West v. Allen (868 F. Supp. 2d 1224, 2011)

United States District Court for the Northern District of Alabama 2011-04-26

Citations

Full opinion text

MEMORANDUM OPINION

INGE PRYTZ JOHNSON, District Judge.

This action seeks habeas corpus relief with respect to Petitioner Geoffrey Todd West’s (“West” or “Petitioner”) state court conviction and death sentence on a charge of capital murder. See 28 U.S.C. § 2254 (2006). All of the claims have been briefed to the Court, and the petition is ready for adjudication.

FACTUAL BACKGROUND

A. The Offense

The following summary of the evidence relevant to the offense is taken from the Alabama Court of Criminal Appeals’ opinion on direct appeal. West v. State, 793 So.2d 870, 873 (Ala.Crim.App.2000). To the extent the appellate court relies upon the trial court’s findings of fact, these findings are taken directly from the trial court’s sentencing order, which the trial judge entitled “Judgment of the Court.” (C.R. Vol. 21, Tab. 62, p. I).

In its sentencing order, the trial court summarized the relevant facts of this case as follows:

In the late hours of March 27,1997, or early morning of March 28, 1997, Geoffrey Todd West and his girlfriend drove to Harold’s Chevron located at 2920 Noccalula Parkway. The Defendant had previously been employed at this convenience store. The Defendant previously had expressed to others his intention to rob the Chevron Store and to “leave no witnesses,” “kill the person up there.”

West entered the store armed with a .45 caliber handgun and the circumstances indicate that he held the attendant Berry at gunpoint and took $250.00 from a cookie can where the store money was kept. The medical evidence indicates that Berry was shot in the back of the head while lying prone on the floor behind the counter of the store. According to the medical examiner, the “wound would cause rapid incapacitation and a very rapid death.”

West v. State, 793 So.2d 870, 873 (Ala. Crim.App.2000) (quoting C.R. Vol. 21, Tab. 62, p. 1); (see also Rule 32 C.R. Vol. 21, Tab. 73, p. 2 (same)).

B. The Sentence

After the formal sentencing hearing, the trial court found the existence of two statutory aggravating circumstances and two statutory mitigating circumstances. See West v. State, 793 So.2d 870, 887-88 (Ala. Crim.App.2000) (citing C.R. Vol. 21, Tab 64, pp. 1-3). As to the statutory aggravating factors,- the trial court found:

(1) That the capital offense was committed by Geoffrey Todd West while he was under a sentence of imprisonment an aggravating circumstance described in § 13A-5-49G), Ala.Code 1975.

(4) That the capital offense was committed while the Defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempt to commit a robbery as described in § 13A-5-49(4), Ala.Code 1975.

(C.R. Vol. 21, Tab. 64, pp. 1-2). In regards to the statutory mitigating factors, the trial court found:

(9) That the Defendant had no significant history of prior criminal activity as described in § 13A-5-51(l), Ala.Code 1975 which was a mitigating circumstance the Court considered in sentencing.

(15) That the Court specifically finds that the age of the Defendant at the time of the crime of 23 years was a mitigating circumstance which the Court considered in sentencing as described in § 13A-5-5K7), Ala.Code.

Id. at 2. “After considering all findings as listed above” as well as “the aspects of Defendant’s character and record presented by the evidence and sentence report as required by § 13A-5-52, Ala.Code,” the trial court held that “the aggravating circumstances ... are sufficient to support the sentence of death.” Id. at 2-3. And the court concluded by holding that “[i]t is further the opinion of the Court that the mitigating circumstances above enumerated are insufficient to outweigh the aggravating circumstances.” Id. at 3.

PROCEDURAL HISTORY

At 2:35 p.m. on June 1, 1999, West was found guilty of capital murder during the course of a robbery in violation of Alabama Code § 13A-6-40(a)(2) (1975). (See R. Vol. 11, Tab. 19, pp. 1771-72). A penalty hearing immediately followed, and, at 5:03 p.m. that same day, the jury recommended that West be sentenced to death by a vote of 10-2. (See R. Vol. 12, Tab. 27, pp. 1802-03). A formal sentencing hearing, as required by Alabama Code § 13 A. -5-47, was conducted on July 7, 1999, and the trial court judge followed the recommendation of the jury and sentenced West to death. (See R. Vol. 12, Tab. 29, p. 1813). An automatic appeal followed.

West appealed his conviction and sentence to the Alabama Court of Criminal Appeals who entered a published opinion “affirm[ing West’s] conviction, but remand[ing] the case to the trial court with instructions that the trial court enter a

new sentencing order that complies with the requirements of § 13A-5-47(d), Ala. Code 1975” on June 30, 2000. See West v. State, 793 So.2d 870, 887 (Ala.Crim.App. 2000). After the trial court amended West’s sentencing order, the Alabama Court of Criminal Appeals affirmed West’s sentence of death on August 25, 2000. Id. at 888. The Supreme Court of Alabama denied West’s petition for writ of certiorari without an opinion on February 23, 2001. See Ex parte West, No. 1000231 (Ala. Feb. 23, 2001) (Lyons, J.). And the United States Supreme Court denied West’s petition for writ of certiorari on October 1, 2001. See West v. Alabama, 534 U.S. 849, 122 S.Ct. 116, 151 L.Ed.2d 72 (2001).

West thereafter filed a petition for relief from judgment pursuant to Rule 32 of the Alabama Rules of Criminal Procedure on September 6, 2002. (Rule 32 C.R. Vol. 16, Tab. 40). On October 21, 2002, the State filed a Motion to Dismiss arguing that West’s Rule 32 petition was barred by the statute of limitations set forth in Rule 32.2(c) of the Alabama Rules of Criminal Procedure. (Rule 32 C.R. Vol. 16, Tab. 41, pp. 44-52). The circuit court granted the State’s Motion to Dismiss and summarily dismissed West’s Rule 32 petition as untimely on March 12, 2003. (Rule 32 C.R. Vol. 16, p. 90). The Alabama Court of Criminal Appeals affirmed the circuit court’s dismissal of West’s Rule 32 petition on September 26, 2003. West v. State, 890 So.2d 205 (Ala.Civ.App.2003). On November 21, 2003, the Court of Criminal Appeals overruled West’s application for rehearing. (Rule 32 C.R. Vol. 17, p. 16).

West subsequently petitioned the Alabama Supreme Court for certiorari review. On March 5, 2004, the Alabama Supreme Court summarily granted the writ and “suspend[ed] the provisions of Rule 39(g) and (h), Ala. R.App. P., allowing [West] to file a brief.” Ex parte West, 890 So.2d 210 (Ala.2004). After finding that West’s Rule 32 petition was timely filed, the Alabama Supreme Court remanded the case to be considered in the first instance by the circuit court. See id. at 211.

On March 29, 2004, the State filed an Answer as well as a motion for summary dismissal pursuant to Alabama Rule of Criminal Procedure 32.7(d), a motion for West to amend certain claims that were insufficiently pleaded under Rules 32.3 and 32.6(b), and a motion for summary dismissal pursuant to Rule 32.2(a). (Rule 32 C.R. Vol. 17, Tabs. 44-47, pp. 17-47). On December 28, 2004, the Rule 32 circuit court granted the State’s motion for summary dismissal pursuant to Alabama Rule of Criminal Procedure Rule 32.2(a), and thereby summarily dismissed three claims in West’s Rule 32 petition as procedurally barred. (Rule 32 C.R. Vol. 17, pp. 67-68). Following an evidentiary hearing as to the remaining issues, (Rule 32 R. Vol. 17-18, Tab. 49), the circuit court denied West’s Rule 32 petition on November 10, 2005. (Rule 32 C.R. Vol. 21, Tab. 72, pp. 94-127).

On December 21, 2005, West filed a Notice of Appeal. (Rule 32 C.R. Vol. 17, p. 128). The Alabama Court of Criminal Appeals affirmed the circuit court’s decision in an unpublished opinion on July 22, 2007. (Rule 32 C.R. Vol. 21, Tab. 73). The Supreme Court of Alabama denied certiorari review on August 15, 2008. (Rule 32 C.R. Vol. 21, Tab. 74). Shortly thereafter, on August 29, 2008, West filed his present Petition for Writ of Habeas Corpus (the “Petition” or “Habeas Petition”) in this Court.

THE SCOPE OF FEDERAL HABEAS REVIEW

Pursuant to 28 U.S.C. § 2254(a) (2006), a federal district court is prohibited from entertaining a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court” unless the petitioner alleges “he is in custody in violation of the Constitution or laws or treaties of the United States.” In other words, this Court’s review of habeas claims is limited to federal constitutional questions. Claims pertain ing solely to “an alleged defect in a [state] collateral proceeding” or to a “state’s interpretation of its own laws or rules” does not provide a basis for federal habeas corpus relief under section 2254. Alston v. Dep’t ofCorr., Fla., 610 F.3d 1318, 1325-26 (11th Cir.2010) (citations omitted). Accordingly, unless otherwise expressly stated, use of the word “claim” in this opinion presupposes a claim of federal constitutional proportion.

A. Exhaustion ano Procedural Default

Prior to seeking relief in federal court from a state court conviction and sentence, a habeas petitioner is first required to present his federal claims to the state court by exhausting all of the state’s available procedures. See 28 U.S.C. § 2254(b)(1) (2006). The purpose of this requirement is to ensure that state courts are afforded the first opportunity to correct federal questions affecting the validity of state court convictions. As explained by the Eleventh Circuit:

In general, a federal court may not grant habeas corpus relief to a state prisoner who has not exhausted his available state remedies. 28 U.S.C. § 2254(b)(1)(A) (“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 unless it appears that ... the applicant has exhausted the remedies available in the courts of the State.... ”). “When the process of direct review ... comes to an end, a presumption of finality and ■ legality attaches to the conviction The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.” Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir.1989) (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 [1983]).

Exhaustion of state remedies requires that the state prisoner “fairly present federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 [1971]) (internal quotation marks omitted). The Supreme Court has written these words:

[T]hat the federal claim must be fairly presented to the state courts .... it is not sufficient merely that the federal habeas applicant has been through the state courts.... Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.

Picard, 404 U.S. at 275, 92 S.Ct. 509. See also Duncan, 513 U.S. at 365, 115 S.Ct. 887 (“Respondent did not apprise the state court of his claim that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment.”).

Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues. “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (citations omitted).

Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.1998) (alterations in original) (parallel citations omitted); see also Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.2010).

Moreover, if a petitioner fails to raise his federal claim to the state court at the time and in the manner dictated by the state’s procedural rules, the state court can decide the claim is not entitled to a review on the merits, i.e., “the petitioner will have procedurally defaulted on that claim.” Mason, 605 F.3d at 1119 (emphasis added). Usually, if the last state court to examine a claim explicitly finds that the claim is defaulted because the petitioner failed to follow state procedural rules, then federal review of the claim is also precluded pursuant to federal procedural default principles. As the Eleventh Circuit recently stated:

“The teeth of the exhaustion requirement comes from its handmaiden, the procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). The doctrine of procedural default dictates that “[a] state court’s rejection of a petitioner’s constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). However, a state court’s rejection of a federal constitutional claim on procedural grounds may only preclude federal review if the state procedural ruling rests upon “adequate and independent” state grounds. Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995) (citation omitted).

We have “established a three-part test to enable us to determine when a state court’s procedural ruling constitutes an independent and adequate state rule of decision.” Judd, 250 F.3d at 1313. “First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim.” Id. Second, the state court’s decision must rest entirely on state law grounds and not be intertwined with an interpretation of federal law. See id. Third, the state procedural rule must be adequate, i.e., firmly established and regularly followed and not applied “in an arbitrary or unprecedented fashion.” Id.

Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir.2010). And it is important to reiterate that federal deference to a state court’s clear finding of procedural default under its own rules is so strong that:

“[A] state court need not fear reaching the merits of a federal claim in an alter native holding. Through its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.” Harris, 489 U.S. at 264 n. 10, 109 S.Ct. 1038 (emphasis in original). See also Alderman v. Zant, 22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia habeas corpus court found that the petitioner’s claims were procedurally barred as successive, but also noted that the claims lack merit based on the evidence, “this ruling in the alternative did not have an effect ... of blurring the clear determination by the [Georgia habeas corpus] court that the allegations was procedurally barred”), cert, denied, 513 U.S. 1061, 115 S.Ct. 673,130 L.Ed.2d 606 (1994).

Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) (alterations in original).

The Supreme Court defines an “adequate and independent” state court decision as one which “rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Whether or not a state procedural rule is “adequate and independent” as to have a preclusive effect on federal review of a claim “is itself a federal question.” Id. (quoting Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)).

A state procedural rule is “independent of the federal question” when it “rests solidly on state law grounds [that are] not ‘intertwined with an interpretation of federal law.’ ” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001) (quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). To be considered “adequate,” the state procedural rule must be both “firmly established and regularly followed.” Kemna, 534 U.S. at 376, 122 S.Ct. 877 (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). Put differently, the rule must be “clear [and] closely hewn to” by the state for a federal court to find it to be adequate. Cf. James, 466 U.S. at 346, 104 S.Ct. 1830. This does not mean that the procedural rule must be rigidly applied in every instance, or that occasional failure to do so eliminates its “adequacy.” Rather, the “adequacy” requirement means only that the procedural rule “must not be applied in an arbitrary or unprecedented fashion.” Judd, 250 F.3d at 1313. If the state procedural rule is adequate, then the federal court will normally foreclose its review. If, however, the rule is not firmly established or if it is applied in an arbitrary, unprecedented, and manifestly unfair fashion, it is not adequate to preclude federal review. See Card, 911 F.2d at 1517.

Of course, there are also instances where the doctrines of procedural default and exhaustion intertwine. For instance, if a petitioner’s federal claim is unexhausted, a district court will traditionally dismiss it without prejudice or stay the cause of action to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). But “if it is clear from state law that any future attempts at exhaustion [in state court] would be futile” under the state’s own procedural rules, a court can simply find that the claim is “procedurally defaulted, even absent a state court determination to that effect.” Bailey, 172 F.3d at 1305 (citation omitted).

B. Exceptions to the Procedural Default Doctrine

“There are three situations in which an otherwise valid state ground will not bar” a federal habeas court from considering a constitutional claim that is procedurally defaulted:

(1) where failure to consider a prisoner’s claims will result in a “fundamental miscarriage of justice”; (2) where the state procedural rule was not “ ‘firmly established and regularly followed’ ”; and (3) where the prisoner had good “cause” for not following the state procedural rule and was “prejudice^]” by not having done so.

Edwards v. Carpenter, 529 U.S. 446, 455, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (Breyer, J., concurring) (internal citations omitted); see also Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546 (“[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice.”) (citations and internal quotation marks omitted); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[Wjhere a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”).

1. The “Cause and Prejudice” Standard

“A federal court may still address the merits of a procedurally defaulted claim if the petitioner can show cause for the default and actual prejudice resulting from the alleged constitutional violation.” Ward, 592 F.3d at 1157 (citing Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). This so-called “cause and prejudice” standard is clearly framed in the conjunctive; therefore, a petitioner must affirmatively prove both cause and prejudice. Cf id. (emphasis added). To show “cause,” a petitioner must prove that “some objective factor external to the defense impeded counsel’s efforts” to raise the claim previously. Carrier, 477 U.S. at 488, 106 S.Ct. 2639; see also Amadeo v. Zant, 486 U.S. 214, 221-22, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988).

Objective factors that constitute cause include “ ‘interference by officials’ ” that makes compliance with the State’s procedural rule impracticable, and “a showing that the factual or legal basis for a claim was not reasonably available to counsel.” In addition, constitutionally “[[Ineffective assistance of counsel ... is cause.” Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default.

McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citations omitted); see also Coleman, 501 U.S. at 754, 111 S.Ct. 2546 (“Attorney error that constitutes ineffective assistance of counsel is cause.... ”). Further, “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).

Once cause is proved, a habeas petitioner must also prove prejudice. Such a showing must go beyond proof “that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam).

2. The “Fundamental Miscarriage of Justice” Standard

In a “rare,” “extraordinary,” and “narrow class of cases,” a federal court may consider a procedurally defaulted claim in the absence of a showing of “cause” for the procedural default if either: (1) a fundamental miscarriage of justice “has probably resulted in the conviction of one who is actually innocent,” Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Carrier, 477 U.S. at 496, 106 S.Ct. 2678); or (2) the petitioner shows “by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” Schlup, 513 U.S. at 323-27 & n. 44, 115 S.Ct. 851 (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)); see also, e.g., Smith v. Murray, 477 U.S. at 537-38, 106 S.Ct. 2661. But even when exhaustion and procedural default are not at issue, federal review of a claim is fairly restricted if the state court decided the issue on the merits.

C. Rules Governing Habeas Corpus Cases Under Section 2254

1. 28 U.S.C. § 2254(d) and (e)

By enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Congress significantly limited the circumstances under which a habeas petitioner may obtain relief. Indeed, under the AEDPA, a petitioner is only entitled to relief on a federal claim if he shows that “the state court decision was (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir.2010) (quoting 28 U.S.C. § 2254(d)); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Moreover, “[a] state court’s factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence.” Boyd, 592 F.3d at 1292 (citing § 2254(e)(1)).

A state court’s adjudication of a claim will be sustained under section 2254(d)(1) unless it is “contrary to” clearly established, controlling Supreme Court precedent or it is an “unreasonable application” of that law. These are two different inquiries, not to be confused or conflated, as the Supreme Court explained in Williams v. Taylor.

Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. Under the statute, a federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” 529 U.S. at 404-05, 120 S.Ct. 1495; see also Alderman v. Terry, 468 F.3d 775, 790-91 (11th Cir.2006) (“[T]he ‘contrary to’ and ‘unreasonable application’ clauses are interpreted as independent statutory modes of analysis.” (citation omitted)). Further, the AEDPA limits the source of “clearly established Federal law ... to the holdings, as opposed to the dicta, of the [Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495 (internal quotation marks omitted).

A state-court determination can be “contrary to” clearly established Supreme Court precedent in either of two ways:

First, a state-court decision is contrary to this Court’s precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court’s precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.

Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495 (citation omitted).

Likewise, a state-court determination can be an “unreasonable application” of clearly established Supreme Court precedent in either of two ways:

First, a state-court decision involves an unreasonable application of this Court’s precedent if the state court identifies the correct governing legal rule from this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case. Second, a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.

Id. at 407, 120 S.Ct. 1495 (citation omitted). And whether a particular application of Supreme Court precedent is “unreasonable” turns not on subjective factors, but on whether the application of Supreme Court precedent at issue was “objectively unreasonable.” See Alderman, 468 F.3d at 791; Putman v. Head, 268 F.3d 1223, 1241-49 (11th Cir.2001). It is important to note, however, that the Supreme “Court has held on numerous occasions that it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (citations and internal quotation marks omitted). Therefore, the proper inquiry under the AEDPA “is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citation omitted).

Finally, section “2254(d)(2) regulates federal court review of state court findings of fact; the section limits the availability of relief to ‘decisions that were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Alderman, 468 F.3d at 791 (brackets omitted) (quoting § 2254(d)(2)). And commensurate with the deference accorded to a state court’s factual findings, “the petitioner must rebut ‘the presumption of correctness [of a state court’s factual findings] by clear and convincing evidence.’ ” Ward, 592 F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)). “This presumption of correctness applies equally to factual determinations made by state trial and appellate courts.” Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir.2003) (citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)).

Having explained the scope of this Court’s authority to review state court decisions, it is now appropriate to examine the federal procedural rules applicable to the controversy presently before the Court.

2. Procedural Rules Governing Habeas Corpus Cases Under § 2254

Because “habeas corpus review exists only to review errors of constitutional dimension,” a habeas corpus petition must meet the “heightened pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (citation omitted). “[T]he petition must ‘specify all the grounds for relief available to the petitioner’ and ‘state the facts supporting each ground.’ ” Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foil. § 2254). Accordingly, a “general reference to the transcripts, case records and briefs on appeal patently fails to comply with Rule 2(c).” Phillips v. Dormire, No. 4:04CV1483, 2006 WL 744387, at *1 (E.D.Mo. Mar. 20, 2006) (citing Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)); see also Grant v. Georgia, 358 F.2d 742 (5th Cir.1966) (per curiam) (“The application fails to allege any facts upon which the trial court could find a deprivation of a constitutional right, or any other basis for collateral attack. Mere conclusionary allegations will not suffice.” (citation omitted)).

The burden of proof is on the habeas petitioner “to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir.2008). That is, to carry his or her burden, “a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review.” Adams, 897 F.2d at 334; see also Beard v. Clarke, 18 Fed. Appx. 530, 531 (9th Cir.2001) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief----Notice pleading is insufficient; the petitioner must state sufficient facts.” (citations omitted)). Therefore, the mere assertion of a ground for relief, without more factual detail, does not satisfy a petitioner’s burden of proof or the requirements of 28 U.S.C. § 2254(e)(2) and Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foil. § 2254. See Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir.1985) (holding that a general allegation of ineffective assistance of counsel is insufficient; a petition must allege specific errors in counsel’s performance and facts showing prejudice).

D. Exhaustion and Procedural Default Issues Pertinent to West’s Case

In the only paragraph West attributes to the standard of review in his present, federal habeas petition, he states:

When reviewing a habeas corpus petitioner’s claims of constitutional violations, federal courts are required to make independent decisions regarding whether the alleged violations occurred. Decisions by state courts on petitioner’s constitutional claims are not entitled to any presumption of correctness. Glidewell v. Burden, 922 [822] F.2d 1027, 1029 (11th Cir.1987), cert, denied, 484 U.S. 1018, 108 S.Ct. 727, 98 L.Ed.2d 676 (1988). Both questions of law and mixed questions of law and fact are reviewed de novo by federal habeas courts. Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir.1995); Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir.1995).

Petition (Doc. 1) at 25. West apparently operates under the belief that the Eleventh Circuit’s eventual “de novo [review of this] district court’s grant or denial of [his] habeas corpus petition,” Ward, 592 F.3d at 1155, is the determinative standard for this Court to address each and every issue set forth in his petition. West is clearly mistaken, however, because even the Eleventh Circuit is bound to review claims raised within habeas petitions under the standards of review promulgated by both Congress and the Supreme Court. See, e.g., Powell v. Allen, 602 F.3d 1263, 1268 (11th Cir.2010) (per curiam) (“[0]ur review of the Alabama habeas court’s decision is limited by the terms of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act....” (citations and footnote omitted)).

To begin, West filed his habeas petition after April 24, 1996, and thus federal “review of [his] habeas petition ... is limited by the terms of 28 U.S.C. § 2254 as amended by the [AEDPA].” Land v. Allen, 573 F.3d 1211, 1216 (11th Cir.2009) (per curiam) (citation omitted). But in spite of the stringent limitations the AED-PA imposes upon this Court, West still fails to cite any case post-1995 — i.e., after the AEDPA’s enactment — within his recitation of the standard of review. Petition (Doc. 1) at 25. An omission West repeated in his Reply Brief. See Reply Br. (Doc. 19) at 31. Further, West’s inadvertence was compounded by the fact that he neglected to take the AEDPA into account when crafting his arguments. As a result, West does not raise any arguments as to how the state courts’ rulings were either contrary to, or an unreasonable application of, clearly established federal law. See, e.g., Answer (Doc. 10) at 11-12.

On the other hand, West argues, for the first time in his Reply Brief, that the state collateral court’s ruling that his “ineffectiveness claim failed to meet the pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure .... does not constitute an adequate independent ground for precluding federal review of his claims.” Reply Br. (Doc. 19) at 34-35. But in making these arguments, at no time does West: (1) argue that the Alabama collateral courts’ ruling on his ineffective assistance claims were either “contrary to, or involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1); or (2) dispute the Respondents’ arguments that his second claim, ie., his alleged denial of expert assistance, is not entitled to federal habeas review, see, e.g., Answer (Doc. 10) at 21-29. Even so, the Court will address each of these issues separately below.

With these principles in mind, the Court now turns to West’s two principal claims.

PETITIONER’S CLAIMS

West raises two principal claims in his petition: (1) ineffective assistance of trial counsel; and (2) denial of expert assistance. The Court will address each in turn.

I. Ineffective Assistance of Trial Counsel

West first alleges that he was denied effective assistance of counsel in four respects. See Petition (Doc. 1) at 27-42. Before addressing West’s allegations, however, the Court will discuss the general constitutional standard applicable to each of West’s ineffective assistance sub-claims.

A. General Standard

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct appeal.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052 (emphasis added); see also Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239-41 (11th Cir. 2010). Stated differently, “[a] petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced his defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted).

Because Strickland’s preceding two-part test is clearly framed in the conjunctive, a petitioner bears the burden of proving both “deficient performance” and “prejudice” by “a preponderance of competent evidence.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc). Thus, a court is not required to address both aspects of the Strickland standard if a habeas petitioner is unable to establish one prong. See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) (“Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”).

Further, when assessing ineffective assistance of counsel claims:

[I]t is important to keep in mind that “in addition to the deference to counsel’s performance mandated by Strickland, the AEDPA adds another layer of deference — this one to a State court’s decision — when we are considering whether to grant federal habeas relief from a State court’s decision.” Thus, [a petitioner] not only has to satisfy the elements of the Strickland standard, but he must also show that the State “court applied Strickland to the facts of his case in an objectively unreasonable manner.”

Williams v. Allen, 598 F.3d 778, 789 (11th Cir.2010) (brackets in original omitted) (citations omitted); see also Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (per curiam).

1. The Performance Prong

When reviewing whether defense counsel’s performance was deficient, “the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 17,175 L.Ed.2d 255 (2009); (per curiam) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). As such, a habeas petitioner must show that counsel’s representation fell “ ‘below an objective standard of reasonableness’ in light of ‘prevailing professional norms’ ” in order to establish deficient performance. Id. at 16, 130 S.Ct. 13 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052); see also Williams v. Taylor, 529 U.S. at 390-91, 120 S.Ct. 1495; Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir.2010) (“[T]he governing standard is objectively reasonable attorney conduct under prevailing professional norms.... ”).

But such a showing is not for the weary as Strickland instructs lower federal courts to be “highly deferential” while engaging in such assessments:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (emphasis added) (citations and quotation marks omitted); see also Whisenhant v. Allen, 556 F.3d 1198, 1203 (11th Cir.2009) (per curiam) (“To counteract the distorting effects of hindsight, the defendant bears the burden of overcoming a strong presumption that the challenged action is sound trial strategy.” (citation omitted)). Simply put, a habeas petitioner “must establish that no competent counsel would have taken the action that his counsel did take” to overcome the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Chandler, 218 F.3d at 1315 (citation omitted); see also Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir .2007).

The reasonableness of counsel’s performance is judged from the perspective of the attorney, at the time of the alleged error, and in light of all the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir.2008) (“We review counsel’s performance ‘from counsel’s perspective at the time,’ to avoid ‘the distorting effects of hindsight.’ ” (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052)); Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.2001) (giving lawyers “the benefit of the doubt for ‘heat of the battle’ tactical decisions”). As the Eleventh Circuit has stated:

Under this standard, there are no “absolute rules” dictating what reasonable performance is or what line of defense must be asserted. [Chandler, 218 F.3d] at 1317. Indeed, as we have recognized, “[a]bsolute rules would interfere with counsel’s independence — which is also constitutionally protected — and would restrict the wide latitude counsel have in making tactical decisions.” Putman v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001).

Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir.2005). “Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). In short, an attorney’s performance will be deemed deficient only if it is objectively unreasonable, ie., it falls below the wide range of competence demanded of attorneys in criminal cases, and it is shown “that no competent attorney would have taken the action that [the petitioner’s] counsel did take.” Williams v. Allen, 598 F.3d at 790 (citation and quotation marks omitted); see also Stone v. Dugger, 837 F.2d 1477, 1479 (11th Cir.1988) (“[E]ven in capital felony cases defendants have no legal right to the very best counsel.”).

2. The Prejudice Prong

Even when counsel performed in a deficient manner, a habeas petitioner must still establish that he or she suffered prejudice as a result of that deficiency. To satisfy this standard, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. at 391, 120 S.Ct. 1495. Put differently, the Eleventh Circuit has opined: “The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel’s deficient representation rendered the result of the trial fundamentally unfair or unreliable.” Rhode v. Hall, 582 F.3d 1273, 1280 (11th Cir.2009) (citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). And “[w]hen evaluating this probability, ‘a court ... must consider the totality of the evidence before the judge or jury.’ ” Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir.2002) (citation omitted).

Further, a habeas petitioner “must affirmatively prove prejudice, because ‘[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.’ ” Gilreath v. Head, 234 F.3d 547, 551 (11th Cir.2000) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). The fact that counsel’s “error had some conceivable effect on the outcome of the proceeding” is insufficient to show prejudice. Strickland, 466 U.S. at 693,104 S.Ct. 2052; see also Porter, 130 S.Ct. at 455-56, Instead, a petitioner must present competent evidence proving “that trial counsel’s, deficient performance deprived him of ‘a trial whose result is reliable.’ ” Brown v. Jones, 255 F.3d 1273, 1278 (11th Cir.2001) (citation omitted). Therefore, “when a petitioner challenges a death sentence, ‘the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).

3. Deference to the State Court’s Findings

Lest one forget, section 2254’s application applies in addition to the underlying substantive law. “Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly so.’ ” Harrington v. Richter, — U.S.—, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). As a result, this “doubly,” “highly deferential” standard transforms the Strickland inquiry from “whether counsel’s actions were reasonable” into “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. (citations omitted). In other words, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard.” Id. at 785.

Finally, “[[Ineffectiveness of counsel is a mixed question of fact and law.” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir.2001) (citation omitted). “State court findings of historical facts made in the course of evaluating an ineffectiveness claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d).” Thompson, 255 F.3d at 1297.

B. Specific Claims of Trial Counsel’s Ineffectiveness

West raises a number of alleged deficiencies in his trial counsel’s performance, which the Court divides into four general categories: (1) failure to object to the use of a stun belt during trial; (2) failure to investigate and present mitigation evidence during the penalty phase and sentencing hearing; (3) failure to present to the jury the statutory mitigating circumstance of West not having a significant history of prior criminal activity; and (4) failure to request a continuance so that the defense could procure and use an “obliterated documents” expert. See Petition (Doc. 1) at 28-42. On the other hand, Respondents argue that West’s sub-claims are procedurally defaulted because the Alabama Court of Criminal Appeals dismissed each claim under an independent and adequate state procedural rule, see Answer (Doc. 10) at 8-20, and also contend that sub-claims two (2) through four (4) above are conclusory in nature and fail to state a valid claim for relief under 28 U.S.C. § 2254. Id. at 11-20. Regardless, Respondents declare that West cannot show he is entitled to 28 U.S.C. § 2254(d) or (e)(2) relief. Id. at 8-20; Respondents’ Brief on the Merits (Doc. 11) at 20-41.

1. Failure to Object to the Use of a Stun Belt During Trial.

West alleges that his trial counsel, John David Floyd and Rodney L. Ward, were “ineffective for failing to object to the requirement that West wear a stun belt throughout his trial.” Petition (Doc. 1) at 28. West claims this negatively impacted his trial in two respects. First, West contends that the stun belt “impact[ed his] presumption of innocence before the jury” because it “was left to make the highly prejudicial supposition that West was a dangerous man, an added presumption as to his guilt.” Id. at 29. Second, West contends that he was unable “to participate in his own defense” because the stun belt impeded his ability “to confer with counsel” and rendered him “unable to follow the proceedings.” Id. at 31-32.

Respondents counter by first arguing that “[t]his claim is procedurally defaulted ... because it was dismissed under an independent and adequate state procedural rule.” Answer (Doc. 10) at 8. Specifically, Respondents argue that the Rule 32 circuit court, which was later affirmed by the Alabama Court of Criminal Appeals, “held that this claim was due to be dismissed, under Rule 32.7(d) of the Alabama Rules of Criminal Procedure, because it failed to comply with the specificity and full factual pleading requirements of Rule 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure.” Id. (citing Rule 32 C.R. Vol. 21, Tab. 72, pp. 19-21; Rule 32 C.R. Vol. 21, Tab. 73, pp. 9-13). Alternatively, Respondents also argue that “this claim was raised in West’s Rule 32 petition and on collateral appeal in the Alabama Court of Criminal Appeals and was denied on the merits,” id. at 9 (citations omitted), and thus:

West has not alleged, and cannot show, that the denial of relief on this claim in state court “(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.”

Id. at 9-10 (quoting 28 U.S.C. § 2254(d)).

The Alabama Court of Appeals’ opinion is set out below. The reader is advised that any additional factual findings — either made by a state court or other pertinent historical facts from the record — will be set out in footnotes. On collateral review, the Alabama Court of Criminal Appeals made the following findings of fact and conclusions of law:

West first argues that his counsel were ineffective for not objecting to the requirement that he wear a stun belt during his trial. He claims that, because counsel did not object, “the jury was left to make the highly prejudicial supposition that West was a dangerous man, an added presumption as to his guilt.” (West’s brief at p. 15.) West further argues that the use of the stun belt interfered with his right to participate in his own defense and to confer with counsel because, he says, when a stun belt is used on a defendant at trial, despite the defendant’s physical presence in the courtroom, his fear of discharge [if the belt were activated] “may eviscerate his ability to take an active role in his own defense.” (West’s brief at p. 18.) The circuit court denied this claim on the ground that West had failed to met his burden of proof. The court first noted that West had failed to prove that the jury saw the stun belt. The court also noted that defense counsel had testified that he preferred that his clients wear a stun belt instead of other types of restraints because the belt was not visible to the jury. The circuit court also determined that West had failed to present any evidence to establish that because he was forced to wear the stun belt, he was unable to participate meaningfully in his own defense.™ We agree with the circuit court.

West did not present testimony from any member of the jury; thus no one testified that anyone on the jury either saw the stun belt or assumed that the use of the stun belt necessarily meant that West was a dangerous man and was more likely to be guilty than if he had not been wearing a stun belt. Deputy Jim Findley[] testified that during a majority of the days of West’s trial, he placed the stun belt on West’s body. Deputy Findley placed the stun belt under West’s clothing before West entered the courtroom, and the belt was not visible to anyone. Deputy Findley testified that West did not express any concerns about having to wear the belt; in fact, Deputy Findley testified that West joked with him about having to wear the belt. As the circuit court noted in its final order, one of West’s trial attorneys, John Floyd,[] testified that he prefers that deputies use a stun belt on his clients instead of leg irons or handcuffs because the stun belt is not visible to the jury. Floyd described the configuration of the courtroom where West’s case was tried, and explained that the defense table faced the jury so the jury did not see West’s back, where the box containing the electrodes attached to the belt was located. Floyd further testified that West took the stand at trial so he would have walked by the jury box, but that he could not state that any juror observed the stun belt. The only time Floyd saw the belt was when West lifted his shirt to show it to Floyd. Finally, Floyd testified that he did not remember West expressing to him any concerns about wearing the belt.

West was required to prove that counsel’s failure to object to the use of the stun belt constituted deficient performance, and that he suffered prejudice as a result of that deficient performance. The circuit court found that West had failed to prove that counsel’s performance was deficient because Floyd made a tactical decision not to object to the use of the stun belt because, unlike leg irons or handcuffs, the stun belt was not visible to the jury. That decision was a reasonable tactical decision, and such decisions are virtually unchallengeable when they are made after a thorough investigation of the facts and the law. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As noted by the United States Supreme Court:

“No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”

Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (emphasis added). Thus, counsel’s decision not to object to the use of the stun belt did not constitute deficient performance.

In addition, West did not prove that he suffered any prejudice as a result of counsel’s decision in this regard. Most notably, West did not present testimony that any juror saw the stun belt. Because West failed to prove that any juror saw the stun belt, he necessarily failed to prove that the stun belt caused any juror to determine that he was dangerous or guilty.

Because West failed to prove either prong of the Strickland test, the circuit court correctly denied this portion of this allegation of ineffective assistance of counsel.

West also argues that the circuit court erred when it denied him relief on his claim that the stun belt interfered with his ability to confer with counsel and to participate in. his own defense at trial. The circuit court determined that West had failed to prove that the use of the stun belt had a negative psychological impact on him or that it prevented him from participating in his defense. We agree.

First, as noted above, trial counsel’s decision not to object to the use of the stun belt was a reasonable, strategic decision, and did not constitute deficient performance. This portion of West’s claim fails for that reason alone. Moreover, as the circuit court noted, West failed to prove prejudice. West did not testify at the hearing, so there was no evidence that the use of the belt caused any prejudice or interfered with West’s ability to participate in his own defense. To the contrary, Deputy Findley testified that West joked about the stun belt and did not voice any concerns about it.

Floyd testified that he did not recall West voicing any concerns about the belt or indicating that he was distracted by it. Floyd also testified that West communicated effectively with him by writing notes during the trial and that communication with West was never a problem. Finally, we note that Floyd also testified that West directed defense counsel to refrain from presenting mitigating evidence or making any argument on his behalf at the penalty phase, thus clearly indicating that the use of the stun belt did not so distract West from the trial that he could not participate in his defense. Therefore, West failed to prove deficient performance or prejudice as to this portion of his allegation of ineffective assistance of counsel.™

For the foregoing reasons, the circuit court properly denied West’s claim that his trial counsel were ineffective for not objecting to the use of the stun belt at trial.

(Rule 32 C.R. Vol. 21, Tab. 73, pp. 9-13). And to the extent Respondents now rely upon the Rule 32 circuit court’s findings of fact or incorporates that court’s legal analysis as its own, Respondents quote the following passages from the Rule 32 circuit court’s final order:

In paragraphs 45 through 55 of his petition, West contends that trial counsel was ineffective for failing to object to West wearing the stun belt at his capital murder trial. In doing so, West makes two distinct claims in regard to the use of the stun belt at his capital murder trial. First, West alleges that the stun belt was visible to the jury. As a result of the belt being visible to the jury, West contends that the jury viewed him as highly dangerous and the stun belt “added presumption as to his guilt[.]” (Pet-¶ 48)[] Second, West alleges that the mere presence of the stun belt prevented him from participating in his own trial. The Court finds that West failed to meet his burden of proving trial counsel’s performance was deficient or caused him to be prejudiced as required by Strickland. Rule 32.3, ARCrP. Therefore, these claims are hereby denied.

First, West failed to demonstrate that trial counsel’s failure to object to the use of the stun belt constituted deficient performance. At the evidentiary hearing, Attorney Floyd testified that he preferred the use of the stun belt over other restraint devices, such as leg shackles, because the stun belt was not visible to the jury and was less restrictive to his client. (EH.35, 72-73)[] Clearly, trial counsel’s decision not to object was not, “outside the range of professionally competent assistance.” Chandler, 218 F.3d at 1314. Rather, counsel made a sound tactical decision not to object based on their belief that the stun belt would not be visible to the jury and would be less restrictive than other means of restraints.

Moreover, West failed to demonstrate that he was prejudiced by trial counsel’s failure to object to the use of the stun belt. As Mr. Floyd stated at the hearing, the stun belt was not visible to the jury. (EH.41) Deputy Findley also testified that the stun belt was applied to West at the jail, prior to West being escorted to the courtroom. (EH.22) Deputy Findley further stated that the stun belt was placed under West’s clothing and was not visible to anyone. (EH.28) As such, West failed to present any evidence that the jury actually observed the stun belt.

Likewise, West failed to present any evidence that