Jeff Sessions Brief in Hays v. State

FILED
U,S.COURTOF APPEALS
ELEVENTHCIRCUIT
NOV 2 4 1995
NO.
95-6378
---_==J
IN THE UNITED STATES COURT OF APPEALS MIGUELJ.CORTF/

FOR
THE
ELEVENTH
HENRY
F.
CLERK
CIRCUIT
HAYS
APPELLANT,
C.
E.
JONES,
WARDEN,
HOLMAN
PRISON,
ET
AL,
APPELLEES
ON
APPEAL
FOR
FROM
THE UNITED
STATES
DISTRICT
THE
SOUTHERN
DISTRICT
OF ALABAMA)
(DISTRICT
COURT
BRIEF
NO_
OF
CA
93-623-B)
APPELLEE
JEFF
SESSIONS
ALABAMA
ATTORNEY
GENERAL
JOSEPH
ASSISTANT
COUNSEL
G. L. MARSTON,
III
ATTORNEY
GENERAL
FOR
APPELLEE
OF
COUNSEL:
ADDRESS
Office
of the
Appeals
Alabama
II South
Attorney
General
Division
State
House
Union
Street
Montgomery,
AL
334-242-7408
" .'.
36130
COURT
NO.
IN
THE
UNITED
FOR THE
95-6378
STATES
COURT
OF
ELEVENTH
CIRCUIT
HENRY
F.
APPEALS
HAYS
APPELLANT,
C.
E.
JONES,
WARDEN,
HOLMAN
PRISON,
ET
AL,
APPELLEES
ON
APPEAL
FOR
FROMTHE
THE
UNITED
SOUTHERN
(DISTRICT
DISTRICT
COURT
BRIEF
STATES
NO.
OF
CA
DISTRICT
OF
ALABAMA)
93-623-B)
APPELLEE
JEFF
SESSIONS
ALABAMA
ATTORNEY
GENERAL
JOSEPH
ASSISTANT
COUNSEL
G. L. MARSTON,
III
ATTORNEY
GENERAL
FOR
APPELLEE
OF
COUNSEL:
ADDRESS
Office
of the
Appeals
Alabama
Ii South
Attorney
General
Division
State
House
Union
Street
Montgomery,
AL
334-242-7408
36130
COURT
c-I :4
NO.
IN
THE
UNITED
FOR THE
95-6378
STATES
COURT
OF
ELEVENTH
CIRCUIT
HENRY
F.
APPEALS
HAYS,
APPELLANT,
v.
C.
E.
JONES,
WARDEN,
HOLMAN
PRISON,
ET
AL,
APPELLEES
ON
APPEAL
FOR
FROM
THE UNITED
STATES
DISTRICT
THE
SOUTHERN
DISTRICT
OF ALABAMA
CERTIFICATE
Undersigned
persons
may
Honorable
OF
counsel
have
Edward
INTERESTED
certifies
an
interest
E.
Carnes
in
PERSONS
that
the
the
following
case:
Judge
U.
S.
Court
of
Appeals
Eleventh
Circuit
Formerly
Assistant
for
Attorney
the
General
COURT
of
Alabama
2
United
States
Alabama
Department
Attorney
Mobile
County
Honorable
of
General's
District
Chris
N.
Justice
Office
Attorney's
Galanos
Judge
Circuit
Court
formerly
District
Honorable
Circuit
S.
Mobile
County
Attorney
Braxton
Kittrell,
Judge
Honorable
U.
of
Charles
District
Honorable
Judge
Morris
Attorney
At
Southern
Proverty
Counsel
Joseph
Assistant
for
G.
L.
Butler
Dees
Law
Law
victim's
Marston
Attorney
Center
family
III
General
of
same
Jr.
Office
of
3 of
Honorable
Attorney
Honorable
Attorney
Honorable
Attorney
Richard
at
Dominick
At
L.
Assistant
District
Honorable
Charles
Attorney
At
formerly
Attorney
formerly
Honorable
Attorney
Graziano
Hanley
Law
Thomas
Lieutenant
J.
Law
NeLl
At
Kerger
Law
Honorable
Honorable
M.
Harrison
Attorney
A.
Graddick
Law
Don
General
of
Alabama
of
Alabama
Siegelman
Governor
Attorney
General
Jeff
Sessions
General
of
Alabama
Ku
The
Klux
Klan
Citizens
of
Alabama
G.
_ANT
ASSI_
L.
MARSTON,
ATTORNEY
III
GENERAL
of
STATEMENT
Although
would
not
enjoy
believe
illuminated
this
is
arguing
that
by
the
oral
REGARDING
a death
before
issues
argument.
ORAL
case
this
in
ARGUMENT
and
the
Honorable
this
case
undersigned
Court,
can
be
we
do
further
TABLE
OF
CONTENTS
PAGE
CERTIFICATE
STATEMENT
OF
INTERESTED
REGARDING
PERSONS.
ORAL
TABLE
OF
CONTENTS
TABLE
OF
CASES
TABLE
OF
CONSTITUTIONAL
TABLE
OF
STATUTES
ARGUMENT.
.................
....................
PROVISIONS
.................
STATEMENT
OF
JURISDICTION
STATEMENT
OF
THE
ISSUES
STATEMENT
OF
THE
CASE
I.
THE
COURSE
THE
DISPOSITION
BELOW
A.
THE
STATE
PROCEEDINGS
B.
THE
DISTRICT
II.
III.
STATEMENT
THE
PRESENTED.
.............
OF
THE
COURT
COURT
OF
SCOPE
SUMMARY
.........
THE
OF
OF
THE
C-I
il
ill
.xili
.xili
.I
.I
.3
PROCEEDINGS
AND
..........
....
PROCEEDINGS.
FACTS
REVIEW
..........
............
ARGUMENT
........
,o,,..,3
,,Q,o.,4
,,oooo,6
,t,,...6
o,.,o,,7
Ioo,oo.8
ii
ARGUMENT
..............................................
I.
IN RE:
A.
IN RE:
B.
IN RE:
i0
RE-INDICTMENT ........................
10
"PROSECUTORIALMISCONDUCT"............
12
EFFECTIVE ASSISTANCE OF
COUNSEL..............................
16
IN
RE:
THE FEDERAL SPEEDY TRIAL ACT.........
21
D.
IN
RE:
NOTICE...............................
22
II.
IN
RE:
KNOWLES' OUT-OF -COURT STATEMENTS....
25
A.
IN
RE:
IMPUTED
B.
IN
RE:
PREJUDICE
III.
IN
RE:
"PERJURY".
A.
(I)
IN
RE:
INCONSISTENT
A.
(2)
IN
R:
KNOWLES'
B.
IN
RE:
PLEA
IV.
IN
RE:
SUFFICIENCY
V.
IN
RE:
VI.
IN
RE:
KNOWLEDGE
....................
CERTIFICATE
....29
31
TESTIMONY
31
RELIABILITY
BARGAIN
EFFECTIVE
.... 27
...................
REJECTION
OF
......
32
........
...............
33
OF
34
THE
ASSISTANCE
RECOMMENDATION
CONCLUSION
............
THE
EVIDENCE.
OF
COUNSEL..
JURY'S
SENTENCE
36
......................
41
.............................................
OF
SERVICE
46
.................................
47
iii
TABLE
Agan
Aqan
v.
Singletary
12
F.
v.
State
503
Allen
v.
S.Ct.
v.
Beck
U.S.
103
S.
(Fla,
1994)
1987)
.........
.............
19-20
19-20
92
2878
L.
(1986)
Ed.
2d
199,
....................
42-43
4,
74
276
L.
Ed.
(1982)
2d
3,
...................
24
Alabama
U.S.
S.
v.
State
396
255,
Ct.
60
v.
1254
Cir,
Hatless
459
602
(llth
CASES
Hardy
106
v.
1012
2d
U.S.
308
Bang
So.
478
Anderson
Avery
3rd
OF
444,
Ct.
So.
321
84
L.
(1940)
Ed.
377
....................
2d
106
(Ala.Cr.App,
2d
645
(Ala,
1993)
.......
16
35
State
So.
1981)
..............
41-43
iv
Chambers
v.
399
90
Clark
U.S.
S.
v.
collier
Collins
v.
419,
...................
17
368
(Ala.Cr.App,
1984)
.......
34
142
So.
2d
869
(1962)
..... 34
770
(11th
Cir,
1990)
..........
41
37,
Ct.
111
2715
L.
Ed.
(1990)
2d
30,
..................
43
McCormick
F.
2d
1280
(9th
Cir,
1989)
..........
44-45
State
So.
2d
1322
2d
182
(Ala,
1983)
.............
40
State
585
Davis
2d
Younqblood
S.
v.
Ed.
(1970)
547,
2d
110
431
Cox
F.
U.S.
v.
L.
Jones
497
874
1975
2d
Ala.
v.
Coleman
26
State
v.
910
Cook
Ct.
So.
v.
273
42,
State
451
Cobern
Maroney
v.
So.
(Ala.Cr.App,
1991)
.......
33
Alabama
498
U.S.
III
S.
1127,
Ct.
1091
112
L.
(1991)
Ed.
2d
1196,
..................
39
Davis
v.
State
554
So.2d
Dobbert
v.
432
97
Duncan
Engle
Ex
115
S.
U.S.
102
S.
518
Ex
parte
460
Ex
parte
443
.......
39
53
2290
L.
Ed.
(1977)
2d
344,
...................
44
,
Ct.
130
887
L.
Ed.
(1995)
2d
865,
...................
24
Isaac
456
parte
1986)
Henry
U.S.
parte
282,
Ct.
513
554
Ex
U.S.
v.
(Ala.Cr.App,
Florida
S.
v.
1094
107,
Ct.
71
L.
Ed.
2d
783,
1558
(1982)
..................
35
2d
iiii
(Ala,
1986)
39
2d
768
(Ala,1986)
216
(Ala,
Davis
So.
.............
Hays
So.
..............
5,11,13,34,42,44
Thomas
So.
2d
1984)
..............
34
Tomlin
So.
2d
59
(Ala,
1983)
...............
39-40
vi
Ex
parte
Wriqht
494
Furman
So.
v.
408
92
Gossett
Hays
Hays
U.S.
Ct.
v.
United
110
S.
v.
102
S.
.....
39
L.
Ed.
(1972)
2d
..
45
..
22
..
35
..
42
346,
.......
1082,
107
1141
L.
Ed.
(1990)
2d
1045,
......
339,
70
460
L.
Ed.
(1981)
2d
530,
.......
Alabama
U.S.
115
S.
__,
Ct.
130
1031
L.
Ed.
(1995)
2d
1004,
......
Alabama
485
u.s.
108
S.
929,
Ct.
v.
Alabama
__
U.S.
113
S.
518
....
States
Ct.
513
v.
1986)
Rlvera
U.S.
v.
33
2726
Ct.
454
v.
(Ala,
238,
S.
U.S.
Harris
745
Georqia
493
Harris
Hays
2d
1099
,
Ct.
99
L.
(1988)
121
475
Ed.
L.
(1992)
2d
262,
5,13,34,42
......
Ed.
2d
381,
.......
..
.5,26
State
So.
2d
749(Ala.Cr.App,
1985)
.........
4,13-14,34,38
vii
Hays
v.
State
599
Hopper
So.
v.
U.S.
102
S.
v.
731
Kyles
v.
605,
72
2049
App,
1992)
......
5,26
L.
Ed.
(1982)
2d
367,
..................
39
Glossa
2d
365
(6th
Clr,
1984)
...........
23-25
Whitley
U.S.
115
S.
Ct.
v.
Idaho
500
U.S.
Iii
S.
v.
410
93
(Ala.Cr.
514
LaValle
Maqqlo
1230
Ct.
F.
Lankford
Lewis
Evans
456
Koontz
2d
Ct.
Ed.
114
L.
2d
490,
..................
Ed.
(1991)
2d
29,30
173,
..................
43-44
Rose
690,
Ct.
L.
(1995)
1723
Delle
S.
35
1203
L.
Ed.
(1973)
2d
637,
...................
15,21
Jeffers
497
U.S.
Ii0
S.
v.
1555
110,
U.S.
v.
131
764,
Ct.
Iii
3092
L.
Ed.
(1990)
2d
606,
..................
35
Fulford
462
U.S.
103
S.
iii,
Ct.
2261
76
L.
Ed.
(1983)
2d
794,
...................
15,21
viii
McCormick
v.
Coleman
493
U.S.
944,
110
S.
Milton
v.
407
92
Morris
U.S.
S.
103
S.
77
33
2174
i,
Ct.
337,
..................
L.
Ed.
(1972)
U.S.
S.
75
L.
1610
United
Picardv.
44
2d
i,
................
35
Ed.
2d
(1983)
610,
..............
17
States
385,
Ct.
1 L.
431
Ed.
2d
415,
(1957)
................
30
Ed.
16
Connor
404
92
Powell
2d
SlapDy
U.S.
352
Ed.
(1989)
371,
Ct.
461
v.
349
L.
Wainwriqht
v.
Nilva
U.S.
S.
v.
287
53
Pulley
Ct.
107
270,
Ct.
(1971)
2d
438,
................
24
Alabama
U.S.
S.
v.
509
L.
45,
Ct.
55
77
L.
Ed.
158,
(1932)
.................
79
Ed.
16
Harris
465
U.S.
104
S.
37,
Ct.
871
L.
(1984)..
2d
29,
.............
35
ix
Roberts
v.
428
Louisiana
U.S.
96
S.
Saffle
v.
Ct.
U.S.
110
S.
v.
110
S.
Smith
410
Smith
484,
v.
Ct.
108
2d
974,
...................
L.
Ed.
(1990)
F.
iii
2822
40
2d
415,
..................
43
L.
Ed.
(1990)
2d
193,
..................
43
Estelle
2d
593
(5th
Cir,
1977)
...........
27
Florida
F.
2d
1349
(5th
Cir,
1969)
..........
27
Phillips
455
U.S.
102
S.
Ct.
v.
Florida
Spaziano
Ed.
(1976)
1257
227,
v.
v.
L.
Smith
U.S.
552
3001
Ct.
497
Schneider
49
Parks
494
Sawyer
325,
468
U.S.
104
S.
Strickland
209,
447,
Ct.
v.
466
U.S.
104
S.
940
71
L.
Ed.
(1982)
82
3154
L.
2d
78,
...................
Ed.
(1984)
2d
35
340,
..................
42
Washington
668,
Ct.
2052
80
L.
Ed.
(1984)
2d
674,
..................
20-21,36,36-37,
40-41
Summner
v.
449
U.S.
i01
S.
Teague
v.
109
S.
v.
Tomlin
S.
86
722,
...................
L.
Ed.
(1989)
207
954,
Ct.
U.S.
2d
15,21
334,
..................
(Ala.Cr.App,
80
2160
575,
Ct.
F.
2d
43
1983)
.......
34
L.
Ed.
(1984)
2d
545,
..................
40
States
466
U.S.
104
S.
1416
v.
Ed.
(1964)
2d
921,
....................
16,17
(Sth
Cir,
1979)
...........
27-29
16
L.
Ed.
(1966)
2d
510,
...................
15
Cronic
648,
Ct.
L.
Blue
251,
Ct.
ii
Antone
566
v.
U.S.
S.
841
v.
States
384
103
1060
2d
States
United
(1981)
2d
Sarafite
S.
603
Ed.
Alabama
104
United
United
So.
U.S.
84
288,
Ct.
466
376
764
L.
State
v.
v.
66
Lane
U.S.
460
539,
Ct.
489
Thomas
Unqar
Mata
2039
80
L.
Ed.
(1984)
2d
657,
..................
17
xi
United
States
475
United
F.
2d
United
v.
F.2d
U.S.
i01
S.
United
U.S.
106
S.
429
97
v.
27
Cir,
1989)
...........
22
L.
Ed.
(1981)
2d
564,
...................
15
88
L.
Ed.
(1985)
2d
537,
..............
_ ....
22
Bursey
545,
837
51
L.
Ed.
(1977)
2d
30,
....................
15
Alabama
U.S.
107
S.
494
............
RoJas-Contreras
555
Ct.
479
v.
66
231,
U.S.
S.
Wright
v.
v.
1973)
Morrison
665
Ct.
Weatherford
(llth
361,
States
Cir,
Gossett
v.
Ct.
474
(Sth
901
States
449
Deutsch
55
States
877
Wright
v.
1101,
Ct.
1331
94
L.
(1987)
Ed.
2d
183,
..................
39
State
So.
2d
726
(Ala.Cr.App,
1985)
.......
35
xii
TABLE
United
States
OF
CONSTITUTIONAL
Constitution,
Amendment
Vl,
1787,
1791 ......................
TABLE
Code
of
Alabma
Title
United
13A,
States
Title
28,
PROVISIONS
OF
11-12
STATUTES
1975
Section
13A-5-31
..............
3,4
Code,
Section
2253 ...................
Section
2254
1,6,34-35
...................
xiii
STATEMENT
This
Honorable
OF
Court
appeal
from
habeas
2254;
this
Court's
has
corpus
grant
Should
state
I(B)
grant
his
not
state
trial
has
Should
state
federal
where
the
Court
have
I(D)
notice
habeas
trial
law,
$2253.
he
to
alleged
the
misconduct?
corpus
of
neither
able
issue
where
because
if
U.S.C.
of
habeas
where
differed
U.S.C
corpus
alleged
of
been
28
28
because
the
writ
convict
under
state
by
new
under
this
to
had
issue
alleged
before
identify
had
to
nor
any
way
more
time?
l(c)
of
have
of
under
over
PRESENTED
trial
time,
the
would
preparation
convict
ISSUES
new
federal
preparation
trial
grant
is
writ
prejudiced
Should
inadequate
after
misconduct
was
proceeding
OF
federal
convict
prosecutorial
convict
jurisdiction
Jurisdiction
STATEMENT
I(A)
JURISDICTION
federal
convict
statute
United
Where
theory,
a new
issue
does
habeas
under
federal
Supreme
such
of
trial
governing
States
rejected
writ
court
corpus
an
issue
to
interpretation
prosecutions,
and
this
Honorable
interpretation?
I(B),
above,
a different
is
analyzed
result
obtain?
under
2(A)
law
with
Is
the
possession
not
process
Where
shown
if
trial
the
Is
testimony
is
the
how
materials
discloses
by
the
undisclosed
State
denied
are
its
of
the
the
attorney
the
number
defendant
proves
defense
witness
statements
of
in
a state's
independent
there
was
Does
submitting
criminal
of
but
due
cumulative
case
by
witness,
and
would
have
it
is
used
any
basis
for
holding
that
Knowles'
perjury?
the
the
constitution
testimony
bar
of
the
prosecution
a miscreant
witness
in
prosecution?
3(B)
agreement
4.
aside
Is
there
of
any
Should
a
courts
5.
set
others,
a matter
statements?
3(A)(2)
state
statements
or
3(A)(1)
set
prosecutor
evidence
additional
from
state
as
confidential
agency?
disclosed,
compelling
of
charged
federal
disclose
where,
those
not
inconsistent
does
of
prosecutor
knowledge
of
2(B)
prior
a state
grant
sort
a
have
state
evidence
with
federal
conviction
Should
a
any
on
that
the
State
writ
a
of
state
rejected
as
federal
writ
convict
Knowles'
of
new
of
corpus
claim
a matter
of
habeas
trial
any
Alabama?
habeas
law
had
for
which
state
corpus
issue
to
the
law?
issue
to
alleged
ineffective
shows
assistance
neither
an
of
attorney
6.
Where
convicted
and
sentenced
committed
his
crime,
retroactive
counsel,
error
the
application
under
was
in
he
of
the
THE
COURSE
THE
The
Petitioner
(hereinafter
December
of
10,
robbery
Alabama,
from
October
of
under
Section
and
Judgement
1-5,
20,
see
to
the
1993.
THE
THE
murder
the
memorandum
(R.
Vol.
based
Henry
to
F.
was
AND
Hays,
convicted
during
"A",
This
pages
the
1-5,
Respondents,
Item
14.)
course
of
appeal
District
of
on
the
Code
death.
States
I,
on
13A-5-31(a)(2),
of
he
BELOW
statement
appendices
is
time
PROCEEDINGS
committed
United
detailed
the
CASE
"Hays"),
sentenced
of
a more
proceedings,
pages
1983,
1975,
_For
as
at
convict
law?
DISPOSITION
to
a claim
- Appellant,
referred
convict
prejudice?
place
OF
OF
the
which
have
STATEMENT
I.
nor
law
does
where
Court
state
and
"B",
filed
is
for
the
Southern
corpus
District
relief
from
A.
In
Henry
the
Such
the
F.
murder,
was
was
1975.
Trial
imprisonment
Automatic
On
Alabama
Trial
August
20,
that
recommendation
Hays
v.
518
and
petitioned
the
writs
granted.
were
1995,
Hays'
Jury
Hays
the
County,
Alabama,
December
10,
Michael
1983,
sentence
jury
would
be
a
the
of
after
set
Hays'
sentence
the
Court
of
a
at
of
the
sentence
recommendation
sentence
However,
Code
hearing,
that
of
Donald.
13A-5-31(a)(2),
the
parole.
sentence.
of
recommended
Judge
holding
State
on
Section
returned
habeas
PROCEEDINGS
robbery,
to
Hays'
tO
life
sentence
death.
followed.
affirmed
Both
a
by
Jury
and
Mobile
instructed
appeal
sentence,
to
without
the
of
guilty
Incident
The
denying
COURT
court
they
court.
hearing,
STATE
found
Court
Alabama
conviction
defined
recommendation
the
THE
incident
crime
State
his
circuit
Hays
Alabama,
of
of
So.
the
Alabama
conviction,
the
Trial
life
3d
Criminal
but
Judge
reversed
was
imprisonment
749
State
Supreme
(Ala,
applied
Court
Appeals
bound
without
Cr.App,
his
by
of
death
a
parole.
1985)
for
rehearing
for
review.
and
Both
On
Hays'
August
26,
conviction
reinstated.
Ex
Hays
sought
Court;
the
Alabama
U.
May
19,
the
and
ordered
parte
Hays
review
same
485
1986,
was
S.
his
in
denied
929,
99
Alabama
Supreme
death
Court
sentence
518
So,
the
United
States
on
February
29,
L.
Ed
2d
2d
upheld
768
262,
(Ala,
1986)
Supreme
1988.
108
S.
Hays
Ct.
v.
1099
(1988)
On
1988,
Hays
post-convlctlon
relief
in
County.
the
Amoung
ineffective
trial
circuit
court
May
1989.
12,
Appeal
claims
to
wit,
Relief
was
circuit
raised
counsel.
on,
appeal,
assistance
of
Criminal
relief.
On
Appeals
19,
July
by
21,
denied
of
Hays
was
were
held
1988,
on
for
court
Hearings
declined
121
Ed
2d
abandoned
On
of
and
March
State
1992,
Mobile
a
claim
of
in
the
April
20
25,
claim
of
28,
1992,
February
affirmed
599
2d
So.
review
and
1991.
the
1230
ineffective
the
Court
denial
(Ala.Cr.App,
were
denied
on
April
Supreme
Court
of
the
of
1992)
17
respectlvely.
9,
1992,
review.
381,
his
Alabama
certiorari
November
States
L.
v.
and
June
Hays
counsel.
Hays
Rehearing
and
the
a petition
followed.
On
of
filed
113
the
Hays
S.
Ct.
v.
475
Alabama
(1992)
U.
S.
United
_,
B.
On
July
District
writ
26,
Court
of
was
Alabama
corpus
to
U.S.C.
of
On
2,
States
Alabama
$2254.
for
The
The
each
March
United
of
times.
petition
memoranda.
the
District
28
number
the
time
State
of
with
1995,
the
petition
denied.
II
Although
most,
oriented,
the
his
makes
brief
(Hays'
the
six
Brief,
State
contained
in
Southern
PROCEEDINGS
petitioned
under
amended
and
COURT
Hays
the
responded
pleadings
DISTRICT
1993,
for
habeas
petition
was
THE
Hays'
effort
pages
6-11)
appendices
facts
proven
state
of
would
burden
statement
submit
to
here
is
of
Hays'
digest
Incident
the
and
this
State's
to
claims
page
set
the
trial
evidence.
to
its
Court's
attention
summary
statement.
of
to
Vol.
in
of
therefore,
adopt
in
return,
law,
the
I,
memorandum
and
out
initial
briefs
statement
We,
fact
facts
(R.
this
are
the
post-convlction
brief.
FACTS
a memorandum
appeals.
"B"
thirty-three
the
to
court
trial
Obvlously,
THE
of
submitted
Appendix
at
all,
OF
statement
no
as
8-40
not
page
Alabama
Pages
over
if
of
two
STATEMENT
which
merits
item
14).
digests
the
detail.
the
facts
call
it.
this
What
we
During
nineteen
year
streets
of
forced
to
included
where
Then
the
he
his
hanged
old
his
his
wallet.
was
beaten,
was
a
darkness,
Michael
his
body
of
occupied
pockets
He
Mobile,
of
his
Hays
to
the
and
Alabama.
to
and
other
County,
throat
where
from
it
the
members
was
which
his
Mobile,
the
He
Baldwin
had
street
1981,
from
property,
taken
back
20-21,
abducted
in
was
across
by
was
strangled,
taken
tree
March
Donald
neighborhood
empty
from
house
hours
of
cut.
was
apartment
the
Ku
Klux
Klan.
The
State's
perpetrated
a
Ku
with
by
Klux
Klan
the
crime,
accomplice
included
Hays
to
The
evidence
Hays
and
in
three
and
separate
fellow
subject
was
Federal
to
fact.
to
de
the
Knowles
evidence
to
the
array
of
assertions
crime
was
as
connecting
testimony
of
circumstance
of
part
of
Hays
the
evidence,
responsibility
by
Klansmen.
defense
for
an
that
"Tigar"
The
addition
Knowles
reviewable
James
operation.
III
The
proved
clalm
THE
District
clear
novo
of
SCOPE
OF
Court's
error.
review,
allbi.
It's
as
are
REVIEW
fact
findings
holdings
its
on
are
the
application
law
of
are
law
SUMMARY
I(A)
trial,
The
even
showing
I(B)
Federal
for
of
preparation
actual
Hays
shown
any
could
The
and
been
authoritatively
because
and
is
because
which
he
has
confidential
of
the
new
without
trial
circumstances.
trial
and
this
claim
Trial
prejudice.
adequacy
interpretation
require
has
not
since
trial
fails.
Act
does
not
advanced
by
apply
Hays
to
has
rejected.
rule
argument
for
the
advanced
should
be
first
time
by
Hays
or
factual
rejected,
in
this
requires
appeal
prejudice,
shown.
There
to
not
misconduct
no
on
Speedy
presented
not
imputes
before
notice
the
II(A).
which
the
Hays'
it
the
dependent
Federal
case,
does
shows
prejudice,
this
I(D)
of
not
actual
I(C)
Hays
is
ARGUMENT
prosecutorial
question
time
THE
Constitution
prejudice.
The
Since
OF
is
a
no
legal
state
materials
prosecutor
which
are
basis
for
knowledge
in
the
rule
of
possession
of
the
F.B.I.
II(B).
the
Hays
undisclosed
Ill(A)(1).
that
Knowles
shows
no
prejudice
which
resulted
from
statements.
There
committed
is
no
perjury
factual
in
basis
for
testifying
a claim
that
Mr.
Donald
was
intentionally
rather
than
accidentally
killed.
III(A)(2)
tendering
There
of
The
Alabama
dangers
such
III(3)
and
the
whether
he
IV.
reality
basis
to
federal
evidence
is
of
Alabama
be
the
criminal
general
criminal
habeas
agreement
claim
in
law
against
and
the
corpus
state
insufficient
to
claim
the
state
courts
is
in
law
rejected
is
Hays'
claim
an
intentional
prove
or
court.
holding
review.
Knowles
testimony
evidence
to
such
between
his
state
relating
The
law,
to
of;the
"robbery".
state
any
prosecuted
law
at
to
safeguards
relative
state
of
the
provide
never
sufficiency
was
not
it
on
subject
that
the
killing
absurd.
V.
Hays
the
was
Hays'
definition
the
law
bar
witnesses.
would
in
Constitution,
There
State
constitutional
witness
procedural
of
no
a miscreant
prosecution.
and
is
In
raises
of
Hays
IV.
ineffective
a claim
denial
event,
claiming
his
failed
There
the
is
which
state
he
show
no
basis
to
Trial
sentence
recommendation.
abandoned
post-convictlon
to
relating
assistance
an
in
Judge's
There
for
rejection
is
his
counsel,
appeal
petition.
attorney
law
in
of
no
of
In
error
or
Hays'
complaints
of
the
basis
in
any
prejudice.
Jury's
fact
for
his
claims
law.
to
In
relating
to
addition,
establish
retroactive
federal
new
rules
application
habeas
of
corpus
of
is
constitutional
not
the
available
law.
ARGUMENT
I
IN
The
facts
District
on
this
in
murder
four
months
this
first
the
indictment
murder
was
notlcied
not
of
under
capital
December
2,
case
set
on
pages
Excerpts
June
after
the
by
1983
continuance,
the
case
articulate
by
an
would
any
immediate
the
indicted
the
indictment
on
the
Trial
continued,
if
way
trial.
When
the
the
Judge
Monday
a one
when
day
Monday.
Defense
case
would
the
Jury
statute.
assured
Defense
defect
grand
right
the
not
until
the
under
specific
The
obtaining
in
but
office
re-convened
effect
alleged
murder,
the
for
into
offense.
before
After
indlctment
and
be
Friday
relevant
order.
homicide
Prosecutor's
and
for
The
the
Prosecutor
on
its
went
of
the
the
was
date
the
arraigned
27).
course,
continuance,
was
Tab
of
trial.
Hays
of
was,
for
new
27ff
Hays
crime.
the
obtained
found
statutewhich
1983,
was
RE-INDICTMENT
correctly
at
Record
Briefly,
capital
Court
issue
(Appellant's
RE :
He
him
moved
that
could
be
could
prejudiced
not
do
10
this,
the
continuance
was
twenty-four
but,
after
delay.
Court
hour
case
made
the
with
went
Hay's
The
Trial
continuance,
conferring
The
affirming
denied.
trial
conviction
in
following
provided
Hays,
to
Judge
his
the
offered
by
state
Attorney
next
1986,
waived
day.
the
law,
that
In
Alabama
Supreme
observation:
"...
[T]his
Court,
during
oral
argument,
which
occurred
some
two years
after
the trial,
asked
Hays
[Trial]
counsel
how the
defendant
had been
prejudiced
and
counsel
by the trial
was
unable
court's
action,
to articulate
any
specific
example
of prejudice
.... "
(Ex parte
Hays
518 So. 2d 768,
772
[Ala,
1986])
In
the
newly
represented
never
by
been
court
new
by
this
and
trial
the
be
applied
him
because
and
show
and
to
what
circuits
this
i.e.
cause
of
and
right"..,
the
although
attorneys,
way
as
that
he
has
was
was
accusation
state
receive
also,
for
the
established
the
to
in
should
federal
that
did
prosecutorlal
He
he
he
calls
which
under
case
the
claims,
he
Hays,
continuance.
prejudice.
rule,
trial,
specific
Court,
actual
that
of
Hays
the
outstanding
any
denlal
of
since
of
District
federal
notice,
nature
to
appeal,
claims
of
years
array
the
the
misconduct
time,
able
prejudiced
In
twelve
be
in
statute,
re-indictment
informed
of
first
some
should
denied
the
.... " U.S.
11
Constitution,
into
Amendment
sort
of
rhetoric.
We
address
each
Six.
salad,
will
of
dressed
try
to
these
These
arguments,
with
inflammatory
separate
the
are
mixture
tossed
and
claims.
A.
IN
Hays
uses
so
"prosecutorial
Prosecutor
of
continuance
the
it
has
and
necessitated
an
for
this
the
defect
one,
was
his
under
continuance.
also
needed
that
time
a case
Office
wrong
has
continuance,
for
had
was
as
it
the
The
Prosecutor
statute.
Prosecutor
had
the
serious
important
legitimate
misconduct
reasons
to
cite
omitted
order
to
The
reason
not
noticed
state
procured
question
existed
continuance,
to
and
day
in
embarrassed
The
the
problems,
problems
continuance
and
describe
what
one
such
requested
blundered
statute.
several
in
he
wonder
evidentiary
right
the
to
"misconduct"
seeking
the
the
may
his
that
the
in
the
Attorney
motion
questioned
Prosecutor
that
nothing;
cited
under
rhetoric
one
Prosecutor
either
at
did
that
In
indictment
the
court
he
MISCONDUCT"
inflammatory
omission.
never
that
get
much
He
an
and
stating
"PROSECUTORIAL
misconduct"
did.
consisted
that
RE:
in
or
open
as
this
indictment
is:
for
only
Where
an
a
one
in
the
a continuance?
12
The
the
Court
of
Prosecutor's
Criminal
omission
concern
.... ",
759-760
[Ala.Cr.App,
518
2d
So.
L.Ed
2d
clear
that
described
misconduct
773),
(Hays
758
262,
v.
[ Ala,
108
S.
the
Prosecutor's
Court
around,
that:
State,
Ct.
disapproved.
Supreme
(Ex
of
[oil
special
note
518
So.2d
749,
4,
sub
The
the
Court
Alabama
Hays,
as
it
Ex
485
conduct
found,
nom
den.
and
.... "
described
...
cert.
parte
Alabama
matter"
aff'd
1099),
despicable
also
1986];
it
"...
as
1985]:
.... ",
and
Appeals
as
was
U.S.
"...
made
indeed
99
it
Court
Prosecutorlal
528
Yet,
Hays
929,
Supreme
above,
(Ibld)
parte
So.
the
2d
768,
Alabama
conceded
all
"...
[Defense
Counsel]
was
aware
that
the
original
indictment
was
defective
and that
it would
not support
a
capital
offense
.... " (518 So.2d
768,
772)
Of
course,
never
of
it
was
informed
the
also
the
defect.
The
expressed
"special
omission,
wrote:
undisputed
Trial
that
Court
or
of
Criminal
Court
concern"
for
the
the
Defense
Prosecutor's
Appeals,
declined
that
would
office
before
it
Prosecutor's
"...
According
to the
record,
the
appellant's
attorney
was
aware
that
indictment
was
seriously
flawed
and
purposely
motions
Counsel
the
filing
certain
have
brought
that
13
flaw
to the attention
the
district
attorney's
(Hays
v. State,
above,
So.2d
749,
753)
Even
more
remarkably
Criminal
Appeals
is
of
the court
or
office
.... "
note
1, 518
footnote
3,
wherein
the
Court
of
wrote:
"...
We do not mean
to imply
that
defense
counsel
was
duty
bound
to bring
such
defect
of the attention
of the
court
or the prosecutor
prior
to trial,
for the opposite
is true.
However,
defense
counsel
knew
that
the State
intended
to have
a capital
indictment,
and
based
on the known
facts,
infra,
such
a capital
indictment
would
be
valid
if it charge
robbery-murder
.... "
(Footnote
3, 518
So. 2d 749,
758)
It
is
Prosecutor
possessed
that
engaged
in
to
the
omissions
reasonable
people
basis
the
for
as
case
person
of
can
actual
has
the
ethical
disagree,
the
claim
prosecutorial
right
to
no
and
propriety
of
no
of
seems
one
as
is
misconduct,
than
which
rational
that
law
clear
an
relief
the
acceptable
clear
a state
of
withheld
there
law
more
matters
each
is
the
Each
about
is
constitutional
here.
a matter
conduct
It
and
procedural
court,
perhaps
misconduct
federal
to
the
Attorney
conduct
the
"despicable".
prosecutorial
The
is
describing
other
and
While
Attorneys'
Defense
relating
other
information.
the
identical
information
interest
that
obvious
and
the
claim.
that
in
the
aggrieved
from
actual
14
prejudice.
L.Ed
429
2d
564,
U.S.
United
Ct.
United
101
S.
Ct.
51
L.
Ed
v.
Blue
545,
States
1416
States
(1966)
Here
misconduct
under
conviction
because
The
good
irrelevant.
(Order
with
thestate
rejected
Delle
Rose,
(1973);
101
iii,
S.
76
Summer
Ct.
L.
no
or
764
Ed
v.
2d
794,
U.S.
but
690,
found
refused
to
103
to
v.
2d
Bursey
510,
86
S.
prosecutorlal
reverse
address
Hay's
The
issue
of
See
539,
66
Maqglo
v.
2261
Court
agreed
prejudice,
U.S.
Ct.
was
District
correct.
L.Ed
the
it
637,
S.
66
(1977);
L.Ed
2d
449
and
16
837
because
was
45
361,
resulted.
27-28)
This
Ct.
courts
faith,
the
U.S.
Weatherford
S.
declined
on
449
251,
State
bad
Mata,
(1981),
97
prejudice
pp.
U.S.
30,
law
claim.
410
(1981);
the
courts
this
665
2d
Court
Prosecutor's
Morrison
384
state
District
v.
93
L.
Fulford
and
LaValle
S.
Ed
Ct.
2d
462
v.
1203
722,
U.S.
(1983).
15
Bo
IN
RE:
Almost
Circuit
twelve
Court
continuance.
to
the
criminal
At
that
158,
prepare
S.
that
Ct.
and
308
U.S.
is
may
the
444,
capital
charge
brought
to
trial
and
adequate.);
Nilva
1 L.Ed
(1957),
Unqar
ii
2d
L.Ed
be
L.
921,
However,
His
Honor
by
the
time
in
another
case.
established
law.
of
United
Sarafite
and
321
six
four
376
U.S.
930ff,
84
U.S.
423,
575,
S.
Ct.
one
case,
This
Alabama
(A
earlier
was
after
time
352
of
(1940),
days
and
v.
years
counsel;
States
420-421
Avery
Ct.
a homicide
objection
415,
S.
to
circumstances
insufficient
60
77
also
adequate
in
377,
may
is
to
45,
adequate
appointment
926
time
U.S.
what
right
be
on
v.
that
287
of
Alabama
controlled
Ed
over
2d
v.
(1932)
minutes
based
arraignment
395,
is
well
84
v.
his
required
adequate
the
Hays
that
recognized
to
1983,
denied
counsel
right
question
6,
claimed
Judge
55
COUNSEL
Alabama,
of
the
OF
December
Hays
Powell
case;
months
was
and
has
the
particular
while
Circuit
a defense
on
County,
time,
defense.
53
recognized
ago,
assistance
The
his
Ed
the
Mobile
defendant
prepare
ASSISTANCE
years
of
effective
continuance.
L.
EFFECTIVE
77
581
841
held
385,
S.
and
to
be
389-391
Ct.
431
588ff,
(1964);
16
Chambers
v.
Maroney
429-430,
90
S.
the
new
461U.S
1,
75
United
2d
657,
The
periods
of
that,
States
minutes,
Ed
v.
time
as
in
above,
was
few
103
S.
2039
Ct.
u.S.
in
based
on
the
v.
1610
661-666,
these
80
cases
rather
considering
finding
Ct.
but,
a period
one
of
of
nearly
adequacy
same
is
short
preparation,
or
after
Morris
648,
various
trial
419,
(1984).
holdings
found
S.
2d
minutes
610,
above,
it's
L.Ed
acceptable);
466
was
26
held
Cronic
for
Chambers,
time
2d
Court
Court
53-54,
(Trial
the
adequate
the
Cronlc,
preparation
of
Supreme
whether
in
L.
699-672,104
the
42,
counsel
significance
that
U.S.
(1970),
of
L.Ed
as
Ct.1975
appearance
(1983);
not
399
of
a
few
month,
of
analysis.
This
is
because:
"...
There
are
no
mechanical
tests
for
deciding
when
a denial
of a continuance
is so arbitrary
as to violate
due
process.
The
answer
must
be found
in
the
clrcumstancespresent
in every
case,
particularly
in the
reasons
presented
to the trial
Judge
at the
time
the request
is denied
.... " {Ungar
v. Saraflte,
above,
376 U.S.
575,
589,
11 L.Ed
2d 921,
931;
emphasis
supplied.)
The
"circumstances
the
followlng:
the
case
period,
for
(1)
six
Defense
present"
Defense
months.
Counsel
in
Counsel
(2)
had
For
been
this
had
all
aware
case
been
or
of
included
involved
most
the
of
in
that
defective
17
indictment
and
appropriate
dellcti
of
the
to
was
be
Hays'
this
Counsel
did
was
29)
complaint.
used
There
are
First,
the
record
to
the
record
supports
specific
when
the
abduct
Michael
at
least
we
have
been
such
claim.
support
this
three
claim,
and
Trial
but
was
Judge
defense
could
no
prejudice
trial,
after
re-lnvestigate
prejudice
asked
was
by
the
advanced.
the
could
Alabama
articulate
no
post-convlction
shown.
complains
trial
to
indictment
the
the
numerous
ever
until
first
and
have
identical
a new
Counsel
Hays
know
to
re-study
was
appeal,
not
to
would
indictment,
Yet,
for
corpus
indictments
was
if
anticipate
state
preJudlce,
motion
Trial
prejudice
the
the
case,
On
In
two
second
second.
trial,
prejudice.
no
the
the
of
the
which
specific
time
the
Court,
hearings,
pistol
had
in
did,
the
indictment
the
any
doubt
against
continue
after
specific
page
against
suggestion
years
In
Although
prove
raised
suggested.
no
Supreme
(3)
first
to
be
to
had
case,
Two
to
valid
counsel
no
evidence
the
articulated
could
and
charged
the
introduced
willing
have
offenses
prove
defense
equally
was
the
sightly,
entered
have
re-indictment.
differed
what
should
that
about
his
Matt
Donald.
to
with
locate
Second,
the
Jones,
(Hay's
problems
able
Trial
evidence
whose
Brief,
this
nothing
assuming
relating
in
that
to
18
the
gun,
the
abduction
interrelated
was
that
the
at
Hays'
submitted
would
have
first
indictment.
did
not
does
arise
not
any
been
1012
the
Certainly,
Hays
such
reliance
[llth
Cir,
District
only
investigating
leads
Singletary,
Courts
had
pointless,
the
gun
a trial
alleged
on
the
problem
Third,
Hays
any
evidence
that
have
produced
any
or
many
which
indictment,
at
this
would
had
Agan
1994]),
is
found
anything
else
in
opportunities
length
the
case,
the
previous
to
found
because
Attorney's
Singletary,
entirely
that
the
to
Agan's
12
that
F.
of
but
this
Court's
file,
which
evidence.
3d
1012,
advice.
decided
Agan
spent
more
and
contained
A_n
would
is
obtain
v.
1014-1015.
investigation
Agan
Hays
opinion
to
A_Aq_@_n
neglect
attorney
failure
3rd
In
counsel.
the
Attorney's
F.
Attorney's
time
Attorney's
(12
misplaced.
of
exculpatory
above,
v.
assistance
the
with
strong
second
offered
the
has
ineffective
the
the
facts
re-indictment.
Jones
on
Court
review
these
of
so
evidence.
Hays'
concerned
each
words,
the
on
was
introduced
never
Matt
robbery
on
other
has
with
constituted
to
and
trial
of
doubt
mentions
of
necessity
casting
present
proof
In
claim
evidence
the
because
interview
case.
of
and
The
have
State
been
to
plead
guilty,
contrary
v.
State
503
2d
So.
1254,
19
1256 (Fla,
1987)
that
was
there
to
investigate
that.
1015.
time
of
case,
the
against
well
doubt
In
on
the
has
twelve
with
at
found
the
that
the
supported
submit
time
by
that
Hays
present
the
been
They
with
have
with
dedication.
to.
show
that
that,
...
[if
the
here
there
case
are
had
in
of
little
casting
his
guilt.
was
familiar
not
Honorable
were
Court
"...
amply
1919)
We
well.
his
original
their
never
a reasonable
been
it
material
remarkable
they
was
nothing
1012,
pursuing
Yet,
is
3d
as
both
counsel
interest
"...
case
case
guilty,
and
findings
F
the
instant
evidence
trial
3rd
Attorney
been
A_Aq_an, this
(12
and
the
had
Attorney
.... "
the
the
not
F.
at
pleaded
trial,
Court's
the
study
that
stand
In
blessed,
attorneys
diligence.
the
did
12
In
discovered
trial.
record
is
to
Agan
this
mentally
Attorney
void.
Attorney
to
that
such
has
the
was
found
incompetent
show
After
also
above,
was
was
have
District
the
months
since
of
that
Agan
competence
discovered
Agan
if
records
would
years
that
Sinqletary,
six
if
Court
v.
case.
he
Agan's
been
the
that,
diligent,
and
decision
had
with
discovered
more
his
and
familiar
was
course,
Attorney
Hays,
trial
Aqan
plea,
Honorable
evidence
stand
Of
his
this
strong
incompetent
1012,
But,
continued]
and
skill
his
and
client's
have
been
able
probability
the
result
of
20
the
...
[trlal]
Strlckland
674,
698,
never
to
v.
would
Washlnqton
104
S.
suggested
undermine
trial.
ability
to
the
trial
This
or
would
Courts
lack
have
State
was
correct
fact
that
there
presumption
of
410
U.S.
Summer
764
794,
was
690,
v.
103
S.
correct
carbon
Court
and
issue
on
no
L.Ed
449
Magqio
Ct.
U.S.
v.
2261
be
Hays
had
basis
due
539,
66
L.
Ed
his
findings
Delle
of
the
Court
Rose,
(1973)
722,
111,
Obviously,
been
place,
1203
2d
U.S.
lack
prejudice.
v.
Ct.
to
a strong
LaValle
S.
state
the
one.
Their
93
the
have
Appellate
of
law.
2d
attributed
first
this
637,
(1983)
upholding
If
State
462
of
be
the
Ed
sufficient
must
both
See
Fulford
they
it
are
L.
attributed
of
prejudice
2d
80
"...
copy
of
correctness.
be
in
the
a matter
was
35
in
cannot
statute
as
Mata,
(1981);
been
694,
.... " result
prejudice.
right
.... "
Certainly,
Obviously,
this
This
668,
would
the
failure
Trial
decided
U.S.
(1984)
in
of
the
different
which
effort.
under
The
2052
confidence
actual
indicted
Ct.
been
466
anything
Ibid.
of
have
101
76
L.
and
S.
Ed
District
findings
Ct.
2d
Court
of
fact.
C.
IN
At
the
pages
Federal
RE:
24-27
Speedy
THE
of
Trial
FEDERAL
his
SPEEDY
brief
Act,
Hays
TRIAL
argues
paradoxlcally,
ACT
cases
for
under
the
21
proposition
that
his
at
page
acknowledges
not
24
apply,
but
interpreted
in
superceding
indictment
thirty
law.
L.Ed
cases
v.
106
Ct.
877
493
F.
U.S.
2d
question
of
of
the
Contreras,
above,
States
Thus,
Hay
v.
seeks
non-exlsting
555
such
statute,
as
circuits,
of
L.
trial
(11th
Ed
2d
is,
court.
U.S.
231,
Gossett,
set
above,
aside
effort
of
should
S.
231,
236,
88
L.Ed
877
F.
2d
conviction
federal
1141.
the
v.
901,
88
cert.
Ct.
2d
v.
within
States
to
the
1989);
always,
state
a
u.S.
110
United
not
States
Cir.
1045,
as
right
course,
United
does
the
474
(1985);
interpretation
Obviously,
Act
Ro_as-Contreras
107
to
is,
Hays
Trlal
defendant
905-906
474
that
other
continuance
discretion
United
some
speedy.
SpeedM
under
Such
90i,
1082,
too
the
gives
States
S.
that
from
United
537,
was
that
continuance.
Gossett
The
claims
day
2d
den.
trial
Ro_as
537,
544;
903.
under
statute.
be
rejected.
D.
IN
It
is,
criminal
the
of
course,
defendant
nature
the
of
and
reasons
cause
the
has
RE:
NOTICE
the
well
the
right,
of
second
the
established
"...
accusation
indictment
to
law
be
that
informed
.... " This

was
was
a
of
one
necessary.
22
Hays
know
not
never
under
know
what
what
such
statue,
that
he
state
was
all
that
this
the
re-lndlctment
by
365
Cir,
was
the
370)
counsel,
cases
was
reason,
his
that
which
he
did
not
he
did
violated
did
penalty
not
or
the
Attorney
for
know
that
the
record
were
well
aware
first
time
claims
the
notice
cited
for
with
notice
of
three
days
an
alibi
prejudiced
had
been
decided
at
pages
Sixth
notice.
claim
in
state
been
It
court
effective
is
probable
under
an
of
before
no
the
assistance
down
trial
(731
right
notice
of
for
case
under
2d
365,
to
the
some
the
raised
requirement
counsel
Sixth
with
But,
Koontz
charge
The
consistent
that
The
to
answer.
the
the
F2d
a hotel,
defense.
Koontz.
above.
(731
proposition.
alibi
under
decided
Glossa,
burning
entirely
16-17,
Circuit
v.
this
was
this
have
of
Koontz
charged
which
the
him
that
to
an
is
would
cite
the
make
nor
Indeed,
deprived
gave
to
right
not
he
that
capital
Hays
amended
Koontz
it
we
that
of
claim
Constitution.
response,
found
If
accused
ever
and
1984]),
conspiracy,
Circuit
charged,
was
appeal,
initially
indictment
a
court
penalty.
he
on
in
was
the
such
that
state
facts.
mandated
and,
he
to
Now
Koontz
he
did
subject
shows
[6th
he
conduct
seeking
these
in
statue
nor
was
clearly
claimed
this
and
did
argument.
If
23
this
was
state
so,
courts
assistance
for
exhaustion,
(1971);
103
S.
2d
276
865,
Circuit
in
Koontz
had
decided
no
For
notice
argue
point
in
to
the
731
our
law,
at
get
2d
is
ordered
was
to
in
did
have
sufficient
defense
state
Appeals
before
was
aware
noticed
its
(1995)
putting
Ed
2d
back
513
where
notice
92
74
L.Ed
U.S.
the
parties
claim,
the
Ct.
2d
3,
130
such
were.
the
rather
S.
Sixth
to
they
so
court.
438,
4,
Perhaps
the
to
federal
U.S.
Henry
Koontz,
case
than
except
consistent
trial
three
re-lndictment
even
887
sub-sectlon
the
Here,
v.
back
ineffective
in
L.
459
Duncan
here,
because
not
an
go
was
counsel.
365,368-369.
a new
trial
30
Harless
to
entirely
length
270,
notice
right
to
entertained
right
purposes
Circuit
put
Ct.
exhausted
under
Koontz
v.
had
before
u.S.
S.
order
have
be
(1982);
115
saw
effort
404
Anderson
Ct.
would
could
Connor
509
See
case
claim
Picardv.
L.Ed
the
B,
for
days
after
wiped
time
the
second
that
such
error.
to
the
above.
Koontz,
the
out
the
we
Sixth
because
re-indlctment
his
develop
new
was
if
of
he
but
defense,
occur,
Court
citing
law
The
not
indictment
would
As
with
for
and
he
defense.
returned,
and
when
the
the
Criminal
wrote:
24
"...
[D]efense
counsel
knew
that
the
State
intended
to have
a capital
indictment,
and based
on the know_L
facts,
infra,
such
a capital
indictment
would
be valid
if it charged
robbery
murder
.... " (Hays
v. State,
note
3, 518
So.
2d 749,
758
[Ala.Cr.App,
1985];
aff'd
518
So. 2d 758
[Ala.
1986];
cert.
den.
485 U.S.
929,
99 L. Ed 2d 262).
In
addition,
in
the
of
Hay's
unlike
indictments
did
situation
not
in
alter
in
Koontz,
any
the
way
the
change
validity
defense.
Thus,
to
the
whether
counsel
Without
or
right
prejudice
this
issue
to
notice,
there
is
is
considered
the
no
under
result
violation,
is
and
right
the
same.
there
was
no
prejudice.
Since
courts
not
this
nor
the
entertain
argument
was
District
it.
See
never
Court,
the
presented
this
cases
to
Honorable
we
cite
at
the
Court
page
state
ought
2#,
above.
II
IN
It
has
accomplice
out-of-court
contained
RE:
never
KNOWLES'
been
witness,
disputed
James
Statements,
lles.
OUT-OF-COURT
At
that
"Tiger"
most
various
of
times
STATEMENTS
the
State's
Knowles,
which
were
Knowles
made
or
many
at
claimed
least
that
he
25
was
not
involved
beating
in
and
throat
addition
to
testimony.
months
was
It
a gun
District
last
differed
State
was
Mobile
State
the
undisclosed
trial.
Courts
(AIa.Cr.App,
of
in
Ed
2d
The
District
Mobile
County,
in
at
the
found
State
cert.
381,
Alabama,
that
So.
S.
held
that
of
this
proven
of
at
the
After
which
disclosed
the
or
not
Ct.
information
light
him
of
the
charged
process.
knew
the
trial,
Attorney
of
about
them.
disclosure
impacted
of
the
1234-1235
cert.
475
of
time
have
1230,
due
the
possession
U.S.
was
to
pre-trlal
2d
den;
113
Court
of
four
witness.
District
would
599
and
although
the
until
All
denied
that,
accident,
testimony
came
this
trial
the
trial
the
possession
also
1992);
L.
that
statements
v.
from
an
that
a defense
Investigation
was
was
his
the
Knowles
that
were
Hays
121
claims
strangling
Donald.
by
as
details
statements
County
The
by
evidence
the
withheld
before
fact
found
no
Donald
Mr.
presented
of
Mr.
had
defense
Courts
Bureau
that
understood
abduct
mentioned
Hays
undisclosed
the
certain
statements.
Federal
to
statements
in
The
been
Knowles
used
to
other
of
and
approximating
always
Attorney,
trial,
there
has
was
the
crime
cutting
trial,
disclosed
trial,
the
statements
before
that
in
den.
U.S.
(1992).
District
as
Attorney
a matter
of
law
26
with
knowledge
F.B.I,
but
resulted
of
agreed
from
We
that
knowledge
F.B.I,
of
but
with
the
submit
holding
materials
the
the
State
possession
Courts
of
that
no
the
prejudice
non-dlsclosure.
that
the
Honorable
the
District
the
statements
that
in
the
District
Attorney
in
Court
was
was
the
Court
charged
on
in
with
possession
correct
erred
of
the
the
issue
of
Antone,
(603
F 2d
held
that
prejudice.
A.
IN
On
566,
authority
569
the
State
law
with
F.B.I.
[Sth
materials
his
in
own
593,
595
1351
(Sth
55,
57
records
of
page
(5th
13,
(5th
this
of
All
603
is
at
is
United
1973)
rule
and
127)
Smith
that
least
as
the
It
of
charged
law
of
Which
2d
566,
with
Florida
569.
prosecutors
authority
The
have
2d
2d
475
1349,
F
2d
as
reasoning
access
over
well
552
410
cited
the
agencies
Deutsch
are
of
knowledge
Estella
v.
of
course,
enforcement
v.
v.
a matter
possession
is,
States
some
Judge
charged
in
of
1977);
Antone,
District
was
Tab
v.
Schnneider
1969);
Cir,
in
the
possession
Clr,
Cir,
States
a prosecutor
the
KNOWLEDGE
materials
qovernment.
authority
behind
United
Attorney
knowledge
that
IMPUTED
1979]),
District
established
of
of
Cir,
(Order,
RE:
to
the
law
27
enforcement
however,
agencies
expanded
prosecutor
with
who
The
rational
of
the
this
were
federal
the
to
obtain
there
is
no
involved
basis
rational
knowledge
of
law
enforcement
would
revealed
be
actually
constructively
out
But,
agency
prosecutor
by
defense
The
local
have
more
serve
between
that
and
any
is
the
supremacy
prosecutor
has
agencies.
However,
charging
materials
in
the
the
state
possession
course,
any
prosecution
or
agency
the
prosecutor
the
same
held
be
readily
adopted
prosecutor
burden,
state
state
or
government
rule
confidentially
discovered
than
they
by
by
a
set
state
could
be
discovered
Court
charges
attorney.
rule
but
to
Of
under
not
a rule
federal
investigation.
rule
state
agencies.
to
materlal
could
any
the
known
known
above.
federal
to
known
federal
for
of
Antone,
charge
federal
such
from
basis
with
to
materials
government.
matters
in
for
prosecutor
materials
of
government.
power
federal
same
principle
knowledge
officers
only
of
with
he
the
purpose
federal
by
local
that
obtain.
adopted
except
and
District
knowledge
cannot
rule
the
This
by
to
the
he
is
an
District
discourage
law
not
enforcement
only
does
not
impossible
Court
cannot
cooperation
agencies.
28
The
District
the
Defense
The
Prosecutor
impeach
were
to
with
such
even
Knowles.
unknown
compel
Obviously
do
Attorney
the
of
to
the
this
his
own
District
federal
the
Constitution
readily
statements
held
government
to
does
the
and
F.
he
disclose
not
he
had.
available
by
Attorney,
provided
as
testimony
statements
the
case
Knowles'
made
The
in
to
B.
had
I.
no
way
them.
compel
prosecutor
impossible.
B
IN
Hays
takes
the
prosecution
to
turn
containing
involved
and
state
knows
denial
two
year
many
But,
impose.
The
only,
Whltley
1555,
1566
impeached
is
the
the
U.S.
(1995)
with,
the
with
made,
undisclosed
__,
Given
amoung
of
131
L.Ed
that
other
an
the
trial
not
this
490,
Knowles'
things
federal
an
impossible
does
requires
evidence,
2d
case
Knowles,
Constitution
trial
testimony
of
even
is
the
this
array
evidence
the
of
Knowles
Since
one,
disclose
outcome
his
by
no
burden
to
by
process.
since
he
failure
statement
investigation
failure
in
514
due
statements
if
confidence
every
of
and
it
that
inconsistent
burden.
trlal
over
agencies
how
PREJUDICE
position
anything
constitutes
RE:
"...
was
prior
new
'undermines
.... " Kyles

506,
not
115
S.
v.
Ct.
brutally
inconsistent
29
statements,
that
testimony
Hays'
of
three
to
statements
submit
these
issue,
adding
injury
to
(R2-p12)
the
nearly
Ed
In
under
Hays
did
the
said
Michael
This
fact
was
490,
Second,
Trial
but
compelling.
510,
there
Attorney
would
cross-examining
questioned
Knowles
few
and
it
more
had
any
the
prejudice
is
most
inconsistent
impact.
issue
27,
pages
of
our
position
Knowles
testified
was
the
of
was
essential
Court
"...
proven
the
2,
of
17-25.
We
on
this
the
have
Knowles,
about
serious
case
Kyle
Ct.
v.
1555,
question
made
of
many
each
even
in
1 of
to
death
of
if
the
Court
had
was
be
physical
independently
Compare
S.
that
to-wlt;
out,
that
a gun
under
all
cause
State's
115
use
Donald,
points
is
guilt,
tab
support
which
a gun
Court
the
following:
to
ignored,
2d
in
the
of
District
testimony
L.
order,
proven
that
have
by
evidence,
of
of
Court's
point
indictment,
was
would
findings
Proof
proven
proof
analyzed
independently
the
the
case
physical
Court
only
its
admissions
Knowles
only
robbery.
As
how
the
proved
witnesses,
District
See
The
see
by
length.
not
other
state
volunteered
difficult
The
the
.... "
Knowles.
Knowles'
against
Whitley,
Hay
was
above,
very
131
1569.
of
what
additional
attorneys
use
statements.
would
out-of-court
Hays'
have
statement
in
30
-,
'
detail.
that
However,
school.
Knowles,
Hays'
He
addressed
shifting
and
extremely
effective.
from
his
it
could
additional
use
how
is
been
statements.
additional
at
fire
Trial
questions
to
effect
we
tell
from
cannot
how
more
never
Attorney
statements
see
such
would
was
the
counsel
cross-
effective
showed
to
to
The
made
inconsistent
belong
subject.
to
Hays
not
statement
different
hard
have
retained
to
many
did
from
However,
And,
examination
rapid
subject
cross-examlnatlon
about.
Attorney
unpredictably
statement
knew
Trial
by
what,
if
any,
made
of
have
few
o~
statements.
III
IN
RE:
"PERJURY"
A(1)
IN
At
that
his
Mr.
cutting
not
intend
of
Alabama
plea
to
throat
person's
the
events
of
that
in
was
of
in
used
court,
that
in
a person,
be
Knowles
intended.
that
is
does
this
"gospel."
Knowles'
deliberate
perjured
as
it
strangling
perpetrator
insist
accepted
claimed
Although
beating,
the
Hays
presenting
a premeditated,
knowingly
not
death,
must
TESTIMONY
federal
suggest
the
concludes
testimony
of
the
INCONSISTENT
death
absurd
and
then
guilty
Donald's
manifestly
version
RE:
He
trial
murder,
the
State
testimony.
31
The State
pages
Courts
33-35),
Obviously,
and
rejected
this
was
the
this
District
claim
Court,
on
the
(Tab
27,
facts.
correct.
A(2)
IN
No
one
would
character.
trial.
use
rule
He
such
crime,
to
an
fight
since
Hays'
criticisms
argues
in
and
that
violent
due
crime,
proven
process
barfs
prosecution.
on
terrorism
such
at
the
Such
governments'
and
invariably
Obviously,
Knowles'
was
limitation
prosecutions
witnesses.
of
this
criminal
intolerable
such
RELIABILITY
miscreant,
Hays
put
miscreant
a witness
would
ability
KNOWLES'
dispute
was
However,
of
RE:
organized
involve
rule
would
be
indefensible.
Our
law
witnesses
and,
safeguards
cross-examine
crimlnal
Alabama
by
law
accomplice
independent
the
faced
over
against
Constitution
The
has
the
the
the
provides
law
forbids
right
actually
on
as
The
confront
right
establishes
such
developed
threaten.
to
the
unreliable
has
they
convictions
witnesses
evidence
harm
and
itself
of
centuries,
the
witnesses
problem
to
and
trial
perjury
the
as
basis
Knowles,
by
of
unless
connecting
the
Jury.
crime.
testimony
there
is
defendant
to
crime.
32
.-
Hays
had
received
the
not
been
have
Hays'
the
advantage
benefit
of
convicted
claim
on
of
these
safeguards,
them.
He
was
solely
on
Knowles'
this
point
has
not,
no
and
indeed
could
testimony.
basis
in
law.
B.
IN
Knowles
Government,
entered
which
any
proceedings
the
Federal
that
agreement
Knowles
had
Alabama,
after
Hays'
Klux
Cox
v.
State
not
decision
Hays'
the
of
any
testified
and
various
585
So.
2d
then
to
teeth
of
District
prosecute
has
the
182
that
an
had
of
Hays
agreement
which
no
basis
in
fact
the
and,
This
State
Some
Mobile
is
time
for
1991]
example,
; cert.
County
claims
that
existed
at
nothing
in
of
against
(See,
[Ala,Cr.App,
proves
authorities
testified
Klansmen,
required
However,
trial.
Knowles.
obviously
proven
Hays'
in
murder.
with
Attorney
It
state
trial.
Knowles
Klan
trial.
claim
after
at
and
capital
sort
Federal
truthfully
court
to
for
agreement
proves
of
prosecuted
the
testify
recommend
Hays'
so
the
decided
to
with
federal
in
trial,
Ku
quash.),
be
and
to
introduced
no
and
the
time
not
him
state
BARGAIN
bargain
required
in
was
PLEA
a plea
Government
Knowles
RE:
of
the
fact,
this
the
kind.
made
in
facts.
33
IV
IN
Hays
the
claims,
evidence
presented
issue
it
in
here
of
argument
here
propositions,
The
to
contrary.
So.
2d
211-212
451
So.
den.
The
State
lengthy
749,
768
(Ala,
262,
108
not
evidence
was
law
definition
is
the
of
g.
is
Coburn
Thomas
2d
v.
1983);
216,
368,
1986);
Ct.
this
subject
to
aff'd
218-219
of
the
den.
assumption
be
the
that
primary
authority
for
been
clearly
State
273
Ala.
547,
460
So.
sub.
aff'd
U.S.
there
this
has
Hays
485
what
always
Hays'
1985);
nor
"robbery."
2d
nom.
1984);
cert.
with
State
929,
v.
1984);
sub
518
nom
99
142
parte
Clark
clalm
v.
is
207,
Ex
(Ala. Cr.App,
law.
the
that
(Ala,
rejected
state
cert.
v.
evidence,
reason
State
372-373
Courts
of
and
that
Although
introduced
on
compelling
Alabama
E.
2d
Since
based
Hays
(Ala.Cr.App,
S.
the
no
analysis
760-761
of
appeal,
robbery.
cites
So.
State
prove
homicide.
(1962);
460
to
court
must
(Ala.Cr.App,
Thomas
state
EVIDENCE
theft
law
869
his
THE
robbery-murder,
for
none.
the
what
state
the
did
sufficiency
the
constitute
object
of
not
but
he
OF
insufficient
terms
is
proved,
SUFFICIENCY
as
was
Hays'
to
RE:
So.
518
L.
Ed
2d
So.
2d
2d
1099.
is
in
essence
federal
habeas
state
corpus
law
claim,
review.
28
it
U.S.
is
C
34
2254(a);
Lewis
606,
622,
U.S.
37,
Smith
102
71
S.
Ct.
79
454
L.Ed.2d
this
344,
and
Milton
v.
6,
prove
Hays
this
Donald
strangled
and
from
insufficient
quite
Tab
27,
had
there
kill
the
fact
in
he
tree.
Hays'
evidence
to
absurd
to
cut,
claim
prove,
.... "
insufficient
371,
Donald.
S.Ct.
377,
credibility
is
witnesses
non-custodlal
that
examiner
his
He
of
citizen
asserted
medical
throat
102
was
that
volunteered,
his
535,
119,
v.
U.S.
lack
separate
blows
88,
107,
407
Mr.
separate
the
78,
Harris
530,
alleged
which
2d
(1972).
to
three
suffered
simply,
page
aside
465
(1984);
U.S.
(1982)_
L.Ed.2d
that
Knowles'
crime;
had
Ed
456
111L.Ed.2d
Harris,
71L.
Wainwright,
intent
Jury,
three
by
committed
is,
on
the
to
statements
hanged
his
1558
v.
871
Isaac,
2154
780,
S.Ct.
221,
v.
70
claims
Laying
for
209,
S.Ct.
Hays
claim
testified
Mr.
92
104
S.Ct.
339,
credibility.
question
102
764,
Pulley
35,
Engle
U.S.
1,
to
U.S.
797,
U.S.
(1990);
29,
(1982);
Finally,
evidence
497
3092
455
783,
(1981),
bases
Ct.
L.Ed.2d
940
L.Ed.2d
460
S.
Jeffers,
Phillips
River_a,
33
110
42,
v.
v.
that
"...
(District
had
his
there
an
had
testified
head,
before
he
that
been
body
was
was
intent
Court's
to
kill
order,
62)
35
V
IN
Hays
errors
claims
.... ",
Attorney.
the
late
subject
Any
so
ASSISTANCE
he
page
call
errors
Attorney's
same
advocates
assessment
64),
are
efforts
of
subject
in
as
efforts
sort
OF
describes
Brief,
attorney's
the
successful
critical
(Hays'
Trial
to
EFFECTIVE
what
These
counsel.
In
RE:
the
by
"...plethora
his
merely
by
in
COUNSEL
criticisms.
their
own
interest
of
Trial
criticisms
Hays'
any
of
of
present
case
would
be
Indeed,
efforts
self
to
improvement.
addition:
"...
There
are
countless
ways
to
provide
effective
assistance
in any
given
case.
Even
the best
criminal
defense
attorneys
would
not
defend
a
particular
client
in the same
way .... "
(Strlckland
v. Washington
466 U.S.
668,
689,
80 L. Ed 2d 674,
685,
104 S. Ct.
2052
[1984])
The
Constitution
errorless
counsel.
does
not,
In
indeed
cannot,
require
fact:
"... The
right
to the effective
assistance
of counsel
is ... the right
of the accused
to require
the
prosecution's
case
to survive
the
crucible
of meanlngful
adversarial
testing.
When
a true
adversarlal
criminal
trial
has been
conducted
--even
if defense
counsel
may
have
demonstrable
errors..,
the kind
of
testing
Amendment
envisioned
by
has occurred
the Sixth
.... " (United
made
v.
36
Cronic
657,
466 U.S.
648 656,
80 L. Ed
666,
104 S. Ct.
2039
[1984])
Obviously,
such
adversarial
testing
2d
took
place
in
this
is
fact
case.
None
of
Hays',
"plethora
of
errors"
in
an
error.
There
an
is
Attorney
But,
case
to
and
his
the
how
other
nearly
daily
to
meeting
through
be.
if
he
with
the
they
could
that
the
The
question
strategic
he
the
case
at
failure
of
depends
on
the
lawyer,
Ralph
choice
the
by
of
Defense
Hayes'
and
some
means
short,
the
was
was
in
additional,
knew
was
expected
with
other
fully
knew
trial
to
exactly
record
informed
trial.
Counsel
involvement
sound
the
addition
Attorney
contact
Attorney
of
In
testimony
In
time
in
Attorney
Defense
avoided
Defense
example,
familY.
the
testify.
familiarize
defense
Trial
long
or
the
Hays'
obvlously
how
and
Knowles'
Attorney
for
client
must
For
Knowles,
what
his
or
case
the
with
with
to
about
this
Hays,
contact
witness,
reflects
does
when,
Attorney
clrcumstances_
defense
what
an
with
prosecutlon's
dlscovery
And,
how,
communicate
meetings
his
covering
Obvlously,
with
case.
rule
must
witnesses.
himself
no
one
at
to
make
was
that.
more
obviously
of
the
a
Introducing
37
evidence
would
relating
have
Hayes'
created
innocence.
Appellant
Henry
innocent
pages
See
net
in
and
of
the
result
the
v.
of
state
would
role
of
State
the
an
obvious
him
Ralph
to
Hayes
prove
have
518
So.
2d
Ralph
been
implicating
District
the
in
the
as
state's
Hays
was
he
could
3While
testifying
post-conviction
to
an
749,
Court's
cast
763-764
order
of
soon
leader,
Defense
Bennle
as
Bennie
Hays,
in
Counsel
but
possible.
Knowles
Hays
And
the
murder
wisely
how
could
impeach
case?
charged
be
hearings,
to
Klan
call
James
before
attempted
to
stand
anything
Klux
cannon".
obliged
implicating
2Bennle
Ku
"loose
felt
off
and
evidence
and
The
Hays
1985)
father
apparently
died
right
guilt
8-9.
Hays'
got
the
Hays
man.
(AIa.Cr.App,
was
to the possible
assault
with
this
same
crime.
He
tried.
at
one
of
Bennie
the
Appellant
Henry
Hays
from
District
rose
Attorney
Hays'
the
with
stand
his
cane.
38
According
grievous
to Hays'
"error"
lessor
included
conclusively
proved
body
conclusive
was
murder,
was
was
Hays'
it;
the
charges
605,
Where,
a
has
Bang
cert.
1111
(Ala,
2d
1196,
iii
479
U.S.
747ff
ii01,
he
den.
aff'd
v.
a verdict
498
Ex
107
So.2d
of
456
guilty
person
Alabama
1094,
parte
1103
Davis
1127,
So.
Wright
Ct.
554
112
494
1986);
S.
Evans
(Ala.Cr.App,
parte
Ed
to
accused
State
(Ala,
with
(1982)
under
U.S.
v.
do
right
for
Ex
issue
to
2049
110
the
only
Ct.
collected)
183,
no
an
the
the
Hopper
554
nom
Wright
2d
was
is
106,
and
of
in
nothing
offense
State
sub
1091;
L.
2d
v.
1985);
94
basis
such
So.
cert.
(cases
that
offense,
on
aff'd
Ct.
had
offenses.
no
Davis.
1986);
S.
is
620
(Ala.Cr.App,
745,
he
included
1986);
The
said
S.
evidence
wallet
He
case
Equally
empty
subject.
on
mutilated
the
that
102
this
Donald's
robbery;
most
charges
dispute.
proved
charges
den.
Mr.
in
on
367,
there
v. State
request
situatlon,there
2d
Attorney's
evidence
Donald's
included
Ed
to
2d
2d
this
lesser
(Ala.Cr.App,
729ff
L.
here,
right
1993);
Mr.
evidence
lessor
certain
law.
of
Trial
to
beyond
proof
conclusive
In
72
as
no
The
involvement.
on
failure
that
with
perpetrator.
of
the
state's
the
a murder;
left
coupled
dumpster
the
offense.
desecrated
U.S.
was
brief,
L.
2d
494
cert.
1331
So.
and
Ed
726,
So.
den.
E__x
39
parte
466
Tomlln
U.S.
State
431
443
325,
80
L.
So.
2d
1322
his]
49
L.
death
crime,
complains
that
not
Obviously,
charges
in
the
fact
the
Jury's
what
error
that
had
did
else
occurred
of
he
could
[emphasis
not
what
impose
Brief,
of
Hays'
any
the
attorney
likelihood
against
it.
The
prior
recommendation.
should
(1976)
(Hays'
no
U.S.
[T]rial
nothing
"ensure"
Hays
v.
428
3002
...
.... "
Attorney
"plethora
Ct.
diminished
less
Cook
Louisiana
imagine
have
den.
cases
circumstances
to
much
2160;
capital
[C]ourt
and
would
S.
cert.
such
his,
[Hays]
difficult
Ct.
v.
our's]
[T]rial
nature
suggest
96
that
Appellant
Trial
the
982,
1983);
While
have
have
Hays
done
more,
done.
here.
errors"
has
no
basis
absolutely
no
effort
undermine,
"...
in
law
fact.
In
how
the
his
no
Thus,
or
and
S.
Under
[emphasis
that
raised
'i04
Roberts
974,
sentence,
convictions
does
most
(Ala,
1983)
complains
the
done
death
Attorney
he
on
is
have
such
2d
that
Given
it
could
of
ensure
65)
545,
(Ala,
almost
sentence
page
Ed
Hays
did
to
2d
61ff
Constitution.
Finally,
[C]ounsel
59,
Ed
giving
the
334,
2d
954,
circumstances,
violates
So.
these
addition,
matters
Hays
in
makes
any
way
to
show
confidence
40
in
the
668,
outcome
694,
80
.... " Strickland

L.
Ed
Obviously,
In
Hays
petition,
it
this
he
District
See
this
addition,
raised
698,
104
claim
must
fall
should
be
pointed
his
abandoned
it
in
should
not
v.
claim
Jones
Washlnqton
674,
in
Court
Collier
2d
v.
910
state
the
have
F.
S.
466
Ct.
on
2052
every
out
(1984)
point.
that,
although
post-conviction
appeal
therefrom.
entertained
2d
U.S.
770,
773
this
(llth
The
claim.
Cir,
1990).
VI
IN
RE:
REJECTION
SENTENCE
At
over
the
time
whether
of
an
sentence
recommendation
parole.
This
in
Beck
sentence
what
on
by
result
a
Beck
opinion
hold
State,
its
recommendation
trial
of
(396
terms
would
of
had
sentencing
that
trial,
controversy
sentence
final
to
v.
2d
was
was
imprisonment
out
645
of
[Ala,
held
at
(396
length
authority,
so
was
inconsistent
So.
that
the
2d
with
sentence
the
The
question
not,
645,
Judges
by
Jury's
without
interpreting
bound
1981]).
could
Jury
by
a single
if
a controversy
bound
to
.... "
Judge
JURY'S
addressed
death
was
Judge
life
So.
obtain,
trlal
there
arose
was
THE
RECOMMENDATION
Hays'
Alabama
OF
any
Beck
of
"...
663)
agree
The
were
the
this
sentence
Jury
opinion
as
41
a whole.
The
address
this
1986.
At
issue
that
re-affirmed
that
Alabama
Judge
108
Ex
1986);
S.
Ct.
On
cert.
his
state
that
law
reject
the
Trial
the
"Judicial
S.
Ct.
v.
1031
U.S.
447,
3154
(1984)
relating
at
Court
it
sentencing
the
So.
929,
to
in
and
held
Jury's
2d
99
768,
L.
was
Alabama
(513
alleged
override".
least
two
773-777
Ed
2d
262,
in
L.
this
less
U.S.
Ed
post
In
facto
were
L.Ed
v.
adds
rejected
1004,
104
115
468
S.
Ct.
arguments
applicatlon
arguments
2d
before
Florlda
350-356,
Hays
state
Court,
a month
130
340,
his
state
prohibited
arguments
Spazlano
2d
by
District
than
__,
appeal,
These
the
these
Hays
authorized
Constitution
Compare
ex
conviction,
should
of
be
rejected
reasons.
federal
new
and
order,
in
not
However,
82
his
recommendation,
Court's
Now,
of
Federal
[1995]).
to
First,
establish
the
457-466,
"Judicial
for
Supreme
by
U.S.
opportunity
beforG
518
appeal
Jury's
that
District
Harris
485
Judge
override".
in
Hays
no
came
Judicial
bound
litigation
claimed
the
parte
court
post-conviction
Hays
not
den.
case
Alabama
of
had
1099.
argued
to
the
was
Court
Hays'
prlnclple
recon_mendation.
(Ala,
until
point,
the
trial
Supreme
habeas
constitutional
corpus
is
not
requirements.
available
Allen
to
v.
42
Hardy
478
(1986);
109
U.S.
Teaque
S.
Ct.
415,
Younqblood
and
110
S.
The
second
applied
under
Beck
fourteen
his
106
S.Ct.
2878
288,
103
L.
2d
111
applies
Parks
494
[1990];
L.
Ed
497
U.S.
2d
30,
in
capital
484,
108
U.S.
v.
110
the
334,
to
Collins
changes
Smith
Ed
S.Ct.
2715
sentencing
227,
111
should
be
claim
that
L.
Ed
2d
these
no
claims
basis
for
retroactlvely.
in
sentenced
above,
1975,
under
which
before
his
Hays
some
was
six
issued
crime
and
Lankford
v.
any
on
about
is
law
convicted
years
a procedure
was
rejected
before
his
established
in
March
two
6,
years
1981,
before
trial.
L.
Ed
Langford
possibility
In
37,
passed
days
Hays'
114
Hays
State,
v.
1257
v.
199,
principle
Ct.
slmply
was
U.S.
This
reason
to
He
v.
S.
2d
2822 _ (1990)
statute
crime.
489
post-trial
Ct.
is
Ed
(Saffle
Sawyer
there
was
Lane
U.S.
to
procedure.
L.
(1989)
110
497
[1990]),
that
92
claims,
2d
193,
v.
1060
sentencing
L.Ed
255,
Hays'
sentencing
reliance
2d
was
173,
led
and
trlal,
on
111
to
S.
Ct.
believe
1723
that
presented
no
the
Judge
Trial
Idaho,
(500
[1991]),
is
death
evidence
charged
was
on
not
that
the
U.S.
110,
misplaced.
a
sentence
subject.
Jury
in
the
phase:
43
" ...... Ladies

decision
now
recommend
to
and gentlemen,
your
that
you must
make
is
the Court
whether
the
to
Defendant
be sentenced
to death
by
electrocution,
or to life
imprisonment
without
the possibility
of parole.
Yours
will
be a recommendation
to the
Court .... ' (Tr. 830);
emphasis
supplied)
.... " (Ex parte
Hay's
518
So. 2d 769,
777)
Hays
knew
seeking
at
the
considered
the
at
capital
hearing
penalty
as
hearing
and
a possible
recommendation.
Hays'
that
that
no
the
conduct
demonstrates
has
the
factual
not
Hays'
such
an
basis
97
Circuit
U.S.
was
with
344,
2d
Attorney
for
claim
claims:
Coleman
conflict
F.
Judge
withstanding
of
"... Coleman
v. McCormick,
874 F.
1280
(9th Cir.),
cert.
denied
493
994,
the Ninth
Circuit
ruled
that
use
of a sentencing
statute
enacted
after
the commission
of the crime
violated
a capital
defendant's
due
process
rights .... " (Hays'
Brief,
73)
2d
was
Lankford.
Hays
If
state
sentencing
sentence,
The
clearly
understanding.
under
sentence
death
Jury
this
his
, above,
944,
Dobbert
S.
said
1280,
such
Ct.
it
v.
2290
was
L.Ed
2d
it
Florida,
[1977]),
not
1285-1286
107
holding,
doing.
(9th
Cir,
337,
110
2d
U.S.
the
page
would
be
(432
U.S.
something
in
flagrant
282,
the
53
v.
McCormick,
1989),
cert.
den.
Ct.
349.
Ed
Ninth
Coleman
S.
L.
What
874
493
happened
44
in
Coleman
after
to
that
Colemans'
consider
ruled
the
that,
knowing
at
was
lawyer
the
effect
have
charged,
of
and
known
this
his
lawyers
which
no
applied
Finally,
nonsense.
administration
except
the
plurallty
92
S.
event
time
of
sentence
all
of
trial
the
and
sentenced
there
significance
was
of
the
sort
courts
claim,
in
under
was
the
Jury's
be
could
Hays
in
was
place
dispute
legal
among
sentence
controversy
business.
no
would
recommend.
which
some
because
Hays'
lawyer
was
of
not
a capital
would
law
case
considered
what
of
Jury
Judge
process.
Hays
the
Although
Hays
law
simply
was
ever
retroactively.
"balance
Alabama
the
Furman
2726
the
Supreme
death
constitutional
Ct.
be
the
convicted
of
in
would
in
Hays
The
omissions
actions
retroactlvity
him
the
trial
appellate
to
tried
of
this
keeps
had
time
crime.
recommendation,
Circuit
the
case,
the
Ninth
at
what
about
The
due
the
approved
sentencing
of
at
was
the
a denial
knew
his
lawyer
and
was
statute
required
Coleman's
acts
tried,
before
346,
transcript.
certainly
In
has
trial
there
conviction,
not
and
his
sentencing,
sentencing
trial
since
that
the
v.
books"
Court's
penalty
concerns
Georqia
(408
argument
discussion
reflected
which
U.S.
is
nothing,
motivated
238,
33
the
L.
Ed
[1972]).
45
2d
CONCLUSION
This
court's
from
Honorable
Judgement
the
Court
denying
should
affirm
rellef
from
the
the
JEFF
H
J
OF
of
the
Division
Alabama
State
South
AS_STANT
ATTORNEY
G.
L.
GENERAL
MARSTON,
ATTORNEY
III
GENERAL
Attorney
General
House
Union
Montgomery,
(334)
submitted,
COUNSEL:
Appeals
11
and
SESSIONS
ALABAMA
Office
conviction
sentence.
Respectfully
ADDRESS
district
AL
Street
36130
242-7300
46
CERTIFICATE
I,
General
Joseph
of
G.
Alabama
Appellees
do
November,
1995,
the
them
Attorneys
first
L.
class
one
III,
of
certify
I did
for
SERVICE
Marston,
and
hereby
OF
postage
Honorable
on
copies
Appellant
by
and
Richard
M.
Marshall
and
Melhorn
SeaGate,
Eighth
Toledo,
Attorney
Hearne,
201
Suite
Tampa,
the
addressed
same
as
on
to
follows:
Kerger
Floor
J.
Grazlano
Law
Graziano
East
foregoing
of
43604
Dominlck
at
the
Law
Ohio
Honorable
the
Attorney
day
mailing
prepaid
at
for
thls___
of
Attorney
Four
Assistant
Attorneys
that
serve
the
the
an
Kennedy
& Nader,
P.A.
Blvd.
1125
Florlda
33502
47
Honorable
Nell
Attorney
158
At
Congress
Mobile,
Hanley
Law
Street
Alabama
Montgomery,
36602
Alabama
36104
G.
_/STANT
ADDRESS
OF
Office
of
Criminal
ii
Montgomery,
(334)
the
State
South
MARTSON,
ATTORNEY
III
GENERAL
COUNSEL:
Attorney
Appeals
Alabama
L.
General
Division
House
Union
Street
Alabama
36130
242-7300
1225JM
48

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IN THE UNITED STATES COURT OF APPEALS MIGUELJ.CORTF/

THE FEDERAL SPEEDY TRIAL ACT.........

KNOWLES' OUT-OF -COURT STATEMENTS....

.... " U.S.

.... " result

.... " This

.... " Kyles

.... " Strickland

" ...... Ladies

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