Clemons v. Thomas

EUGENE MILTON CLEMONS, II, Petitioner, v. KIM T. THOMAS, Commissioner, et al. Respondents.

2:10-cv-02218-LSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 28, 2016

MEMORANDUM OF OPINION

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Eugene Milton Clemons, II ("Clemons"), a death row inmate at Holman Correctional Facility in Atmore, Alabama. The only claim that remains pending before this Court is Clemons's claim that he is intellectually disabled and, therefore, ineligible for the death penalty, pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2422, 2252 (2002) (holding that under the Eighth Amendment "death is not a suitable punishment for a mentally retarded criminal") (hereinafter, Clemons's "Atkins claim"). After conducting a four-day evidentiary hearing, an Alabama circuit court denied Clemons's Atkins claim on the merits, and the Alabama appellate courts affirmed. This Court's review is thus circumscribed by the parameters of 28 U.S.C. § 2254(d) (providing that a federal court may only grant relief if the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). Upon thorough consideration of the entire record, the Court finds that Clemons's petition for habeas relief is due to be denied.

I. FACTS OF THE CRIME

In its opinion on direct appeal affirming Clemons's conviction and death sentence, the Alabama Court of Criminal Appeals (hereinafter, the "ACCA"), stated the facts of the crime as follows:

The state's evidence tended to show that on May 28, 1992, Douglas Althouse, a special agent with the Drug Enforcement Administration (D.E.A.), was shot and killed while [Clemons] and his codefendant stole the automobile in which he was a passenger. Dr. Joseph Embry, state medical examiner, testified that Althouse was shot twice and that the fatal bullet entered the left side of his chest and passed through his heart.

Naylor Braswell of the Jefferson County Sheriff's Department testified that the victim and he were sharing an apartment at the time of the murder. Braswell testified that on May 28 at approximately 10:00 p.m., he and Althouse left the apartment in Braswell's blackCamaro automobile, to meet a narcotics officer. Braswell pulled into a service station/convenience store to borrow the telephone book to make a call on his cellular telephone. While he was in the store he noticed that a stocky black male had gotten into his car and was sitting behind the steering wheel, armed with a revolver. At trial, Braswell testified that [Clemons] looked like the man he saw in his car. He heard two muffled shots, saw Althouse dive out of the car, and saw Althouse shooting at the car. He ran out to Althouse as he collapsed from his injuries. Braswell testified that a bulletproof vest and a shotgun were in the trunk of the car when it was stolen.

Kenny Reed testified that he was at Herman Shannon's house on May 28 when Dedrick Smith stopped by and asked Reed to pick up [Clemons] to go get "a car." He testified that they picked up [Clemons] and drove to an area near a service station where [Clemons] got out of the car. Reed stated that he heard several shots, that there was a break in the shooting, followed by several more shots. [Clemons] then drove off in a black Camaro automobile and later went to Shannon's house. When Reed arrived at Shannon's house, [Clemons] said that no one better "open their mouths" because he had just killed a D.E.A. man. He further testified that the week before the murder, [Clemons] had told him that his car needed a new motor.

Early the next morning following the murder, the stolen Camaro was discovered near Shannon's house. The shotgun in the trunk of the car was recovered on the side of the road near [Clemons's] house.

Clemons was arrested by Federal Bureau of Investigation (F.B.I.) agents in Cleveland, Ohio. Michael Clemons, [Clemons's] uncle, who lived in Cleveland, testified that [Clemons's] sister telephoned him and told him that [Clemons] would be coming to his house. Michael Clemons testified that he met with [Clemons's] father and they subsequently met and talked with [Clemons]. Michael Clemons further stated that [Clemons] said that he had to shoot a police officer because the officer was trying to kill him and that he had to steal the car to get away.

Clemons v. State, 720 So. 2d 961, 965-66 (Ala. Crim. App. 1996).

II. PROCEDURAL HISTORY

Clemons was first tried and convicted in federal court of murdering a federal agent who was engaged in the performance of his duties, in violation of 18 U.S.C. §§ 1111 and 1114, and of carrying and using a firearm in the commission of a crime of violence, in violation of 18 U.S.C. § 924(c). See generally United States v. Clemons, 32 F.3d 1504 (11th Cir. 1994). Clemons was then indicted by the Shelby County, Alabama Grand Jury on two counts of capital murder. Count One of the indictment charged Clemons with the capital offense of murdering George Douglas Althouse, a special agent of the Drug Enforcement Agency ("DEA"), while he was on duty, in violation of section 13A-5-40(a)(5) of the Code of Alabama. Count Two of the indictment charged Clemons with the capital offense of murdering DEA Special Agent Althouse during a robbery in the first degree, in violation of section 13A-5-40(a)(2) of the Code of Alabama. Clemons pled not guilty and not guilty by reason of mental disease and defect to all charges. Before Clemons's trial began, the Shelby County Circuit Court, on motion of the State, dismissed Count One of the indictment. The Honorable D. Al Crowson presided over Clemons's trial.

On September 25, 1994, a jury found Clemons guilty of the capital murder of DEA Special Agent Althouse. That same day, the jurors recommended by a vote oftwelve to zero that Clemons be sentenced to death. On October 11, 1994, the court followed the jury's recommendation and sentenced Clemons to death.

On direct appeal, the ACCA and the Alabama Supreme Court affirmed Clemons's conviction and death sentence. Clemons v. State, 720 So. 2d 961 (Ala. Crim. App. 1996), aff'd, Ex parte Clemons, 720 So. 2d 985 (Ala. 1998). The United States Supreme Court denied Clemons's petition for writ of certiorari. Clemons v. Alabama, 525 U.S. 1124, 119 S. Ct. 907 (1999) (mem.).

Clemons, through counsel, submitted a petition for post-conviction relief, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, to the state circuit court on December 27, 1999, but he did not submit a filing fee or a request to proceed in forma pauperis with his petition. Clemons v. State, 55 So. 3d 314, 333 (Ala. Crim. App. 2003). On January 28, 2000, Clemons, again through counsel, filed a Rule 32 petition along with a request to proceed in forma pauperis in the circuit court, and the state courts found that he properly filed his post-conviction petition on that date. See id. After allowing Clemons to twice amend his Rule 32 petition on or about October 17, 2000, and January 31, 2000, the court dismissed some of the claims. The court then held an evidentiary hearing on other claims (hereinafter"the first Rule 32 hearing") [R2. 119-730, 6157-6590],¹ but dismissed those thereafter. [C.R2 1104-1156.] Clemons appealed.

While Clemons's appeal of the denial of his Rule 32 petition to the ACCA was pending, the United States Supreme Court released its decision in Atkins. In his Rule 32 petitions, Clemons had argued that his trial attorneys rendered ineffective assistance because they did not develop and present any mitigating evidence concerning his limited mental capacity. In his brief to the ACCA, he reasserted his ineffective-assistance-of-counsel claims. In addition, he argued for the first time that he is intellectually disabled and that, in light of Atkins, his sentence of death was unauthorized as a matter of law. On appeal, the ACCA found that Atkins applied retroactively to cases on collateral review, and remanded Clemons's case to the circuit court with instructions to conduct an evidentiaryhearing on Clemons's Atkins claim and his claim that his attorneys rendered ineffective assistance by not developing and presenting evidence concerning his limited mental capacity. Clemons, 55 So. 3d at 322. Pursuant to the ACCA's remand directive, the state circuit court held a four-day evidentiary hearing on those claims on June 15-18, 2004 (hereinafter "the Atkins evidentiary hearing").

At the hearing, the court heard from Dr. Charles Golden, a neuropsychologist, and Dr. Joseph Wu, a psychiatrist, each retained by Clemons, and from Dr. Glen King, a clinical psychologist, and Dr. Helen Mayberg, a neurologist, each retained by the State. At the conclusion of the hearing the circuit court indicated that it was inclined to find that Clemons was not intellectually disabled, but it ordered and received post-hearing briefs and proposed orders from both Clemons and the State. The circuit court issued an order denying relief on Clemons's claims on October 28, 2004. [C.R3 1-90.] The order issued by the circuit court adopted nearly verbatim the 90-page proposed order the State had submitted.

The ACCA, on return from remand, affirmed the circuit court's denial of relief on Clemons's second amended Rule 32 petition, Clemons, 55 So. 3d at 348, and later overruled Clemons's application for rehearing. However, the Alabama Supreme Court granted Clemons's certiorari petition and remanded his case to theACCA with instructions to address the merits of his ineffective assistance of counsel claims, which it opined that the lower court erroneously found...