Barksdale v. Attorney Gen.

1

TONY BARKSDALE, Petitioner-Appellant, v. ATTORNEY GENERAL, State of Alabama, COMMISSIONER, Alabama Department of Corrections, WARDEN, Holman Correctional Facility, Respondents-Appellees.

No. 20-10993

United States Court of Appeals, Eleventh Circuit

May 24, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 3:08-cv-00327-WKW-CSC Before Wilson, Jordan, and Lagoa, Circuit judges.

Per Curiam:

Tony Barksdale was sentenced to death in 1996 for murder. Since the conclusion of his direct-appeal proceedings, he has unsuccessfully sought post-conviction relief in the state and federal courts.

We granted a limited certificate of appealability to determine whether trial counsel was ineffective at the penalty phase of Mr. Barksdale's capital murder trial. With the benefit of oral argument and for the reasons set forth below, we affirm the district court's denial of habeas corpus relief on the ineffective assistance claim.

I

In November of 1996, an Alabama jury found Mr. Barksdale guilty of capital murder. By an 11-to-l vote, the jury recommended that he be sentenced to death, and the trial court imposed that sentence. We recount the events that led to the conviction and sentence, as well as the evidence adduced at the state postconviction proceedings.

A

The facts underlying Mr. Barksdale's conviction were described by the Alabama Court of Criminal Appeals (ACCA) on direct appeal. See Barksdale v. State, 788 So.2d 898, 901-02 (Ala.Crim.App.2000). We summarize those facts below.

On the evening of November 30,1995, Mr. Barksdale-who was then 18 years old-and two friends, Jonathan Garrison and Kevin Hilburn, decided to go on a road trip from Guntersville Alabama, to Alexander City, Alabama, where Mr. Barksdale had previously lived. In the early hours of the next morning, the three stole a vehicle in Guntersville. After wrecking the vehicle in nearby Sylacauga, they hitchhiked the remainder of the trip toward their destination. When they arrived in Alexander City, they spent the day meeting with acquaintances of Mr. Barksdale's. By nightfall, however, they did not have a way to return to Guntersville. Following several failed attempts to flag down vehicles, one person agreed to drive them as far as a local shopping center.

The victim, 19-year-old Julie Rhodes, worked at that shopping center. At 5:45 p.m., Ms. Rhodes went home for her dinner break, leaving in her silver Nissan. As she returned 45 minutes later to begin her next shift, Mr. Barksdale flagged her down and entered her vehicle along with Mr. Garrison and Mr. Hilburn. Mr. Barksdale-whom multiple witnesses testified was carrying a gun that day-directed Ms. Rhodes to drive around the neighborhood and proceed into a dead-end street. At this point, Mr. Garrison and Mr. Hilburn exited the vehicle and ran behind a nearby shed. As Ms. Rhodes attempted to reverse the vehicle out of the dead-end street, Mr Barksdale, still inside, shot her twice: once in the back and once in the face. Mr. Barksdale then forced Ms. Rhodes out of the vehicle and ordered his friends to re-enter. The three proceeded back to Guntersville in the stolen vehicle belonging to Ms. Rhodes.

In the meantime, Ms. Rhodes-who was still alive- attempted to seek help and managed to reach a nearby house. A resident of the area heard her screams and discovered her lying in the yard of a house, bleeding profusely. Ms. Rhodes received emergency treatment at a local hospital and was then airlifted to Birmingham, Alabama. But she succumbed to her gunshot wounds on the way there.

B

A Tallapoosa County grand jury indicted Mr. Barksdale on three counts of capital murder and the case proceeded to trial. Thomas M. Goggans represented Mr. Barksdale at both the guilt and penalty phases. At trial, the state argued that Mr Barksdale had shot and killed Ms. Rhodes in order to steal her vehicle and return to Guntersville. The state called 73 witnesses, including police officers, forensic scientists the doctor who had provided emergency treatment to Ms Rhodes, Mr. Garrison (who agreed to testify as part of a plea deal), and persons who were in the area at the time of the shooting. See Barksdale v. Dunn, 2018 WL 6731175, at *3-7 n.57 (M.D. Ala. Dec. 21, 2018).

Mr. Goggans conceded that Mr. Barksdale had shot Ms. Rhodes but asserted that the shooting was accidental. See id. at *7. Mr. Goggans presented a single witness for the defense: a firearms expert who testified about the gun's poor condition. See id.

At the close of the evidence, the trial court granted Mr. Barksdale's motion for acquittal on Count 3 of the indictment, which charged him with intentionally causing Ms. Rhodes' death by using a deadly weapon while within or from a vehicle. See id. The jury found Mr. Barksdale guilty on the remaining two counts-intentionally causing Ms. Rhodes' death by shooting her while stealing her vehicle and armed with a deadly weapon, and intentionally causing her death by using a deadly weapon while she was in a vehicle. See id. at *8.

At sentencing, the state pursued the death penalty against Mr. Barksdale and sought to prove three aggravating factors: first, that the homicide was committed in connection with a robbery; second, that the homicide was heinous, atrocious, and cruel; and third, that Mr. Barksdale had a previous conviction for a crime of violence (robbery) when he lived in Virginia. See Ala. Code § 13A-5-49.

Mr. Goggans presented a very limited defense during the penalty phase. He did not call any witnesses, nor did he try to rebut any of the state's three aggravators. Mr. Goggans only offered a previously introduced exhibit-Mr. Barksdale's birth certificate- and rested his case. He did not present any mitigators other than Mr. Barksdale's age. During his closing argument, Mr. Goggans relied exclusively on the fact that Mr. Barksdale was 18 years old at the time of the crime and asked the jury to spare his life, making references to passages in the Bible. See Doc. 20-13 at 107-08, 11518; see also Doc. 20-18 at 137.

The jury, by a vote of 11-to-l, recommended a sentence of death for Mr. Barksdale. The trial court imposed that sentence, finding that the state's three aggravators-which had been proven beyond a reasonable doubt-substantially outweighed the defense's one mitigator. See Doc. 20-5 at 192-201. On direct appeal, the ACCA affirmed, and Mr. Barksdale's petitions for a writ of certiorari to the Alabama Supreme Court and the United States Supreme Court were both denied. See Barksdale v. State, 788 So.2d at 915; Ex parte Barksdale, 788 So.2d 915 (Ala. 2000); Barksdale v. Alabama, 532 U.S. 1055 (2001).

C

Mr Barksdale timely sought post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, asserting 19 different claims. See Doc. 20-16 at 8. The Rule 32 court summarily dismissed all but two of his claims, and set an evidentiary hearing for those claims. As relevant here, one of those claims was that Mr. Goggans had rendered ineffective assistance by failing to investigate and present mitigating evidence during the penalty phase. See Doc. 20-16 at 151.^[1]

At the evidentiary hearing, Mr. Barksdale called four witnesses: Mr. Goggans; Mary Archie, his mother; Maxwell Johnson, a retired Marine Lieutenant Colonel who had previously housed Mr. Barksdale as a teenager; and Ernest Lee Conner, Jr., a North Carolina trial attorney specializing in capital post-conviction cases. See Doc. 20-18 at 2. Mr. Barksdale did not testify.

Mr. Goggans offered testimony regarding his trial strategy at the penalty stage. On direct examination, Mr. Barksdale's counsel asked Mr. Goggans about his attempts to gather information regarding Mr. Barksdale's robbery conviction in Virginia. See id. at 89-92, 132-34. Mr. Goggans acknowledged that he never investigated the previous conviction. Specifically, Mr. Goggans had failed to contact Mr. Barksdale's public defender in Virginia, read the victim's statement, or investigate whether Mr. Barksdale had used a firearm during the robbery-a fact which the state relied on to prove the crime-of-violence aggravator beyond a reasonable doubt. See Doc. 20-13 at 113 (prosecutor arguing at closing that Mr. Barksdale had been previously convicted for a crime of violence).

When asked whether he had read Mr. Barksdale's confession as to the robbery, Mr. Goggans answered: "I'm not sure that I did .. . It's possible that I did, but probably not." Doc. 20-18 at 91. Mr. Goggans recalled "talking to the [victim] who was brought down to [the courthouse]" and who "indicate[d] that he recognized Tony [Barksdale]." Id. at 90-92. But Mr. Goggans could not recall asking Mr. Barksdale whether he had been the gunman in the robbery and his "recollection [was] that somehow he was not the one who actually had the gun[.]" Id. Mr. Goggans said that "there were a number of people involved" in the robbery, indicating that Mr. Barksdale had not acted alone. See id.

On cross-examination, Mr. Goggans testified that he had spoken to the robbery victim "in the back of th[e] courtroom" during the trial, and that the victim "said that he . . . recognized Tony [Barksdale] from having been there." Id. at 131-32. Mr. Goggans explained that his decision to not contest the state's crime-of-violence aggravator was a strategic choice given the risk associated with having the victim testify against Mr. Barksdale before the jury at the penalty phase. Because he "thought a certified copy [of the robbery conviction] was going to probably come in no matter what," Mr. Goggans asserted that "we would be better off just going with the [certified copy] than putting on a live witness." Id. at 131-33.

With respect to Mr....