Hall v. Thomas (611 F.3d 1259, 2010)

HULL, Circuit Judge:

Alabama prisoner Darryl Pierrie Hall appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After review and oral argument, we affirm.

I. BACKGROUND

In Alabama state court, Hall was convicted of three counts of first-degree robbery and four counts of second-degree kidnaping. He received concurrent sentences of life imprisonment on each robbery conviction and twenty years’ imprisonment on each kidnaping conviction. Hall’s § 2254 petition claims that his confession was not knowing and voluntary and his trial counsel was ineffective.

A. Hall’s Arrest and Indictment

The state charges against Hall stem from his participation with Alonzo Leak in a robbery and kidnaping on October 15, 1999. Leak and Hall, both juveniles, kidnaped and robbed four adults (three women and one man) at the Little People’s Workshop, a day care center in Montgomery, Alabama. Leak raped one of the women and tried to rape another. At the time of the crimes, Leak was 17 and Hall was three weeks shy of his 16th birthday.

The district court summarized Leak’s involvement as follows:

In the early evening hours of October 15, 1999, Leak entered [the] day care center ... and pulled a gun on its owner. He then corralled the owner and the other adults in the building, a parent and her male friend, and herded them into a bathroom. He took them out of the bathroom in stages and had them bind each other, but placed them in various rooms in the small center. He periodically left them unattended and would return to ask the owner for information related to items in the building. After the victims were bound, another parent came into the center to pay her day care fees. Leak threatened her with a gun, and she complied with his request to bind the remaining unbound victim, and then, he proceeded to rape her. He attempted to rape the other parent as well, physically assaulting her with his hands and gun, and using others to disrobe her. He never followed through on the rape because the victim lied and said she had a sexually transmitted disease .... Leak eventually left, and the victims called for help.

Hall v. Thomas, 623 F.Supp.2d 1302, 1305-06 (M.D.Ala.2009) (footnote omitted). As to Hall’s involvement, the district court pointed out that no victim actually saw Hall: “The victims testified that throughout the encounter there appeared to be other accomplices in the building or that Leak spoke of other accomplices, but no one witnessed another participant.” Id. at 1306.

The day after the crimes, police identified Leak as a perpetrator, arrested and took him to police headquarters, and questioned him, at which time Leak immediately implicated Hall. Id. Hall lived near the Little People’s Workshop and used to attend it. Id. Leak told police that “Hall told him that committing the crimes would position Leak to join a gang, and that Hall was outside the center during the attack providing advice to him on how to carry out the crimes.” Id. at 1306.

On October 17, 1999, two days after the crimes and one day after Leak’s arrest, police officers, including Officer M.L. Major, came to Hall’s house. Id. Hall’s parents were home and invited Major into the house. Id. Officer Major arrested Hall and brought him to the police station. Pri- or to any questioning, Officers Major and W.T. Grant read Hall both his Miranda rights and the state-required warning for juveniles subject to interrogation. Id. Hall signed forms waiving those rights. Id. Hall confessed to the robbery and kidnaping crimes. Id. His confession was recorded on audiotape.

An Alabama grand jury indicted Hall on three counts of first-degree robbery and four counts of second-degree kidnaping. Hall pled not guilty.

B. Officer Major’s Testimony in Suppression Hearing

On March 9, 2000, Hall filed a motion to suppress his audiotaped confession, arguing it was involuntary, coerced, and made without a knowing and intelligent waiver of his right to counsel. Hall alleged that his parents were not permitted to be present and that the officers obtained his confession through “[psychological ploys, threats and promises, fatigue and physical violence” in violation of the Fifth and Fourteenth Amendments.

The state trial court held a suppression hearing. Six witnesses testified, including Officer Major, Hall’s father, and Hall.

Officer Major testified about his investigation and about Leak’s and Hall’s statements. After Leak implicated Hall, Officer Major went to Hall’s house and arrested him. Officer Major advised Hall of the crimes he was being arrested for but did not question Hall at his house or read his Miranda rights then. Hall’s mother and father were present at Hall’s house and observed Hall’s arrest.

At the police station, Hall was taken to Officer Major’s office to be read his Miranda rights and questioned. Hall’s left arm was handcuffed to the desk, which Officer Major testified was standard procedure. Hall’s right hand was free.

Before any questioning, Officer Major read Hall both his state juvenile rights and his adult Miranda rights forms. Officer Major testified that he also gave Hall an opportunity to read the forms on his own. Hall read and signed both forms, confirming he understood his rights and agreed to answer questions. The content of the state juvenile rights form made it clear Hall had a right to remain silent, a right to counsel, and a right to communicate with his parent before questioning as follows:

Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in court, that you can talk to a lawyer first, and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. If you cannot afford to hire a lawyer and want to have one present during interrogation, the court will appoint one before we question you. If you want to answer questions now before you — if you want to answer now, you can do so, but stop answering at any time. You have the right to communicate with your parent or guardian before questioning and, if necessary, reasonable means will be provided for you to do so.

(Emphasis added). Officer Major signed the form to indicate that he had read this paragraph to Hall. The form also contained this paragraph that Hall read aloud to Officer Major, and which Officer Major then read back to him, stating Hall was willingly answering questions and knew what he was doing:

I fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.

Hall also signed below this paragraph indicating he had read it. The state juvenile rights form was dated October 17, 1999 and indicated that Officer Major read the form to Hall at 5:42 p.m.

Out of an abundance of caution, Officer Major then also read aloud, and Hall also signed, the adult Miranda rights form at 5:44 p.m. The only difference between the state juvenile rights form and the adult Miranda rights form was that the adult form did not contain this sentence: “You have the right to communicate with your parent or guardian before questioning. If necessary, reasonable means will be provided for you to do so.” Otherwise, the forms were the same.

During trial, Officer Major testified that after Hall signed the forms waiving his state juvenile rights and his Miranda rights at 5:42 p.m. and 5:44 p.m., respectively, and before taking Hall’s taped statement at 7:06 p.m., Officer Major and Hall “sat there and generally talked,” and Officer Major then “jotted a few things down” and went and talked to his supervisor. Paperwork was also completed in the intervening time. When the audiotaping began at 7:06 p.m., Officer Major again read both the state juvenile rights and adult Miranda rights. On the audiotape, Hall again said that he understood both his state juvenile rights and his adult Miranda rights. Officer Major testified that Hall “said yes, sir to both his juvenile rights, because I read both of them on tape to him, and he said yes, sir to his adult rights as well. They were both read to him.” At the end of the confession, Hall again confirmed on audiotape that he had twice been advised of his state juvenile rights and adult Miranda rights by Officer Major, and that he understood them. Hall also stated that no threats had been made to him. The audiotape of the statement began at 7:06 p.m. and ended at 7:26 p.m.

Officer Major testified that Hall’s father wanted to come to the police station and was at the police station but did not ask to be in the room during the questioning. According to Officer Major, Hall himself never asked for his father to be in the room with him. Officer Major did not ask Hall’s father if he wanted to come in. During the suppression hearing, Hall’s attorney asked Officer Major whether, at the time of Hall’s arrest at his home, Hall’s father said he wanted to be present for the questioning. Officer Major responded the father said he wanted to be present but the fact remains that the son, after being read his rights, never asked for his father or an attorney:

I don’t remember ... [the father’s] exact words. I know he said he wanted to be present; therefore, I told him how to get to police headquarters. He came down. The fact remains, when his son was read his Miranda rights, he did not ask for his father. He did not ask for his mother. He did not ask for an attorney. He didn’t ask for anybody. All he said was, yes, sir, I understand. Do you want to answer questions now? Yes, sir. That’s all that happened.

Officer Major later testified that he went outside and walked by Hall’s father sitting on a bench, and Officer Major did not recall Hall’s father saying anything to him. Neither Officer Major nor anyone else made any promises or threats to Hall. They did not coerce or trick Hall into making a statement.

In summary, Officer Major read Hall his state juvenile rights at 5:42 p.m. and adult Miranda rights at 5:44 p.m. Hall then read them himself. The officers then questioned Hall for a little over an hour, during which time Hall confessed. The officers then audiotaped Hall’s confession from 7:06 p.m. to 7:26 p.m., which included Officer Major’s second reading of Hall’s state juvenile rights and adult Miranda rights at the beginning of the audiotape and an additional confirmation by Hall at the end of the audiotape that he twice had been read both his state juvenile rights and adult Miranda rights. This means within a space of one hour and 15 minutes, Officer Major told Hall out loud four times that he had a right to remain silent and a right to counsel and twice that he had a right to have his parent present before questioning. Hall read his rights too and twice said he understood them. According to Officer Major, Hall waived his rights before confessing and did not request his father’s presence during questioning.

C. Father’s Testimony in Suppression Hearing

Curtis Hall, Hall’s father, also testified and his account differs in some respects from Officer Major’s. When Officers Major and Grant came to his house and arrested Hall, Curtis Hall asked Officer Major, “since you are the one doing all the talking, shouldn’t me as a parent or an attorney be present when y’all get ready to question Darryl?” Officer Major replied, “yes, you can.” The officers took Hall to the police station in a patrol car.

Curtis Hall went on his own to the police station. He waited in a hallway for ten to fifteen minutes. Officers Grant and Major walked past him. According to Curtis Hall, Officer Major said, “We will call you when we get started.” Curtis Hall stayed another fifteen to twenty minutes. He finally went downstairs, and Officer Major showed him to a bench down there. Curtis Hall stayed on that bench “anywhere from forty-five minutes to an hour, maybe a little longer than that.”

At one point, Officer Major came out of the interview room complaining of a headache, and Curtis Hall asked whether they had started questioning Hall. According to Curtis Hall, Officer Major replied, “Yes. He is lying but we will get it out of him,” and then Officer Major “turned around and went right back quick.” Curtis Hall testified, “[s]till [the officers] never come and asked me, tell me they had started the interrogation. I am sitting there waiting to go in there.” Curtis Hall never entered the interview room. Officer Major did tell Curtis Hall that Hall was read his rights and understood them. Curtis Hall never saw his son at the station until Hall came out of the interview room.

D. Hall’s Testimony in Suppression Hearing

Defendant Hall also testified about the questioning. After being arrested and put into the police car, Defendant Hall heard his father ask if he could be present when Hall was being questioned. Officer Major told Hall’s father he could. At the police station, before the officers began questioning him, Hall asked about his father:

I said, where is my daddy? I thought my daddy was supposed to be here when y’all are questioning me. They said, don’t worry, he is upstairs.

Hall testified that the officers handcuffed him to the desk and threatened him during the questioning:

First they read all that what Alonzo said. Then they said, is this true? I said, no, sir. Then Grant said, why are you lying? I said, I ain’t lying, sir, I promise you. Y’all got the wrong one. The other man said, stop lying, we know you did it .... I said, I don’t know nothing about it, I want to go home .... He said, I am tired of you lying to me, son. He pointed to Mr. Grant. Mr. Grant came around. He kicked the chair and turned it around and the thing clamped real hard and squeezed my arm. I said, I don’t know what you are talking about, sir. Then the other man said, we know you did it. I said, no, I didn’t. He kicked it again. Then it hurt more. Everything on my body was shaking. He said, I am tired of you children lying. I said, I don’t know what you are talking about. He said, why are you lying? He hit the desk. Grant did just like that. I jumped. He kicked it again and turned it over.

Defendant Hall does not dispute that Officer Major twice read him both his state juvenile rights and adult Miranda rights. Hall also admits he read and signed the state juvenile rights form and the adult Miranda rights form but testified he did not understand them. Hall signed the statement confessing his involvement because he was scared of the officers and tried to tell them what they wanted to hear to “keep them from attacking me.” Hall testified he knew what to say in his confession because the officers read Leak’s statement to him four or five times.

E. State Court’s Denial of Motion to Suppress

After the witnesses testified, Hall’s counsel argued to the state trial court that Hall had a right to have his father present during the questioning at the police station. The state trial court inquired whether defense counsel had “any cases that suggest that a father has the right to exercise the right to be there as a parent.” Defense counsel argued that Hall’s question “where is my daddy,” together with Hall’s father’s expressed desire to be present, were sufficient to invoke Hall’s right to have his father present during the questioning. Hall’s counsel argued that “in the interest of justice, maybe ... if a parent wishes to see a young kid of fifteen years of age, if the parents want to see him, if he is there for questioning, I think it would be the same thing if he asked, which he did, where is my father.”

Ultimately, the state trial court determined that it was the accused’s right to assert, not the father’s, and the officers had testified Hall never asked for his father. The state trial court thus denied Hall’s motion to suppress.

F. First and Second Trials

During the first trial, Hall put on an alibi defense, to wit: that at the time of the crimes, he was at home on the phone with several friends. As to his confession, Hall testified that he told the police officers what they wanted to hear because he was scared.

The jury was unable to reach a verdict on the robbery and kidnaping charges. After the first trial, Hall’s counsel withdrew for health reasons and was replaced by counsel Valerie Smedley.

At the second trial, Hall renewed his same motion to suppress which the state trial court again denied. Hall again presented his alibi defense, to wit: that from approximately 3:00 p.m. until after 6:00 p.m. on the day of the crimes, he was at home on the phone with several friends.

For the first time in rebuttal, the State called Terry Spidle, a records custodian for BellSouth, Hall’s telephone provider. Spidle testified that for telephone subscriptions such as Hall’s, BellSouth kept records of outgoing local calls for eighteen months. Spidle testified that, according to BellSouth’s records, neither Hall nor his friends (whom Hall claimed were on the phone) placed any outgoing telephone calls from 3:00 p.m. to 6:00 p.m. on October 15, 1999. The jury again was unable to reach a verdict.

G. Third Trial

In the third trial, Valerie Smedley again represented Hall. Hall again renewed his same suppression motion, which the state trial court again denied. The State called these witnesses: (1) the four victims (Diane Jackson, Benson Rivers, Crystal Franklin, and Barbara Rush), (2) Sargeant Ronald Wilhoit, and (3) Officer Major.

The defense called: (1) Defendant Hall, (2) Joseph Grady, (3) Reginald Powell, (4) seven alibi witnesses (John Cartas, Ann Cartas, Dwayne Hall, Quinton Armstrong, Jarvis Blocton, LaQuanda Hall, and Bonnie Hall), and (5) Curtis Hall. In rebuttal, the State called: (1) Officers Grant and Major, and (2) Charles Chambers, a Bell-South records custodian. Because Hall claims his trial attorney was ineffective, we outline the trial evidence in detail.

1. Four Victims’ Testimony

The four victims recounted the crimes.

On October 15, 1999, Diane Jackson, owner of the Little People’s Workshop, was working at the day care center. That evening at about 5:00 p.m. or 5:15 p.m., Barbara Rush, a parent of a child attending the center, came in to fill out paperwork. Benson Rivers came with Rush, his girlfriend.

Around 5:30 p.m., while Jackson, Rush, and Rivers were there, the last children left. Shortly thereafter, a tall black male in his late teens arrived and rang the bell. Jackson did not know him, but she later identified him as Leak. Leak asked about a child. Jackson responded that the child did not attend the center, and Leak left. Jackson saw Leak walk across the parking lot.

A few minutes later, Leak rang the doorbell again. When Jackson opened the door, Leak drew a gun. Leak came inside and told Jackson, Rush, and Rivers to empty their pockets and give him then-money. Leak took Rivers’s money, jewelry, and wallet. Then Leak moved the three victims into a bathroom. While he was doing so, Leak told someone to stay back. Leak was not speaking to victims Jackson, Rush, or Rivers, but to another person whom Jackson did not see and thus could not identify. Leak told the victims that he had accomplices outside.

Leak ordered Jackson to tie up Rivers and then put Rivers in a closet by himself in one of the bedrooms in the daycare center. Leak then ordered Rush to tie Jackson up with telephone cords and forced Rush and Jackson to lie down in a different bedroom than where Rivers was located.

Around 6:00 p.m., Crystal Franklin, a parent of a daycare center attendee, arrived to pay her fees. Leak pointed a gun at Franklin and ordered her to lie down in the hallway. Leak then ordered Rush and Franklin into the same bedroom where Rivers was in the closet, and he ordered Franklin to tie Rush up with a telephone cord. Leak then told Franklin to go into the hallway and take her clothes off. Leak raped Franklin in the hallway. Jackson heard Leak raping Franklin. Rivers heard Leak say he was going to have sex with Franklin, and then he heard Franklin saying “no, no, no” and screaming.

After raping Franklin, Leak left, returned again, and then ordered Franklin, who had tied Rush up, to take off Rush’s shorts. Leak fondled Rush and put his gun inside her. Rivers heard Leak say he was going to have sex with Rush. Rush told Leak she had a disease, and he did not rape her. The other three victims all heard Rush tell Leak she had a disease. Leak then took Franklin’s money and four rings that she was wearing.

Leak left the now four victims alone several times and returned periodically. Rivers testified that Leak went back and forth in the back of the daycare center, returning periodically to check on the victims, and told them that he had “other people outside.” Jackson testified that Leak returned periodically and asked her questions about the daycare center, such as “if there was a key to the Coke machine or what was in these cabinets,” or “what was in the lock box” on her desk. Rush also testified Leak “seemed confused[,] ... as if he didn’t know what he was doing. He would go back — he would tell us something and he would go back and tell us something again and come back and tell us something different.” According to Rush, Leak “seemed just as scared as we were.” During this time, Leak also asked Franklin for her keys. Shortly after he took Franklin’s keys, Leak threw them back to her.

The victims testified that they thought another person was present during the robbery. Leak went into the kitchen at one point, and the victims heard cabinets opening and shutting in the kitchen. Jackson testified that the cabinets were being opened and shut too quickly for one person to be opening and closing them alone. To Franklin also, “[i]t sounded like it was more than one person” when she heard the cabinets slamming. Rivers also testified that he heard “noises like there was more than one person in there.” Rush testified that she believed another person could have been present because Leak would appear before them very shortly after she heard noises at the opposite end of the daycare center, and because Rush also heard the cabinets slamming quickly.

During the robbery, Leak also told the victims he had people outside. At one point, Rush heard Leak “yell[ ] a name like up front,” as if he were asking a question, but Rush did not remember what the name was. At the time, Rush thought Leak was lying and that it was a “scare tactic.” Rush testified that Leak referred to the people outside as “my boys.”

One of the last times Leak returned to the victims, Leak told the victims his name was “Joseph Grady” and he lived in a group home on Troy Highway. Leak said he could give them his name because no one would find him. Leak also said the last time he robbed someone he had to kill his victims. None of the victims heard Leak use Hall’s name during the crimes.

After a period of time, the victims realized Leak had left. They untied each other and called the police. Franklin testified that after the incident was over, she could tell that someone had gone through the items in her car.

Jackson testified that Hall used to attend the Little People’s Workshop, and that he lived directly behind the day care center. Franklin also knew Hall through a mutual friend, John Cartas, that the three of them used to go Wal-Mart together, and that Hall had enjoyed playing with Franklin’s daughter.

2. Leak’s Testimony

Leak pled guilty to rape and robbery charges stemming from the Little People’s Workshop crimes but was not yet sentenced at the time of Hall’s trial. Later, Leak was sentenced to life imprisonment.

Leak testified that he encountered Defendant Hall on the morning of October 15, 1999. Hall, who was an acquaintance and former classmate of Leak’s, approached Leak with a proposition to get Leak into a gang. Defendant Hall told Leak that, to be admitted, Leak would need to rob the Little People’s Workshop. Later that afternoon, about 4:00 p.m., Hall again approached Leak and suggested they immediately rob the day care center.

Defendant Hall gave Leak a .38 revolver and instructed Leak to enter the building, give two false names, and see how the place looked on the inside. Defendant Hall had a 9mm handgun. Leak entered and returned outside, and Hall told Leak to rob the day care center while Hall went around the side of the building.

Leak went inside, drew his gun, and had the victims tie one another up. Leak then let Defendant Hall into the building and spoke with Hall to get more directions. Franklin arrived, and Leak robbed her. Leak searched the day care center for money. Leak wanted to leave, but Hall told Leak to go back and rape Franklin. Leak did so and returned to Hall. Leak said Hall’s name, and Hall said, “don’t say that name.” Hall told him to use the name “Joseph Grady” and to go back and rape Rush. Leak went back to rape Rush, but she told him she had a disease, so he did not rape her. Leak used the name “Joseph Grady” in front of the victims and told them that Joseph Grady lived on Troy Highway. Leak went outside with Hall, who searched Franklin’s car and then gave Franklin’s keys back to Leak. Leak went back inside for a while and threw Franklin’s keys back on the ground.

Leak estimated he was at the Little People’s Workshop for about an hour and fifteen minutes. After he left, Leak gave Hall the money and guns back. Leak kept Franklin’s rings. When Leak was arrested, he was taken to the police station, waived his rights, admitted his involvement, and told police that Defendant Hall was with him.

On cross-examination, Leak testified that the robbery was part of the initiation into the “Bloods” gang. Leak admitted that although he said on direct that he was nervous inside the Little People’s Workshop because it was the first time he had committed a robbery, Leak previously had burglarized a woman’s home and attacked her with a hammer.

Leak testified he went into the kitchen only once during the robbery, and he did not go through the cabinets or drawers. Leak said he never took the money from Rivers’s wallet and that he took only about fifty dollars from the scene, although Rivers testified that Leak took eleven or twelve hundred dollars from his wallet.

3. Sergeant Wilhoit’s Testimony

Sergeant Ronald Wilhoit, a gang expert with the Montgomery Police Department, testified about general gang culture and presence in the community. Wilhoit testified that gangs were present in local schools and that a gang associate’s commission of a crime made it more likely that the associate would be “blessed in,” or given full membership, to the gang by the gang’s senior members.

Wilhoit interviewed Defendant Hall, who said he associated with members of the “Crips” and “Folk Nation” gangs. Hall told Wilhoit that he associated with Leak and other suspected gang members. Hall also told Wilhoit that he was associated with “Mob One,” a local non-traditional gang, as well as other traditional gangs.

4. Officer Major’s Testimony

Officer Major testified that after he examined the crime scene and took statements from the victims, he took Leak into custody and interviewed him. Leak identified Hall as his accomplice. Officer Major brought Hall to the police station, read him his state juvenile rights and adult Miranda rights, and questioned him. Hall’s father was waiting outside the interview room, but Officer Major did not bring him in because Hall did not ask for him, and it is the juvenile’s right to have a parent present during questioning, not the father’s:

If Darryl doesn’t ask for his father, his father can ask all day long .... It’s the juvenile or the defendant’s right[,] [s]o Darryl has to physically ask for his father. And at that time I would have brought his father in .... [H]e did not ask for his father. Because had he asked for his father, I would have told his father to come. All he had to do was ask for his father.

The audiotape of Hall’s confession was played for the jury. At the beginning of his taped statement, Hall acknowledges that Officer Major already read him both his state juvenile rights and his adult Miranda rights, that he signed the waiver forms, and that he understood his rights. Then on the audiotape, Officer Major again reads Hall out loud his state juvenile rights, telling Hall specifically that he had the right to communicate with a parent or guardian before questioning. Hall states that he understands these rights and that he signed the waiver form. On the audiotape, Officer Major then reads Hall out loud his adult Miranda rights. Hall states that he understands these rights and that he signed the waiver form.

On the audiotape Hall then describes the crimes. Hall saw Leak on October 15, 1999 at around 4:00 p.m., and Hall told Leak that he had to rob the Little People’s Workshop in order to get into a gang and because Hall needed the money to go to the homecoming dance that night. Hall and Leak went to the Little People’s Workshop. Hall told Leak to go to the front of the building and that Hall would go to the back in order to look out. Before the robbery, Hall gave Leak two guns Hall had gotteh about two months earlier from a friend named Reginald Powell.

Leak went into the day care center two or three times and stayed in the center approximately thirty minutes each time. While Leak was robbing the day care center, Hall walked into the center twice. The first time, Hall only stepped into the center and then exited, but the second time he stayed for about five minutes, coming approximately three or four feet into the center. During that time, Hall saw Leak tell Franklin to get on the ground and Franklin crying as Leak stood over her. Hall did not see Leak rape Franklin. Hall stated that he exited the center and did not come back in after that point. Hall said that he heard Leak yelling at people to be quiet and “get down,” and telling Franklin to “shut up.” Hall said that he did not know how many peopie were actually inside the center, but he thought maybe 15 or 20. However, Hall saw only Leak and Franklin and a few others when he entered the center. At one point, Hall stated that Leak called Hall by his first name, and Hall, in response, said the name “Joseph Grady” and stated that he lived on Troy Highway to conceal his identity.

During the taped confession, Hall also confirmed to Officer Major that Leak gave him the keys to Franklin’s car, and Hall went into Franklin’s car, looked around, and then closed the door to the car and returned to the day care center. Hall also stated that he knew Franklin through John Cartas, that he and Franklin were friends and he knew her well.

Hall stated that after committing the crimes, Leak ran out the back door of the center and gave Hall some of the money he had stolen, and they both then ran toward their homes. Hall later met back up with Leak and gave the money back to Leak. After running away from the center, Leak gave Hall two checks. Hall initially told the officers that he had cashed checks he got from Leak at a Winn Dixie but later stated that he ripped the checks into small pieces and threw them into some water in a drainage ditch behind a Winn Dixie.

During his taped confession, Hall also stated that he told Leak to kill the people in the day care center because they might later be witnesses against Leak and Hall. Hall did not know why Leak did not kill the people in the center. Hall denied telling Leak to rape the women in the center.

Hall told the officers where he thought the two guns were located, one being near the doghouse at Leak’s house, and one possibly by a ditch near Hall’s house. According to Officer Major, the officers searched the drainage areas near Hall’s house as well as the area near Leak’s house and did not find the guns.

Officer Major admitted there were some inconsistencies between Defendant Hall’s confession and the victims’ statements. Officer Major attributed the inconsistencies to Hall and Leak perceiving things differently. Officer Major stated that Hall originally said there were 20 or 30 people in the Little People’s Workshop, but when pressed on this point Hall said he did not really know how many people were there.

5. Defendant Hall’s Testimony

At the third trial, Defendant Hall testified in his own defense. On October 15, 1999, Hall went to and returned from school with his sister LaQuanda. Hall and LaQuanda walked to pick up their two other sisters from school, and during their walk home they met one of Hall’s friends, Sunkeissa Cantrell. Hall briefly encountered Leak, who said he was coming home from school. Leak said nothing else to Hall. After Hall got home, his brother Dwayne Hall arrived home a little after 4:00 p.m. Hall’s mother arrived shortly after Dwayne Hall and fixed dinner.

Cantrell called Hall to talk about the homecoming dance scheduled for that night at 7:00 p.m. That afternoon, Hall also spoke on the phone with his friends Stacie Sweazer, John Cartas, Jarvis Bloc-ton, and Quinton Armstrong. It was a multi-way phone call, “like a three-way and four-way type.” One person would hang up, put someone on hold, and call another person, with several of the friends on the phone at the same time. They were discussing arrangements for going to the dance. John Cartas said he did not know if he would go because he only had two dollars and the dance cost five, but Hall said he had eight dollars and would loan John Cartas three dollars to get into the dance. John Cartas testified that Hall gave him a dollar toward his admission.

Defendant Hall and John Cartas attended the dance. They got a ride with Cartas’s mother, who picked Hall up at Hall’s house at about 7:15 p.m. On their way out to the dance, they saw a bunch of police cars at the Little People’s Workshop. Hall spent that night at John Cartas’s house.

Two days later, police officers arrived at Hall’s house around 4:00 p.m. and arrested him. They took Hall to the police station. When Hall arrived, he “asked could my dad be in there. And they said don’t worry about it, he’s upstairs.” Hall asked again, telling the officers, “I want my dad in here before y’all start questioning me. They said don’t worry about it, he’s upstairs again and told me to sit down and handcuffed my hand against the desk.” Hall admitted he signed the state juvenile rights form and the adult Miranda form, but said he did not have a chance to read them first, and that the officers explained them to him after he signed them.

Hall admitted he made the taped statement, but said he was threatened:

[B]efore I made that statement, they kept reading [from their notes] to me over and over until I had a real understanding. But I told them it ain’t me. They said why you lying. I said I ain’t lying. And he had pointed at Officer Grant. Officer Grant came over and kicked the chair and said why you lying, why did you rob and rape the folks. I said I don’t know what you’re talking about, sir. And he kicked the chair and the handcuff got real tight on my wrist. Then he balled his fist up at me. Then I jumped. Then Officer Major he hit the table and said, you keep lying and we are going to put you in the county with no bond. There is some boys can rape you.

On cross-examination, Hall testified he left to pick up his sisters after school at about 3:00 p.m. and returned home around 4:00 p.m. Cantrell called, and he spoke to her briefly but had to stop and eat dinner at around 4:10 p.m. He ate dinner for about five minutes, and then got on a conference call with his friends Armstrong, Cartas, Bloeton, and Cantrell, and later also spoke to Stacie Sweazer alone until about 5:00 p.m. Hall then got back on a conference call with Armstrong and Cartas and spoke with them until about 5:40 p.m., then took a shower and got ready for the dance.

About 6:00 p.m., Hall got on the phone with his friends again, and talked “[basically until the time we left.” Hall got off the phone at 7:00 p.m. and left for the dance around 7:15 p.m. when John Cartas arrived at Hall’s house to pick him up. Hall acknowledged his testimony was different from his prior sworn testimony that he began eating and talking on the phone at 3:30 p.m. and that his mother was home when he got home with his sisters, but Hall said his present testimony was accurate. Hall stated that he told Officers Major and Grant that he did not understand his rights after they were read to him, but admitted that during the taped confession, Hall stated he understood his rights. Hall testified that, after they left the interview session to search for the guns, Officer Grant hit Hall in the mouth with a flashlight “about one túne,” which Hall acknowledged contradicted a previous sworn statement in which Hall claimed that Grant hit him “about four or five times.” Hall claimed the previous statement must have been misheard or mistyped.

6. Joseph Grady

Joseph Grady testified that prior to the trial, he did not know Darryl Hall and had never seen him before. Grady did know Leak, however. Grady had formerly been affiliated with the Folk Nation gang known as the Disciples and had a high-ranking position in the gang. Leak had told Grady at one point that Leak was also affiliated with the Folk gang named Disciples. On October 15, 1999, the day of the crimes at the Little People’s Workshop, Grady saw Leak at school and had a conversation with Leak. Grady told Leak that he was living in a group home and was planning to be at the mall that night. Grady never heard Hall’s name in connection with any gang.

7. Reginald Powell

Reginald Powell testified that he knew Hall and grew up with him. Powell was questioned by two detectives about the crimes at the Little People’s Workshop. Powell did not know anything about the incident and told the detectives he did not give Hall any guns.

8. Seven Defense Alibi Witnesses

The defense then called seven alibi witnesses: John Cartas, Ann Cartas, Dwayne Hall, Quinton Armstrong, Jarvis Blocton, LaQuanda Hall, and Bonnie Hall.

John Cartas testified that on the afternoon of October 15, 1999, he came home at around 3:00 p.m. After he came home, he immediately called Hall, and someone at Hall’s house told Cartas that Hall was busy. Cartas called back about 15 to 20 minutes later and spoke to Hall for about 10 or 15 minutes. Around 20 to 30 minutes later, around 4:00 p.m., Cartas got on a conference call with Hall and another friend, either Armstrong or Cantrell, which lasted for around 20 to 40 minutes.

Around 5:00 p.m., Cartas called Hall and spoke to him for about five to ten minutes. Hall again called Cartas around 5:30 p.m., and they spoke for about 20 minutes. Cartas testified he again spoke to Hall by phone one last time before Cartas arrived at Hall’s house at around 6:40 p.m. Cartas testified that when he found out what had happened at the Little People’s Workshop and that Hall was a suspect, “I was just shocked, you know what I’m saying, because I know he couldn’t have done it because he was with us .... And we was on the phone with him.” Cartas attempted to make a statement to Officer Major after he heard about the crime, but Officer Major threatened to arrest him for lying.

When asked whether he knew anything about a group called “mob one,” John Cartas testified that he and Hall, along with Quinton Armstrong, Jarvis Blocton, and Sunkeissa Cantrell, had formed a rap group called “mob boys.” The only activities the group engaged in were playing video games and rapping.

Ann Cartas, Cartas’s mother, testified that as soon as her son John Cartas got home that afternoon, a little after 3:00 p.m., he got on the phone with Hall and others. Ann Cartas testified she picked up the phone and listened in on her son’s conversation “at least three” times — at around 3:40, 4:10, and 4:40. The first time, Ann Cartas heard only her son and Armstrong talking, but the second and third times, Cartas was on the phone with Hall. Ann Cartas “probably” picked up the phone at 5:10 p.m., but she could not remember whom she heard. As far as she knew, her son was on the phone nearly constantly from 3:15 p.m. until 6:00 p.m., but she was not listening on the phone the entire time. Ann Cartas picked up Hall to go to the dance at around 6:40 p.m. Ann Cartas also confirmed that her son and Hall had a “rap group” which had different names. They used a karaoke machine, and “all the kids used to come join in.”

Quinton Armstrong testified that he was on the phone with Hall on the evening of October 15, 1999. Armstrong called Hall and began speaking to him around 3:15 p.m. Hall said he had to go, and Armstrong called Hall again at around 4:00 p.m. and spoke for approximately five minutes. Hall called Armstrong around 4:30 p.m. Armstrong testified that “mob boys” referred to a rap group which included himself, Blocton, and Hall.

Jarvis Blocton testified that he was on the phone with Hall on the evening of October 15, 1999. Blocton called Hall sometime after Blocton arrived home from school at 3:50 p.m., and no one answered. He tried again later, and Hall answered. Blocton did not remember what exact time he spoke to Hall. Blocton went to work that night and arrived at approximately 5:30 p.m. Blocton also testified that the group known as “mob” was a rap group that included himself, Cartas, Armstrong, and Hall.

Dwayne Hall, Hall’s brother, testified that on the evening of October 15, 1999, he joined Hall and his sisters after Hall picked the sisters up from school, and they all walked home together. Dwayne Hall did not see Defendant Darryl Hall talk to anyone on the way home from their sisters’ school, including Sunkeissa Cantrell. Dwayne Hall and Darryl Hall were at home from 3:36 p.m. until 6:40 p.m., when Dwayne Hall left to go to a football game. Dwayne Hall testified that their mother was already home and already had food prepared on the table when they came home. Dwayne Hall ate dinner at the table with Hall, and their mother ate in her room. Defendant Darryl Hall was on the phone during the afternoon, but Dwayne Hall did not know who he was talking to.

Hall’s sister LaQuanda Hall testified that, after arriving at their bus stop after school, she and Hall went home and then left again to pick up their two little sisters from school and then walked back home with their sisters and Sunkeissa Cantrell. Along the way, Cantrell left them to go home, and LaQuanda and her siblings continued to walk until they met their older brother Dwayne Hall. Their mother got home just after they arrived, and the food was not yet prepared. LaQuanda testified that Hall did not leave the house again until 7:20, when he left for the dance with John Cartas and Ann Cartas.

Bonnie Hall, Hall’s mother, testified that on October 15, 1999, she came home around 4:00 p.m. and prepared dinner for her children. She ate dinner alone in her bedroom. Hall remained at the house from the time she got home until he left for the dance at 7:15 p.m. or 7:20 p.m. Hall was on the phone in his room.

9. Curtis Hall

Hall’s father, Curtis Hall, testified regarding Hall’s arrest and the ensuing police search conducted in the house and backyard. Curtis Hall testified that his son was not involved with gangs and that he had perfect school attendance. Hall had only one discipline problem at school when Hall was “running off at the mouth.”

10. State’s Rebuttal

In rebuttal, the State called Officers Grant and Major. Officer Grant denied striking Hall or kicking his chair. Officer Major testified that during Hall’s questioning, Hall never stated he was on the phone with anyone at the time the crimes occurred. Hall initially said he did not do it, and then later he confessed. Officer Major did not believe Hall’s alibi because after Hall had confessed and was leading the officers to search for the guns later that same evening, the police and Hall went by Hall’s house and Hall’s mother “ran to [the police car in which Hall was sitting] and said don’t say anything else[,] you was on the telephone. Then John [Cartas] came in a couple of days later telling us that he was on the phone with [Hall] .... And [Cartas] told me that [Hall]’s parents told him to come down there.” Officer Major denied reading Leak’s statement to Hall before Hall confessed and said Leak’s statement had not even been transcribed yet at that time. Officer Major denied threatening Hall.

The State also called Charles Chambers, a records custodian for BellSouth. Chambers testified that his department handles subpoenas for records from BellSouth. Chambers testified that “incoming call[] daily information” is kept for about 60 days, while outgoing call information is kept “longer than that, somewhere in the range of eighteen months or so,” for “billing purposes” in case of discrepancies and complaints. Chambers made no distinction between records kept for local calls and records kept for long distance calls.

Chambers testified that BellSouth received several subpoenas for call records in connection with Hall’s trial. First, Bell-South was subpoenaed on May 9, 2000 for the records in reference to Bonnie Hall’s telephone account (334-284-1968). The subpoena “requested information on incoming and outgoing calls” on October 15, 1999. Chambers testified that he could not say whether there were incoming calls to the account on October 15, 1999, because at the time the subpoena was received there were no longer any records of those calls. Chambers testified that as for outgoing calls, “[b]ased upon our records, there were no outgoing calls found” between 4:00 p.m. and 6:00 p.m. on October 15, 1999 from the Hall residence and, therefore, there were no calls between 4:00 p.m. and 6:00 p.m. from Hall to Ann Cartas’s line or Charles Hutchinson’s line.

Chambers testified that BellSouth also received a subpoena “for all phone records including incoming and outgoing [calls]” for Ann Cartas’s account (334-281-1870) on October 15, 1999. Chambers again testified there were no records available of incoming calls for that date. Chambers testified that there were no outgoing calls from the Cartas home on the 15th:

Q. Let’s talk about the outgoing calls from the Cartas home on the 15th. Was there an outgoing call for 281-1870 between the hours of four p.m. and six p.m.?

A. No.

Q. There was no phone call from the Cartas home to the telephone number of Darryl Hall 284-1968 between four and six p.m.; is that correct?

A. That is correct.

Chambers also testified as to BellSouth’s response to a subpoena for records in connection with the account of Charles Hutchinson, at the home of Quinton Armstrong. That subpoena requested “[a]ny and all phone records including incoming and outgoing calls to phone number 334-284-3947 on the date of 10-15-99.” Chambers testified that as to Hutchinson’s account, there were “some ... outgoing calls on October 15th,” but there were no outgoing calls from Hutchinson’s home to Hall’s home. Chambers testified that, as with the other accounts, there was no information available as to any incoming calls for the Hutchinson account.

On cross-examination, Chambers clarified that he was referring to both local and long distance calls when he said “outgoing calls.” Chambers further testified that outgoing call records were kept for all customers with any type of service, even those who are not billed specifically for outgoing calls. On cross-examination of Chambers, Hall’s trial counsel Smedley pointed out that Chambers was saying there were no records of any outgoing calls, from any of the multiple accounts at issue, for the entire day of October 15, 1999:

Q. So what you’re saying is that for October 15th for an entire day that no calls were made from each of those residences?

A. No, I am not saying that. I am saying we have no record of those— of any calls for those days.

Q. But if you have no record for those calls and you say you keep up with the calls and your letter says that no calls were found for October 15th of 1999, are you not saying that nobody made a phone call?

A. Are you talking about incoming or outgoing calls?

Q. Either.

A. If the records do not find the information, yes, I would say that information is not there for that period for that day, yes.

Q. So for a whole day on October 15th of 1999, out of all those subpoenas that [the State’s attorney] went over with you, nobody from any of those homes picked up their phone and made a phone call at all that whole day?

A. Our records show no outgoing calls for those dates.

Q. Okay. Would your records show if numbers had been disconnected?

A. If the telephone number had been disconnected?

Q. Yes.

A. Yes.

Q. So all of these people would have active service, and nobody made a call at all? Nobody picked up their phone to call anyone from twelve o’clock—

Q. From twelve o’clock a.m. to — or twelve o’clock midnight, that’s when October 15 would start, until 11:59 that night, nobody picked up their phone from any of those residences and made a phone call? Is that what you’re saying?

A. I am saying that our data shows no outgoing calls were made on that date, yes.

Q. That’s whether you have measured service or local service or any kind of service?

A. Yes.

11. Jury’s Verdict

The jury at the third trial found Hall guilty of all charges. On March 1, 2001, the state trial court sentenced Hall to concurrent terms of life imprisonment for the Class A felonies (robbery) and twenty years’ imprisonment on the Class B felonies (kidnaping). On March 8, 2001, Hall appealed. On that same day, Smedley withdrew as Hall’s counsel.

H. Motion for New Trial

Hall retained Thomas M. Goggans as counsel. On April 2, 2001, Goggans filed Hall’s motion for acquittal, or, in the alternative, a motion for new trial. Hall argued, inter alia, that his confession was not voluntary and that trial counsel Smedley was ineffective. Hall argued that at his third trial Smedley failed to present sufficient evidence: (1) in support of Hall’s alibi, such as by failing to call four alibi witnesses who had testified in Hall’s first trial: Pamela Armstrong, Sunkeissa Cantrell, Gloria McElroy, and Lea Dettmar, and (2) of Hall’s good character by failing to call three character witnesses who had testified at Hall’s first trial: Linda Dowe, Gregory Dowe, and Katherine Scott.

On April 24, 2001, Hall filed an addendum to his motion for new trial alleging, inter alia, that Chambers’s testimony was incorrect in that BellSouth did not keep outgoing call records for eighteen months. In fact, Hall argued, BellSouth maintained outgoing local call records for the accounts for only 60 days after the date of the calls, and because no subpoena was issued within the 60-day time period after the calls, BellSouth would have deleted records of all local calls to and from the involved telephones by the time the records were subpoenaed. Hall contended that evidence of the falsity of Chambers’s testimony was available from BellSouth and “from persons connected to the involved telephones,” but that Smedley did not present it.

Hall further argued that he lacked the capacity to waive his state juvenile rights at the time he made the statements to police because “psychological or psychometric” testimony showed Hall lacked the capacity to resist the pressures put upon him. His first counsel, Bell, did not have Hall tested or present such evidence in support of having Hall’s statements suppressed. Hall’s counsel did not seek to reopen the suppression hearing.

I. State Court Hearing on Motion for New Trial

On April 25, 2001, the state trial court conducted a hearing on the new trial motion. At the hearing, Goggans and attorney Elizabeth Addison represented Hall. Linda Taffett, an education expert, testified that she administered academic testing to Hall approximately a week prior to the hearing. Hall was seventeen years and five months old at that time.

According to Taffett, Hall had a “very difficult, time following instructions.” When he read independently, his reading comprehension was at the third grade, fifth month level. Reading with Taffett, his reading comprehension level was at the fourth grade, second month level. Hall scored at the lowest level possible on a picture vocabulary test, and his learning ability was at the level of an eight-year- and-seven-month-old child in the fourth grade. On an oral reading test, his reading rate was at the fifth grade, first month level, and his accuracy rate was at the fifth grade, fifth month level. Taffett opined that Hall did not have the intellectual ability to “mastermind or be the leader of any type of crime or to even orchestrate this type of crime, any crime.”

Smedley, Hall’s trial counsel, also testified. Smedley did not feel that she had enough experience to handle Hall’s case. Prior to trial, Smedley did not interview Chambers, Pamela Armstrong, or Gloria McElroy. Smedley believed that Ms. Cantrell had moved and she “didn’t have the opportunity to find her.” During the third trial, Smedley put on all the witnesses she thought would help support her theory of the case, and she made those decisions based on her theory of the case and her discussions with Hall, his family, and the witnesses.

Vickie Price, one of Hall’s teachers, testified that she never had any “serious” problems with Hall, that he was not in a gang, and that he did not have any “leadership qualities.” Another witness, Tyrone Anderson, a probation officer with the Montgomery Youth Facility, worked with Hall in a “predispositional” capacity after Hall was arrested and prior to his trial. In gathering information for a predisposition report, Anderson talked to people in the community and at Hall’s school. Anderson ultimately recommended to the juvenile court that Hall be allowed to go home because he was not a threat to anyone.

Three alibi witnesses from the first trial, Gloria McElroy, Sunkeissa Cantrell, and Pamela Armstrong, testified that they would have given the same testimony in the third trial that they gave in the first trial if they had been called to testify.

A juror from the third trial, Letricia Long, testified that there was “quite a lot of confusion” during deliberations about the evidence of telephone calls. Long testified that the evidence at trial “made it look like it wasn’t any phone calls going out or coming in” on the day of the crime, implying that Hall was guilty. However, the juror also testified that “nobody actually believed” Chambers’s testimony because he said there were not any incoming or outgoing calls at all that day:

It was quite a lot of confusion about it, because it wasn’t any incoming or outgoing calls, and it was a major issue in different homes with teenagers and that there weren’t any phone calls made, and nobody actually believed it.

Later, on cross-examination, the juror testified that the majority of jurors did not believe the testimony of Chambers, but still found Hall guilty.

Kathleen Mahoney, the BellSouth supervisor of subpoena compliance at the Bell-South Subpoena Compliance Center, testified by telephone. Mahoney testified that in October of 1999, for a regular “non-measured service customer,” outgoing long-distance calls would be billed to the customer and would appear on their bill, but records of incoming and outgoing local calls would be kept for only 60 days. After 60 days, the records of all of the local calls would be erased. Mahoney explained, “We do not keep local calls because there is no billing on them for a regular non-measured customer.” However, Mahoney testified that if a customer has local “measured” service and also asks to have their local measured service calls printed on their telephone bills, the records of incoming and outgoing local calls are kept for 18 months. Curtis Hall and Ann Cartas both testified that on the day of the crimes, they had only basic telephone service rather than “measured” service.

Hall also filed a copy of one of the subpoenas served on BellSouth for phone records and BellSouth’s response. The subpoena was issued May 10, 2000. The subpoena requested the production of the following documents:

Any and all phone records, including incoming and outgoing calls for phone number (334) 281-1870 on the date of 10/15/99. The account holder’s name is Anne Cartas of 360 Eagerton Rd., Montgomery, AL 36116.

In response to the subpoena, the BellSouth Compliance Assistant, Patricia Tapp, returned an affidavit dated May 16, 2000 stating, “No records as described in the legal document are available” and signed a letter to the Circuit Court of Montgomery County, also dated May 16, 2000, stating in part:

There were no calls found for the date that you provided. Incoming calls are only available for approximately sixty days prior to the current date. There were no outgoing calls found.

BellSouth also submitted Chambers’s and Spidle’s affidavits, in which they stated it was their understanding at the time they testified at trial that BellSouth kept local outgoing call information for the subject accounts for a period of eighteen months. Both Chambers and Spidle had since learned that, in fact, records of outgoing local calls in connection with the involved accounts were kept for a period of only 60 days. BellSouth also submitted the affidavit of James L. Preau, the Director of Security at BellSouth. Preau reviewed the five subpoenas served upon BellSouth for Hall’s trial and concluded that the accounts for which the subpoenas sought records were all “flat rate” accounts, meaning that the customers had not elected “measured” service and that there would have been no data on local incoming or outgoing calls at BellSouth when BellSouth received the subpoenas in June and July of 2000, before the second trial began in November of 2000.

J. State Court’s Order Denying Motion For New Trial

The state trial court denied Hall’s motion for a new trial. In its order, the state court acknowledged that Taffett’s tests revealed that Hall was in the “low intelligence segment of the population.” As to Hall’s challenge to his confession, the state court stated that it had already considered Hall’s intelligence and age in its ruling on Hall’s motion to suppress and at trial and that this did not render his confession inadmissible:

Matters of the defendant’s intelligence and age were considered fully at the hearing on the motion to suppress and throughout each of the trials. While an accused’s intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible.

As to the ineffective-trial-counsel claim, the state trial court found that Dettmar’s testimony as to Hall’s alibi defense of being in school would have been cumulative of other evidence presented at trial, including the admission of school records showing attendance, and that it would not have been pertinent given that the crimes occurred after school hours. The state trial court further found that additional alibi witnesses would have been cumulative of the evidence presented at trial through the alibi witnesses “Daryl [sic] Hall ..., John Cartas, Ann Cartas, Jarvis Blockton [sic], and Quinton Armstrong.” The state trial court dismissed the remaining claims of ineffective assistance that were based on Smedley’s lack of experience, being overworked, and lack of time.

The state trial court acknowledged Hall’s argument that the jury was left with a false impression regarding the existence of phone records at BellSouth for the day of the crimes and that the two BellSouth witnesses who testified at Hall’s second and third trials had since filed affidavits stating that their trial testimony was in error. Quoting the trial transcript, the state court stated, “testimony from the trial did not indicate there were no calls, but [rather that] ‘we have no record of those — any calls for those days’ ” (