mrs. Cantrell fell to the floor at her husband’s feet and was unable to see much of anything after that point, so the second man’s location during the shooting is unclear. After a brief verbal exchange between her husband and the intruders, the second man opened fire. A barrage of shots was exchanged, followed by quiet. The first man said “come on in Bubba, I have got him.” Trial Record (“Tr.”) at 387-88. Just after that, Mr. Cantrell got off one last shot. Mrs. Cantrell heard a man say “Oh!,” Tr. at 366-67, then heard shuffling as if “they were trying to help him out” Tr. at 368. After that, A: It didn’t take them long ... to start moving over further towards the door. Q: Further towards the door? A: That is right. Q: So neither one of them was at the door when your husband fired the last shot? A: No, they wasn’t. Q: They were not? A. No. Tr. at 386. Mrs. Cantrell speculated that the men “were probably going through things, looking for things.” Id. Then they left. According to petitioner, trial counsel overlooked a critical feature of Mrs. Cantrell’s testimony — she placed the two intruders away from the door when the last shot was fired and one of the intruders was hit. This is important, Johnson claims, because the State’s evidence that Johnson was present at the scene was based largely on a bullet which allegedly went through the door and hit him. Thus if both Mrs. Cantrell’s testimony and the State’s physical evidence were believed, Johnson could not be the second man. The petitioner further contends that other evidence could be drawn upon to support this conclusion, including (1) Lindsey’s testimony that Johnson had gone with “some friends,” i.e. more than one, to get money; (2) other police information that more than two people were involved in the robbery; (3) the position of the bullet wound on the right side of Johnson’s back, consistent with coming in the door, not going out; and (4) the timing of the lull in shooting, the first man’s direction to “come on in,” and Cantrell’s last shot. With these finishing touches, Johnson’s story would go something like this. He and several others went to rob the Cantrells. He waited outside while two other men went in. They shot Cantrell, and thinking the fight was over called Johnson in. As he walked in, he was hit in the right side of his back by Cantrell’s dying shot. The court acknowledges that, if the spotlight is narrowly focused on Mrs. Cantrell’s trial testimony, it reveals a conflict within the State’s own evidence. This flaw was not fatal to the State’s case, however. The balance of the available evidence, including Johnson’s own rendition of events to his lawyers, points to two intruders with Johnson as the second man. Because of the other evidence the State had available, if Johnson’s lawyers had tried to exploit the problems with her testimony they would have had little to work with. For the reasons set out below, the court concludes that a third man defense would not have significantly strengthened Johnson’s case, and that Johnson suffered no constitutional deprivations for want of such a defense. The court now turns to petitioner’s specific assignments of error predicated on the “third man” theory and the question of intent. 1. Sufficiency of the Evidence. The petitioner argues that the State failed to satisfy its burden to prove his guilt beyond a reasonable doubt at trial. He argues in particular that the evidence adduced at trial (1) fails to demonstrate that he was a participant in the murder of Mr. Cantrell and (2) does not demonstrate that he had the requisite intent .to kill or aid another in killing required under the capital murder statute. These claims are substantially the same, in essence being that although petitioner was present at the scene and a participant in the robbery, he did "not have the required level of participation in the actual murder to be found guilty of a capital crime. i. Procedural Default on the Sufficiency of the Evidence Claim. The State first contends that the claim is procedurally barred because the matter was not raised on direct review to the Alabama • Court of Criminal Appeals. This court agrees. While petitioner’s appellate counsel attacked the sufficiency of the evidence regarding Johnson’s presence at the scene on direct appeal, no mention was made of the intent element and counsel