Bell v. Haley

Full title: RANDY TURPIN BELL, Petitioner, v. MICHAEL HALEY, Commissioner, Alabama…

Court: United States District Court, M.D. Alabama, Northern District

Date published: Dec 5, 2001

Civil Action No. 95-T-913-N (M.D. Ala. Dec. 5, 2001)

Opinion

Civil Action No. 95-T-913-N

December 5, 2001

Elizabeth R. Dewey, Amy L. Schaner Stanley, Piper, Marbury, Rudnick Wolfe, Washington, DC; O. Daniel Ansa, Deborah P. Nason, Keith E. Smith, C. Stuart Magargee, Piper, Marbury, Rudnick Wolfe, Philadelphia, Pa, for plaintiff.

Jack W. Willis, Office of the Attorney General, Alabama State House, Montgomery, AL; Jack W. Willis, George A. Martin, Jr., Office of Alabama Attorney General, Montgomery, AL, for defendant.

ORDER

MYRON H. THOMPSON, United States District Judge

Petitioner Randy Turpin Bell, a prisoner in state custody under sentence of death, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254. Bell challenges his conviction in Alabama state court for capital murder, and now maintains eight claims for relief: A (sufficiency of the evidence), E (ineffective assistance of counsel), F(i) (Swain claim), G (failure to charge on accomplice theory), H (insufficient evidence to prove corpus delictii), K(ineffective assistance of counsel), N (Brady/Giglio), O (judicial misconduct).

In addition, the court must address two issues. The first has been raised by respondents because Bell seeks to expand the evidentiary record in this proceeding to include evidence that was not before the state courts.¹ The second has been raised by Bell, who asks the court, in light of additional evidence, to revisit a claim that was ruled procedurally defaulted in stage I, namely that the state improperly failed to disclose a deal with Michael Joe Hubbard for his testimony at trial. The court will treat these issues as they arise in the context of the relevant claims.

1 See Objections to petitioner's exhibits, filed September 28, 2000. Respondents object to the court's consideration of Bell's exhibits 19-51, 53-55, 57-61, 66, 67, 69, and 70 when addressing the merits of Bell's claims.

As explained below, the resolution of one of Bell's claims, claim N, that the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct 1194 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), with regard to Joe Austin, Jr., and Michael Joe Hubbard, depends upon the resolution of disputed issues of material fact and requires the court to weigh the credibility of witnesses and evidence. Accordingly, the court will hold an evidentiary hearing on this claim before granting or denying the relief Bell seeks. No relief is warranted on. Bell's other claims, and for the reasons discussed below, Bell's habeas petition will be denied on the remaining claims.

I. PROCEDURAL BACKGROUND

Bell was convicted on May 5, 1983 of capital murder for the death of Charles Mims, in violation of 1975 Ala. Code. § 13A-5-40(a)(2). At trial, Bell was represented by attorney Paul Harden. The jury recommended by a vote of ten to two that Bell be sentenced to die. The trial court accepted the jury's recommendation.

Bell has exhausted his direct appeals in state court: The Alabama Court of Criminal Appeals upheld his conviction and affirmed his death sentence, see Bell v. State, 475 So.2d 601 (Ala.Crim.App. 1984), as did the Alabama Supreme Court. See Ex parte Bell, 475 So.2d 609 (Ala. 1985). Following the denial of his direct appeal, Bell petitioned in state court for a writ of error coram nobis. Judge Hayden, who had presided over Bell's trial, heard and denied the petition. The Alabama Court of Criminal Appeals affirmed. See Bell v. State, 518 So.2d 840 (Ala.Crim.App. 1988). The Alabama Supreme Court denied certiorari, see Bell v. State, No. 87-296 (Ala. 1988), as did the United States Supreme Court.See Bell v. Alabama, 486 U.S. 1036, 108 S.Ct. 2024 (1988) (Memorandum opinion).

In 1990, Bell filed two subsequent petitions for collateral relief in state court. Represented by new counsel, he filed a second petition for relief, alleging that newly-discovered evidence proved that another person, Michael Joe Hubbard, had admitted killing Mims. This petition was denied by Judge John Bush. The Alabama Court of Criminal Appeals once again affirmed, see Bell v. State, 565 So.2d 1244 (Ala.Crim.App. 1990), and the Alabama Supreme Court denied review. See Bell v. State, 565 So.2d 1244 (Ala. 1990). In 1990, Bell filed a third post-conviction petition for relief, raising, among other claims, the contention that the state improperly failed to disclose a deal with Hubbard for his testimony. This petition, too, was denied by Judge Bush, whose decision was upheld by the Alabama Court of Criminal Appeals, see Bell v. State, 593 So.2d 123 (Ala.Crim.App. 1991), and certiorari was denied by the Alabama Supreme Court and the United States Supreme Court. See Bell v. Alabama, 504 U.S. 991, 112 S.Ct. 2981 (1992).

Following the denial of his state collateral petitions, Bell filed this suit in federal court, pursuant to 28 U.S.C.A. § 2254, on July 7, 1995. The court bifurcated the proceedings into two stages. In stage I, the court determined which of Bell's claims for relief could be heard on the merits. In stage II, the court proposed to reach the merits of those claims. On March 3, 2000, the court entered an order delineating which of Bell's claims were eligible to be heard in Stage II. Oral argument on the stage II claims was held before the court on November 21, 2000. Now the court determines which, if any of Bell's claims should proceed to an evidentiary hearing before a decision on the merits is reached.

II. LEGAL STANDARD

This court's habeas review of state-court proceedings is governed by 28 U.S.C.A. § 2254. As the court noted in its order determining the stage I issues, the United States Supreme Court has clearly held that the Anti-Terrorism and Effective Death Penalty Act (AEDPA) does not apply to cases, such as this, that were filed before it was enacted. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Thus § 2254, as it was before it was amended by AEDPA, is the law of decision of this case.² Under this standard, the factual findings of state courts are presumed to be correct unless one of the eight enumerated exceptions in § 2254(d) to applies.³ Questions of law and mixed questions of law and fact, in contrast, are subject to de novo review. See, e.g., Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir.), cert. denied, 528 U.S. 817, 120 S.Ct. 57 (1999). Nonetheless, when a mixed question of law and fact turns on a fact found by the state court, the finding of the state court deserves deference. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 1252 (1991).

2 Accordingly, all references herein to § 2254 refer to the pre-AEDPA version of the statute, unless otherwise noted.

3 28 U.S.C.A. § 2254(d), as it applies to this case, provides as follows:

"In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit —

(1) that the merits of the factual dispute were not resolved by the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction over the person of the applicant in the state court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding.

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.

28 U.S.C.A. § 2254.

III. FACTS

The prosecution and conviction of Bell for the murder of Mims was a high-profile case. It was the first known case in Alabama's history where a conviction and death sentence were obtained without of the body of the victim or physical forensic evidence to indicate how the death occurred. The facts, as presented to this court are as follows.

A. The Crime

In early December 1981, Bell and Hubbard met with Mims at Mims's house to sell him two shotguns and a rifle. Mims, in the past, had been involved in the sale of stolen goods and livestock. However, on that occasion, Mims refused to buy the guns, and Bell was angered.

About a week later, on December 14, Mims visited Helen and Curtis Smith at their grocery store on Highway 22 West in Chilton County, Alabama. At the store, after receiving a phone call, Mims told Helen Smith that he was going to meet the "cowman" at the West End Washeteria 30 minutes later to discuss purchasing a television and some firearms.⁴ Mims's wife later identified the "cowman" as the two black males who drive the green Cadillac. Before leaving the store, Mims took out his wallet and counted his money in front of the Smiths. When Mims left the store at approximately 5:30 p.m., he had about $700.

4 Although the appellation "cowman" is and remains somewhat mysterious, there is some evidence that Mims was involved with cattle theft, which suggests some context for the nickname.

Mims, however, did not go to the Washeteria, but instead drove to the home of Ray Anthony Pairrett. He arrived at Pairrett's home at approximately 6:00 p.m. and watched television with Pairrett for about an hour. When Mims left, he told Pairrett that he was going home. Pairrett expected Mims to return to his house to watch the 10 o'clock news, but Mims never returned.

Because Mims's body has not been discovered, nor did the state present any physical forensic evidence to indicate how Mims's was killed, the facts of Bell's culpability for the death were presented at trial exclusively through the testimony of Hubbard, who claimed to have seen the murder, and Joe Austin, Jr., who claimed that Bell confessed to him.⁵

5 As discussed below, the state presented other evidence that tended to connect Bell with the crime.

Hubbard testified at trial that on December 14, 1981, he called Mims at the Smiths' grocery store and arranged a meeting with Mims at the Washeteria so that Bell could sell Mims a television and some guns. When Mims did not arrive as arranged at the Washeteria, Hubbard and Bell waited for him in Bell's green and white Cadillac behind the Washeteria. Around 7:00 p.m., they saw Mims driving his truck toward his home.

Bell and Hubbard followed him in the Cadillac. They pulled out behind Mims's truck and flashed their lights until Mims pulled over. Hubbard told Mims to follow them, and they drove to the campgrounds in Chilton County.

At the campgrounds, Bell told Mims that the items for sale were behind a building. Hubbard testified that when he turned around he saw Bell pointing a pistol in Mims's face. Bell asked Hubbard to get a rope out of the car and to tie Mims's hands together. Hubbard did as Bell asked, and tied Mims's hands together. Hubbard testified that he tied Mims's hands loosely so that Mims could escape, but that Bell discovered this and tied them more tightly.

According to Hubbard's testimony, a car drove by and Bell was afraid that his Cadillac would be recognized. Bell then took Mims's wallet, and then forced Mims into the trunk of the car. He and Hubbard drove with Mims in the trunk to a rural area with an abandoned house.

After Mims was let out of the trunk, Bell led him into the woods until they reached a trench. Hubbard testified that Bell pushed Mims into the trench and shot him twice in the head, holding the gun about one foot from Mims's head. Hubbard testified that he turned and ran back to the car, and that Mims never got up.

On the way back to town, Bell's car had two flat tires. Bell and Hubbard stopped and changed the first tire, but when the second tire blew out, they continued to drive on it. Both Mims's wife and Richard Smith testified that they saw Bell's car heading towards town with a flat tire. Smith said that he saw this around 7:50 p.m.

Joe Austin, Jr. testified that around 8:30 that evening, Bell visited him and told him that he had robbed Mims and showed him Mims's money. Then Bell left to buy a new tire.

Carol Joiner, Bell's former girlfriend, testified that on that evening she drove past the campgrounds and she saw Bell's car parked next to Mims's truck. As she passed by a quarter of an hour later, only Mims' s truck remained. When Joiner asked Bell about this, he told her that he had been in Atlanta that evening. Later he told her to keep quiet and that she knew too much.

When Mims failed to return home, his wife called Mr. Smith and Pairrett, who both went to look for him. A missing person report was filed with the police, and a formal search began. Mims's truck was found at the campgrounds, but his body was never discovered.

Hubbard testified that Bell returned to the campgrounds, put Mims's body in the trunk of his car, and had taken it to an undisclosed location where he had placed acid on it and buried it.

B. Pretrial Investigation

Bell's car was discovered at a used car dealership in Atlanta, Georgia. When the trunk was opened by an agent of the Georgia Bureau of Investigation, it was wet and smelled strongly of detergent. In the trunk the agent found an open box of .25 caliber ammunition and bottles of cleaning agents.

A forensic investigation of the vehicle, however, revealed no evidence such as blood, hair, skin, or clothing samples to indicate that Mims had been in the car. Nor were Mims's or Hubbard's fingerprints found in the vehicle. No gun, used bullets, or spent shell casings were discovered.

During the investigation that led to Bell's indictment, Alabama Circuit Judge Walter Hayden, who ultimately presided over Bell's trial, was consulted by the state about the case. Hayden expressed the opinion that Mims's body should be found before Bell could be prosecuted.

Before his trial, Bell's counsel filed motions seeking to have the criminal case dismissed and seeking pretrial discovery. Bell's motions were denied, except as to his request for exculpatory material from the state. The state certified that the only material within the parameters of the request was a statement Bell himself had made to John Perdue of the Alabama Department of Investigation and to Benny Mims of the Chilton County Sheriff's Office.

The state never disclosed a number of things that may well, if proven, fall within Bell's request. First, the state did not disclose a statement by Austin, made on January 12, 1983, in which Austin swore that Bell told him a few days after the murder that "Michael Joe [Hubbard] had Randy [Bell's] gun and Randy made him shoot [Mims]."⁶ The undisclosed statement made no mention of any other conversations between Bell and Austin about the murder and robbery. The state also did not disclose any arrangement with Austin for his testimony in exchange for state efforts to obtain leniency or immunity on robbery charges that were pending against him at the time of Bell's trial.⁷ Finally, the state did not reveal a possibly similar arrangement with Hubbard for his cooperation and testimony at Bell's trial.

6 See Statement of Joe Austin, Jr., January 12, 1983 (Petitioner's exhibit 3).

7 William R. Hill, Jr., a district attorney who prosecuted Bell has come forward to confirm the existence of this arrangement. See Affidavit of William R. Hill, Jr., ¶ 12 (Petitioner's exhibit 19).

In preparing for the trial, the state lodged both Hubbard and Austin in Holiday Inn hotels, and the state's investigators met with them repeatedly to go over their testimony.

C. Trial

The venire panel from which Bell's petit jury was selected consisted of 50 individuals, 44 of whom were white and six of whom were African-American: CC, BD, DS, LAT, LV, and PW. District attorney Janice Clardy placed the letter "B" next to each of these names on the state's strike sheet. In addition, one member of the venire, BD, was further identified in the District Attorney's venire records as "Best Black — almost white."

At voire dire, one of the African-Americans, BD, and 11 of the white venire members were excused for cause. BD was excused because of a physical disability. Voire dire was conducted by William Hill, a district attorney from another Alabama judicial circuit who substantially assisted district attorney Clardy during Bell' s prosecution and trial. During his examination, Hill asked if any of the prospective members of the jury knew Bell. All six African-American venire members admitted that they did. All of them except BD and possibly LV, however, answered that they could be fair and impartial in trying Bell.⁸ The state exercised its peremptory challenges to strike the remaining African-American venire members from the jury pool.

8 At this stage in the proceedings the parties dispute whether LV was excused from service for cause or whether she was struck by the state.

At trial the state argued to the court and to the jury that Bell alone had shot and killed Mims — an act that was witnessed by Hubbard, who, the state emphasized, was only an unwilling participant in Mims's death. Hubbard testified that Bell shot Mims twice and killed him, and that he, Hubbard, was running away when Bell fired upon the victim.

Hubbard's version of the events was corroborated by Austin's testimonial description of Bell's confession to him. Austin testified that Bell had confessed to robbing Mims on the night of the murder. And when Austin was asked "Did Randy [Bell] tell you that Michael Joe did anything on that occasion?," he answered "No — no, on that occasion he did not tell me."⁹ Austin never testified to any other conversations he had with Bell about the crime. He never mentioned his pretrial statement that Hubbard had shot Mims. Nor did he admit to any arrangement he may have had with the state in exchange for his testimony.

9 Trial transcript at 279.

At trial, because Mims's body was never found, the state relied on circumstantial evidence to prove his death Hubbard testified that he saw Bell shoot Mims twice, and that Mims did not get up afterward. Joseph Embry, a state forensic pathologist, testified that such a shooting would result in the death of the victim. Additionally, the state presented testimony that Mims intended to return home that evening and never did, and that there has been no evidence of his whereabouts since.

At the close of trial, Bell's attorney, Harden, offered the trial court a number of possible jury charges to address the weight and corroboration of Hubbard's testimony.¹⁰ The trial court denied each of the proposed instructions Bell's counsel offered. No instruction on this point was given to the jury.

10 Under Alabama law, for a conviction to be obtained on the testimony of an accomplice, the accomplice' s evidence must be corroborated. Moreover, the question of whether a witness is a is an accomplice or only a participant is a question for the jury. See Ex parte Bell, 475 So.2d 609, 613-14 (Ala. 1985); Bell v. State, 518 So.2d 840, 842 (Ala.Cr.App. 1987).

The jury voted to convict Bell for Mims's murder. After a brief recess, the court immediately began the penalty phase of Bell's trial. During this phase, Bell's counsel presented no evidence and called no witnesses, but instead stressed lingering doubt about the strength of the state's case. The jury recommended by a vote of ten to two to sentence Bell to death. Under Alabama law at the time of Bell's conviction and sentencing, a minimum of ten jurors must have concurred in order to recommend the death penalty.¹¹ Judge Hayden accepted the jury's recommendation and sentenced Bell accordingly.

11 See 1975 Ala. Code § 13A-5-46(f).

D. Posttrial Developments

Shortly after Bell's trial, the state dropped other charges against Austin for robbery. Consistent with an arrangement between the state and Austin, three days after Bell was sentenced state investigator John Perdue wrote to Charles Freeman, the prosecutor on Austin's robbery case, requesting leniency in that case for Austin.

Years later, in June and July 1993, after Bell exhausted his direct appeals and after his state collateral attacks on his sentence were resolved against him, Hubbard wrote two letters from prison to the attorney who had represented him on charges unrelated to the Mims case. Hubbard claimed that the state had violated a deal that it had made with him for his testimony at Bell's trial.

In 1996, after the instant petition for federal habeas relief was filed in this court, the state disclosed, among other materials,¹² the statement by Austin that it had not made available to Bell's trial counsel in response to his discovery requests.

12 The state also disclosed a statement by Hubbard that it had not disclosed earlier. At stage I, the court determined that Bell's claim regarding the undisclosed Hubbard statement was procedurally defaulted, because the statement itself was insufficiently prejudicial to Bell.

IV. CLAIMS A. Sufficiency of the Evidence

This claim arises out of the scant direct evidence that supports Bell's conviction. Specifically, despite a two-year investigation by the Alabama Bureau of Investigation, the Georgia Bureau of Investigation, the Sheriff's Office of Chilton County, Alabama, and the Police Department of Clanton, Alabama, no physical evidence was uncovered to show that Bell killed Mims. Mims's body was never found; the murder weapon was never discovered; no bullets were uncovered; no spent shell casings were found; and no traces of blood, clothing, hair, or skin samples were detected at the scene of the crime or in Bell's vehicle. The case against Bell turned almost wholly on the testimony and credibility of Hubbard, who participated with Bell in the commission of the crime, and the corroboration of Austin, whose testimony corroborated Hubbard's account of the crime.

As the Eleventh Circuit Court of Appeals has held, the role of a federal court reviewing the constitutional sufficiency of evidence in a state criminal prosecution is limited. See Heath v. Jones, 863 F.2d 815, 819 (11th Cir. 1989); Martin v. State of Alabama, 730 F.2d 721, 724 (11th Cir. 1984). When a state prisoner seeks federal habeas relief on the ground that the evidence at his trial was insufficient to sustain a conviction the court must ask whether, after reviewing the evidence in a light most favorable to the prosecution, any reasonable trier of fact could have found the petitioner guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000), cert. denied, ___ U.S.___, 121 S.Ct. 886 (2001); Heath, 863 F.2d at 819.

Viewing the evidence from Bell's trial in such a light, the record reflects that:

(1) During the week before Mims disappeared, Bell and Hubbard called Mims's house at 5:00 p.m. on December 14, hours before Mims was killed.

(2) Bell and Hubbard, unable to locate Mims at home, found him at the Smiths' grocery store, and convinced him to meet them later that evening. Before leaving the store Mims counted his money. The money in his possession was substantial.

(3) Bell and Hubbard met Mims at the Church of God camp ground later that evening, where Bell pulled a .25 gun on Mims, and told Hubbard to tie him up. Bell took Mims's wallet, and instructed Hubbard to put Mims in the trunk of Bell's car, which Hubbard did.

(4) About this time, Joiner drove by the campground and saw Bell's car and Mims' truck there. Afterward, when Joiner mentioned this to Bell, he told her to keep quiet and that she knew too much.

(5) Bell and Hubbard drove Mims to a remote area and led him into the woods. Bell shot Mims.

(6) After the murder, Bell went to Austin's house and confessed that he and Hubbard had robbed Mims. He also showed Austin money he stole from Mims.

(7) Following Mims's death, Bell told Hubbard not to tell the police about the death. Bell also told Hubbard that he had taken care of Mims's body.

(8) A few days after the murder, Bell's car was found on a used car lot in Atlanta, Georgia. When the trunk was opened, it smelled strongly of cleaning detergent, and was wet. It also contained an open box of .25 automatic ammunition that the defendant had purchased from a Western Auto in Clanton, Alabama three days before Mims's death.

Based on this evidence, the jurors reasonably could have concluded beyond a reasonable doubt that Bell robbed and murdered Mims on December 14, 1981. They could also have concluded that to cover up his involvement in the crime, he disposed of the body and attempted to clean the car that he had used to transport Mims when he was alive and after he was dead.

Bell attempts to undermine this conclusion by arguing that the Alabama courts erred by permitting the jury to consider the evidence provided by Hubbard that he and Bell met Mims at the campground, tied him up, and transported him to a remote place, that it was Bell who shot Mims twice in the back of the head, and that Bell admitted disposing of the body. Essentially Bell contends that, under Alabama law, Hubbard was an accomplice whose testimony required corroboration under Alabama law, and absent Hubbard's evidence no jury could have found him guilty beyond a reasonable doubt. This argument is without merit.

Under Alabama law, a person may not be convicted of a crime on the testimony of an accomplice unless there is adequate evidence tending to connect the defendant with the commission of the offense. See, e.g., Sorrell v. State, 31 So.2d 82, 83 (Ala. 1947). In Bell's case, Alabama's courts directly addressed this issue of Alabama law, and held that there was adequate evidence to corroborate Hubbard' s testimony. See Ex parte Bell, 475 So.2d 609, 613-14 (Ala. 1985); Bell v. State, 518 So.2d 840, 842 (Ala.Cr.App. 1987).

Although there is a constitutional right to be convicted of a crime only upon proof of guilt beyond a reasonable doubt, see, e.g., Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000); Jackson v. Virginia, 443 U.S. 307, 309, 99 S Ct. 2781, 2783 (1979), there is no federal right to have the testimony of a witness corroborated. See Lewellyn v. Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980) (construing Georgia' s rule requiring corroboration for accomplice evidence).¹³ Bell's argument essentially invites the court to find that Alabama's courts, construing Alabama law, erred in finding that Hubbard' s testimony was adequately corroborated. The court declines the invitation to venture into such a thicket. The question is one of state law, and this court does not sit in review of decisions of state courts on questions of state law that implicate no federal rights or laws. The court must accept the decision of the Alabama courts that Hubbard' s testimony was adequately corroborated as correct. Moreover, the law is clear that the state rule requiring corroboration is not controlling on collateral review in federal court. See id. As stated, considering Hubbard' s testimony, there is. sufficient evidence for the jury to have concluded that Bell was guilty beyond a reasonable doubt. Accordingly, this court cannot grant relief based on this claim.

13 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

B. Ineffective Assistance of Counsel

Bell alleges that his trial counsel, Paul Harden, provided ineffective assistance at his trial, in his penalty phase and in post-trial proceedings before the Alabama state courts. In its order entered March 3, 2000, this court found that the following claims of ineffective assistance of counsel would be heard at stage II: (1) Harden failed to provide the court with proper jury instructions on the law regarding accomplices; (2) Harden failed to object properly to statements allegedly made by the victim (and failed to raise this issue on appeal); (3) Harden failed to prepare evidence for submission during the sentencing phase of the trial; (4) Harden failed to object to the trial judge's failure to weigh adequately the mitigating and aggravating circumstances during sentencing; (5) Harden failed to raise at trial or any post-trial proceeding (a) that, under the factual circumstances of the case, the death penalty is disproportionately cruel and unusual punishment; (b) that the Alabama death penalty statute, historically and in this case, has been applied in an arbitrary, capricious, and freakish manner; (c) that the death penalty was discriminatorily applied to the petitioner because of his and the victim's race and economic status; (d) that Alabama's appellate review of death sentences is inadequate; (e) that electrocution is excessively cruel and that the death penalty is excessive; and (f) that the imposition of the death penalty in this case would violate Bell's constitutional rights because of the systematic exclusion from the jury of all citizens with religious or moral scruples against capital punishment; (6) Harden decided not to investigate, develop, or present any evidence during the pretrial and trial phases, based on his mistaken belief that the state's case was weak;¹⁴ (7) Harden failed to prepare for or investigate adequately for Bell's capital murder trial;¹⁵ (8) Harden failed to investigate the victim's financial status to rebut the implication that the victim had not left town with any of Faye Mims's or Charles Mims's money or go on a trucking/hauling trip;¹⁶ (9) Harden failed to locate and subpoena police officers to testify about their investigations into the victim's involvement with stolen property;¹⁷ (10) Harden failed to investigate Pairrett as to whether the police had been investigating Mims's hauling of stolen goods or debts that Mims incurred as a result;¹⁸ and (11) Harden failed to interview alibi witnesses, including Bell's parents and James Talley, whose names had been provided to him by Bell and who would have assisted in providing Bell an alibi.¹⁹

14 This claim is set forth in Bell's petition for writ of habeas corpus ¶ 75.

15 This claim is set forth in id. at ¶ 76.

16 This claim is set out in id. at ¶ 113.

17 This claim is set out in id. at ¶ 120.

18 This claim is set out in id. at ¶ 123.

19 This claim is set out in id. at ¶ 158.

The court now considers these claims. Although these claims of ineffective assistance of counsel were adjudicated in Bell's state collateral proceedings, this court may review them de novo because they present a mixed question of law and fact. See Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000), cert. denied, ___ U.S.___, 121 S.Ct. 1217 (2001); Wright v. Hopper, 169 F.3d 695, 701 (11th Cir.), cert. denied, 528 U.S. 934, 120 S.Ct. 336 (1999).

The factual record before this court reveals that Harden's representation of Bell was, indeed, far from experienced or zealous.²⁰ Harden had some experience in defending clients in criminal cases before he took on Bell's case, but he had not tried a capital case alone. He had provided minimal assistance to another attorney, Wendall Owen, in one prior capital case: the murder trial of Brian Keith Baldwin, who along with his co-defendant, was convicted and sentenced to die.²¹

20 The Alabama state trial court and Court of Criminal Appeals found that Harden was an experienced attorney with a background in capital defense. See Bell v. State, 518 So.2d at 843-47. The reasoning of the Alabama courts on this point, in part, eludes this tribunal. The state courts noted in support of their assessment of Harden's experience that he went on to serve as executive vice-president of the Alabama Criminal Defense Lawyer's Association and the Board of Governors of the Alabama Trial Lawyers' Association. See id. Both logic and the experience of this court indicate that holding such positions later in a legal career is simply not indicative of the quality of an attorney's representation beforehand.

21 See Deposition of Paul Harden, taken November 19, 1996, at 12-16 (Petitioner's exhibit 65). Harden's deposition describes his role in the Baldwin case. Owens did all the major trial work and wrote the appellate brief. See id. at 15-16. Harden did not recall doing any investigation of the facts for the case, did not know what his co-counsel's preparation had been, and described his own preparation and assistance as "very little," see id. at 14. In sum, Harden considered himself to be "a note taker for Mr. Owens," id., that is, a "handyman." Id. Owens did all the major trial work and wrote the appellate brief. See id. at 15-16

Despite his relative inexperience, Harden determined, without undertaking any significant independent investigation, that Bell's case was "very triable,"²² that is, that "Bell was not going to get convicted."²³

22 See id. at 23.

23 Id.

The legal standard for showing that a habeas petitioner received ineffective assistance of counsel is well-established and long settled.Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000) (noting that standard for judging ineffectiveness has been well established sinceStrickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). To succeed on a claim of ineffective assistance, a petitioner must show "both incompetence and prejudice." Chandler, 218 F.3d at 1313; see also Williams v. Taylor, supra. To show incompetence, counsel's performance must be objectively unreasonable "under prevailing professional norms"Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065 (1984). To demonstrate prejudice, a petitioner must establish that there is a reasonable probability that but for counsel's unreasonable performance, the result of the proceeding would have been different. See id.

The Eleventh Circuit Court of Appeals has stressed that the question of whether an attorney's performance falls below the objective standard delineated in Strickland is not a question of "`what is prudent or appropriate, but only what is constitutionally compelled.'" Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126 (1987)). Under the Eleventh Circuit's approach, a court considering a habeas petition must not relitigate the trial and must "avoid second-guessing counsel's performance." Chandler, 218 F.3d at 1314. "[I]t does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir.), cert. denied, 516 U.S. 856, 116 S.Ct. 160 (1995). Nor does counsel's lack of success demonstrate constitutionally deficient ineffectiveness. See Chandler, 218 F.3d at 1314.

With these standards in mind, the court turns to Bell's claims that Harden represented him ineffectively.

1. Harden's failure to provide the court with proper jury instructions on the law regarding accomplices

Bell alleges that Harden was ineffective for failing to give proper jury instructions to the court on the Alabama law regarding accomplice testimony. As stated, to succeed, Bell must show both that his counsel's performance was incompetent and that he was prejudiced by it. See Strickland, 466 U.S. 668, 104 S.Ct. 2052 (1984); accord Chandler, 218 F.3d at 1313. Bell has not shown that he was prejudiced by Harden's action.

Harden provided the trial court with a number of proposed instructions on the Alabama rule requiring accomplice testimony to be corroborated.²⁴ See Ex parte Bell, 475 So.2d 609 (Ala. 1985). The trial court rejected each of the proposed instructions as defective, and this conclusion was upheld on appeal. See id. at 612-13. Alabama's appellate courts also held that even assuming that Hubbard was an accomplice, there was sufficient evidence to satisfy the burden of corroborating his testimony. See id. at 613-14.

24 Alabama law, as stated, requires adequate collaboration for the testimony of an accomplice in order to uphold a conviction based on such testimony. See, e.g., Sorrell v. State, 31 So.2d 82, 83 (Ala. 1947).

As this court has already noted, what is required to collaborate accomplice testimony is solely a matter of Alabama law, about which the opinions of Alabama's courts are binding upon this tribunal. There is no support for the conclusion that a different instruction on accomplice corroboration would have made a difference to the case: Even had Harden provided proper instructions, Bell could have been convicted and there is no "reasonable probability . . . [that the result of the trial] would have been different." Chandler, 218 F.3d at 1329 (Tjoflat, J., concurring in part and dissenting in part). Bell, therefore, has not shown prejudice resulting from Harden' s conduct. Accordingly, this court is without power to grant relief on this claim.

2. Harden's failure object properly to statements allegedly made by the victim and failing to raise this issue on appeal

Although Bell raised this argument in the instant petition for writ of habeas corpus, he has not pursued it in his briefs to this court. Accordingly, there is no ground to grant relief on this issue.

3. Harden's failure to prepare evidence for submission during the sentencing phase of the trial

Bell alleges that his counsel was ineffective because he failed to prepare evidence for submission during the penalty phase of the trial. The penalty phase of his trial began almost immediately after the jury returned a guilty verdict. The trial court paused only to take a brief recess. During the penalty phase, Harden, who had been preparing to present Bell's parents as mitigation witnesses, changed course and presented no witnesses or evidence to the court and called no mitigation witnesses. Harden instead focused on lingering doubt about his client's guilt or role in the victim's death. Harden also attacked the character of the victim, highlighting his illegal or barely legal activities, such as "fencing" stolen property.

An attorney' s failure to prepare and present evidence in the penalty phase of a capital proceeding undoubtedly may constitute ineffective assistance of counsel and may be grounds for relief. See Williams v. Taylor, 529 U.S. 362, 120 S. Ct 1495 (2000). However, as the Eleventh Circuit has made plain, such facts alone do not mandate that relief be granted. See Chandler, 218 F.3d at 1317 n. 21 ("We do not read Williams to declare a per se rule of law that a defense lawyer must present character witnesses at the sentencing phase or that a defense lawyer (no matter what his client may have informed or instructed him) must in every case investigate purely to see if character witnesses might exist who might be of help at the sentencing phase.").

Regarding this claim, relief will not be granted because Bell has not established that his counsel was incompetent. Harden's decision not to present witnesses must be judged within its context. In this case, Bell "would not under any circumstances let [Harden] call members of his [Bell's] family either in the trial of the case or particularly the sentencing phase."²⁵ Thus, the question is whether Harden's compliance with his client's wishes, and decision to stress lingering doubt constitute incompetence in violation of the sixth amendment. They do not.

25 Deposition of Paul Harden, November 19, 1996, at 40 (Petitioner's Exhibit 65).

The right of a client to exercise control over his representation,see, e.g., Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975), is of fundamental importance to our system of law. Although this right is not absolute, see, e.g., Alvord v. Wainwright, 725 F.2d 1282 (11th Cir. 1984) (where client's sanity is in doubt attorney may override client's wish not to have insanity defense raised at trial), the law presumes that an attorney will respect his clients wishes regarding the objectives of representation. Moreover, an attorney is under an ethical and professional obligation to respect his client wishes as to the ends of representation and to consult with his client as to the means of achieving them. See American Bar Association Annotated Model Rules of Professional Conduct 1.2(a). Although the Eleventh Circuit has held that there are cases, other than those in which the competency of a defendant is questioned, in which an attorney "should ignore his client and pursue some other. unspecified course of action," see id. at 1289, Bell has not argued that this is such a case, nor can this court say without the benefit of "20/20 hindsight," id., that such an approach was clearly warranted.

Moreover, stressing lingering doubts that jurors may have about a defendant's degree of culpability, especially where evidence of guilt is not overwhelming is a reasonable strategy. As the Eleventh Circuit has unequivocally stated, "focusing on acquittal at trial and then on residual doubt at sentencing (instead of other forms of mitigation) can be reasonable. Especially when . . . the evidence of guilt was not overwhelming, we expect that petitioners can rarely (if ever) prove a lawyer to be ineffective for relying on this seemingly reasonable strategy to defend his client." Chandler, 218 F.3d at 1320; See also Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999).

Because Harden was acting on Bell's express desire not to call his parents or family as mitigation witnesses, and Harden focused on lingering doubt at the sentencing phase of Bell's trial, Bell has not established that his attorney's actions fell below what is mandated by the sixth amendment. Habeas relief is not warranted on this claim.

4. Haren's failure to object to the trial judge's failure to weigh adequately the mitigating and aggravating circumstances during sentencing

Although Bell raised this argument in the petition for habeas relief filed with this court, he has not pursued it further it in his briefs. Accordingly, the court cannot grant the requested relief on this issue.

5. Harden's failure to raise other issues at trial or any post-trial proceeding

The court finds that the issues raised by this claim, as discussed issue-by-issue below, are without merit. As to each argument, Bell has not shown that if he properly raised it, there was a reasonable probability that the outcome of the proceedings against him would have been different. Thus, he has not satisfied the prejudice prong of theStrickland test for determining whether counsel's assistance was constitutionally defective so as to warrant granting the requested writ. This court is accordingly without power to grant relief on the grounds discussed below.

a. Failure to argue that, under the factual circumstances of the case, the death penalty is disproportionately cruel and unusual punishment

Relief cannot be granted on this claim, because Bell has not established any likelihood that if Harden had raised this issue, the outcome of either the trial, penalty phase, or state collateral proceedings would have been different.

b. Failure to argue that the Alabama death penalty statute, historically, and in this case, has been applied in an arbitrary, capricious, and freakish manner

This claim is without merit. Bell has not shown that he suffered prejudice at any stage of the proceedings against him because his attorney's failed to make this argument. The court is, therefore, unable to grant relief on this ground.

c. Failure to argue that the death penalty was discriminatorily applied to Bell because of his and the victim's race and economic status

This claim is similarly without merit. Bell has not established by a preponderance of the evidence that but for his counsel's failure to raise this argument there was any reasonable probability that the outcome of any of his trial, appeals, or state collateral proceedings would have been different. The court is without power to grant relief on this ground.

d. Failure to argue that Alabama's appellate review of death sentences is inadequate

Bell has similarly failed to establish that he suffered any prejudice because his trial counsel' s failed to raise this claim. The court is without power to grant relief on this ground.

e. Failure to argue that electrocution is excessively cruel and that the death penalty is excessive

Bell also has not shown prejudice in any of his trial or post-trial proceedings because of his counsel's failure to make this argument. The court is therefore without power to grant relief on this claim.

f. Failure to argue that the imposition of the death penalty in this case would violate the petitioner's constitutional rights because of the systematic exclusion from the jury of all citizens with religious or moral scruples against capital punishment

Bell has not shown that his attorney's failure to raise this argument prejudiced him in any of the proceedings at issue in this suit. Accordingly, the court has no power to grant the requested writ on this argument.

6. Harden's decision not to investigate, develop. or present any evidence during the pretrial and trial phases, based on his mistaken belief that the State's case was weak

Bell claims that his attorney was ineffective because he failed to investigate, develop, or present any evidence during the pretrial and trial phases because of his mistaken belief that the State's case against his client was weak. Bell's claim that Harden was ineffective for these reasons fails on three counts. As a factual matter, the record in this case does not support the contention that Harden failed to investigate or develop any evidence for trial. Harden met on numerous occasions with Bell's family and traveled to meet Bell in prison on more than one occasion to form an impression of the case. Thus, the record establishes that Harden did investigate in preparation for Bell's case. Moreover, because of the presumption of innocence with which a criminal defendant enters trial, a criminal defendant need not put on any evidence at all.See, e.g., Taylor v. Kentucky, 436 U.S. 478, 4.83 n. 12, 98 S.Ct. 1930, 1934 n. 12 (1978) (presumption of innocence is shorthand description of the right of the accused to remain inactive and secure until the prosecution has taken up its burden and produced evidence and effected persuasion).

However, when an attorney' s failure to investigate or present evidence at trial or in the penalty phase of a capital case is based on her or his mistake of law, there may be grounds for granting habeas relief. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1514 (2000); accord Chandler, 218 F.3d. at 1317.

Bell's claim, however, does not fit within the legal framework created by Williams. Simply stated, Harden' s belief that the case against his client was weak was not a mistake of law, but a professional judgment about a factor that shaped his strategy for defending his client. Thus, quite plainly, this reason for not proceeding differently at the sentencing phase of Bell's trial does not fall within the "mistake of law' rubric carved out by Williams. Moreover, this court cannot disagree with Harden's assessment of the case against his client. Although it is not the province of this court to weigh the evidence again de novo, the conclusion is inescapable that the state's case against Bell, taken as a whole, was not overwhelming. Harden's belief was, therefore, itself not unreasonable and is not a basis for showing that his assistance to Bell was ineffective.

Accordingly, this court is without power to grant relief on this claim.

7. Harden's failure to prepare for or investigate adequately for Bell's capital murder trial

Bell claims that Harden's preparations for his trial constitute ineffective assistance of counsel. The question of the adequacy of trial counsel's preparation and investigation is not dictated by absolute rules. See Chandler, 218 F.3d at 1316. To show that Harden inadequately prepared or investigated for Bell's trial, Bell must show that "no competent counsel would have taken the action that his counsel did." Id. at 1315-16. Bell's claim fails because a reasonable lawyer — if not a wise one — could have determined that concentrating on the scant evidence of Bell's guilt and effectively cross examining Hubbard and Austin would suffice to establish reasonable doubt.

A wise lawyer would almost certainly have done more than Bell's attorney. However, wisdom is not the standard by which effective assistance of counsel is measured. See White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992), cert. denied, 514 U.S. 1131, 115 S.Ct. 2008 (1995) ("The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.").

Bell has not overcome the presumption of adequacy of representation, and therefore no relief will be granted on this claim.

8. Harden's failure to investigate the victim's financial status to rebut the implication that the victim had not left town with any of Faye Mims's or Charles Mims's money or go on a trucking/hauling trip

Bell's claim that Harden was ineffective for failing to investigate these issues is not a ground for granting relief because Bell has not established any prejudice arising from this alleged deficiency in Harden's performance.

9. Harden's failure to locate and subpoena police officers to testify about their investigations into the victims's involvement with stolen property

Although Bell raised this argument in his petition, he has not pursued it further in his briefs. Moreover, there is no indication that Harden's failure prejudiced Bell in any manner at any stage of the proceedings against him. Habeas relief will not be granted on this argument.

10. Harden's failure to investigate Pairett as to whether the police had been investigating Mims's hauling of stolen goods or debts that Mims incurred as a result

Although this claim was raised in the instant petition for habeas relief, Bell has not pursued it further. The court cannot therefore grant relief on this basis.

11. Harden's Failure to interview alibi witnesses, including Bell's parents and James Talley, whose names had been provided to him by Bell and who would have assisted in providing Bell an alibi

Although this claim was raised in the petition for habeas relief filed with this court, Bell has not pursued it. Accordingly, the court will not grant relief based on it.

C. Swain Claim

Bell argues that he is entitled to relief because the prosecuting district attorney, Janice Clardy, unconstitutionally struck African-Americans from his jury venire.²⁶ Bell's venire consisted of 50 individuals. Although there were six African-Americans among them, one African-American, BD, was excused for cause, and Clardy exercised peremptory challenges to remove the rest. Bell now presents statistical evidence as well as affidavits to show that the district attorney's office that handled his case historically had a practice of using its peremptory strikes systematically against black jurors to excuse them from jury service because of their race. The procedural history of this. claim is complex, and bears reiteration before the court addresses its merits.

26 In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), the Supreme Court addressed a state' s use of peremptory challenges to strike potential jurors because of their race. Although the Court rejected Swain's claim, his case set out the framework for evaluating such challenges until it was overruled in the Supreme Court's decision inBatson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). Recognizing thatSwain challenges were exceedingly difficult to establish, the Supreme Court in Batson significantly reduced a petitioner's burden to demonstrate unconstitutional racial discrimination in jury selection. Bell's conviction became final, however, before Batson was decided, and the Supreme Court has decided that the Batson rule does not apply retroactively. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878 (1986). Thus, the court must evaluate Bell's challenge under the Swain standard.

Bell raised a claim under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), in his first petition for collateral relief in state court.²⁷ Alabama's courts, however, never addressed Bell's Swain claim. Instead, the state courts ruled against Bell on the basis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). See Bell v. State, 518 So.2d 840, 842-43 (Ala.Crim.App. 1987). At the time, however, it had been clear and established law since 1986 that the rule in Batson did not apply retroactively to cases, such as Bell's, in which judgment became final before Batson was decided. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878 (1986). Neither party has argued to this court why the state courts mistakenly addressed Bell's claim under Batson rather than Swain.

27 Petition for writ of error coram nobis, filed May 1, 1986, at ¶ 6a-6c.

In their joint statement regarding procedural default issues, filed before the Magistrate Judge produced his recommendation in stage I, the parties stipulated that this claim was to be reached on the merits. Subsequently, respondents withdrew from their stipulation, and contended that this claim was not properly before this court. The court disagreed with the respondents' contention, and concluded that the petitioner had consistently asserted a Swain challenge throughout the pendency of the instant proceedings, and thus that the claim was to be heard on its merits.²⁸

28 Paragraph 217 of the petition for writ of habeas corpus, set forth a Swain claim in unmistakable terms:

"Upon information and belief, Petitioner contends that the State, through its prosecutor, had consistently used its peremptory strikes in a racially discriminatory manner in prior criminal cases involving black defendants."

The explicit reference to historical discrimination in ¶ 217 belied any contention that the petitioner failed to assert a challenge to his conviction grounded on Swain.

However, at stage I, the court did not reach the question of whether Bell would be able to present evidence on this claim that he did not present in state court. As noted, Bell now seeks to prove his Swain claim by introducing evidence in the form of affidavits and a statistical report examining the district attorney's strikes of African-American venire members in the years before Bell's criminal trial. This evidence was not before the state courts. Respondents object to this evidence,²⁹ and argue that this court may not consider it under the Supreme Court's holding in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715 (1992), unless Bell demonstrates cause and prejudice for the failure to present it to the state courts.

29 Specifically, respondents object to the affidavits from various attorneys who practice criminal law in the nineteenth judicial circuit of Alabama, where Bell was tried, and to the statistical report itself. As noted above, respondents object only to Bell's exhibits 19-51, 53-55, 57-61, 66, 67, 69, and 70.

The Eleventh Circuit, interpreting Keeney, has held that a petitioner for habeas relief from a state sentence may not present new evidence in federal court that was not before the state courts without demonstrating cause and prejudice. See Weeks v. Jones, 26 F.3d 1030, 1043 (11th Cir. 1994), cert. denied, 513 U.S. 1193, 115 S.Ct. 1258 (1995); Mathis v. Zant, 975 F.2d 1493, 1497 (11th Cir. 1992). Bell contends that these cases misapply the standard set out in Keeney. The Supreme Court inKeeney, he argues, enunciated a standard for when a district court must hear new evidence, but left unaffected a court's discretion to hear new evidence. In addition, Bell cites Burden v. Zant, 975 F.2d 771 (11th Cir. 1992), as prior precedent that conflicts with the Circuit's subsequent holdings in Weeks and Matthews.

Bell, however, is mistaken about the value of Burden as precedent. The question before the court in Burden was whether the state trial court's findings of fact were entitled to the presumption of correctness mandated by § 2254. The Court of Appeals held that the incentives for developing the facts in the state trial proceedings were different from those that emerged on habeas review and that therefore the state's findings of fact were not entitled to deference in Burden's habeas context. Although the Court of Appeals explicitly stated that "Keeney did not require a party in a habeas proceeding to establish cause and prejudice in order to establish that material facts were not developed in the state court," Burden, 975 F.2d at 775 n. 13, this statement was not essential to the resolution of the case, and therefore is not binding prior precedent. This court is bound to follow the precedent of this Circuit and to apply Supreme Court law as interpreted by the Court of Appeals. Mathis and Weeks provide the Circuit's interpretation of Keeney. Thus, this court will apply Keeney in light of Mathis and Weeks, and will take up the questions of prejudice and cause that they require the court to consider.

1. Prejudice

In this posture, the evidence sufficiently demonstrates prejudice for Bell's failure to develop adequately the facts of this claim in Alabama's courts. To demonstrate prejudice, Bell must establish that there is a reasonable probability that had the evidence been available for the state court to consider, the result of the proceeding against him would have been different. See, e.g., United States v. Cronic, 466 U.S. 648, 694, 104 S.Ct. 2039, 2068 (1984).

Under Swain, prosecutors enjoy the presumption that they have exercised peremptory challenges to jurors for "fair and impartial" reasons. Nonetheless, prosecutors may not "consistently and systematically exercise their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself." Id.; accord Jackson v. Herring, 42 F.3d 1350, 1356 (11th Cir.), cert. denied, 515 U.S. 1189, 116 S.Ct. 38 (1995); Horton v. Zant, 941 F.2d 1449, 1454 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516 (1992). Once a petitioner has made out a prima facie claim under Swain, the presumption that the state has exercised its peremptory challenges fairly and impartially is overthrown, and the burden shifts to the state to show that racially neutral selection procedures created the historical disparity in the racial make-up of juries or that there were racially neutral explanations for striking the African-Americans in the petitioner's venire. See Jones v. Davis, 906 F.2d 552, 554 n. 2 (11th Cir. 1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019 (1991); Willis v. Zant, 720 F.2d 1212, 1220-21 (11th Cir. 1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546 (1984), and, 467 U.S. 1256, 104 S.Ct. 3546 (1984).

If the evidence supports the conclusion that a prosecutor struck jurors for more than one motive, the Eleventh Circuit has held that a prosecutor's multiple motives do not preclude a petitioner from successfully establishing a Swain claim. See Horton, 941 F.2d 1459 (holding that where race was not the only factor that influenced the prosecutor, a petitioner may establish prima facie case under Swain). The Court of Appeals noted that "in the course of any strike or series of strikes the prosecutor may have legitimate, as well as illegitimate motivations." Id. However, the Circuit did not provide guidance to district courts for deciding when evidence that a prosecutor had more than one motive for striking a juror will warrant relief and when it will not. Nor does it appear that any other Court of Appeals has directly addressed this issue.

This court looks to the Eleventh Circuit's Batson jurisprudence for guidance. Batson and Swain address substantially similar constitutional defects in jury selection. The effective difference between the rule ofSwain and that of Batson is what is required to make out a prima facie case that a constitutional violation occurred. See Batson, 476 U.S. at 95, 106 S.Ct. at 1722 ("Since the ultimate issue is whether the State has discriminated in selecting the defendant's venire, . . . the defendant may establish a prima facie case "in other ways than by evidence of long-continued unexplained absence" of members of his race `from many panels.'"). Where the inquiry focuses on the question of whether discrimination has continued in the selection of the petitioner's own jury and not on whether an historical pattern of exclusion has been established, the differences between Swain and Batson matter little, if at all.

In Wallace v. Morrison, 87 F.3d 1271 (11th Cir.), cert. denied, 519 U.S. 1044, 117 S.Ct. 616 (1996), the Court of Appeals addressed when evidence of dual motivation for juror strikes warrants relief underBatson. After the party raising the Batson claim has established a prima facie case that discrimination was a substantial part of the motivation for a strike, the party that exercised the strike may raise the affirmative defense that the strike would have been exercised solely for race-neutral reasons. See Wallace, 87 F.3d at 1274-75. As the Court of Appeals determined, the party accused of discrimination then bears the burden of proving by a preponderance of the evidence that the strike would have been exercised absent any discriminatory motivation. See id. at 1275.

The affidavits and statistical report that Bell seeks to have the court consider establish that the district attorney's office systematically excluded African-American venire members from criminal petit juries. The state has not attempted to contest the validity of Bell's statistical report, but suggests only that the statistician failed possibly to account for legitimate motives underlying the strikes in the cases he examined.³⁰ Because a habeas challenge under Swain may be successful even if a prosecutor has more than one motive for striking a juror, see Horton, 941 F.2d 1459, the state's contention that legitimate motives may also have informed the strikes at issue does not discount Bell's statistical evidence.

30 Respondents, however, have offered no evidence to support their position that possibly legitimate motives may explain the historical pattern that emerges from Bell's statistical evidence.

Moreover, the strike sheets, district attorney's records, and Clardy's own testimony plainly indicate that race played a substantial role in her decision to strike African-American venire members from Bell's jury. Clardy herself admitted that race was a factor that she considered in selecting juries. At her deposition for this habeas petition Clardy noted that factors such as age, gender, familiarity with witnesses, and past criminal activity are factors she considers in jury selection.³¹ She was then asked whether she "considered race a factor in jury selection,"³² and she answered that she did not consider it "any more than any other factors. . . . I think all of those things — all things are factors, age, sex, race, occupation, past criminal history, where their family goes to church, all those things [are factors]."³³

31 See Deposition of Janice Clardy, November 25, 1996, at 56-57 (Petitioner's exhibit 64).

32 Id. at 58.

33 Id. at 59.

Moreover an examination of the strike sheets reveals that next to the name of each African-American venire member, Clardy placed a capital "B"³⁴ she admits that these "B" markings stand for "black."³⁵ Additionally, one venire member, BD, was denoted in the Clardy's note cards on the individual members of Bell's venire as "Best Black almost white,"³⁶ Although BD and possibly LV were struck for cause, each of the four other African-Americans was struck peremptorily.

34 See List of Petit Jurors (Petitioner's exhibit 13).

35 See Deposition of Janice Clardy, November 25, 1996, at 61 (Petitioner's exhibit 64).

36 See Petitioner's exhibit 14.

Respondents suggest that the "B" markings were used for purposes of identification only. However, there are no other markings on the district attorney's venire sheet that the state alleges were also used for "identification" purposes on any basis other than race — such as address or age — that would support the state's contention. And although the state has drawn the court's attention to Clardy's explanation in state court that she used the marks for identification purposes only, Clardy's testimony and her strike sheet suggest otherwise. The Eleventh Circuit has cautioned in the Swain context, "testimony from the alleged discriminators should be viewed with a great deal of judicial scrutiny." Horton, 941 F.2d at 1460. Thus, absent some independent support for Clardy's conjecture that her "B" markings were for identification, the court is inclined to treat her contention with considerable skepticism. Clardy asserts that she placed check marks beside the names of jurors she felt would "by their original appearance . . . they would make a good juror,"³⁷ and "x" marks beside those jurors about whom she "didn't have a good feeling when they stood up."³⁸ However, Clardy did not apply this system consistently. Eight venire members have both checks and "x" marks by their names.³⁹ Although it is remotely possible that these marks reflect that Clardy changed her mind about whether these jurors would be "good" or not, there is no support for this suggestion in the record, and Clardy did not offer it to explain, her inconsistency. Thus, there is no support for the contention that Clardy's "x" marks and checks comport with her explanation to the state court.

37 Transcript of coram nobis hearing in Bell v. State, CC-83-35.60, May 28, 1987, at 51 (Petitioner's exhibit 74).

38 Id.

39 See List of Petit Jurors (Petitioner's exhibit 13).

Further, even if Clardy's explanation of "x" marks and checks is credited, the strike sheet still indicates that race dictated her decision to strike jurors. None of the African-American venire members has an "x" mark by his or her name. Clardy struck only individuals who had an "x" mark or "B" by their names. No non-African-American venire member was struck unless he or she had an "x" mark by his name. A reasonable conclusion, strongly supported by this evidence, is that race dictated Clardy's use of strikes. Moreover, this conclusion is bolstered by Clardy's admission that race was a factor she considered in striking jurors. Thus, there is strong evidence that even if Clardy's notes indicated that she thought the African-American venire members could make good jurors, she struck them anyway. This conclusion is bolstered because the only specific characteristic "that Clardy singled out on her strike sheet was the race of the African-American jurors. No other jurors were identified by any other characteristics, such as age, address, employment.

Where race plays no role in the district attorney's calculus, there is no need to identify jurors on the basis of heir race. The evidence of racially designating each potential African-American juror, along with Bell's affidavit and statistical evidence, strongly supports the conclusion that race played a considerable and possibly decisive role in Clardy's decision to strike the venire members.⁴⁰

40 The state courts also found that race had played a role in Clardy's decision to strike the venire members. The trial judge found that "the black venire members were not struck solely because of their race." Bell v. State, 518 So.2d 840, 843 (Ala.Crim.App. 1987) (emphasis added) (quoting the order of the trial judge denying Bell's first state petition for collateral relief).

The respondents' explanation for the strikes — that the venire members were struck because they knew the defendant — does not discount the conclusion that race played a role in Clardy's strikes. It, at most, establishes that Clardy may have acted from more than one motive.⁴¹ Faced with a prima facie case under Swain, a respondents must provide a legitimate reason to explain their strikes that does not take race into account. See Horton, 941 F.2d at 1460. This burden is not solely one of production, but also one of persuasion. See id. (finding aSwain violation where the state's evidence failed to persuade the court). Respondents argue that each of the African-American jurors who was peremptorily struck was removed from the jury because they knew the defendant. On its face, this is a legitimate and race-neutral reason for striking the jurors. However, it does not rebut the evidence that racealso played a role in the strikes.

41 Respondents suggested in a footnote that because Clardy's explanation was credited by the state courts, it is entitled to a presumption of correctness. This, however, does not change this court's analysis. The state courts found Clardy's explanation credible, but also found that race played a role in her strikes. See Bell v. State, 518 So.2d 840, 843 (Ala.Crim.App. 1987). Even conceding that Clardy may have struck the venire members because of their familiarity with Bell, this establishes that she acted because of both their race and familiarity, as the court's discussion makes clear.

Moreover, the support in the record for respondents' explanation for Clardy's actions is weak at best. The record indicates that William Hill, who was assisting Clardy at Bell's trial, conducted voire dire. Hill asked if any of the jurors knew the defendant, and all the African-American venire members responded affirmatively. But Clardy did not make any entry on her strike sheet or on the notes that have been submitted as evidence to indicate that she considered this a reason to strike the jurors. As noted above, none of the African-American jurors had an "x" mark by his or her name. Moreover, Clardy testified that familiarity with individuals involved in a case did not mean that a juror would be unacceptable to her.⁴² She stated she "had situations where potential jurors have known the defense attorneys and that doesn't bother me, or witnesses. Just sometimes it's a factor and sometimes it isn't."⁴³ Perhaps just as probative of the weight of respondents' explanation is that Clardy herself did not claim at any time in her deposition that she struck the African-Americans from Bell's venire because they identified themselves as being familiar with him.⁴⁴ Moreover, the African-Americans who knew Bell and who stated they could not be fair and impartial, were struck for cause.

42 See Deposition of Janice Clardy, November 25, 1996, at 57 (Petitioner's exhibit 64).

43 Id.

44 See id. Bell claims that given the demography and geography of Chilton county, almost all the African-Americans lived in one small neighborhood, so it was exceedingly unlikely that any African-Americans on his venire would have no familiarity with him. The state does not contest this fact.

Thus there is no independent evidence that suggests that Clardy struck the rest of the African-Americans from Bell's venire because they had some familiarity with him, or even that Clardy considered that such familiarity would disincline the jurors to convict Bell on the state's evidence. The only indication that Clardy struck the venire members because they knew Bell was her own ex post facto explanation to the state courts — an explanation which is not supported by the remainder of the evidence.

However, even were the court to credit Clardy's explanation, if a prosecutor strikes jurors for more than one reason, and one of the reasons is race, it is the respondents' burden to show that the jurors would have been struck regardless of their race. See Wallace, 87 F.3d at 1275. Thus, the respondents must show that Clardy would have struck every one of the African-American venire members without regard to their race. The respondents have offered no evidence at all to support such a conclusion. For instance, they have presented no evidence of a policy or practice of striking jurors from juries regardless of their race if they expressed a familiarity with the defendant. Nor have they presented evidence to show that Clardy would have done so in Bell's trial.

Accordingly, the evidence establishes the strong probability that Bell has a valid Swain claim.⁴⁵ However, without the affidavits and statistical analysis, Bell cannot establish that the district attorney's office that tried his case systematically struck African-Americans from criminal trials before and during his own trial. This demonstrates prejudice for his failure to offer the affidavits and statistical evidence to the Alabama courts. See, e.g., United States v. Cronic, 466 U.S. 648, 694, 104 S.Ct. 2039, 2068 (1984) (actual prejudice means a reasonable probability that but for the evidence the result of the proceeding would have been different).

45 The evidence does not prove beyond any doubt that race was a motivating factor in Clardy's decision to strike all the African-American venire members. For instance, there were no white jurors who knew the defendant and were not struck. However, to show the requisite prejudice Bell need only show a reasonable probability that, by a preponderance of the evidence, race was a motivating factor in striking the venire members.

2. Cause

The court now turns to the question of whether Bell has shown cause to permit the court to consider this evidence on the merits in this proceeding. Essentially, as this court construes Bell's argument, he claims that cause is shown because the state courts failed to afford him a full-and-fair hearing on his Swain claim. The Supreme Court has held that if "the material facts were not adequately developed at the state-court hearing . . . [and] it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing,"Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757 (1963), a district court may hold an evidentiary hearing and grant relief. See id. Bell, however, is mistaken about the application of the law to this proceeding.

As the Supreme Court noted, "There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant." Townsend, 372 U.S. at 313-314, 83 S.Ct. at 757. However, the Supreme Court's case law has consistently held that the petitioner must not be responsible for the failure to develop the facts in state court. See Townsend, 372 U.S. at 314-315, 83 S.Ct. at 758 (requiring a rehearing in federal court if reason for failure to develop the facts in state court is not attributable to inexcusable neglect, or an attempt deliberately to bypass state proceedings); Keeney, 504 U.S. at 8-9, 112 S.Ct. at 1719 (adopting cause and prejudice standard for presentation of new evidence in federal court in part because "requiring a federal evidentiary hearing solely on the basis of a habeas petitioner's negligent failure to develop facts in state-court proceedings dramatically increases the opportunities to relitigate a conviction.").

Just because the state courts did not reach Bell's Swain claim does not mean that he was not responsible for their failure to do so. Bell has offered no evidence to indicate that he was not responsible for the state courts' failure to address his claim under Swain, and therefore the failure to consider evidence, if offered, on the question of the racially tainted practice of jury selection by the DA's office that prosecuted him. The burden to show cause is on Bell, not the respondents. This court cannot conclude solely from the fact that the state courts did not adjudicate Bell's claim that he has shown cause to introduce new evidence now, and therefore this court will not consider Bell's new evidence in his Swain claim.

Thus, although the court is satisfied that Bell has shown prejudice from the defaulted evidence that he seeks now to introduce, he has not shown cause for the state courts' failure to consider it. Absent the new evidence, the facts before this court do not suffice to prove a claim under Swain. This court accordingly will not grant Bell relief based on Clardy's conduct in selecting his jury.

D. Failure to Charge on Accomplice Theory

Bell claims that this court must grant habeas relief because the Alabama trial court failed to instruct the jury on the issue of whether Hubbard was merely a participant in Mims's murder or an accomplice whose testimony required corroboration before it could be used to convict Bell. Alabama law is clear that whether Hubbard was an accomplice was a fact for the jury to decide, not a matter of law for the trial judge.See Ex parte Bell, 475 So.2d 609, 612-614 (Ala. 1985) (reversing Alabama Court of Criminal Appeals' holding that whether Hubbard was a participant or accomplice was a question of law not fact); see also Jacks v. State, 364 So.2d 397 (Ala.Crim.App. 1978).

Before the court addresses the merits of this claim, it is crucial to specify what is at issue in this claim. Bell's trial counsel sought a jury instruction to the effect that if the jury found Hubbard to be an accomplice rather than a mere participant in the crime against Mims, the jury could convict Bell on Hubbard' s testimony only if the state had produced other evidence tending to connect Bell to the offense.⁴⁶ Alabama law at the time of Bell's trial required that a "conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient." Bell, 475 So.2d at 611 (quoting 1975 Ala. Code § 12-21-222). Thus a proper instruction only would have instructed the jury that if it found Hubbard to be an accomplice rather than a participant, there would need to be corroborative evidence in order to convict Bell. It would not have cautioned the jury about the reliability of Hubbard as a witness.

46 As the court has discussed in addressing Bell's claim that his trial counsel, Harden, was ineffective for failing to give the court a proper instruction, none of the proposed instructions that Harden sought correctly stated the law, and the Alabama Supreme Court found that each was properly rejected. See Bell, 475 So.2d at 612-13.

As this court discussed in evaluating Bell's claim that the evidence to convict him was insufficient, there is no federal right to have the testimony of a witness corroborated. See Lewellyn v. Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980) (construing Georgia's rule requiring corroboration for accomplice evidence). Thus, the failure to instruct the jury on the need for corroboration does not facially contravene federal law — as would, for instance, the failure to properly instruct a jury that a criminal defendant's decision not to testify at trial may not be considered as evidence of guilt. See United States v. Burgess, 175 F.3d 1261, 1266 (11th Cir. 1999). However, the former Fifth Circuit clearly held that the trial judge "has an obligation to charge on the essential elements of the case and instruct the jury as to the law on matters which developments of the trial have made significant and important." Castilleja v. Southern Pac. Co., 406 F.2d 669, 675 (5th Cir. 1969). The court assumes, without deciding, that the issue of whether corroboration was needed for Hubbard's testimony was a "significant and important" aspect of the case against Bell. If the jury determined that Hubbard was an accomplice, then the burden was on the state to have introduced evidence to corroborate testimony.

Federal law, however, does not require that a conviction. be overturned if the trial court committed error in instructing the jury. See Burgess, 175 F.3d at 1266. The error must be examined to determine whether or not it was harmless. See Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246 (1991); Burgess, 175 F.3d at 1266. This same standard applies on federal habeas review. See Meeks v. Moore, 216 F.3d 951, 969 (11th Cir. 2000) (federal habeas court required to determine whether state court's error in instructing jury was harmless), cert. denied,___ U.S. ___ 121 S.Ct. 1114 (2001).

Under federal law, error may be considered harmless only if the court finds beyond a reasonable doubt that the error did not contribute to the conviction. See Burgess, 175 F.3d at 1267. In this case, under Alabama law, there was sufficient corroborating evidence to connect Bell with the crime to corroborate Hubbard' s testimony, even if he were deemed an accomplice. See Bell, 475 So.2d at 613-14. The question for this court, then, is whether the failure to so instruct the jury contributed to the conviction. As the Alabama' s courts found, as explained above, there was evidence sufficient to connect Bell with the commission of the crime. This evidence showed that Mims told the Smiths that he intended to meet the "cowman" on the evening he disappeared. Mims's wife identified the "cowman" as the two black men who drove the green Cadillac. Bell's ex-girlfriend, Carol Joiner, saw Bell's car, a green and white Cadillac, next to Mims's truck near the alleged scene of Mims's abduction around the time of the abduction. She testified that later that evening she saw only Mims's truck there. When she asked Bell about this, he told her to be quiet because she knew too much. The night of the murder, Bell showed Austin Mims's money and told him that he and Hubbard had robbed Mims. When Bell's car was discovered in Atlanta, the trunk was sopping wet and smelled strongly of cleaning agents. The box of .25 ammunition that Bell had purchased three days before the murder was found open in the trunk. This evidence connects Bell to the offense. Indeed, it indicates that in some capacity Bell was intimately involved in Mims's murder. Because there was sufficient corroboration for Hubbard's testimony, any error in not charging the jury on this issue was harmless beyond a reasonable doubt.⁴⁷

47 The court, however, by this holding, does not address the issue of whether if possibly improperly suppressed evidence regarding Hubbard' s possible role in the murder had been disclosed and the jury had had opportunity to consider it in its deliberations, Habeas relief must be granted. The question on this claim is solely whether the trial court's failure to provide a limiting instruction regarding the weight of Hubbard' s testimony — given the facts actually adduced at trial about Hubbard's involvement in the crime — enable the court to grant Bell habeas relief. The question of whether evidence regarding Hubbard's involvement was suppressed and Hubbard' s credibility was therefore improperly bolstered by the prosecution is the subject of Bell's Brady/Gigho claim, which the court addresses below.

The court cannot grant relief on this claim.

E. Insufficient Evidence to Prove the Corpus Delictii

Bell claims that because Mims's body was never discovered, the evidence presented at trial was insufficient to prove that Mims is dead, and therefore Bell's conviction must be overturned. This contention is without merit.

There is no federal right to be convicted of murder only upon physical proof of the body of the victim. However, as this court construes this claim, Bell argues that the evidence presented to the state court was insufficient, under federal law, to support a conviction. As stated, this court must construe the evidence in the light most favorable to the state and must ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 886 (2001).

The death of the victim is an essential element of capital murder in Alabama. See 1975 Ala. Code § 13A-5-40(b) (referring to the definition of murder in § 13A-6-2(a)(1), which states that a person commits murder if "With intent to cause the death of another person, he causes the death of that person or of another, person".) Therefore, the court must examine the evidence produced at trial and must determine whether, based on it, any reasonable trier of fact could have concluded that Mims was dead. The circumstantial evidence at trial — (1) Hubbard's testimony that he saw Bell shoot Mims from a few feet away and that Mims did not get up again; (2) testimony from a forensic pathologist, Joseph Embry, that such a shot would have killed Mims; (3) testimony that Mims did not return to his family as he promised on the evening of December 14, 1981, and; (4) the existence of no indication of his whereabouts since then — suffice to show that a reasonable trier of fact could have found beyond a reasonable doubt that Mims was dead.⁴⁸ Under the Jackson standard this is all that is required to uphold Bell's conviction.

48 of course, the evidence at trial does not prove beyond any doubt that Mims is actually dead. However such proof is not what is required for a criminal conviction.

The court, therefore, must deny relief on this claim.

F. Brady/Giglio Claims

In the order determining the stage I issues, the court addressed Bell's claims that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), (1) by suppressing evidence of possible deals with Hubbard and Austin, (2) by failing to disclose pretrial statements by both men, and (3) by failing to correct Austin's possibly perjurious testimony at Bell's trial. The court determined that it would reach the merits of Bell's Brady/Giglio claims with regard to Austin but not Hubbard. Now, Bell offers additional evidence in support of his claim with regard to Hubbard, and asks the court to revisit its ruling at stage I on this aspect of his claim. A violation of Brady occurs when (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; (3) the evidence was material. See Stano v. Dugger, 883 F.2d 900, 916 (11th Cir. 1989) (Anderson, J., concurring in part and dissenting in part).Giglio is violated when testimony (1) used by the state (2) is false, and (3) known by the state to be false, and (4) is material to the guilt or innocence of the defendant. See Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir. 1984). The materiality of alleged Brady information is not to be judged on an item-by-item basis, but "in terms of the cumulative effect of suppression." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995). A showing of materiality "does not require demonstration by a preponderance of the evidence that disclosure would have resulted ultimately in the defendant's acquittal," id. at U.S. 434, S.Ct., 1565-66, but whether if the evidence had been disclosed there is a "`reasonable probability' of a different result." Id. at U.S. 434, S.Ct. 1566 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381 (1985)). A reasonable probability of a different result is shown when the government's evidentiary suppression "undermines confidence in the outcome." Id.; see also Bagley, 473 U.S. at 678, 105 S. Ct. at 3381. The court will address Bell's claim with regard to Austin first and will then turn to his request that the court reconsider its earlier ruling with regard to Hubbard.

1. Austin

At stage I, the court found that the claim that the prosecution violated Brady and Giglio with regard to Austin had been defaulted, but that Bell demonstrated cause and prejudice for his default. Consequently, there are. three separate aspects to Bell's claim that the state violated Brady and Giglio with regard to Austin that are now before this court: First, whether the state improperly withheld from Bell's attorney a statement by Austin indicating that Hubbard shot Mims and whether the state also allowed Hubbard to testify falsely at trial about whether Bell confided that Hubbard had done so. Second, whether the prosecution improperly failed to correct Austin's false testimony at trial. And, third, whether the state improperly failed to disclose a deal with Austin for his testimony against Bell.

After examining the evidence that Bell offers to show that the prosecution violated Brady and Giglio, the court concludes that Bell's claims may warrant habeas relief, and that an evidentiary hearing will be held to assess the weight and credibility of the evidence in support of Bell's claims.

The evidence Bell has proffered is as follows: Austin swore out a statement to John Perdue of the Alabama Bureau of Investigation on January 12, 1982.⁴⁹ In that statement, Austin told Perdue that Bell had confided that he and Hubbard had gone to meet Mims and decided to rob him. Austin swore that "Randy [Bell] said Michael Joe [Hubbard] had Randy' s gun and Randy made him shoot him [Mims] since Randy thought Charles [Mims] would have them killed for robbing him. Randy said Mims was not dead, so he got the pistol from Michael Joe and shot Mims again."⁵⁰ Austin's statement makes no mention of any conversation with Bell on the night of the murder, nor of any other discussion between Austin and Bell about the murder. This statement was never disclosed to Bell's attorney.

49 See Statement of Joe Austin, Jr., January 12, 1983 (Petitioner's exhibit 3).

50 Id.

Bell asks the court to infer that to ensure that Austin did not relate the contents of his statement at trial, but instead testified in a manner that was consistent with the prosecution's theory that Bell alone had shot and killed Mims and that Hubbard had been an unwilling and far less culpable participant in the crime, the prosecution reached an agreement with Austin to recommend leniency for him in the matter of other, unrelated robbery charges that were pending against him. This arrangement was never disclosed to Bell's attorney.

At trial, Austin testified quite differently. He claimed that Bell came to him on the night of the murder and admitted robbing Mims. He made no reference to any other conversation with Bell. He did. not state that Bell had told him that Hubbard had shot Mims, and that he, Bell, had fired a second shot. When Austin specifically was asked whether Bell had mentioned anything about Hubbard' s conduct, he answered in the negative. The prosecution did not correct, or otherwise supplement, Austin's answer.

Bell urges the court to conclude that a jury could have construed the evidence as follows: In his pretrial statement, made before any deal had been struck with the prosecution, Austin accurately and completely described what he had been told by Bell about Mim's murder — that Hubbard had fired the first shot. Later, after having been pressured by the state and having entered into an agreement in which he was promised lenient treatment for his testimony, he changed his story both to make it seem more reliable (changing the timing of his conversation with Bell to the evening of the murder) and to make Hubbard's testimony more reliable (omitting Hubbard's role in shooting Mims).

The suppressed evidence taken individually as well as collectively strongly suggests that the prosecution presented to the court and to the jury a theory of the crime that it knew was incomplete and misleading. The undisclosed statement is exactly the kind of evidence that is eligible to be revealed under Brady. Moreover, if there was a deal for Austin's testimony, it too would fall within the scope of the Brady line of cases. Finally, if Austin's testimony regarding Bell's conversations with him about the crime was false or materially misleading, the state may have been under an obligation to correct his testimony.

Brady and its progeny do not require that material that is inconsistent with the prosecution's theory of a case be disclosed to a criminal defendant. However, the Brady line of cases require the prosecution to disclose evidence that is exculpatory, favorable to defendant, or that might be used to impeach a witness. See Brady, 83 S.Ct. at 1197-98;Giglio, 92 S.Ct. at 766; McMillian v. Johnson, 88 F.3d 1554, 1567 (11th Cir. 1996), cert. denied, 521 U.S. 1121, 117 S.Ct. 2514 (1997). One obvious purpose of the rule announced in the cases is to prevent the prosecution from doing what it may have done here: presenting to the jury a theory of the case that it may have known was incomplete or misleading and suppressing the evidence that would enable the jury to undertake informed and meaningful deliberations. "The state's obligation is not to convict, but to see that, so far as possible, truth emerges." Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809 (1967) (Fortas, J., concurring).

a. Undisclosed Statement

Austin's undisclosed statement from January 12, 1983, which is described above, does not exculpate Bell. It indicates that Bell shot Mims — even if he may not have been the first or only person to have shot him. It supports the conclusion that Bell shot Mims in the course of robbing him. And it suggests that Bell, knowing that Mims was not dead, shot him-in order to assure his death. This evidence is consistent with Bell's conviction for murder.

The court concludes that although the statement is not exculpatory, it could have been used to discredit Austin materially at trial, and thus may well be material that must be disclosed under Brady. It is true that Bell's counsel would have run the risk of implicating his client in the crime.⁵¹ But he would also have been able to reveal Austin's testimony as incomplete, and he would have been able to bring out material facts that challenged the theory of the case propounded by the prosecution: that Bell was the sole shooter and that Hubbard was an unwilling participant. Moreover when this statement is viewed in light of the possible evidence of the agreements between the prosecutors and Austin and Hubbard, and of Austin's possibly perjurious or improper testimony at trial, see Kyles, 514 U.S. at 436, 115 S. Ct at 1567, the suppressed statement that Austin made to Perdue could have been material that falls squarely within the four corners of Brady's rule that impeachment evidence must be turned over to a defendant.

51 The decision whether or not to undertake that risk was for Bell and his counsel to make, not the prosecutor.

Respondents do not dispute the content or the implications of Austin's statement, but contend that it could not have directly been introduced as evidence or used on cross examination to discredit Hubbard and that the "defendant' s self-serving, out of court statement to Austin regarding the extent of Hubbard's participation likely would carry little weight with the court and jury."⁵² Respondents misjudge the value of impeachment evidence. The primary value of Austin' s testimony was that it corroborated Hubbard' s account of how Mims died. An effective impeachment of Austin, would have had a number of effects. First, it substantially would have weakened the case against Bell, because. if Austin's corroboration of Hubbard were eliminated or undermined, the case turned almost entirely on Hubbard's personal credibility. Second, if the jury credited Austin's pretrial statement, they also could have concluded that Hubbard had, perhaps, killed Mims, and that he had lied in order to cover up his own culpability. Third, and more crucially, the jury could easily have determined that the death was not an appropriate sentence because of the absence of other evidence indicating that Bell killed Mims.⁵³ The jury returned a recommendation that Bell be sentenced to death by a vote of ten to two. It is likely that effectively impeaching Austin with his prior statement may have swayed the jury to vote against the death as the appropriate penalty.

52 Brief of the Respondents on Stage II Issues at 27.

53 The court notes that the evidence that independently corroborated Hubbard's testimony did not corroborate his testimony that Bell killed Mims, but rather that Bell was linked to the commission of the offense.

b. Misleading Trial Testimony

Bell argues that his prosecutors improperly failed to correct Austin's misleading trial testimony about Bell's confession to him. If a prosecutor fails to correct false or perjured material testimony, habeas relief may be granted. See, e.g., Bagley, supra; Giglio, supra; Routly v. Singletary, 33 F.3d 1279, 1286 (11th Cir. 1994), cert. denied, 515 U.S. 1166, 115 S.Ct. 2627 (1995). However, although a prosecutor has an obligation to correct false testimony, where testimony is merely equivocal, it may not require correction by the prosecution. See id. at 1286. Respondents assert that the testimony that Austin gave was neither false nor perjurious.

On cross examination, Bell's attorney, Harden, questioned Austin about his conversation with Bell and what Bell said about Hubbard's involvement in the crime. Harden asked Austin "Did Randy [Bell] tell you that Michael Joe did anything on that occasion?" and Austin answered "No — no, on that occasion he did not tell me."⁵⁴ Essentially, the respondents contend that when Austin testified to this at trial, he was not testifying about the conversation that was the subject of the undisclosed pretrial statement to Perdue that took place a few days after Mims's death, but about an entirely separate conversation that he had with Bell on the night of the murder. Bell offers a different interpretation of the exchange: The question was not about the occasion of the discussion, but about Hubbard's participation on the occasion of the murder. And Austin's answer was about Hubbard's participation and not the occasion of Austin's own discussion with Bell.

54 Trial Transcript at 279.

The only indication that there may have been more than one conversation between Austin and Bell about Mims's death is Clardy's contention that Austin's testimony at trial may be explained as non-perjurious if Austin had two different conversations with Bell, but only testified about one of them."⁵⁵ This evidence does not consist of anything more than Clardy's conjecture that because Austin testified that he spoke with Bell immediately after the murder and because his undisclosed statement says he spoke with Bell about the murder a few days after it occurred, there must have been two conversations. Austin's statement, however, mentions only one conversation with Bell a few days after the murder, and there is no indication in the record that provides any additional support for Clardy's contention.

55 See Deposition of Janice Clardy, November 25, 1996, at 41-42.

A witness testifying under oath commits perjury when he gives false, testimony concerning material matter with a willful intent to provide false testimony, rather than as the result of confusion, a mistake, or faulty memory. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116 (1993) (relying on generally accepted interpretation of federal perjury statute, 18 U.S.C.A. § 1621). In order to be perjury, testimony must be false. If the testimony is — "literally accurate, technically responsive, or legally truthful," United States v. Makris, 483 F.2d 1082, 1084-85 (5th Cir. 1973), it is not perjurious. In this case, the testimony that Austin gave at trial most likely was false.

It was also material. The value of Austin's testimony in this case was both what he said and what he omitted. As stated, what Austin said corroborated Hubbard' s testimony that Bell robbed Mims. Thus, it provided Hubbard' s narrative of the events of Mims' murder with additional support. However, if Austin testified about the conversation with Bell that was the subject of his undisclosed pretrial statement, his testimony, as elicited by any competent attorney, would have undermined Hubbard's version of events, as discussed above. Thus Austin's possibly false testimony that Bell had said nothing more to him about Hubbard' s involvement was material. Moreover, the prosecution, because of Austin's undisclosed statement, had reason to know it may have been false, and took no action to correct it. A conviction or sentence obtained by uncorrected false testimony may require habeas relief.

c. Undisclosed Deal

Next, the court turns to the contention that the prosecution improperly failed to disclose a deal with Austin for his testimony. The prosecutor, Hill, who assisted Clardy at Bell's trial, has confirmed that the state entered a deal with Austin for his testimony. Hill has unequivocally stated that: "Joseph C. Austin, Jr., otherwise known as `Pick', testified against Randy Bell. At the time, Pick had pending charges against him in Tuscaloosa, Alabama. The government agreed to help lessen his sentence in exchange for testifying against Randy Bell."⁵⁶ The state followed through on this deal: Bell has presented evidence that three days after Bell was sentenced to death, investigator Perdue wrote to the district attorney of Tuscaloosa County requesting leniency for Austin on the charges against him.⁵⁷ Although these charges were not dismissed until considerably later, respondents have offered nothing to rebut the statement by Hill that there was a deal. It is undisputed that Bell's attorney was never informed of any arrangement with Austin, nor that he otherwise could have discovered one. There is, thus, significant evidence that the state entered into a deal with Austin for his testimony against Bell.

56 Affidavit of William R. Hill, Jr., ¶ 12 (Petitioner's exhibit 19). Respondents contend that Bell did not present Hill's evidence that there was a deal to the state courts, and that therefore he may not present it for consideration in this court. Respondents are fundamentally mistaken, and urge this court to adopt a position that is unsupported in law.
At stage I, this court determined that Bell's claim with regard to Hubbard was defaulted, but that Bell established both cause and prejudice to permit him to be heard on the merits on this claim in federal court.

57 See letter from John Perdue to Hon. Charles Freeman, May 9, 1983 (Petitioner's exhibit 10).

Where the state fails to disclose an arrangement for leniency or immunity with a material witness, habeas relief may be warranted. See United States v. Valera, 845 F.2d 923, 926 (11th Cir. 1988) (noting thatGiglio requires disclosure of promises of leniency or immunity to government witnesses). Further, when a defendant' s guilt or innocence may turn on the reliability of a witness, evidence affecting the credibility of a witness must be disclosed to a criminal defendant. See, e.g., Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959). In this case, a deal could have been particularly damaging to Bell, especially in conjunction with Austin's pretrial statement. The jury may have been deprived of its opportunity to evaluate Austin's credibility in its proper perspective when he testified that Bell had admitted robbing Mims, but he possibly falsely omitted Bell's discussion of Hubbard as the first shooter.

To contest Bell's claim, respondents contend that Bell. has no evidence that a deal, if there was one, was not arranged after Austin testified, and that therefore habeas relief cannot be granted. See United States v. Lacayo, 758 F.2d 1559 (11th Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568 (1985). However, a reasonable interpretation of Hill's statement regarding a deal with Austin could support the conclusion that the deal was entered into before he testified at Bell's trial. Thus, the timing of any arrangement with Austin appears to be a disputed issue of material fact that militates strongly in favor of holding an evidentiary an hearing in order to develop the facts that determine the proper resolution of Bell's claim.

d. Materiality

In order for a court to grant habeas relief on the basis of suppressed evidence or false testimony, the court must conclude that the evidence or testimony in question is material. To be material, there must be a reasonable probability that had the evidence at issue been disclosed, the result of the proceeding would have been different. See United States v. Spagnuolo, 960 F.2d 990, 995 (11th Cir. 1992). A reasonable probability is one that is sufficient to undermine confidence in the outcome of the proceeding. See Taylor v. Singletary, 122 F.3d 1390, 1395 (11th Cir. 1997). As stated, the court must analyze materiality looking to the aggregate of the suppressed evidence or false testimony. See Kyles, 514 U.S. at 436, 115 S. Ct at 1567. Based on the foregoing analysis, the court has no trouble concluding that there is a reasonable probability that the outcome of Bell' s sentencing phase would have been different had the jury had an opportunity to consider Austin's possible deal with the state, his pretrial statement, and had the prosecution come forward to correct Austin's possibly false testimony on cross examination.

In sum, Bell may have viable claims that the state improperly (1) suppressed a deal with Austin for his testimony at Bell's trial; (2) failed to disclose Austin's pretrial statement; and (3) failed to correct perjurious testimony by Austin at trial. In order to determine whether these claims have merit, the court requires further evidence and will hold an evidentiary hearing on the following: First, whether, by a preponderance of the evidence, the state entered a deal with Austin for his testimony at trial, and whether this deal was entered into before or after Austin testified. This involves weighing the credibility of the evidence that former prosecutor Hill has presented, as well as any additional evidence regarding the circumstances surrounding the deal and its non-disclosure. Second, whether by a preponderance of the evidence Austin's undisclosed pretrial statement was sufficiently credible, so that had it been revealed the outcome of the proceedings against Bell may have been different. In order to consider this, the court will provide the opportunity to present evidence that goes to the weight of the statement and to the circumstances surrounding its non-disclosure. Third, whether, by a preponderance of the evidence, Austin's testimony at trial was false or misleading so as to place an onus upon the state to correct it.

2. Hubbard

At stage I, two aspects of this claim were before the court: First, whether the state failed to turn over a possibly favorable or exculpatory prior statement by Hubbard. And second, whether the state failed to disclose a deal for immunity or leniency that it may have entered into with Hubbard in exchange for his testimony. Bell presented the substance of this claim in his state collateral proceedings. See Bell v. State, 593 So.2d 123 (Ala.Crim.App. 1991). This court concluded, at stage I, that the evidence that Bell sought to introduce in support of this claim was defaulted and that the court would not weigh this evidence at stage II. As stated, default may be overcome on a showing of cause and prejudice. See Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934, 120 S.Ct. 336 (1999) (A federal court will consider procedurally defaulted claims if the petitioner can show cause and prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice). In order to determine whether Bell had overcome his default, the court examined the evidence to see and considered whether Bell demonstrated cause and prejudice for the failure to present it to the state courts. With regard to the pretrial statement by Hubbard that the state did not disclose to Bell's attorney, the court concluded that although Bell showed cause, he had not demonstrated prejudice. The court found that Bell's argument for prejudice rested on the inconsistency of the statement with Hubbard's trial testimony regarding facts that were not material to Bell's conviction or that the pretrial statement did not seriously cast doubt on Hubbard' s testimony at trial. With regard to the evidence in support of Bell's claim the state failed to disclose a deal with Hubbard for his testimony, the court concluded that Bell had demonstrated neither cause nor prejudice. There was insufficient evidence presented at stage I that there was a deal, and no cause for Bell not to have come forward with his evidence in his state court proceedings.

In sum, the court determined it would not reach the merits of Bell's claim regarding Hubbard's prior statement because Bell had not shown prejudice and would not reach Bell's claim of an undisclosed deal for testimony because Bell had shown neither cause nor prejudice to excuse his default.

Bell, in his briefing of the stage II issues, has offered no new evidence that the state's failure to disclose Hubbard's pretrial statement was prejudicial. Thus, the determination that the court may not reach the merits of Bell's claim' that the state violated Brady andGiglio by withholding Hubbard's statement and failing to correct Hubbard's testimony at trial stands. The court will consider this claim no further.

With regard to the claim that the state improperly withheld evidence of a deal for Hubbard' s testimony, however, Bell now has proffered additional evidence, and he asks the court to reach the merits of this claim. Specifically, Bell has offered evidence that he contends proves that the state entered into a deal with Hubbard. As stated, a prosecutor has a duty. upon request to provide a defendant with all evidence in the state's possession that is materially favorable to the defendant's defense. See Brady, 373 U.S. at 83, 83 S.Ct. at 1196. When a defendant's guilt or innocence may turn on the reliability of a witness, the prosecutor's non-disclosure of evidence affecting the credibility of this witness falls within this general rule. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959). The evidence that Bell now asks the court to consider consists of a 1993 letter from Hubbard to his attorney, Robert Bowers, Sr.,⁵⁸ an affidavit from Bowers,⁵⁹ and an affidavit from Sheriff James Earl Johnson.⁶⁰ As stated above, the court must determine whether there exist cause and prejudice to excuse Bell's failure to raise this evidence earlier. See Weeks, 26 F.3d at 1043; Mathis, 975 F.2d at 1497.

58 See Petitioner's exhibit 48.

59 See Affidavit of Robert L. Bowers, September 13, 2000 (Petitioner's exhibit 44).

60 See Declaration of James Earl Johnson, August 30, 2000 (Petitioner's exhibit 45).

Accordingly, the court turns first to the question of prejudice. In the letter, Hubbard states:

"During the course of [Bell's] trial, I was offered immunity and a [sic] agreement that I would receive an opportunity to move to another state and change my identity for protection.

. . . .

. . . Sir at the time I was offered said agreement in exchange for my testimony I did not except [sic] the full agreement at that time because I had not receive [sic] any threat and was not confined in the Alabama penal system.

. . . .

I would appreciate it if you could talk with prosecutor Jannice [sic] [Clardy] and Honorable Judge Bush about said matter and send me affidavit saying the state did guaranteed [sic] protection for my testimony."⁶¹

61 Petitioner's exhibit 48.

Hubbard's letter, although not conclusive, provides strong evidence of a deal. It is evidence that Hubbard was offered a deal for his testimony, that part of the deal may have included dropping robbery charges against him or immunity from prosecution for Mims's murder, that Hubbard accepted part of the deal that was offered him, but that he did not accept some of the terms relating to protection for him during possible future incarceration because they were unnecessary at the time.

The affidavit from Bowers confirms that Hubbard sent him this letter and another letter, which does not seem to have been included in the petitioner' s exhibits, in June and July 1993. It also confirms that robbery charges against Hubbard — for which Bowers was to represent Hubbard — were dropped after Hubbard's testimony at Bell's trial.⁶² Bowers's affidavit, however, does not provide independent confirmation of a deal between the prosecution and Hubbard for testimony, or whether he complied with Hubbard's request for an affidavit as evidence of any deal.

62 See Affidavit of Robert L. Bowers, executed September 13, 2000, ¶¶ 8-9 (Petitioner's exhibit 44).

The affidavit from Sheriff Johnson similarly provides no independent confirmation of a deal for Hubbard' s testimony. Johnson states:

"At the time of Randy [Bell's] trial, I recall that there were felony charges pending against Michael Joe Hubbard. It is my belief that the District Attorney's Office, Janice Clardy, gave Michael Joe Hubbard immunity for testifying against Randy Bell at the trial. Right after Hubbard testified against Randy, the charges were dismissed."⁶³

63 Declaration of James Earl Johnson, August 30, 2000, ¶ 6 (Petitioner's exhibit 45).

The basis for Johnson's apparent belief that there was deal to drop the robbery charges against Hubbard appears to be that Hubbard testified close to the time that the charges were dropped. Although close proximity in time between testimony and a decision to drop other charges can indicate a deal, see Keating v. Missouri, 643 F.2d 1315, 1317-18 (10th Cir. 1981), it need not be evidence of a deal. Other factors may motivate a decision to drop charges. Absent more specific evidence about the circumstances and timing of the dropped charges, the court cannot infer that Johnson's vague allegations of temporal proximity suffice to corroborate a deal.

The letter from Hubbard himself, however, substantially reinvigorates Bell's claim that there was an undisclosed deal. Accordingly, the court must determine whether Bell has demonstrated prejudice and cause resulting from the failure of the prosecution to disclose evidence of a deal. In order for a federal court to grant habeas relief under Brady orGiglio, the undisclosed evidence or deal must be material. See Stano v. Dugger, 883 F.2d 900, 916 (11th Cir. 1989) (Anderson, J. concurring in part and dissenting in part). See Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir. 1984). The materiality of this suppressed evidence must be gauged, not in isolation, but in conjunction with other suppressed evidence, if such exists. See Kyles, 514 U.S. at 436, 115 S. Ct at 1567. Standing alone, and in light of the suppressed Austin pretrial statement, this court has no doubt that evidence that Hubbard was testifying under a deal for leniency or immunity could have had a profound effect on Bell's conviction and on his sentence. Hubbard's testimony was crucial to Bell's conviction and sentence. Evidence of a deal with Hubbard for his testimony could have crucially undermined Hubbard's testimony, upon which Bell's conviction centrally rested. It also may have brought the jury to return a recommendation of life in prison, instead of a death sentence. Thus, Hubbard's deal with the prosecution, if substantiated, was material. Therefore Bell has demonstrated prejudice for his failure to raise it in front of the state courts.

The court now examines the question of cause. As stated Hubbard's letter discussing a deal was written after Bell exhausted all his state collateral attacks, including his claim that the state failed to disclose a deal with Hubbard. See Bell v. Alabama, 504 U.S. 991, 112 S.Ct. 2981 (1992); Bell, 593 So.2d at 123 (Ala.Crim.App. 1991). There is no indication that the evidence at issue existed when Bell presented his state collateral attacks. Nor is there any indication that any efforts on his behalf by his counsel could have uncovered it. Indeed, because Hubbard' s lawyer, Bowers, has been unable to corroborate Hubbard's account, it is not possible to conclude that Bell's counsel could have discovered such evidence through him. Similarly, because Johnson has also been unable to corroborate Hubbard's claim that there was a deal, Bell's counsel could not have discovered such evidence from him. Finally, respondents have consistently taken the position that no deal with Hubbard existed. Thus, the court is satisfied that Bell has shown cause for not having presented this evidence to Alabama' s courts.

The court concludes, therefore, that an evidentiary hearing must be held to weigh and probe the weight of Hubbard' s letter, and Hubbard' s own credibility regarding its contents, before denying or granting relief on this claim.

G. Judicial Misconduct

Bell's final claim is that the judge, Walter Hayden, who presided over his trial engaged in misconduct that warrants granting habeas relief. Essentially Bell contends that Hayden improperly participated in the investigation of Mims's murder improperly offered advice on prosecuting the crime to investigators for the state, and that Judge Hayden took a personal — as opposed to professional or judicial — interest in his case. Thus, Bell argues, Judge Hayden's rulings from the bench violated the requirements of due process of law.

As this court noted at stage I, one approach to the question of judicial impropriety would be to examine whether Judge Hayden handled the trial in a manner strongly suggesting that the results would have been different if another, impartial judge had been on the bench. This is a strict approach, since

"Disqualification of a judge for actual bias or prejudice is a serious matter and should only be required when the evidence is compelling. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985), cert. denied sub nom. DiSalvo v. United States, 475 U.S. 1095, 106 S.Ct. 1490 (1986) . . . . [J]udges for the most part are presumptively capable of overcoming [biasing] influences and rendering evenhanded justice; and only a strong, direct interest in the outcome of a case is sufficient to overcome that presumption."

Fero v. Kerby, 39 F.3d 1462, 1478-79 (10th Cir. 1994) (some quotation marks and citations omitted), cert. denied, 515 U.S. 1122, 115 S.Ct. 2278 (1995).

But when the impartiality of a trial judge is at issue, habeas review must also incorporate fundamental concepts of due process, because some defects or errors at trial are so basic as to be structural defects in the constitution of the trial mechanism. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1264-65 (1991). "Judicial bias is one of those "structural defects' that automatically entitles a petitioner for habeas corpus to a new trial." Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717 (1993); see also Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 445 (1927); Walker v. Lockhart, 763 F.2d 942, 962 (8th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3332 (1986).

In order for judicial bias or prejudice to rise to a level that violates due process, it must stem from a predisposition against the defendant that is actual, see, e.g., Nichols v. Sullivan, 867 F.2d 1250, 1254 (10th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3169 (1989);Dyas v. Lockhart, 705 F.2d 993, 996 (8th Cir. 1983), or that is readily presumed from a judge' s conduct or comments, or connection to one of the participants, see, e.g., Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir. 1986); United States v. Meester, 762 F.2d 867, 885 (11th Cir. 1985), cert. denied, 474 U.S. 1024, 106 S.Ct. 579 (1985). The bias must be personal as opposed to judicial in nature, United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984); United States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979), derived from extrajudicial sources and not merely from the evidence or record before the judge,United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710 (1966), and beyond what the balanced judgment of a reasonable person could be expected to overcome. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625 (1955).

It is clear, however, that the evidence with which Bell seeks to prove this claim falls far short of what is necessary to show a violation of due process or an otherwise inappropriate prejudice. The court takes up first Bell's contention that Hayden provided advice to the investigators who were looking into Mims's murder. Bell has presented evidence that the investigators for the state obtained the opinion of Judge Hayden that Mims's "body must be located before [Bell] can be prosecuted."⁶⁴ It cannot be ascertained from this terse reference to the judge' s opinion to what degree Judge Hayden was involved with the investigation, or at whose behest or instigation.

64 Memorandum from Corporal John Perdue to Captain R.C. Taylor, April 22, 1982 (Petitioner's exhibit 2).

Testimony obtained by the petitioner in depositions of the two state officials who investigated Mims's murder has shed little additional light on the trial judge's possible role in the investigation, but does tend to establish that the conversation alluded to in the memorandum was an isolated event, and not suggestive of a larger role for the judge in the investigation. Perdue — possibly along with Benny Mims, another investigator for the state⁶⁵ — stated that he had only one brief conversation with Judge Hayden before Bell's trial.⁶⁶

65 See Deposition of John Perdue, 25 November 1996, at 46 (Petitioner's exhibit 63)

66 See id. at 43.

Purdue stated that he did not know at the time of this conversation that Judge Hayden would eventually preside at the petitioner's trial.⁶⁷ According to Purdue's testimony, the judge, after having been briefed on the progress of the investigation, advised Purdue that he should "keep looking" for the victim's body, stating that "You really need to have a body before you go into court."⁶⁸

67 See id. at 45

68 Id. at 43.

Benny Mims, the second investigator involved in the Mims case, testified that he did not recall participating in any discussions with Judge Hayden about the Mims murder investigation prior to trial.⁶⁹ He also stated that it was not his practice to discuss ongoing investigations with Judge Hayden when he knew that the judge would preside at trial.

69 See Deposition of Benny Mims, November 21, 1996, at 58 (Petitioner's exhibit 62).

It is clear that there is no evidence from Judge Hayden's communication that he took a personal interest in Bell's prosecution, or that personal animosity, feeling, or any other bias played a role in his contact with Mims and Perdue. Judge Hayden's ex parte communication with Perdue and possibly Mims was probably inappropriate and unprofessional.⁷⁰ But it neither prejudiced Bell nor indicates any personal interest that would otherwise violate due process and mandate habeas relief. See, e.g., Smith v. Kelso, 863 F.2d 1564, 1572 (11th Cir. 1989) (denying habeas relief where ex parte communication of judge with jurors did not prejudice petitioner).

70 See Canon 3 A. (4) of the Alabama Canons of Judicial Ethics (West 1996) (a judge should neither initiate nor consider ex parte communications concerning a pending or impending proceeding).

The only possible evidence of Judge Hayden's alleged personal interest in this case is the judge's declaration of his sympathy with the "strong feelings" in the community about the case, due to his own personal knowledge of the families involved for "twenty-five years, probably."⁷¹ Although such comments from the bench are inappropriate, they fall far short of showing personal interest that constitutes a due process violation. The comment does not specify what the sentiment in the community about the murder was, and Bell has presented no evidence to deepen this court' s understanding. On its face, the comment does not display a bias for or against Bell at all. Judge Hayden's statement about knowing the families involved is just as likely an admission that he knew Mims's family as Bell's own family. The murder and trial must necessarily have caused deep pain, both to Mims's family and to Bell's. Absent evidence to show that Judge Hayden's comment is evidence of bias, this court cannot grant habeas relief based on it. Moreover, a judge's recognition that a case is difficult or highly charged does not establish that the judge was unable to preside at a trial and to rule based on the issues of law before her or him. Judges are human beings, not automatons. An acknowledgment of human feeling, even if inappropriate, does not necessarily constitute a violation of the constitution.

71 Petition for Writ of Habeas Corpus, at p. 67 ¶ 287.

V. CONCLUSION

For the reasons stated above, it is ORDERED as follows:

(1) Petitioner Randy Turpin's petition for writ of habeas corpus is denied on all claims, except those aspects of claim N addressed below.

(2) An evidentiary hearing will be held on the following aspects of claim N that relate to Joe Austin, Jr. and Michael Joe Hubbard: (a) that the state improperly suppressed Austin's pretrial statement; (b) that the state improperly failed to disclose a deal with Austin for his testimony at trial; (c) that the state failed to correct Austin's perjurious or misleading testimony at trial; (d) that the state failed to disclose a deal with Hubbard for his testimony at petitioner Bell's trial.

A separate order setting this case for an evidentiary hearing will be entered later.