Hall v. Thomas (977 F. Supp. 2d 1129, 2013)

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

CALLIE V.S. GRANADE, District Judge.

Petitioner, Steven Wayne Hall, Jr., (hereinafter referred to as “Hall” or “Petitioner”) initiated this action on October 10, 2007, by filing a Petition for Writ of Habeas Corpus (the “Petition”) (Doc. 1) pursuant to 28 U.S.C. § 2254. Hall challenges a 1993 state court judgment of conviction for one count of capital murder committed during a burglary in -violation of Ala.Code § 13A-4-40(a)(4) (1975), entered in the Circuit Court of Monroe County, Alabama, for which he was sentenced to death. Id. This matter is before the court on Hall’s Petition (Doc. 1), the respondent, Kim Thomas’ (hereinafter referred to as “Thomas” or “Respondent”) response (Doc. 13), and Hall’s reply brief (Doc. 33). Upon consideration of all matters presented, and for the reasons stated below, this court finds that Hall’s Petition is due to be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. TRIAL

Upon an extensive review of the record, the court finds that the underlying facts were succinctly stated upon Hall’s direct appeal by the Alabama Court of Criminal Appeals in Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999):

The appellant, Steven Wayne Hall, Jr., was indicted by a Conecuh County grand jury for murder made capital because the murder was committed during the course of a burglary. See § 13A-5-40(a)(4), Ala.Code 1975. After Hall’s co-defendant, Wayne Holleman Travis, was tried and convicted of capital murder in Conecuh County, Hall moved for a change of venue based on what he says was the excessive publicity surrounding Travis’s trial. The motion was granted and Hall’s case was transferred to Monroe County. Hall was tried and convicted [on August 13, 1993] by a Monroe County jury for the offense charged in the indictment. The jury, by a vote of 10-2, recommended that Hall be sentenced to death. The trial court accepted the jury’s recommendation and [on September 9, 1993] sentenced Hall to death by electrocution.

The State’s evidence tended to show that on December 15, 1991, Conecuh County sheriff deputies discovered the body of 69-year-old Clarene Haskew on the kitchen floor of her home in McKenzie. Haskew had been shot twice in the back of the head, severely beaten, and strangled. A neighbor telephoned Haskew’s son after she went to Haskew’s home and discovered that the telephone line had been cut and that the glass on the entry door had been broken. Dr. Gregory Price Wanger, a forensic pathologist employed by the Alabama Department of Forensic Sciences, testified that Haskew was alive when she was shot and when the blunt force injuries were inflicted; thus, it was impossible for him to conclude which injuries occurred first.

When her body was discovered, Haskew’s home was in total disarray and a pentagram had been spray-painted on the kitchen cabinets. The words “Thunder Struck” were also spray-painted on the kitchen floor near Haskew’s body. Silverware and an address book had been taken from the scene and Haskew’s gray 1982 Ford LTD automobile was missing. A be-on-the-lookout (“BOLO”) was issued for the car.

On the day of the murder, Nellie Schad’s home, which was about one-fourth mile from Haskew’s home, was burglarized. A .38 caliber Rossi revolver and a .410 gauge shotgun were taken in the burglary. Forensic analysis matched one bullet removed from Haskew’s body with the .38 caliber gun stolen from Schad’s home on the day of the murder.

As a result of the BOLO, police received information that the stolen automobile was parked outside Paula Shiver’s house in Uriah. Paula Shiver was Hall’s girlfriend. When deputies arrived at Shiver’s residence they saw a Ford automobile matching the description of Haskew’s stolen vehicle in Shiver’s yard. One of the deputies approached the vehicle to verify from the license plate that the vehicle was Haskew’s vehicle. After they verified that it was Haskew’s car, the deputies knocked on Shiver’s door. Paula Shiver answered the door and told the deputies that Hall and Travis were in the house. While Shiver talked with the deputies, Hall and Travis fled on foot.

The dog warden from Fountain Prison was called to assist in apprehending Hall and Travis. Dogs tracked the two to the Rocky Hill community. When they found Hall and Travis, deputies attempted to get them to surrender. After deputies fired gunshots into the air, both suspects used profanity; one of the two suspects yelled, “if it’s going to be a shoot out, a shoot out it will be.” Deputies then shot in the direction of the suspects, wounding both Hall and Travis. Hall was shot in the upper thigh. While waiting for an ambulance, deputies searched Hall and recovered seven rounds of .38 caliber ammunition in Hall’s front vest pockets. These bullets fit one of the guns stolen from Schad’s house — the gun that was identified as the murder weapon. The deputies’ search of Travis revealed that Travis had the keys to the stolen Ford in his possession. Also, numerous items stolen from Haskew’s and Schad’s houses were discovered in the Ford. The murder weapon was [also] discovered in the Ford.

Hall conceded at trial and at oral argument before [the Court of Criminal Appeals] that he participated in the burglary of Haskew’s house. His defense was that he did not know that Travis intended to kill Haskew.

B. DIRECT APPEAL

Hall pursued a direct appeal to the Alabama Court of Criminal Appeals. In his direct appeal, Hall raised 19 issues (and multiple sub-issues) which included a Bat-son claim arguing that the prosecutor’s race-neutral reasons for striking black members of the venire were not valid. (Direct Appeal Record, Vol. 49, Tab R-40, pp. 1-22). The Alabama Court of Criminal Appeals affirmed Hall’s conviction in an opinion issued on October 1, 1999. Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999). In its opinion, the court examined the prosecutor’s race-neutral reasons, i.e., that he struck black jurors because of their views on the death penalty, and found that “[t]here is no evidence that the reasons advanced by the prosecutor were a sham, nor is there evidence of disparate treatment between prospective black jurors and prospective white jurors.” Hall, 820 So.2d at 131. The Court of Criminal Appeals denied Hall’s application for rehearing on November 12, 1999. Id. at 113. The Supreme Court of Alabama thereafter affirmed the conviction on June 1, 2001, finding that the Court of Criminal Appeals thoroughly addressed and properly decided many of the issues Hall raised in his petition for certiorari. Hall v. State, 820 So.2d 152, 157 (Ala.2001). The Alabama Supreme Court also found that 16 issues in Hall’s petition for certiorari were not raised in the trial court or in the Court of Criminal Appeals, and applied a plain error standard of review to those 16 claims before finding that none of them had merit. Id. at 153. The United States Supreme Court denied Hall’s petition for a writ of certiorari on May 20, 2002, in Hall v. Alabama, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1025 (2002).

C. RULE 32 PETITION/COLLATERAL APPEAL

Hall next filed a petition for post-conviction relief pursuant to Alabama Rule of Criminal Procedure 32 (the “Rule 32 petition”) with the Circuit Court of Monroe County on April 1, 2003, and subsequently filed an amended Rule 32 petition on May 28, 2004. In his amended Rule 32 petition, Hall again raised a Batson claim, arguing specifically that “the prosecution’s elimination of qualified jurors on the basis of race denied Mr. Hall a fair trial.” (Collateral Appeal Record, Vol. 54, Tab R62, p. 67). After holding an evidentiary hearing on August 15, 2005, the Circuit Court denied Hall’s amended Rule 32 petition on November 4, 2005. In regards to Hall’s Bat-son claim, the Circuit Court found that “the claim that the prosecution’s alleged elimination of qualified venire members on the basis of race violated petitioner Hall’s right to a fair trial” was procedurally barred from review under Rule 32.2(a)(2) of the Alabama Rules of Criminal Procedure because they were raised or addressed at trial. Steven Wayne Hall, Jr. v. State of Alabama, No. CC-93-87.60, slip op. at pp. 9-10 (Monroe County Circuit Court, Nov. 4, 2005). The judge also ruled that Hall’s Batson claim was procedurally defaulted under Rule 32.2(a)(4) of the Alabama Rules of Criminal Procedure because it was “raised or addressed on [direct] appeal.” Id.

Hall appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals, which affirmed the decision of the Circuit Court on March 23, 2007. See Hall v. State, 979 So.2d 125 (Ala.Crim.App. 2007). The Court of Criminal Appeals agreed with the Circuit Court that Hall’s Batson claim was procedurally barred, and determined that it “need not address the propriety of the circuit court’s finding that the claims were precluded ...” Hall v. State, 979 So.2d at 177.

Following the decision of the Court of Criminal Appeals, Hall filed a petition for a writ of certiorari with the Alabama Supreme Court, which was denied without rationale on August 24, 2007. Ex parte Hall, 979 So.2d at 125, certiorari denied (Ala. Aug. 24, 2007).

D. § 2254 FEDERAL HABEAS PETITION

Hall then filed a 28 U.S.C. § 2254 federal habeas petition in this federal district court for the Southern District of Alabama on October 10, 2007. (Doc. 1). The respondent filed a response on February 4, 2008 (Doc. 13), to which Hall filed a reply brief on May 26, 2009 (Doc. 33). On September 22, 2011, respondent filed a motion for timely ruling (Doc. 34).

II. STATEMENT OF THE LAW

A. THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

Section 2254(a) of Title 28 of the United States Code provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” upon a showing that his custody is in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Pub. L 104-132, § 104, 110 Stat. 1214, 1218-1219. “Under AEDPA the role of the federal courts ... is strictly limited.” Jones v. Walker, 496 F.3d 1216, 1226 (11th Cir.2007). This court no longer has “plenary authority to grant habeas relief’ but rather, this court’s “authority to grant relief is now conditioned on giving deference to the states.” Id. Specifically, § 2254(d) provides in relevant part:

(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 facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The United States Supreme Court has stated that this court must first determine whether the AEDPA is satisfied, and only then may this court review the petitioner’s constitutional claims “without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 932, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see also Jones, 496 F.3d at 1228.

(1) § 2254(d)(1)

The United States Supreme Court (“U.S. Supreme Court”) explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Justice O’Connor maintained that “ § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” In other words, “[ujnder § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) was 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.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495 (O’Connor, concurring). First, “[ujnder the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Second, “[ujnder the ‘reasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495 (internal citations omitted); see also Ramdass v. Angelone, 530 U.S. 156, 165-166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (“A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.”)

In applying this test, the U.S. Supreme Court has instructed that, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the “clearly established Federal law,” namely, “the governing legal principle or principles set forth by the U.S. Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); (citing Williams, 529 U.S. at 412, 120 S.Ct. 1495). The law is “clearly established” if U.S. Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998) overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).

In the second step, the court must determine whether the State court adjudication is contrary to the clearly established U.S. Supreme Court case law, either because “ ‘the state court applies a rule that contradicts the governing law set forth in [the U.S. Supreme Court’s] cases’ or if ‘the state court confronts a set of facts that are materially indistinguishable from a decision of [the U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 {quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). The U.S. Supreme Court later clarified that “[a]voiding these pitfalls does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). “If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner’s claim.” Williams v. McNeil, slip op., 2010 WL 144986 at *5 (N.D.Fla. Jan. 7, 2010).

If, on the other hand, this court first concludes that the state court applied the correct Supreme Court precedent and, second, finds that the facts of the Supreme Court cases and the petitioner’s case are materially distinguishable, this court must go to the third step and determine whether the state court “unreasonably applied” the governing legal principles set forth in the Supreme Court’s cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable application inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. Whether a state court’s decision was an unreasonable application of legal principle “must be assessed in light of the record the court had before it.” Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam) (citations omitted); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).

An objectively unreasonable application of federal law occurs when the state court “identifies the correct legal rule from the Supreme Court case law but unreasonably applies that 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.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). It is important to note that “[t]he question under 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); see also Williams, 529 U.S. at 412, 120 S.Ct. 1495 (“an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.”).

(2) § 2254(d)(2)

Besides obtaining relief under § 2254(d)(1), a petitioner may also receive federal habeas relief from a claim adjudicated on the merits in state court where that adjudication “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.” 28 U.S.C. § 2254(d)(2); see also Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). In regards to this subsection, the Supreme Court has provided that “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.” Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

When performing a review under § 2254(d)(2), a federal court presumes the state court’s factual finding to be sound unless the petitioner rebuts the “presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Miller-El I, 537 U.S. at 340, 123 S.Ct. 1029 (explaining that a federal court can disagree with a state court’s factual finding, and when guided by the AEDPA, “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”); Jones, 496 F.3d at 1226-1227 (11th Cir.2007) (holding that § 2254(d)(2)’s “unreasonable determination” standard “must be met by clear and convincing evidence,” and concluding that the standard was satisfied where prisoner showed “clearly and convincingly” that the state court’s decision “contain[ed] an ‘unreasonable determination’ of fact.”).

B. PROCEDURAL DEFAULT

As stated above, only if this court finds that Hall satisfied the AEDPA and § 2254(d), does this court take the final step of conducting an independent review of the merits of petitioner’s claims. See Panetti, 127 S.Ct. at 2858-2859; Jones, 496 F.3d at 1228. Also of critical importance to the § 2254 analysis are notions of procedural default and exhaustion. “A state court’s rejection of a petitioner’s [federal] constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Borden v. Allen, 646 F.3d 785, 808 (11th Cir.2011) (citation omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir.2011) (“[u]nder the doctrine of procedural default, a federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that that is independent of the federal question and adequate to support the judgment”)(quotation marks and citation omitted). “[A] habeas petitioner may overcome a procedural default if he can show adequate cause and actual prejudice, or, alternatively, if the failure to consider the merits of his claim would result in a fundamental miscarriage of justice.” Borden, 646 F.3d at 808 n. 26; see also Conner, 645 F.3d at 1287 (to overcome procedural default, petitioner must “show cause for the failure to properly present the claim and actual prejudice, or that the failure to consider the claim would result in a fundamental miscarriage of justice.”).

Section 2254 also generally requires petitioners to exhaust all available state-law remedies. In that regard, “[a] petitioner must alert state courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights ... Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues.” Lamarca v. Secretary, Dep’t of Corrections, 568 F.3d 929, 936 (11th Cir.2009) (citations omitted). For exhaustion purposes, it is not sufficient “that a somewhat similar state-law claim was made.” Kelley v. Secretary, Dep’t of Corrections, 377 F.3d 1317, 1344-45 (11th Cir.2004). What is necessary is that “the petitioner must fairly present every issue raised in his federal petition to the state’s highest court, either on direct appeal or on collateral review.” Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir.2010) (citation and internal marks omitted).

Before a federal court considers a habeas petition presented by a state prisoner, the court must first determine whether the petitioner has properly presented the issues to the state courts. A state prisoner “must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). See also 28 U.S.C. § 2254(b)(1) (a prisoner in state custody shall not be granted a writ of habeas corpus unless the prisoner “has exhausted the remedies available in the courts of the State.”). The exhaustion doctrine requires that a petitioner “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845, 119 S.Ct. 1728. In Alabama, the established appellate review process includes an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to the Alabama Court of Criminal Appeals, and an application for discretionary review by the Alabama Supreme Court. See Ala. R.App. P. 4, 39-40.

A state prisoner’s failure to present his claims to the state courts in the proper manner results in a procedural default of those claims. O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728. The doctrine of procedural default, as it relates to petitions filed under 28 U.S.C. § 2254, arises from principles of comity and federalism. Francis v. Henderson, 425 U.S. 536, 541, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). A federal court “will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A violation of a state procedural rule is adequate to foreclose federal review if the rule is “firmly established and regularly followed.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). A state court’s decision is independent unless the resolution of the state law issue depends on a federal constitutional ruling. Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002).

Procedural default can arise in two ways. First, procedural default can occur when a petitioner raises his federal claims in state court, and “the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner’s federal claims are barred.” Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999). Second, procedural default can occur when a petitioner fails to raise his federal claims in state court, rendering the claims unexhausted, and the time to do so has lapsed. Id. See also O’Sullivan, 526 U.S. at 843-45, 119 S.Ct. 1728. Although unexhausted claims generally must be returned to the state court for consideration on the merits, if the federal court determines that the state procedural rules now preclude review of the claim on the merits and, thus, exhaustion would be futile, the doctrine of procedural default applies even though the state court never invoked the state procedural rule. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir.1998).

Once a federal claim is procedurally defaulted in state court, a state habeas petitioner “is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.” Bailey, 172 F.3d at 1302 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). “[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State’s procedural rule” or that the procedural default was the result of ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice, in this context, means a reasonable probability that the outcome would have been different. Jenkins v. Bullard, 210 Fed.Appx. 895, 898-901 (11th Cir.2006) (per curiam). A petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). In the absence of a showing of cause and prejudice, the court may yet consider a procedurally defaulted claim if 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). Absent one of these exceptions, however, procedurally defaulted claims cannot be raised in federal habeas corpus petitions. Kelley, 377 F.3d at 1343-45 (11th Cir.2004).

III. ISSUES RAISED IN THE PETITION FOR HABEAS CORPUS

A. REVIEW OF PETITIONER’S CLAIMS ON THE MERIT S CLAIM #2: HALL’S BATSON CLAIM BASED ON EVIDENCE AVAILABLE AT TRIAL AND DIRECT APPEAL

In his habeas corpus petition, Hall first raises a claim for relief based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Hall argues that the State exercised its peremptory strikes to remove blacks from the jury venire in a racially discriminatory manner, and advanced pretextual reasons which were not supported by the record. (Doc. 1, p. 10). Hall points out that the prosecutor used nine out of 14 peremptory strikes against black members of the venire. Id. at 12.

(1) SUMMARY OF STATE COURT DECISIONS AT TRIAL

At the close of voir dire, Hall filed a Batson motion, arguing that the prosecution had engaged in unlawful racial discrimination in the use of its peremptory strikes of black jurors. (Trial Transcript, Vol. 42, p. 7214). The trial court found that Hall made a prima facie showing pursuant to Ex Parte Branch, 526 So.2d 609 (Ala.1987), (id. at 7220), and accordingly, the prosecutor articulated his reasons for each of his peremptory strikes on the record. (Id. at 7221-37). Specifically, the prosecutor explained that he struck five black venire members because of their opposition to the death penalty, which is a race-neutral reason. (Id.) The prosecutor also cited race-neutral concerns regarding a sixth black venire member who was struck because he indicated that he did not want to serve due to his poor health. (Id. at 7236).

Hall challenged the prosecutor’s reasons with regard to black venire persons Minnie Lett and Mary Cunningham, both of whom the prosecution asserted it struck because they were opposed to the death penalty. (Id.) Defense counsel argued that Lett’s juror questionnaire clearly indicated that she was in favor of the death penalty, and argued further that in her voir dire testimony “she was not unequivocal in her ability to carry out her duties as a juror in this ease.” (Trial Transcript Vol. 42, p. 7239). The trial court nevertheless denied the motion, finding that the reasons advanced by the prosecutor were not pretextual and did not violate Batson. (Id. at 7241). The trial court offered no explanation for its decision. (Id.)

(2) SUMMARY OF STATE COURT DECISIONS ON DIRECT APPEAL

On direct appeal, the Alabama Court of Criminal Appeals considered and rejected each of six arguments posited by Hall, one for each black veniremember struck. Hall repeated his charge that the prosecutor’s proffered reason for striking Lett — that she had reservations about imposing the death penalty — was pretextual because Lett indicated on her juror questionnaire that she was in favor of the death penalty, thus “flatly contradicting]” the prosecutor’s proffered reason. (Hall’s Direct Appeal Brief, Vol. 49, Tab R-40, p. 9). Hall also pointed to the fact that Lett stated at voir dire that she could listen to all the evidence and base her decision on that evidence. (Id., citing Trial Transcript, Vol. 33, pp. 5414-5415).

The Court of Criminal Appeals reviewed Lett’s juror questionnaire and noted that it did indeed indicate that she marked “strongly agree” with the statement, “any person who kills another should get the death penalty.” Hall, 820 So.2d at 129. However, the court determined from the voir dire exchange between the prosecutor and Lett that the record supported the notion that Lett had mixed feelings about the death penalty, and therefore no Batson violation existed. (Id. at 130).

The Court of Criminal Appeals then addressed Hall’s Batson claim regarding the remaining four venirepersons, but applied a “plain error” standard of review because Hall did not object at trial to the prosecutor’s reasons for striking them. Hall, 820 So.2d at 129-130. Hall claimed that black venirepersons Rosa Shoemack, Jaqueline Mobley, David Williams, and Mary Cunningham each gave responses during voir dire that clearly reflected that they could and would impose the death penalty in some cases, while the prosecutor claimed to have struck them from the jury because they had strong reservations about the death penalty, or did not indicate a willingness to impose the death penalty. (Hall Direct Appeal Brief, Vol. 49, Tab R-40, p. 12-22).

After reviewing the voir dire transcript, the court noted that veniremembers Shoe-mack, Mobley, Williams, and Cunningham had clearly indicated their opposition to, or strong reservations regarding, the death penalty, and were struck for that reason. Hall, 820 So.2d at 130-131. For example, as to Shoemack, the Alabama Court of Criminal Appeals noted that when asked at voir dire by the prosecutor “... could you ever vote for the death penalty, you think?” Shoemack replied “I don’t think so.” (Id. at 130). As to Mobley, the court of appeals noted her statements at voir dire to the effect that “I have a very open mind, I have to think — But, I do oppose it [the death penalty], Your Honor.” (Id. at 131). The appeals court also noted that Mobley confirmed that her opposition to the death penalty was based upon religious conviction. (Id. at 131). As to Williams, the court of appeals noted that he appeared to confirm a preference stated in his questionnaire for imposing a sentence of life in prison without parole rather than imposing the death penalty. (Id. at 131). As to Cunningham, the Court of Criminal Appeals noted that when asked whether she would refuse to impose the death penalty “regardless” of the case, Cunningham answered “I just don’t agree with killing, I mean, the death penalty. Everybody should be punished some kind of way, but, I don’t go with taking another life.” (Id. at 130). And finally, as to Lewis, the court of appeals noted that Lewis told the court at voir dire that he had been sick for some time with hypertension and heart disease and would like to be excused from service, rendering the prosecutor’s strike permissible under Batson. (Id. at 131).

Hall also argued that the prosecutor questioned black venire members differently than he did white venire members, focusing to a greater degree on questions regarding the death penalty. (Hall Direct Appeal Brief, Vol. 49, Tab R-40, p. 4). Hall asserted that the prosecutor’s questions were “intended solely to elicit information which could later be used to validate the pretextual removal [of] blacks from the venire.” (Id.) Hall pointed to the voir dire of panels two and eleven, where he accused the prosecutor of questioning only the black venire members about their views on the death penalty. (Id.) Ultimately, however, the Alabama Court of Criminal Appeals found no evidence of disparate treatment between prospective black jurors and prospective white jurors. Hall, 820 So.2d at 132.

For all of these reasons, the Alabama Court of Criminal Appeals denied Hall’s argument on direct appeal and affirmed his conviction and sentence.

(3) FEDERAL REVIEW OF THE STATE COURT DECISIONS ON DIRECT APPEAL

“The evaluation of a prosecutor’s race-neutral explanations under Bat- son is a ‘pure issue of fact ... peculiarly within a trial judge’s province.’ ” McGahee v. Ala. Dept. of Corrections, 560 F.3d 1252, 1255 (11th Cir.2009) (quoting McNair v. Campbell, 416 F.3d 1291, 1310 (11th Cir.2005)). Hence, “a Batson claim at habeas is often analyzed under AEDPA § 2254(d)(2), and is only granted ‘if it was unreasonable to credit the prosecutor’s race-neutral explanations.’ ” Id. (quoting Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). However, “[wjhere the concern is that a state court failed to follow Batson’s three steps, the analysis should be under AEDPA § 2254(d)(1) ...” Id. at 1256. As stated above, under § 2254(d)(1), this court may only issue a writ of habeas corpus “if one of the following two conditions is satisfied — the state court adjudication resulted in a decision that (1) ‘was 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.’ ” Williams, 529 U.S. at 412-413, 120 S.Ct. 1495 (O’Connor, J., concurring).

(a) ANALYSIS UNDER § 2254(d)(1)

Step 1: Clearly Established Supreme Court Case Law

In the test under § 2254(d)(1), the Supreme Court has instructed that the first step on any issue raised in a federal habeas petition, upon which there has been an adjudication on the merits in a formal state court proceeding, is that the federal court should first ascertain “the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered] its decision.” Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166. As stated above, the law is “clearly established” if Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley, 138 F.3d at 923.

The governing legal principles at the time of the direct appeal were Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Batson, the Supreme Court held that it was unconstitutional for the prosecution to challenge potential jurors based solely upon their race or on the assumption that because of their race, they should be unable to consider the case impartially. Batson, 476 U.S. at 89, 106 S.Ct. 1712. In Powers, the Supreme Court held that “a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race.” Powers, at 415, 111 S.Ct. 1364. Furthermore, the Powers Court held that “[t]o bar petitioner’s claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service,” and “... to say that the race of the defendant may be relevant to discerning bias in some cases does not mean that it will be a factor in others ...” Id. at 416, 111 S.Ct. 1364. Therefore, a defendant may raise the necessary inference of “purposeful discrimination in selection of the petit jury” based “solely on evidence concerning the prosecutor’s exercise of peremptory challenges” during the trial. Bat-son, at 96, 106 S.Ct. 1712.

Once the defendant makes a prima facie showing, the burden shifts to the State to explain, in clear and reasonably specific terms, the legitimate race-neutral reasons for striking the jurors in question. Id. at 97, 98 n. 20, 106 S.Ct. 1712.

Finally, the court must determine whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. 1712. “The reasons stated by the prosecutor provide the only reasons on which the prosecutor’s credibility is to be judged.” Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.2009) (citing United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006)). “The credibility of the prosecution’s explanation is to be evaluated considering the ‘totality of the relevant facts,’ including whether members of a race were disproportionately excluded.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). “Questions arise regarding the credibility of the explanation and the possibility that the explanation is pretextual (1) when the prosecutor’s explanation for a strike is equally applicable to jurors of a different race who have not been stricken; (2) upon a comparative analysis of the jurors struck and those who remained, including the attributes of the white and black venire members; (3) or when the prosecution fails to engage in a meaningful voir dire examination on a subject that it alleges it is concerned.” Id. (internal citations omitted). As stated above, “[t]he evaluation of a prosecutor’s race-neutral explanations under Batson is a ‘pure issue of fact ... peculiarly within a trial judge’s province.’ ” McGahee, 560 F.3d at 1255 (quoting McNair, 416 F.3d at 1310).

Step 2: Whether the State Court’s Adjudication Is Contrary to Clearly Established Supreme Court Case Law

Having determined that Batson and Powers were the governing legal principles at the time of trial and direct appeal, this court must next determine whether the state court adjudication was contrary to that clearly established Supreme Court case law, either because “ ‘the state court applie[d] a rule that contradicts the governing law set forth in [the Supreme Court’s] cases’ or ‘the state court confronted] a set of facts that [were] materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrive[d] at a result different from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405-406, 120 S.Ct. 1495). The trial court found that Hall established a prima facie case of discriminatory jury selection. See Hall, 820 So.2d at 128; and Trial Transcript Vol. 42, p. 7220. The prosecutor was then asked by the trial court to provide his race-neutral reasons for striking the black jurors. (Trial Transcript Vol. 42, p. 7220). When the prosecutor provided his reasons, the trial court allowed defense counsel to rebut those reasons, which he did with respect to venirepersons Minnie Lett and Mary Cunningham. (Id. at 7238). The trial court then found that “[the] Prosecution’s reasons for striking jurors were not a pretext and that the dictates of Ex parte Branch and Batson have not been violated in this case ...” (Id. at 7241). On direct appeal, the appellate court analyzed the reasons given by the prosecutor under both Batson and state law as it stood at that time and concluded that “[t]here is no evidence that the reasons advanced by the prosecutor were a sham, nor is there evidence of disparate treatment between prospective black jurors and prospective white jurors.” Hall, 820 So.2d at 131.

Therefore, this court finds that the state courts’ adjudications at trial and on direct appeal were not contrary to clearly established Supreme Court case law since the state courts applied Batson and there were no Supreme Court cases at that time which were factually materially indistinguishable.

Step 3: Whether the State Court “Unreasonably Applied” Batson

Since the state court applied the correct Supreme Court precedent, and the pertinent facts of Supreme Court cases and the petitioner’s case are not materially distinguishable, this court must go to the third step and determine whether the state court “unreasonably applied” the governing legal principles set forth in the Supreme Court’s cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable application inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. As stated above, whether a state court’s decision was an unreasonable application of legal principle “must be assessed in light of the record the court had before it.” Holland, 542 U.S. at 652, 124 S.Ct. 2736.

This court finds that the state appellate court’s decision was an objectively unreasonable application of clear federal law because the appellate court did not extend the principles of the third step of Batson to the facts and arguments at hand. Here, there is no question that the trial court found that Hall had shown a prima facie case of discriminatory motive and the prosecutor had provided race-neutral reasons for striking the black venire members. The Alabama Court of Criminal Appeals appeared to hedge somewhat on this question, noting that “... the trial court could have lawfully found that no prima facie case of discrimination had been proven if Hall made no further argument on his Batson objection.” Hall, 820 So.2d at 128. Nevertheless, Hall did make further argument on his Batson objection, and the Court of Criminal Appeals did evaluate the prosecutor’s reasons to determine if there was a Batson violation. Id. That adjudication by the Court of Criminal Appeals failed to follow clearly established law when it did not consider “all relevant circumstances” in its analysis of the trial court’s ruling. Batson is quite clear that “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” Batson, 476 U.S. at 96,106 S.Ct. 1712. (emphasis added).

The failure to consider all relevant circumstances is as follows: in its adjudication, the Alabama Court of Criminal Appeals analyzed each of the State’s explanations for striking black potential jurors and found that each reason was a legally acceptable race-neutral reason for exercising a peremptory strike. The court ultimately found that “[t]here [was] no evidence that the reasons advanced by the prosecutor were a sham, nor [was] there evidence of disparate treatment between prospective black jurors and prospective white jurors.” Hall, 820 So.2d at 131.

However, neither the trial judge nor the Court of Criminal Appeals addressed a crucial argument raised by Hall, namely, that the prosecutor’s stated reasons for striking Minnie Lett were at odds with the record evidence. The prosecutor stated that he struck Lett because “[s]he, in questioning, direct questioning, had strong reservations about the death penalty ...” and because Lett’s questionnaire “indicated that [she] had a strong resistance to the death penalty.” (Trial Transcript Vol. 42, pp. 7232-7233). But defense counsel argued to the trial court that “... I would simply ask the Court to look at the questionnaires,” pointing out that in Lett’s juror questionnaire, “[she] stated that she strongly agreed that any person who intentionally kills another should get the death penalty; since they took a life.” (Id. at 7238-7239). Hall also pointed out that Lett unambiguously stated in voir dire that she could carry out her duties as a juror in the case. (Id.)

In fact, in her juror questionnaire, Lett summarized her feelings on the death penalty as “it depends, maybe it’s the right thing.” (Trial Transcript Vol. 62, pp. 261-262). She also stated that the death penalty should be imposed in cases which involved “taking another life on purpose,” and indicated that she “strongly agree[d]” with the statement “[a]ny person who intentionally kills another should get the death penalty,” adding, in her own words, “they took a life, willing to give up their own [sic].” Id. at 262). Lett also stated that she had never given the death penalty much thought until being included in the jury pool. Id. at 265. At voir dire, Lett stated the following:

Q: I see that you said you have mixed feelings about the death penalty as well, is that right?

Lett: Yes, sir.

Q: What is that based on, please, ma’am?

Lett: Well, if you convince me on the evidence—

Q: Would you base your decision on the evidence?

Lett: Yes, sir.

Q: Are there cases in which you could vote for the death penalty under certain kinds of facts, certain kinds of cases?

Lett: Well, I think the death penalty, to me, I couldn’t really say, but, if it be a threat to the public—

Q: You’re saying you could listen to the evidence and base your decision on that issue on the evidence and on each case as it comes to you?

Lett: Yes, sir.

(Trial Transcript Vol. 33, pp. 5414-15) (Prosecutor Chapman, questioning).

In sum, one of the state’s proffered reasons for striking a black potential juror is unsupported by the record, a fact which should have been included in the trial court’s analysis of the third step of Batson, where all relevant circumstances must be examined to determine whether the State struck any jurors based on their race. Instead, the trial judge simply ruled that the prosecutor’s reasons for striking jurors were not a pretext and did not violate Batson, without explanation or further investigation, and with two opposing versions before him of Lett’s voir dire testimony and questionnaire content. (Trial Transcript Vol. 42, p. 7241).

The state courts’ failure to address the contradiction between the voir dire record and the State’s proffered reasons for striking a black venire member is an unreasonable application of Batson to the facts of this case. This finding is supported by the Supreme Court’s decision in Miller-El v. Dretke (“Miller-El ”), 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). In Miller-El, the Supreme Court ultimately held that “[t]he state court’s conclusion that the prosecutors’ strikes of [two black jurors] were not racially determined ... was unreasonable as well as erroneous.” 545 U.S. at 266, 125 S.Ct. 2317. At trial, the prosecution struck Billy Jean Fields, a black male who supported the death penalty. Id. at 242, 125 S.Ct. 2317. The prosecution initially proffered the reason for striking Mr. Fields was “he said that he could only give death if he thought a person could not be rehabilitated ...” Id. at 243, 125 S.Ct. 2317. The Court noted that the other evidence “unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation.” Id. at 244, 125 S.Ct. 2317. The Court concluded that the prosecutor had either misunderstood or had an ulterior motive for keeping Mr. Fields off the jury. Regardless, the Court ruled that the appeals court’s judgment on the Fields strike was “unsupportable” because it failed to note that Fields had affirmed that he could give the death penalty if the law and evidence called for it. Id. at 246, 125 S.Ct. 2317.

Although Miller-El was a § 2254(d)(2) case, the Supreme Court’s analysis is very persuasive to this court in analyzing § 2254(d)(1), since the Alabama Court of Criminal Appeals made no mention of the contradiction between Lett’s voir dire testimony and questionnaire on the one hand, and the prosecutor’s proffered reasons for striking her from the jury, on the other hand.

Therefore, because the Alabama Court of Criminal Appeals omitted the above highly relevant fact from its Batson analysis, the court did not undertake a review of “all relevant circumstances” as required by the third step of Batson. Therefore, this court holds that the decision was an unreasonable application of clearly established federal law as determined by the Supreme Court.

(b) ANALYSIS UNDER § 2254(d)(2)

Even if this court did not find an unreasonable application of Batson under § 2254(d)(1), it would still find an unreasonable determination of the facts under § 2254(d)(2), for the following reasons.

Under AEDPA, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the state court proceeding” before it can grant relief pursuant to § 2254(d)(2). Thus, this court can only grant Hall’s petition if it finds that it was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by “clear and convincing evidence.” § 2254(e)(1). See also Miller-El, 545 U.S. at 240, 125 S.Ct. 2317. This standard “is demanding but not insatiable.” Id.

As stated above and repeated here for illustrative purposes, Hall objected to the prosecutor’s explanation for striking venireperson Minnie Lett as pretextual. (Trial Transcript Vol. 42, p. 7238). In her juror questionnaire, Lett summarized her feelings on the death penalty as “it depends, maybe it’s the right thing.” (Trial Transcript Vol. 62, pp. 261-262). She also stated that the death penalty should be imposed in cases which involved “taking another life on purpose,” and indicated that she “strongly agree[d]” with the statement “Any person who intentionally kills another should get the death penalty,” adding, in her own words, “they took a life, willing to give up their own [sic].” (Id. at 262). Lett also stated that she had never given the death penalty much thought until being included in the jury pool. (Id. at 265). At voir dire, Lett stated the following:

Q: I see that you said you have mixed feelings about the death penalty as well, is that right?

Lett: Yes, sir.

Q: What is that based on, please, ma’am?

Lett: Well, if you convince me on the evidence—

Q: Would you base your decision on the evidence?

Lett: Yes, sir.

Q: Are there cases in which you could vote for the death penalty under certain kinds of facts, certain kinds of cases?

Lett: Well, I think the death penalty, to me, I couldn’t really say, but, if it be a threat to the public—

Q: You’re saying you could listen to the evidence and base your decision on that issue on the evidence and on each case as it comes to you?

Lett: Yes, sir.

(Trial Transcript Vol. 33, pp. 5414-15) (Prosecutor, Chapman, questioning).

The prosecutor then peremptorily struck Lett from the venire, and subsequently offered a race-neutral reason for doing so when confronted with Hall’s Batson challenge:

Mrs. Lett was in one of the first panels that we brought in here. She, in questioning, direct questioning, had strong reservations about the death penalty. Said she’d never given it much thought. She said that she would have great reservation in doing that. She said that her choices would be life without parole, generally. And we struck her for that reason. We made notes of all these questionnaires, my associates did, during the questioning, by the way, Your Honor. And our notes indicated that Mrs. Lett had a strong resistance to the death penalty. We struck her for that reason.

(Trial Transcript Vol. 42, pp. 7232-33). Thus, the prosecutor simply mischaracterized Lett’s testimony and the content of her juror questionnaire. He represented that Lett had strong reservations about the death penalty, and that the prosecution team had notes of her questionnaire which supported that assertion, despite the fact that Lett’s questionnaire actually showed that she strongly agreed with the statement that “Any person who intentionally kills another should get the death penalty,” and despite the fact that Lett wrote on her questionnaire that “they took a life, willing to give up their own [sic].” See Trial Transcript Vol. 62, pp. 261-262. The prosecutor also stated that Lett’s voir dire testimony revealed “strong reservations about the death penalty,” despite her unambiguous affirmation that she could listen to the evidence and base [her] decision on the evidence presented at trial; and despite the total absence of any statement that could be construed as indicative of strong reservations about capital punishment. See Trial Transcript Vol. 33, pp. 5414-15.

By contrast, the prosecutor did not strike several white members of the venire whose voir dire testimony revealed either close similarities to Lett’s statements about the death penalty, or expressed strong reservations about the death penalty. A side-by-side comparison of Lett and these white venirepersons, both of whom ultimately served on the jury that convicted Hall, tends to undercut the prosecutor’s race-neutral explanation, as discussed below. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Bat-son’s third step.” Miller-El, at 241, 125 S.Ct. 2317.

Flora Hutto, a 51 year-old white woman who ultimately was selected to serve as a juror, stated in her questionnaire that she “hadn’t really thought about” the death penalty, and stated that she had no opinion about it or about the purposes that capital punishment serves, nor the types of cases or offenses where the death penalty should be imposed. (Trial Transcript, Vol. 61, pp. 69-72). Hutto did, however, indicate that she “agre[ed] somewhat” with the statement “Any person who intentionally kills another should get the death penalty.” Id. at 70. Under questioning at voir dire, Hutto stated the following:

Q: Would you describe yourself as being in — in favor of the death penalty for the intentional killing of a person?

Hutto: I’ve never really had to say what I’d really do, but, I feel like it’s according to the crime ...

Q: If the State proved that it was a murder and burglary—

Hutto: Yes.

Q: — and you were sure of that, you were sure of that to the extent that you voted to convict him and the other eleven jurors were also equally convinced, strong evidence, would, in that situation, would you vote for the death penalty for Mr. Hall?

Hutto: No.

Q: You would not?

Hutto: No.

Q: Okay. What — what further evidence would you be looking for?

PROSECUTOR: Your Honor, I’m going to object to that question in that form

...

Q: ... Do you — think do you feel that life without parole is an appropriate punishment for someone who intentionally killed another person?

Hutto: Intentionally killed?

Q: Another person?

Hutto: It’s possible.

Q: Ma’am?

Hutto: It’s possible.

Q: It’s possible?

Hutto: Life without parole would be more appropriate than the death penalty.

(Trial Transcript Vol. 34, p. 5681-93) (Questioning by defense counsel).

As noted above, Hutto stated in her questionnaire that she “hadn’t really thought about” her position on the death penalty, like Minnie Lett had done. (Trial Transcript, Vol. 61, p. 69). Yet this was one of the prosecutor’s race-neutral reasons for peremptorily striking Lett from the venire, while Hutto went on to serve on the jury, despite making the same statement. See Trial Transcript Vol. 42, p. 7232. Furthermore, Hutto expressed greater reservations and doubts about the death penalty in her voir dire testimony than Lett did, telling the prosecutor that she believed a sentence of life in prison without parole was possibly a more appropriate- punishment for capital murder than the death penalty. See Trial Transcript Vol. 34, p. 5693. The prosecutor did not deem such reservations to be an impediment to Hutto’s ability to serve on the jury, yet apparently believed that Lett’s statements merited a peremptory strike, despite the fact that they were far more supportive of the death penalty.

Another white venireperson, Ann Chandler, a 45 year-old woman who also went on to serve as a juror, stated in her juror questionnaire that she had “mixed feelings” about the death penalty, and “disagree[d] somewhat” with the statement “Any person who intentionally kills another should get the death penalty.” (Trial Transcript Vol. 61, pp. 121-122). However, Chandler’s reservations about capital punishment were tempered by other statements contained in her questionnaire, including her opinion that “someone who intentionally plans a murder should not have the privilege of living.” (Id. at 124). At voir dire, Ann Chandler stated the following:

Q: ... now you answered in your questionnaire that you have mixed feelings about the death penalty and it depends on the magnitude of the crime, is that right? Is that still your opinion? ...

A.C.: Yes, sir ...

Q: ... Just because this Defendant or a defendant might have been found guilty of capital murder, murder during the course of a burglary, murder during the course of a robbery, or whatever it might be, would you automatically, in every case, vote for the death penalty?

A.C. Not necessarily, not unless you heard everything—

Q: Well, when I say — when you heard everything, could you listen and consider the Defendant’s background and his family history and his age and his mental capabilities and all that before you made that decision about whether or not the death penalty or life without parole came into being?

A.C: Make my decision before I heard all that?

Q: Yes.

A.C.: No, I wouldn’t.

Q: You would listen to that first?

AC: Uh-huh ...

Q: ... if you found a person guilty of capital murder would you automatically vote for the death penalty?

A.C: Not unless you — not unless I had, you know, all the circumstances around it.

(Trial Transcript Vol. 33, pp. 5530-35) (Prosecutor, Chapman, questioning).

The voir dire testimony of Minnie Lett and Ann Chandler is similar in that they both admitted to the prosecutor that they had mixed feelings about the death penalty, and both stated that they would listen to the evidence in reaching a decision on what penalty to vote for. Chandler and Lett each wrote similar statements on their questionnaire that were supportive of capital punishment (Chandler’s statement that “someone who intentionally plans a murder should not have the privilege of living” and Lett’s statement that “they took a life, willing to give up their own [sic].”). That Chandler, a white woman, would be selected to serve on the jury while Lett, a black woman, would be peremptorily struck by the prosecutor after they both expressed substantially similar views on the death penalty makes the prosecutor’s race neutral reason unlikely.

The Alabama Court of Criminal Appeals concluded that there was no evidence of disparate treatment between prospective black jurors and prospective white jurors, and noted that the prosecutor also listed five white venirepersons who were struck due to their views on the death penalty, citing Travis v. State, 776 So.2d 819, 839 (Ala.Crim.App.1997), for the notion that “[t]he fact that the prosecutor