Domineque Ray v. Alabama, DOC, 11th Cir. (2016)
Domineque Ray v. Alabama, DOC, 11th Cir. (2016)
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[PUBLISH]
DOMINEQUE RAY,
Petitioner - Appellant,
versus
ALABAMA DEPARTMENT OF CORRECTIONS,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF ALABAMA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(January 6, 2016)
Before MARCUS, WILSON, and MARTIN, Circuit Judges.
WILSON, Circuit Judge:
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Alabama death row inmate Domineque Ray appeals the district courts
denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus. Ray was
convicted of capital murder in the course of first-degree rape and first-degree
robbery. The appeal before us concerns whether Rays counsel was ineffective
during the penalty phase of his trial by not investigating and presenting readily
available mitigating evidence regarding his traumatizing childhood, mental
deficiencies, and steroid abuse.
I
In September 2007, Ray was indicted and charged with capital murder in the
death of fifteen-year-old Tiffany Harville, whose remains were found in Selma,
Alabama. The trial court made the following findings of fact concerning the
offense:
On or about August 16, 1995, Lawrence Milton was operating a
tractor and bushhog just off County Road 62 in Dallas County,
Alabama. As Mr. Milton went about his duties bushhogging the field,
he discovered the skeletal remains of Tiffany Harville, who had been
missing since on or about July 15, 1995.
Tiffany Harville was 15 years of age at the time of her death. Mary
Coleman, Tiffanys mother, described the last time she [had]
communicated with her daughter, Tiffany, in July 1995. Mrs.
Coleman stated that she, Mrs. Coleman, was leaving town for the
evening to attend a Union Workshop. She left Tiffany approximately
$6 spending money. Upon Mrs. Colemans return to Selma on
Sunday afternoon, she discovered that her daughter had not been seen
since 8:00 p.m. Saturday night. Mrs. Coleman described the efforts
made to locate Tiffany, and further reported that the Defendant,
Dominique Ray, came to her house to offer his assistance and share
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Mrs. Colemans concern for her missing daughter. She testified that
the Defendant offered to distribute fliers, and at one time, offered
reward money to locate Tiffany. On two other occasions before
Tiffanys body was discovered, the Defendant called Mrs. Coleman
on the phone to make a general inquiry as to Mrs. Colemans
condition.
The investigation into the death of Tiffany Harville continued for
several months. There were numerous leads and suspects, and at one
time an individual was arrested and held without bond for the murder
of Tiffany Harville. Finally, the codefendant in this case, Marcus D.
Owden, came forward and gave the police a full accounting of the
events and circumstances surrounding the death of Tiffany Harville.
Owden testified at [t]rial against the Defendant Ray that it was their
intent to form a mob or a gang, and that they had intended to find
Tiffany Harville for the purpose of having sex with her. Owden stated
that he did not know Tiffany, but that Ray did and that it was Rays
idea to go and get Tiffany. Owden testified that they had talked about
having sex with her before they went to her house to get her. On the
evening of July 15, 1995, 1 Owden and Ray picked Tiffany up and
proceeded to take her to [the] Sardis community located in Dallas
County, Alabama, on or near Highway 41. Owden stated that they
had decided they were going to ask her for sex first, and if that didnt
work, that they would take it. He described during his testimony how
he and the Defendant Ray [had] had sex with her and how she [had]
pleaded for help.
Owden testified that Ray cut her throat and that he, Owden, cut her as
well. He then described that they took part of her clothing along with
her purse, which contained $6 or $7.
In addition to the testimony of Marcus D. Owden, the State offered
into evidence the statement of the Defendant, Dominique Ray. In his
statement, he admits to his role in the rape and murder of Tiffany
Harville, yet attempts to establish Owden as the primary perpetrator.
The July 15, 1995, date is an apparent typographical error. The victims mother and other witnesses testified
that they saw the victim for the last time on July 29, 1995.
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Taylor was added as counsel by motion from the defense. Whatley and Taylor represented
Ray in the Harville murder case at the same time that they were serving as Rays counsel in a
separate, unrelated charge of double homicide. Ray was charged with and convicted of
murdering two young boys, Earnest and Reinhard Mabin, a few months before the Harville
murder trial began. He received a life sentence without parole for his role in the Mabin murders.
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counsel with a list of people to contact, but counsels efforts proved largely
unsuccessful. Some potential witnesses refused to answer their doors, while at
least one other answered and stated: Im not coming [to court]. And if I come,
you dont want to hear what I have got to say [about Ray]. Ray told counsel that
his brother, Europe, was not available and not around and not in the picture, and
forbade them from contacting the mother of his child. Whatley and Taylor made
no attempt to contact either Europe or the mother of Rays child. During the
penalty phase before the jury, Whatley and Taylor presented only Gladys as a
witness. The court also conducted a separate sentencing hearing, at which defense
counsel presented eight witnesses to speak to Rays nonviolent nature; seven of
these witnesses recommended Ray receive a life sentence without parole rather
than the death penalty.
The court entered an order sentencing Ray to death. The Sentencing Order
stated that the Government proved beyond a reasonable doubt the following
aggravating factors: Ray had been previously convicted of another capital offense
(murder of the Mabin brothers); Ray committed the Harville murder in the course
of or while attempting to commit first degree rape; and Ray committed the Harville
murder in the course of or while attempting to commit first degree robbery.
Further, the sole statutory mitigating factor was Rays age at the time of the
offense (nineteen years old) and the only non-statutory mitigating factors were
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abuse defense based only on their own observations of Ray and Dr. Ronans report,
rather than arranging for additional testing or evaluation. See Ray v. State, 80 So.
3d 969, 989, 997 (Ala. Crim. App. 2011). After considering this additional
evidence, the state trial court wrote a 107-page order denying Rays petition in its
entirety. Specifically, the court explained: [G]iven the brutal nature of the facts
surrounding Tiffany Harvilles murder, the Court finds that there is no reasonable
probability that more details about Rays home life would have caused a different
result in the jurys recommendation at the penalty phase of trial. This Court can
affirmatively state that if the evidence presented by Ray at his evidentiary hearing
had been presented during the penalty phase of trial it would not have changed this
Courts determination that the aggravating circumstances outweighed the
mitigating circumstances.3 Id. at 985 (citation omitted) (quoting the state trial
court). Citing this particular portion of the order, the Alabama Court of Criminal
Appeals affirmed. See id. The Alabama Supreme Court once more denied a writ
of certiorari.
Ray filed a timely petition for a writ of habeas corpus in the United States
District Court for the Southern District of Alabama, seeking relief under 28 U.S.C.
2254. After evaluating Rays claims for relief, the district court denied the
The same judge oversaw Rays initial sentencing and postconviction trial. Of course, the prejudice inquiry
under Strickland v. Washington is an objective, not subjective, standard. Strickland itself indicated that the views of
the actual sentencing judge are irrelevant to the prejudice inquiry. See 466 U.S. 668, 700, 104 S. Ct. 2052, 2069,
2071 (1984) (noting that testimony [from the sentencing judge] is irrelevant to the prejudice inquiry).
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Section 2254(d) permits the federal courts to grant a writ of habeas corpus
only where the state courts determination resulted in a decision that was (1)
contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court; or (2) based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. 2254(d). A state court decision is contrary to clearly
established federal law if it applies a rule that contradicts the governing law set
forth by the United States Supreme Court, or arrives at a result that differs from
Supreme Court precedent when faced with materially indistinguishable facts.
Gissendaner v. Seaboldt, 735 F.3d 1311, 1316 (11th Cir. 2013). A state court
decision involves an unreasonable application of clearly established federal law if
the state court correctly identifies the governing legal principle from the relevant
Supreme Court decisions but unreasonably applies it to the facts of the particular
case. Lee v. Commr, Ala. Dept of Corr., 726 F.3d 1172, 1192 (11th Cir. 2013).
(internal quotation marks omitted).
III
To succeed on a claim of ineffective assistance of counsel, the petitioner
must show both that his lawyers performance was deficient and that the deficient
performance prejudiced his defense. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.
Ct. 2527, 2535 (2003); Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (1984). If a
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petitioners claim may be resolved on the prejudice prong alone, then our
precedents instruct that we do so. See, e.g., Williamson v. Fla. Dept of Corr., 805
F.3d 1009, 1017 (11th Cir. 2015); Velazco v. Dept of Corr., 774 F.3d 684, 687
(11th Cir. 2014). To succeed on the prejudice prong of a Strickland claim,
petitioner must show that the deficiency in counsels performance deprived him of
a fair trial, such that there has been a breakdown in the adversarial process that
our system counts on to produce just results. Brownlee v. Haley, 306 F.3d 1043,
1069 (11th Cir. 2002) (internal quotation marks omitted). Such a showing is made
where a petitioner demonstrates that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
the petitioners sentencing. Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct.
1495, 1512 (2000) (internal quotation marks omitted).
To assess the reasonable probability of a different sentence, we consider the
totality of the available mitigation evidenceboth that adduced at trial, and the
evidence adduced in the habeas proceedingand reweigh it against the evidence in
aggravation. Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 45354 (2009)
(per curiam) (internal quotation marks omitted and alterations adopted). In a death
penalty case, if there is a reasonable probability that, absent [counsels] errors, the
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sentencer would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death, then the prejudice prong of Strickland is
met. Pooler v. Secy, Fla. Dept of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012)
(internal quotation marks omitted).
IV
We direct our AEDPA analysis to the Alabama Court of Criminal Appeals
decision, Ray, 80 So. 3d at 97585, because it is the last reasoned decision by the
state courts to consider Rays penalty phase ineffective assistance of counsel
claim. 4 See McGahee v. Ala. Dept of Corr., 560 F.3d 1252, 1261 n.12 (11th Cir.
2009); see also Adkins v. Warden, Holman CF, 710 F.3d 1241, 1250 (11th Cir.
2013).
Since the Alabama Court of Appeals adjudicated Rays penalty phase
ineffective assistance claim on the merits in a reasoned opinion, we follow a twostep process in applying 2254(d). Harrington v. Richter, 562 U.S. 86, 102, 131
S. Ct. 770, 786 (2011). First, we determine what arguments or theories support . .
. the state courts decision; second, we ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of th[e] [Supreme] Court. Id.; see also Sochor v. Secy
Dept of Corr., 685 F.3d 1016, 1027 (11th Cir. 2012) (applying Richters two-step
4
As noted, the Alabama Supreme Court denied Rays petition for a writ of certiorari from the Alabama Court of
Criminal Appeals decision affirming the denial of state postconviction relief. Ex parte Ray, 80 So. 3d 997 (Ala.
2011).
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analysis to determine whether the state court unreasonably applied federal law).
Our careful review of the state court record and the Alabama Court of Criminal
Appeals opinion leads us to conclude that Ray has failed to show, as is required
under Supreme Court precedent, that the state courts ruling rejecting his penalty
phase ineffective assistance of counsel claim was so lacking in justification that
there was an error . . . beyond any possibility for fairminded disagreement.
Richter, 562 U.S. at 103, 131 S. Ct. at 78687.
In Rays case, the Alabama Court of Criminal Appeals correctly identified
Stricklands prejudice standard when it adjudicated his ineffective assistance of
counsel claim. Ray, 80 So. 3d at 975. Further, in assessing Strickland prejudice in
the capital sentencing context, the Court correctly noted that courts must reweigh
the evidence in aggravation against the totality of available mitigating evidence.
Id. at 977 (internal quotation marks omitted). After reweighing the aggravating
evidence against the totality of mitigating evidence, old and new, the Alabama
Court of Criminal Appeals held that the mitigating evidence presented at the
postconviction hearingbut omitted from the penalty phase of Rays capitalmurder trialwould have had no impact on the sentence in this case. Id.
Ray argues that his trial counsels deficient performance prejudiced the
outcome of his case because the presentation of psychological and family-history
evidence would have increased the likelihood that jurors would have recommended
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The Alabama Court of Criminal Appeals did not render a decision contrary to or resulting
in an unreasonable application of clearly established federal law when it rejected Rays claim
that trial counsel was ineffective for failing to investigate and present evidence of steroid abuse.
The Alabama Court of Criminal Appeals recognized that failure to present evidence of steroid
abuse may support a penalty phase ineffective assistance of counsel claim. See Ray, 80 So. 3d at
99697 (citing Sallahdin v. Gibson, 275 F.3d 1211, 1239 (10th Cir. 2002) (holding trial
counsels failure to present evidence of steroid abuse was prejudicial as to sentencing)).
However, the Alabama Court of Criminal Appeals found Rays case factually distinguishable
from Sallahdinwhich involved undisputed use of steroids at the time of the murderbecause
there was little credible evidence suggest[ing] that Ray was using steroids at the time of the
murder; Ray told Dr. Ronan that he could not remember whether he was taking steroids at the
time of the murder; Ray told Dr. King that he had only used steroids for a brief period of time
when he was 16 years old; and there was no medical evidence or evidence from Rays family
members indicating any alterations in Rays personality around the time of the murder. Id.
Further, the Alabama Court of Criminal Appeals held that counsel had no reason to believe that
steroid use was an issue in this case, given that there was no evidence presented during the state
evidentiary hearing that Ray had been abusing steroids at the time of the murder, that the
murder was a result of a steroid-induced episode, or that Rays personality was altered at the
time of the murder. Given these particular facts, Ray has not shown that the Alabama Court of
Criminal Appeals rejection of his steroid-based ineffective assistance of counsel claim was so
unjustified that it was an error well understood and comprehended in existing law beyond any
possibility of fairminded disagreement. Richter, 562 U.S. at 103, 131 S. Ct. at 78687; accord
Bobby v. Dixon, 565 U.S. ___, ___, 132 S. Ct. 26, 27 (2011). Accordingly, we need not further
discuss this element of the appeal.
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For the jury to recommend the death sentence, at least ten jurors must concur in that
sentence. Ala. Code 13A-5-46(f).
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punctures of her brain, while being raped and robbed. Though the members of the
jury would have heard that Ray was abandoned in a rat-infested building in
Chicago when he was a child, they also would have heard that after killing Tiffany,
Ray audaciously went to Tiffanys house, spoke with her mother on multiple
occasions, and pretended to assist in locating Tiffany. Lastly, the jury would have
had to consider that Ray suffered from suicidal thoughts, but also that he
previously was convicted of murdering two other young people.
Although we are troubled by the paucity of counsels mitigation
investigation, our confidence in the outcome of the sentencing is not undermined.
We hold that the Alabama Court of Criminal Appeals did not render a decision
contrary to or resulting in an unreasonable application of clearly established federal
law when it determined that Ray failed to establish prejudice under Strickland.
Therefore, we affirm.
AFFIRMED.
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