Hammonds v. Allen (849 F. Supp. 2d 1262, 2012)

Memorandum Opinion and Order

MARK E. FULLER, District Judge.

I. Introduction

Artez Hammonds was convicted of capital murder in the Circuit Court of Houston County, Alabama. The jury recommended the death penalty, and the trial court agreed, sentencing Hammonds to death. After his case weaved its way through Alabama’s state court system, Hammonds decided to petition this Court for a writ of habeas corpus. (Doc. # 6.) Having reviewed the state court record, and after fully considering his claims for relief, Hammonds’ habeas petition is due to be denied.

II. Factual and Procedural History The Alabama Court of Criminal Appeals summarized the facts of this case on direct appeal:

The State’s evidence tends to show the following. In the spring of 1990, Marilyn Mitchell graduated from the University of Alabama school of nursing and moved to Dothan where she was to begin her nursing career and to marry. Ms. Mitchell was 5 feet, 1 inches tall and she weighed around 110 pounds. Her friends recalled that she was a cautious individual, and that she always kept her apartment doors locked. She moved into a townhouse in Dothan where she and her fiancé intended to reside after they married later that summer. On May 14, 1990, Artez Hammonds and another individual delivered newly purchased bedroom furniture to Ms. Mitchell’s townhouse and placed the furniture in the second floor master bedroom. On the evening of May 15, 1990, Ms. Mitchell’s flaneé came to the townhouse and discovered the front door unlocked. He heard water running in the upstairs bathroom and, as he climbed the stairs, he discovered Marilyn Mitchell’s blood-soaked body lying in the hallway at the top of the stairs. He telephoned the police. The police investigation revealed that Marilyn Mitchell was apparently in the downstairs kitchen baking a cake when she was attacked. There were no signs of forcible entry. When Ms. Mitchell’s body was found at the top of the stairs, she was dressed only in a T-shirt, naked from the waist down, and she was lying on her back in a large pool of blood; her legs were spread wide apart. Forensic reports indicated that Ms. Mitchell has been repeatedly stabbed and cut with a knife in the neck and chest. The wounds to the neck perforated her jugular veins and carotid artery and caused massive bleeding. There were over 30 lacerations to the neck area, including a wound that severed the voice box. There was also evidence of ligature strangulation, possibly from Ms. Mitchell’s T-shirt, which had been used to restrain her. In the opinion of the medical examiner, all of these wounds were inflicted while Ms. Mitchell was still alive. There were two extremely violent stab wounds to the chest area, one of which penetrated Ms. Mitchell’s sternum and punctured her aorta. Another vicious stab wound to the chest actually cut through three ribs. The medical examiner opined that the stab wound that punctured the aorta was the wound that finally killed Ms. Mitchell. Swabs taken from Ms. Mitchell’s vaginal and anal cavities indicated the presence of spermatozoa, although there was no evidence of anal penetration. Semen was also found on a paper tissue found in a bedroom next to a bed; the comforter on the bed was missing. Blood spatters were also found in the home. Evidence indicates that the attacker may have cleaned up after the attack, positioned the body, smoked a cigarette, and then flicked ashes on Ms. Mitchell’s body. In addition to the comforter, Ms. Mitchell’s engagement ring and approximately $400 were also apparently taken from the townhouse.

The police investigation continued for many years without success until, in 1996, the Alabama Department of Forensic Sciences conducted DNA testing on the semen samples recovered at the crime scene and discovered that the genetic characteristics of the tested samples were more likely to be found among black males than white males. This new information led police investigators back to the furniture delivery men. Police discovered that Artez Hammonds had been convicted for the attempted murder of another woman and that he was serving a 20-year sentence at Holman Prison. Because Hammonds was a convicted felon incarcerated in an Alabama penitentiary, a sample of his blood was drawn, pursuant to the Alabama combined DNA indexing system (“CODIS”) program (see § 36-18-20, Ala.Code 1975, et seq.), and the sample was sent to the Alabama Department of Forensic Sciences for DNA analysis and comparison. The forensic scientists who conducted the DNA analysis testified that the DNA taken from Hammonds’s blood sample matched the DNA contained in the semen found on the paper tissue, the spermatozoa found on the vaginal and anal swabs, and the blood stains located on the inside of the door and baseboard of Ms. Mitchell’s home.

Additionally, Hammonds’s thumbprint was found on the telephone in the victim’s bedroom. Testimony also revealed that after the murder Hammonds had in his possession a diamond ring similar in appearance to Ms. Mitchell’s engagement ring; he later pawned the ring.

Hammonds v. State, 777 So.2d 750, 754-55 (Ala.Crim.App.1999).

The State of Alabama tried Hammonds in the fall of 1997. After a ten-day trial, a jury found Hammonds guilty of intentional murder during a rape, a capital offense under Alabama law. See Ala.Code § 13A-5^40(a)(3). The jury recommended the death penalty. The state trial judge agreed, sentencing Hammonds’ to death on December 19,1997.

Hammonds then began the process of appealing his conviction and sentence. His first appeal proved unsuccessful: the Alabama Court of Criminal Appeals affirmed his conviction and sentence in August of 1999 and denied rehearing in October of the same year. See Hammonds v. State, 111 So.2d 750 (Ala.Crim.App.1999). Hammonds’ appeal to the Alabama Supreme Court proved similarly unfruitful as the court affirmed the court of appeals and denied rehearing. See Ex parte Hammonds, 111 So.2d 777 (Ala.2000). The Supreme Court of the United States likewise declined to grant Hammonds relief, denying his petition for a writ of certiorari in early 2001. See Hammonds v. Alabama, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001).

Hammonds next filed a Rule 32 petition for relief from judgment and sentence in the Circuit Court of Houston County, Alabama. After he amended his petition twice — -once on July 11, 2002, and again on August 2 of the same year — the circuit court conducted an evidentiary hearing. And a little over a month later, the circuit court denied Hammonds’ petition. The Alabama Court of Criminal Appeals then affirmed, see Hammonds v. State, 925 So.2d 1009 (Ala.Crim.App.2005) (mem.), and denied rehearing, see Hammonds v. State, 926 So.2d 1080 (Ala.Crim.App.2005) (mem.). After the Alabama Supreme Court denied Hammonds’s petition for a writ of certiorari, see Ex parte Hammonds, 946 So.2d 543 (Ala.2005), he timely filed a petition for a writ of habeas corpus in this Court (Doc. # 1). He amended his petition less than a month later. (Doc. #6.)

III. Standards of Review

A. Substantive standard

The writ of habeas corpus allows a federal district court to order the release of a prisoner held in custody in violation of the Constitution, laws, and treaties of the United States. See 28 U.S.C. §§ 2241-2255. Hammonds brings his claim under § 2254(a), the statutory provision giving this Court jurisdiction to review state court criminal proceedings for both constitutional and non-constitutional violations. Section 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides the substantive standard governing habeas review of Hammonds’ state court criminal proceedings:

(d) An application for a 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.

And the United States Court of Appeals for the Eleventh Circuit has elaborated on the standard of review as follows:

A federal court may not grant habeas relief unless the decision of the state court either was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Our review of findings of fact by the state court is even more deferential than under a clearly erroneous standard of review. “[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.” Id. § 2254(e).

Our review of legal conclusions by the state courts is also especially deferential. A state court decision is contrary to the clearly established precedent of the Supreme Court “(1) if the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) if the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent.” Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). An unreasonable application of federal law occurs when the state court “identifies the correct legal rule from Supreme Court case law but unreasonably applies the rule to the facts of the petitioner’s case” or “unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Put-man v. Head, 268 F.3d 1223, 1241 (11th Cir.2001).

Under the unreasonable application clause of section 2254(d), a federal habeas court may not issue the writ on the ground that, in its independent judgment, the state court applied federal law incorrectly. See Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). This clause imposes a “ ‘highly deferential standard for evaluating state-court rulings,’ which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). The habeas applicant must show that the state court applied federal law to the facts of his case in an objectively unreasonable manner. See id. at 25, 123 S.Ct. 357. An “unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S.Ct. 1495. Even clear error, standing alone, is not a ground for awarding habeas relief. See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

Stephens v. Hall, 407 F.3d 1195, 1201-02 (11th Cir.2005) (citations omitted).

A district court must resolve all claims for relief raised in a petition for a writ of habeas corpus, no matter whether habeas relief is granted or denied. See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992). What this means is that this Court must address each and every one of Hammonds’ claims and sub-claims, make a decision on each, and provide reasoning for that decision. The Court must also deem any allegation of a constitutional violation as a claim for relief. See id.

B. Procedural standards

1. Exhaustion requirements

A state prisoner must exhaust the remedies available to him in state court before petitioning for habeas relief in federal court. 28 U.S.C. § 2254(b)(1)(A). “This rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseemliness’ of a federal district court’s overturning a state-court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To provide the state courts with the necessary full and fair opportunity to address his claim, “the petitioner [must] ‘fairly present’ his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right.” Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).

To this end, the petitioner must alert each appropriate state court “to the federal nature of the claim and a statement of the facts which entitle him to relief.” Duncan, 513 U.S. at 365-66, 115 S.Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78, 92 S.Ct. 509. More specifically, for exhaustion purposes, “a claim for relief ... must include references to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In other words, the state courts must have had the “opportunity to apply controlling legal principles to the facts bearing upon [the petitioner’s] constitutional claim.” Picard, 404 U.S. at 277, 92 S.Ct. 509.

A petitioner has exhausted state-court remedies when he no longer has those remedies available to him, no matter the reason for their unavailability. Id. at 92-93, 126 S.Ct. 2378. “Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted.” Id. at 93, 126 S.Ct. 2378. But exhaustion in this sense does not entitle the petitioner to litigate his claim in federal court; to the contrary, federal courts consider such claims procedurally defaulted. Id.; McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir.2005) (“It is well established that when a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available, the failure also constitutes a procedural bar.”); Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) (“[F]ederal courts may treat unexhausted claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state law that any future attempts at exhaustion would be futile.”).

Rule 32.2(b) of the Alabama Rules of Criminal Procedure imposes further exhaustion requirements. Rule 32.2(b) provides that courts shall not entertain successive habeas petitions unless the petitioner can show cause why the newly raised grounds “could not have been ascertained through reasonable diligence when the first petition was heard.” Ala. R.Crim. P. 32.2(b). If a petitioner has failed to exhaust his claim and cannot meet the Rule 32.2(b) standard, the federal habeas court should consider those claims procedurally defaulted. See Woodford, 548 U.S. at 93, 126 S.Ct. 2378.

2. The procedural default doctrine

The procedural default rule bars a federal court from reaching the merits of a claim on collateral review when the habeas petitioner failed to follow a state’s procedural rules while presenting his federal claim in state court. Wainwright v. Sykes, 433 U.S. 72, 82, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “Federal review of a petitioner’s claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar ... and that bar provides an adequate and independent state ground for denying relief.” Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc) (citations omitted). But there is a safety valve for procedurally defaulted claim: federal district courts may consider them on the merits if the petitioner can show either (1) cause for the procedural default and actual prejudice arising out of the violation of federal law, Wainwright, 433 U.S. at 87, 97 S.Ct. 2497, or (2) a resulting fundamental miscarriage of justice if the court does not consider the claims, Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

To demonstrate cause for a procedural default, the petitioner must show that “some objective factor external to the defense impeded counsel’s effort to comply with the state’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A cause suffices if it is an “objective impediment ] to compliance with a procedural rule” so that “a showing that the factual or legal basis for a claim was not reasonably available to counsel” or “some interference by officials ... made compliance impracticable.” Id. at 488, 106 S.Ct. 2639 (internal quotations and citations omitted). Constitutionally ineffective assistance of counsel, for example, can amount to a valid cause for noncompliance. Hollis v. Davis, 941 F.2d 1471, 1476 (11th Cir.1991).

If the petitioner can show cause, he must also show actual prejudice stemming from the alleged constitutional violation. Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir.1988). Establishing actual prejudice requires a petitioner to show “not merely that errors in his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2dd 816 (1982). “A mere possibility of actual prejudice resulting from an error at trial will not waive the procedural default where other substantial evidence of guilt is present.” McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992). Importantly, “[b]eeause there is no constitutional right to an attorney in state postconviction proceedings ... a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings .... ” Coleman v. Thompson, 501 U.S. 722, 725, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (internal citations omitted).

Furthermore, a federal court can review a habeas claim on the merits to correct a “fundamental miscarriage of justice.” Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir.1996). This requires the petitioner to “show by clear and convicting evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty] under the applicable law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

IV. Discussion

Before analyzing Hammonds’ claims on the merits, the Court will first resolve whether certain claims are unexhausted or proeedurally defaulted. As a threshold matter, the parties disagree about how the Court should address these arguments, especially as to Hammonds’ claim of ineffective assistance of counsel. (See Doc. # 6 at ¶¶ 39-92.) The ineffective assistance claim (Claim B in the petition) spans 53 paragraphs and contains 25 separate subsections. (Id.) The State contends that each subsection amounts to a separate claim regarding whether Hammonds was denied effective assistance. This would mean that each argument advanced by Hammonds would have to satisfy AED-PA’s exhaustion and procedural default requirements independently. Conversely, Hammonds contends that “Claim B is one claim that contains several examples and instances of ineffective assistance of counsel,” and that the Court should evaluate the claim by considering the cumulative effect of the deficiencies alleged. (Docs.# 5, 47.) According to Hammonds, the exhaustion doctrine does not preclude consideration claims supported by different factual bases than those presented to the state court unless the claim is “fundamentally” altered by the change in the factual predicate. See Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986).

The Eleventh Circuit has addressed this very issue. In Kelley v. Secretary for the Department of Corrections, the court of appeals described the petitioner’s obligation to raise the factual bases for his claims and the consequences for failing to do so:

... the prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief. For example, habeas petitioners may not present particular factual instances of ineffective assistance of counsel in their federal petitions that were not first presented to the state courts. Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir.1992). As we explained,

allowing a habeas petitioner to allege a single instance of ineffective assistance in his state post conviction proceedings and then proceed to federal court to allege additional instances would be contrary to the state’s “full and fair opportunity to address the claim on the merits.” The state would never have the benefit of evaluating the claim using a fully developed set of facts. This would not be the “serious and meaningful” exhaustion of claims that Congress intended.

Id. .... Furthermore, habeas petitioners cannot preserve otherwise unexhausted, specific claims of ineffective assistance merely by arguing that their lawyers were ineffective in a general and unspecified way. See Weeks [v. Jones ], 26 F.3d [1030] at 1044-46 [(11th Cir. 1994) ] (rejecting petitioner’s argument that “the general claim of ineffective assistance in state court preserves for federal review all alleged instances of ineffectiveness, regardless of whether evidence of a particular act was presented to the state court”). In sum, to preserve a claim of ineffective assistance of counsel for federal review, the habeas petitioner must assert this theory of relief and transparently present the state courts with the specific acts or omissions of his lawyers that resulted in prejudice.

377 F.3d 1317, 1344 (11th Cir.2004).

The Court will analyze the disputed claims using the rule set forth in Kelley. Specifically, the Court will examine whether Hammonds asserted before the state courts each theory of relief and transparently presented the courts with specific acts or omissions by his lawyers that resulted in the claimed prejudice. If a given act or omission never came before the state courts for review, the Court will not consider it properly preserved for federal review and will not consider it when discussing the merits of Hammonds’ ineffective assistance claim.

After addressing the exhaustion and procedural default arguments, the Court will take up the State’s contention that some of Hammonds’ claims should be dismissed for failing to comply with the pleading standards set forth in Habeas Corpus Rule 2(c). The State claims that 21 of Hammonds’ allegations “are merely conclusory in nature, and often merely lists of allegations.” (Doc. # 68 at 51.) After disposing of unexhausted or procedurally defaulted claims, the Court will analyze whether any of Hammonds’ remaining claims are due to be dismissed as conclusory.

Next, the Court will analyze the State’s argument that Hammonds has abandoned several claims. According to the State, Hammonds abandoned a number of claims and, thus, the Court should refrain from adjudicating them on the merits. After resolving this dispute, the Court will turn to whether Hammonds is entitled to an evidentiary hearing for any remaining claims for which he requests a hearing. Finally, the Court will address any claims ripe for consideration without an evidentiary hearing, adjudicating those claims on the merits in this Memorandum Opinion and Order.

A. Unexhausted and procedurally defaulted claims

1. Hammonds’ claim of ineffective assistance of counsel (Claim B)

As the Court discussed above, each factual allegation supporting Hammonds’ ineffective assistance claim will receive independent consideration per the rule set out in Kelley v. Secretary for Department of Corrections. The State contends that Hammonds has failed to exhaust his remedies on a number of his claims, which, it argues, means they are procedurally defaulted. A petitioner fails to exhaust a claim if he did not present it during a full round of appellate review, which includes either on direct appeal or on collateral attack of the conviction. The record makes clear that Hammonds never presented his ineffective assistance claim on direct appeal, perhaps because trial counsel also represented him during the direct appeal proceedings. Accordingly, the Court will only address whether Hammonds adequately raised in his Rule 32 petition each of the ineffectiveness claims now before the Court.

a. Claim B(l)(b): Failure to follow credible lead of victim’s high school classmate

Hammonds claims he was denied the effective assistance of counsel because trial counsel failed to follow up on several leads. One lead involved a possible suspect who attended high school with the victim and her fiancé. The potential suspect allegedly told the police that they had the “wrong man” in Hammonds’ case and that he had personally cut a woman’s throat before. According to Hammonds, trial counsel should have followed this lead because doing so would have led to “the actual perpetrator(s)” of the crime. (Doc. # 6 at ¶¶ 40-44.)

The State claims that because Hammonds failed to present this argument to the state courts, it is unexhausted and thus procedurally defaulted. Hammonds disagrees, contending that because he presented his generalized ineffective assistance argument during the Rule 32 proceedings, the claim is not procedurally defaulted.

The Court has reviewed the record thoroughly and can find no mention of trial counsel’s failure to investigate leads in either Hammonds’ Amended Rule 32 Petition or his Second Amended Rule 32 Petition. But the trial court, in its Rule 32 Order, mentions that Hammonds raised counsel’s alleged failure to investigate leads during the evidentiary hearing held on August 2, 2002. (Vol. 51, R. 82, at 745 (finding “assertions were made at the evidentiary hearing,” including “that the attorneys failed to follow up on particular leads.”).) The transcript does not, however, make mention of a man that attended high school with either the victim or her fiancé. As a result, the Court must find that Hammonds did not properly raise the claim below, thereby precluding consideration of this allegation in the cumulative analysis of Hammonds’ ineffectiveness claim.

b. Claim B(2)(b): Failure to investigate Hammonds’ juvenile record and pursue youthful offender status

Hammonds argues for trial counsel’s ineffectiveness next by asserting that counsel failed to pursue youthful offender status for him adequately. (Doc. # 6 at ¶¶ 45-50.) Hammonds notes that while his attorneys filed an application for youthful offender status, they were so unfamiliar with his juvenile record that he could not properly contest the State’s arguments about the youthful offender petition. From there Hammonds explains why, had the trial court known certain facts about his juvenile record, the court would have likely granted his youthful offender petition. And if the court had granted the motion, Hammonds would have been ineligible for the death penalty. The State argues Hammonds defaulted on this claim because he failed to raise it in the Rule 32 proceeding.

The State is incorrect. Hammonds’ Rule 32 motion asserts that trial counsel acted ineffectively by failing to pursue youthful offender status adequately. (Vol. 42, R. 66, at 470.) The trial court denied this claim on the merits and the Alabama Court of Criminal Appeals upheld the denial. (Vol. 51, R. 83, at 29.) This Court can therefore review the claim on the merits: Hammonds properly raised it in state court and the state courts issued a substantive ruling.

c. Claim B(3)(d): Failure to identify and interview Tim Pridget, a potential alibi witness

Hammonds argues that trial counsel was ineffective because of their failure to interview Tim Pridgen, the manager of the furniture store where Hammonds worked at the time of Mitchell’s murder. According to Hammonds, he was at work when the murder occurred, and counsel could have established this alibi by interviewing Pridgen. (Doc. # 6 at ¶ 55.) The State contends that Hammonds did not raise this issue in his Rule 32 proceeding, which means the claim is defaulted.

The State is correct to note that Hammonds’ Rule 32 motion does not mention Pridgen. It does state, however, that “counsel failed to locate and interview witnesses who could corroborate Hammonds’ alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed).” (Vol. 40, R. 62, at 32.) Although Hammonds lays out his claim in more detail in his federal habeas petition than in his Rule 32 petition, the latter still meets the level of specificity required by Kelley. Indeed, Hammonds sufficiently pointed out to the state courts the specific acts or omissions of trial counsel that he claims amounted to ineffective assistance of counsel. Accordingly, the Court finds that Hammonds properly raised his ineffective assistance claim as it relates to trial counsel’s failure to interview Pridgen. Hence, the Court will consider the claim in the cumulative analysis of trial counsel’s alleged ineffectiveness.

d. Claim B(3)(d): Failure to identify and interview Greg Gordon as a potential alibi witness

Similar to his claim related to Pridgen, Hammonds argues that his trial counsel was ineffective for failing to interview Greg Gordon, Hammonds’ co-worker at the furniture store. (Doc. # 6 at ¶ 56.) Also like his Pridgen claim, Hammonds contends that Gordon would have corroborated Hammonds’ alibi — that he was working at the furniture store when Mitchell’s murder took place — but that trial counsel failed to get a statement from Gordon. The State again argues that Hammonds defaulted on this claim by failing to mention Gordon by name in his Rule 32 motion.

Hammonds’ Rule 32 motion states that “counsel failed to locate and interview witnesses who could corroborate Mr. Hammonds’s alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed).” (Vol. 40, R. 62, at 32.) Like with Pridgen, this is sufficiently specific to meet the Kelley test: Hammonds pointed out the specific acts or omissions of trial counsel that he thinks constituted ineffective assistance of counsel. Therefore, the Court finds he properly raised the claim below and will consider the allegation during the cumulative analysis of trial counsel’s alleged ineffectiveness.

e. Claim B(3)(g): Failure to interview Valerie Rivers

In his petition, Hammonds argues that trial counsel did not assist him effectively by failing to interview Valerie Rivers, Hammonds’ sister-in-law. (Doc. # 6 at ¶ 58.) Rivers testified at trial that she had seen Hammonds with a diamond ring like the one taken from the victim’s hand. Hammonds now claims that had trial counsel investigated Rivers’ story by interviewing her they would have discovered a significant amount of evidence with which to impeach her testimony. The State asserts that this claim is defaulted because Hammonds did not raise it in his Rule 32 proceeding. (Doc. # 68 at 6.)

Hammonds’ Rule 32 motion argues that trial counsel failed to assist him effectively by failing to object to the admissibility of Rivers’ testimony at trial. But it makes no mention of counsel’s ostensible failure to interview her. (Vol. 40, R. 62, at 46-47.) Nor does Hammonds’ Rule 32 allegations about counsel’s “failure to locate and interview” alibi witnesses save this newly asserted claim- — Rivers was not in fact a potential alibi witness. Hammonds’ Rule 32 petition therefore did not encompass the failure to interview Rivers. The Court accordingly finds that Hammonds’ allegation about counsel’s failure to interview Rivers is procedurally barred because he never presented the underlying facts and assertions to a state court. As a result, the Court will not consider these allegations when reviewing the cumulative evidence of trial counsel’s ineffective assistance.

f. Claim B(5)(b): Failure to challenge the State’s expert witnesses’ qualifications to give opinion testimony

Hammonds next asserts that trial counsel’s failure to challenge the qualifications of the State’s expert witness amounts to ineffective assistance. The State argues, however, that Hammonds’ Rule 32 motion never raised this claim. During the Rule 32 proceeding, Hammonds argued that his trial lawyers were ineffective for not challenging the conclusions of the State’s experts and the methods by which the State’s DNA technicians analyzed Hammonds’ blood. But the record makes no mention of counsel’s failure to question any witness’s qualifications to testify as an expert. Consequently, the Court finds that Hammonds did not properly raise this argument below. Per Kelley, the Court will not consider these allegations when deciding Hammonds’ cumulative ineffective assistance of counsel claim.

g. Claim B(6)(a): Failure to test physical evidence independently

Claim B(6) of Hammonds habeas petition states that his trial counsel acted ineffectively because he did nothing to challenge “the heart of the State’s case — the so-called ‘match’ between Mr. Hammonds and the’ tissue.’ ” (Doc. # 6 at ¶ 67.) Hammonds' also lists the actions that counsel could have taken to challenge the State’s DNA evidence, like seeing the State’s expert’s bench notes and “independently test[ing] the physical evidence.” The State takes issue with Hammonds’ raising the independent testing argument now, contending that he did not raise it during his Rule 32 proceedings.

After a thorough review of the record, the Court cannot agree with the State’s position. The trial court’s denial of Hammonds’ Rule 32 petition stated:

Petitioner’s next assertion was that his attorneys failed to have DNA tests performed. Mr. Decker testified that extensive work was done by the defense concerning DNA. He stated that while an independent test was not conducted his experts reviewed all information generated by the Alabama Crime Lab and FBI.

(Vol. 51, R. 82, at 719). Hammonds raised, and the trial court disposed of, the argument that trial counsel was deficient for failing to conduct an independent DNA test on the genetic material found in the victim’s apartment. Further, Hammonds’ B(6)(a) claim mirrors claim B(7), which is entitled “Trial Counsel Failed to Seek Independent Forensic Testing of Physical Evidence.” (Doc. # 6 at ¶ 24). In claim B(7), Hammonds argues that “Counsel was obligated to pursue the testing of, among other things ... the tissue (or paper towel) purportedly recovered near the victim’s bed.” The State does not challenge claim B(7) on procedural default grounds, even though a portion of B(7) is almost identical to the challenged claim B(6)(a). For these reasons, the Court finds that Hammonds’ properly raised his claim about the independent DNA testing in state court, meaning it can be considered in the cumulative ineffective assistance analysis.

h. Claim B(8)(d): Failure to object to the admission of the recording , on the victim’s answering machine

Hammonds, in Claim B(8)(d), argues that trial counsel’s failure to object to the State’s introduction of a recording left by the victim’s mother on the victim’s answering machine on the date of her death amounted to ineffective assistance. More specifically he claims that counsel should have objected to the recording as more prejudicial than probative and that this failure violated his Sixth Amendment right to effective assistance of counsel. The State conversely argues that this claim is procedurally defaulted because Hammonds never raised it in his Rule 32 petition. (Doc. # 68 at 9.)

Hammonds argued in his Rule 32 petition that trial counsel failed to assist him effectively by not objecting to several pieces of prejudicial evidence. Yet he did not list the answering machine recording as one such example. (Vol. 40, R. 62, at 39, 46.) And although Hammonds mentioned the answering machine recording in his Rule 32 petition, he did so only in the context of his prosecutorial misconduct claim. Hence he did not clearly present the factual allegations, coupled with the appropriate federal standard, to the state courts. This deprived the state courts of an adequate opportunity to rule on the merits of his claim related to counsel’s failure to object to the admission of the recording. Because the state courts never had this opportunity, the claim is procedurally defaulted. Accordingly, the Court will not consider it when addressing his cumulative ineffectiveness claim.

i. Claim B(12)(a): Failure to move to have additional counsel appointed

Hammonds’ next ineffectiveness argument centers on trial counsel’s decision to not move to have additional counsel appointed. (Doc. # 6 at ¶ 82.) The State responds by asserting that Hammonds’ Rule 32 motion did not raise this ground for an ineffectiveness claim. (Doc. # 68 at 9-10.) The State is incorrect. Hammonds’ amended Rule 32 motion states, “Among the motions trial counsel failed to pursue were their motion for appointment [of] additional counsel....” (Vol. 42, R. 66, at 472.) Because Hammonds clearly presented this claim to the state courts, the Court will consider it when adjudicating his cumulative ineffectiveness claim.

j. Claim B(12)(b): Failure to move for extraordinary expenses for the assistance of a psychiatric expert

Hammonds contends that his trial counsel were ineffective for failing to pursue a motion for extraordinary expenses for psychiatric assistance. (Doc. # 6 at ¶ 82.) Trial counsel made the motion for extraordinary expenses, but then failed to pursue the motion after the trial court deferred ruling. (Vol. 42, R. 66, at 473.) The State argues that Hammonds’ Rule 32 motion did not raise this claim of ineffectiveness. (Doc. # 68 at 10-11.) Hammonds’ amended Rule 32 motion, however, states, “Among the motions trial counsel failed to pursue were ... their motion for extraordinary expenses for expert psychiatric assistance....” (Vol. 42, R. 66, at 472.) This claim was properly raised below and this claim and must be analyzed on the merits and considered during the cumulative analysis of trial counsel’s alleged ineffectiveness.

k. Claim B(12)(d): Failure to move for an order prohibiting the prosecutor from referring to Hammonds by anything other than his given name

Hammonds also argues for trial counsel’s ineffectiveness by noting how his lawyers failed to request an order barring the prosecution from referring to Hammonds by anything other than his given name. Like with Claim B(12)(b), trial counsel moved for the order initially but failed to follow up on it after the trial court deferred ruling. (Vol. 42, R. 66 at 473.) And also like Claim B(12)(b), the State incorrectly contends that Hammonds’ Rule 32 motion did not raise this issue. Hammonds’ amended Rule 32 motion states, “Among the motions trial counsel failed to pursue were ... on their motion to prevent Mr. Valeska from referring to Mr. Hammonds at trial by anything other than his given or Christian name....” (Vol. 42, R. 66, at 473.) This suffices under Kelley to exhaust the claim, so it is not procedurally defaulted. The Court will therefore consider it.

l. Claim B(12)(e): Failure to move for an evaluation to determine Hammonds’ competency to stand trial

Hammonds contends that his trial attorneys did not assist him effectively when they failed to move for a psychiatric evaluation despite knowing that Hammonds previously suffered from visual and auditory hallucinations and had a family history of mental illness. (Doc. # 6 at ¶ 83.) Despite the State’s argument that this claim is procedurally defaulted, it too is clearly included in Hammonds’ Rule 32 petition. (See Vol. 42, R. 66, at 472 (“Their failure to move for a professional evaluation of Mr. Hammonds’s competency constituted ineffective assistance and deprived Mr. Hammonds of his right to counsel.”).) The state courts denied Hammonds’ claim on the merits. (Vol. 51, R. 83, at 26.) Accordingly, Hammonds properly raised this claim on the merits, so the Court will consider it when ruling on the merits of his overarching ineffectiveness claim.

m. Claim B(13)(a): Failure to present mitigating evidence and failure to prepare witnesses adequately

In his petition to this Court, Hammonds argues that his right to assistance of counsel was violated when his trial attorneys failed to present all available mitigating evidence and failed to prepare properly the mitigation witnesses that were presented. (Doc. # 6 at ¶ 85.) Specifically, Hammonds contends that trial counsel’s failure to prepare his mother, Annie Hammonds, and aunt, Lois George, before the penalty phase of trial resulted in both women being defensive and obstinate during cross-examination. Hammonds raised both of these arguments in his second amended Rule 32 petition. (Vol. 43, R. 68, at 717-19.)

The State asserts that this claim is defaulted, arguing that Hammonds did not raise these grounds for relief in his Rule 32 petition. (Doc. # 68 at 13-14.) However, Hammonds sufficiently disclosed to the state courts his claim that his attorneys failed to present enough mitigation evidence and failed to prepare those witnesses that were presented. Therefore, this claim was properly raised below and the Court will analyze it on the merits during the cumulative analysis of trial counsel’s alleged ineffectiveness.

n. Claim B(13)(b): Failure to interview Hammonds’ family and friends about mitigating evidence

Hammonds claims that his trial counsel’s failure to interview witnesses willing to testify on his behalf during the penalty phase of trial amounted to ineffective assistance of counsel. (Doc. # 6 at ¶ 86.) The State again argues that the claim is defaulted because Hammonds’ Rule 32 motion does not mention it. And again the State is incorrect. Hammonds’ second amended Rule 32 motion says, “Had counsel contacted Mr. Hammonds’s family, friends, and other people who had interacted with Mr. Hammonds when he was growing up, and adequately investigated the lives of those they did contact, they could have presented an accurate portrait of Mr. Hammonds.” (Vol. 43, R. 68, at 731-32.) Hammonds, moreover, lists nine potential mitigation witnesses that counsel failed to interview. This included Cherita Hayes, the mother of one of his children. (Id. at 731.) The Court thus finds that Hammonds fairly presented this claim to the state courts in his Rule 32 petition, thereby precluding a finding of procedural default.

o. Claim B(13)(c): Failure to introduce mitigating evidence about Hammonds’ relationship with his children

To further support his claim that trial counsel were ineffective during the penalty phase, Hammonds points out that they failed to introduce mitigating evidence demonstrating that Hammonds had a loving relationship with his children, Artecia and Cordney. (Doc. # 6 at ¶ 87.) The State asserts that Hammonds failed to raise this claim in his Rule 32 motion and therefore defaulted on it. (Doc. # 68 at 14-15.) This time the State is correct. Although Hammonds pointed out a number of claimed deficiencies in counsel’s performance during the penalty face, his Rule 32 petition omits any mention of his relationship with his children.

Indeed, the section in Hammonds’ second amended Rule 32 petition devoted to trial counsel’s deficient presentation of mitigation evidence focuses on Hammonds’ past and his mental health history to explain his actions and “lessen[] Mr. Hammonds’s culpability for the crime.” (Vol. 43, R. 68, at 732-33.) The federal habeas petition presents a different argument, however, stating that presenting evidence about his relationship with his children would paint a more positive picture of Hammonds and “convey the immeasurable value of Mr. Hammonds’s life.” (Doc. # 6 at ¶ 86.) Kelley instructs a district court to ignore on the merits any “particular factual instances of ineffective assistance of counsel ... that were not first presented to the state courts.” 377 F.3d at 1344. Because Hammonds never presented to the state courts his argument that counsel provided deficient assistance by failing to put on evidence about his role as a loving father, this Court cannot now consider the claim.

p. Claim B(14)(a): Failure to investigate circumstances related to Hammonds’ alcoholic father

The next claimed instance of ineffective assistance involves trial counsel’s failure to investigate Hammonds’ traumatic upbringing and alcoholic father, and failing to present evidence about his upbringing to the penalty phase jury. (Doc. # 6 at ¶¶ 88-89.) Once again the State says Hammonds proeedurally defaulted on the claim by not presenting it in his Rule 32 petition. (Doc. # 68 at 15-16.) The Court finds the State’s argument without merit. Eight paragraphs spanning five pages of Hammonds’ Rule 32 petition are dedicated to this claim. The petition presented to the state courts explains how Hammonds’ father assaulted his mother, Hammonds, and his siblings until the day his father committed suicide. (Vol. 43, R. 68, at 722-26.) This suffices to meet the admittedly strict Kelley standard and, accordingly, the Court will consider the claim’s merits.

q. Claim B(14)(b): Failure to investigate how Hammonds overcame a traumatic childhood to become a loving father

Hammonds similarly argues that his trial counsel were ineffective for failing to present to the penalty phase jury evidence regarding “Mr. Hammonds’s ability to conquer his childhood demons as an adult so that he could be a committed — even though physically absent — father to his own children.” (Doc. #6 at ¶89.) And the State once again argues this claim is proeedurally defaulted because Hammonds never presented it to the state courts hearing his Rule 32 petition. (Doc. # 68 at 16-17.) This time the State is correct: Hammonds’ second amended Rule 32 petition makes no mention of his overcoming his childhood hardships to become a committed father. Nor does his petition assert that trial counsel provided ineffective assistance at the penalty stage for failing to investigate these facts. (Vol. 43, R. 68, at 721-26.) The Court is thus barred from hearing this claim on the merits.

r. Claim B(15): Cumulative effect of the above-mentioned failures

Paragraphs 90 through 92 of Hammonds’ habeas petition contend the state courts misapplied federal law by analyzing his ineffectiveness arguments claim-by-claim. To this end, Hammonds argues that the state courts should have applied the cumulative approach endorsed by Terry Williams v. Taylor, 529 U.S. 362, 398-99, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). (Doc. # 6 at ¶ 33-34.) The section of Hammonds’ petition merely sets up his claim for relief on the merits; indeed, he cites the standard set forth in § 2254 and argues that he can meet it. Therefore, it is not a distinct claim for relief but rather a substantive argument. And because it is not a district claim, the State’s argument regarding procedural default is mooted.

2. The failure to provide a complete record for appeal (Claim G)

Moving away from his ineffective assistance claim, Hammonds claims the trial court violated his constitutional rights by failing to provide a complete appeal record. According to Hammonds, the record did not include juror questionnaires, which made reviewing his jury selection claims almost impossible. (Doc. # 6 at ¶¶ 110-15.) Hammonds made this argument to the Circuit Court of Houston County in his Rule 32 petition. But the circuit court found the claim proeedurally barred under Rules 32.2(a)(3) and (5) of the Alabama Rules of Criminal Procedure because Hammonds could have but did not raise the issue at trial or on direct appeal. (Vol. 40, R. 62, at 181.) The Alabama Court of Appeals agreed, finding that the circuit court properly dismissed the claim. (Vol. 51, R. 83, at 9.)

Hammonds correctly admits this claim is proeedurally defaulted. (Doc. # 47 at 82.) So he instead argues that the cause for the default is ineffective assistance of appellate counsel. (Doc. # 47 at 82.) More specifically, Hammonds claims that but for appellate counsel’s ineffective assistance, he would have argued on appeal that the incomplete record violated his constitutional rights.

Counsel’s failure “to recognize the factual or legal basis for a claim” or his failure to “raise the claim despite recognizing it” does not give rise to cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Rather, an attorney’s failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default “only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment.” Eagle v. Linahan, 279 F.3d 926, 937 (11th Cir.2001). So to overcome the procedural default by cause and prejudice, Hammonds must show that his appellate counsel rendered constitutionally deficient assistance by failing to argue that the incomplete appellate record violated his constitutional rights, and that he suffered prejudice as a result.

The record reveals that Hammonds argued, on direct appeal, that the trial court erred in eight ways — each of which were claims for relief. But none of those grounds related to jury selection in any way. Because the jury questionnaires had no relevance to the grounds of relief raised on appeal, Hammonds did not suffer prejudice on direct appeal by way of his attorney’s error. Nor can Hammonds show cause: counsel’s failure to ensure that the appellate record contained the jury questionnaires does not fall below the objective reasonableness standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus Hammonds cannot use his appellate counsel’s performance to overcome his procedural default.

3. Hammonds’ claim about the State’s violation of discovery orders (Claim H)

Hammonds’ next claim for relief centers on the trial court’s decision not to sanction the District Attorney for violating the court’s discovery orders. He claims this failure caused a violation of his rights to a fair trial, due process, and equal protection of law. Hammonds raised this claim in his Rule 32 motion in the context of judicial bias against him. (Vol. 42, R. 66, at 502-05.) The Alabama Court of Criminal Appeals found these claims procedurally barred by Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure. (Vol. 51, R. 83, at 9.) Notably, Rule 32.2(5) bars the state courts from granting relief on any claim that could have been but was not raised on appeal.

Although neither party discusses cause and prejudice in the Joint Report (Doc. #47 at 83), Hammonds contends in his merits brief that he can overcome any procedural default by showing his appellate counsel assisted him ineffectively. (Doc. # 95 at 152.) More simply, Hammonds claims that, but for his appellate counsel’s ineffectiveness, he would have raised this claim on direct appeal. As a general rule, an attorney’s failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default “only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment.” Eagle, 279 F.3d at 937. To show appellate counsel performed in a constitutionally deficient way, Hammonds must satisfy both of Strickland’s criteria — that is, he must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him.

Hammonds’ brief makes no argument about why a failure to raise a particular claim on appeal satisfies Strickland. Indeed, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486, 106 S.Ct. 2639. Hence the Court cannot find that Hammonds established cause and prejudice sufficient to excuse his procedural default, which bars consideration of this claim on the merits.

4. Hammonds’ claim that the trial court failed to provide him with adequate funds to retain experts (Claim I)

Hammonds next argues that the trial court violated his rights by not providing adequate funds to hire DNA experts, a jury expert, or a mitigation expert. (Doc. #6 at ¶¶ 120-24.) According to Hammonds, denying him these funds violated his rights to due process, equal protection, a fair trial, and a reliable sentencing. (Id. at ¶ 124.) The State, on the other hand, contends that Hammonds never exhausted this claim because he never raised it at trial or on direct appeal or in the Rule 32 proceedings. (Doc. #47 at 85-87.) Hammonds responds to the State by noting that he raised the claim during the evidentiary hearing on his Rule 32 petition.

Only two passages of the relevant portions of the record deal with the alleged lack of funds to retain experts. The first is an exchange between Ms. McClary, Hammonds’ attorney for the Rule 32 proceedings, and Mr. Decker, Hammonds’ trial and appellate counsel. The transcript reveals the following:

McClary: ... why did you not employ a jury expert to help you and Ms. Nemish pick members of the jury from the venire?

Decker: We had no funds to do that.

McClary: Did you request funds to do that?

Decker: I don’t know if we specifically requested that. We requested the funds; I know the judge approved funds for Dr. Natalie Davis who helped us with the change of venue motion. And, we used the data that she had obtained through her survey that she conducted to help us develop a profile that we used to help strike the jury.

McClary: So, you are testifying Mrs. Davis helped you develop a profile or Mrs. Davis helped you figure out the likelihood of some of the jurors would be that you would be selecting from?

Decker: Some of both. Her information, report provided us with information that would help us find people that would be favorable to Mr. Hammonds. But, to answer the original question, did we hire a jury expert? No.

(Vol. 45, R. 70, at 128.)

Hammonds also points to the following exchange between Ms. Speagle, one of the State’s attorneys, and Ms. Nemish, one of Hammonds’ trial attorneys:

Speagle: Okay. Did you seek a psychiatric evaluation as well as psychological?

Nemish: No, we did not.

Speagle: Why not?

Nemish: Well, didn’t have any grounds to do that, so I didn’t.

Speagle: Was that based on what the psychologist had already told you?

Nemish: Correct.

The Court: Wait a minute. I am confused. I thought you didn’t seek a psychological evaluation as we commonly do in some eases because you had your own psychologist and he said it might be worse if you made such a request. Did I misunderstand? Am I misunderstanding?

Nemish: If I may—

The Court: Yes.

Nemish: We made application for funds for a psychologist and psychiatrist. You granted us funds for a psychologist at the time and held on the psychiatrist, pending grounds. When we got the psychologist, which is the one I am speaking about, we secured him to do this evaluation first to determine if we needed to do more. That is where we got his assessment and that also, I think, answers you question why we didn’t go to the psychiatrist, we had no grounds.

(R. 70 at 180-81.)

These stray references to a lack of funds do not fairly present the federal constitutional claim to the state courts. The transcript reveals that no one brought up how the lack of funds may have prejudiced Hammonds’ defense or violated his constitutional rights. What is more, neither the state trial court nor the court of criminal appeals addressed the lack of expert funds in their respective Rule 32 orders. This strongly suggests that the state courts never had an opportunity to confront this question because Hammonds never presented it to them. Accordingly, the procedural default bars the Court from granting relief to Hammonds to the extent that he claims the lack of financing denied him the right to a fair trial.

5. Hammonds’ claim that the trial court improperly admitted prejudicial, nonprobative evidence (Claim L)

Hammonds’ habeas petition next claims that the State improperly introduced, and the trial court improperly admitted, highly prejudicial and nonprobative evidence used to inflame the jurors’ passions. (Doc. # 6 at ¶ 127.) Hammonds’ petition references his earlier claim about trial counsel’s ineffectiveness for failing to object to the admission of six pieces of evidence: (1) autopsy photographs of Marilyn Mitchell’s body; (2) evidence of Mitchell’s good character; (3) evidence that someone had stolen property from Mitchell’s condo; (4) an answering machine recording left by Mitchell’s mother; (5) evidence that Hammonds had seen a movie with a woman other than his wife; and (6) evidence that Hammonds liked to have sex with white women. (Doc. # 6 at ¶ 71.)

Hammonds raised this issue in his initial Rule 32 motion. (Vol. 40, R. 62, at 70.) The Houston County Circuit Court found that claim barred by Rule 32.2(a)(2) and (3) of the Alabama Rules of Criminal Procedure. (Vol. 40, R. 62, at 181.) The Alabama Court of Criminal Appeals affirmed this finding, holding that Hammonds defaulted on the claim because he did not raise it on appeal. (Vol. 51, R. 83, at 9.) The State agrees with the court of appeals, arguing that the procedural default bars this Court from granting relief.

Hammonds concedes that the claim is defaulted. But he argues that he can show cause and prejudice, and he relies once again on claiming that trial counsel provided ineffective assistance by failing to object to the evidence. Because ineffective assistance of counsel can provide cause for a default, see Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court will undertake the procedural default analysis for Claim L after analyzing Hammonds’ various ineffective assistance of counsel arguments on the merits.

6. Hammonds’ claim that the State improperly withheld exculpatory evidence (Claim M)

Hammonds’ next claim alleges that the State failed to turn over two important documents. The first is an agreement the State made with Gregory Gordon, one of its key witnesses. The second is a VICAP report used by the FBI to create a suspect profile. According to Hammonds, the State’s failure to disclose these documents violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding prosecution must turn over exculpatory evidence), thus depriving him of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (Doc. # 6 at ¶¶ 128-31.)

The Houston County Circuit Court found this claim procedurally barred by Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure since Hammonds could have raised the issue on direct appeal. (Vol. 43, R. 68, at 748.) The Alabama Court of Criminal Appeals concurred. (Vol. 51, R. 83, at 11.) The State urges this Court to adopt the state appellate court’s holding and find the claim procedurally defaulted and thus barred from consideration.

Hammonds does not dispute that this claim is procedurally defaulted. (See Doe. # 6 at ¶¶ 128-31.) Rather, Hammonds argues that he can show the necessary cause and prejudice to excuse the procedural default. (Doc. # 47 at 91-92.) To this end he claims that the State’s suppression of the evidence prevented him from presenting the argument on direct appeal. (Id.) And for support he cites to Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), a case holding that the suppression of evidence can sometimes serve as cause to excuse a p