Freeman v. Comm'r, Ala. Dep't of Corr.

46 F.4th 1193

David FREEMAN, Petitioner-Appellant,

v.COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 18-13995

United States Court of Appeals, Eleventh Circuit.

Filed: August 24, 2022

Robin C. Konrad, John Anthony Palombi, Christine A. Freeman, Federal Defender Program, Inc., Montgomery, AL, for Petitioner-Appellant.

Lauren Ashley Simpson, Clay Crenshaw, Henry M. Johnson, Steven Marshall, Alabama Attorney General's Office, Montgomery, AL, for Respondent-Appellee.

Before Jill Pryor, Grant, and Lagoa, Circuit Judges.

Lagoa, Circuit Judge:

David Freeman appeals the district court's order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court issued a certificate of appealability ("COA") with respect to the following claim: "Whether trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution when at the penalty phase of trial, it failed to conduct a reasonable mitigation investigation and failed to uncover and present mitigation evidence." After careful review, and for the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Freeman was convicted of six counts of capital murder related to the murders of Sylvia Gordon ("Sylvia") and Mary Gordon ("Mary") and sentenced to death. Freeman v. State , 776 So. 2d 160 (Ala. Crim. App. 1999). The Alabama Court of Criminal Appeals set forth the relevant facts, adopted from the state trial court, as follows:

On March 11, 1988, Deborah Gordon Hosford picked up her sister, [17-year-old] Sylvia Gordon, from Lanier High School [in Montgomery] and drove to their home at 29 Rosebud Court, arriving at approximately 3:30 p.m. Waiting on the porch was the defendant, David Freeman, who had ridden his bicycle to their home. Freeman ... lived in a trailer near the Gordon home, and he wanted a romantic relationship with Sylvia Gordon. Sylvia was not romantically interested in Freeman, and was planning to tell him that she no longer wished to see him. Deborah, Sylvia, and Freeman entered the home. Deborah had to return to work and left at approximately 3:45 p.m. When she left, Freeman and Sylvia were sitting on the couch.

Freeman had given Sylvia a note essentially stating that he did not like seeing her only once a week, that he loved her, and that he did not want to lose her like all of his other girlfriends. Sylvia in return gave Freeman a note stating that she viewed the relationship only as friendship and that she did not want to have a serious relationship. Approximately a week prior to the murders, Freeman had a conversation with Francis Boozer, a co-worker, and told her that he would rather see Sylvia dead than [for] someone else have her.

At about 1:00 a.m. Deborah Gordon Hosford returned home. She found the lights of the home turned off and the door unlocked and slightly ajar. She went inside and noticed that the house had been ransacked. She went to her sister's bedroom and found Sylvia, dead, in her bed with multiple stab wounds and clad only in a T-shirt and socks. As she was fleeing the house, she saw her mother, [43–year–old] Mary Gordon, lying in a pool of blood on the floor of her bedroom. Mrs. Gordon was clad only in a shirt, with her body being nude from the waist down with her legs spread apart.

Police arrived at the Gordon home and found blood throughout most of the house. Mary Gordon was stabbed 14 times by Freeman; two wounds were fatal. She lived for about five minutes [after being stabbed the first time]. She had also been raped, and the semen deposited in her was consistent as having been left by Freeman. Sylvia Gordon was stabbed 22 times by him, and she remained conscious for eight to ten minutes after the first wound was inflicted. None of the wounds were fatal; Sylvia Gordon bled to death. Examination also revealed that Sylvia Gordon had tears in her vagina. Additionally, police found a shoe print on the shirt of Mary Gordon and a shoe print on a card found on the floor near the body of Mary Gordon. Police also noted that all [telephone] lines in the house had been cut.

Freeman had brought a knife with him and used it to brutally kill Sylvia Gordon because she did not want a relationship, as well as [to] kill Mary Gordon when she walked in on the murder. After committing the murders, Freeman stole the Gordons’ 1980 Pontiac Sunbird and put his bike that he had ridden to the Gordon home in it and fled the scene. He attempted to establish an alibi by later going to work. The Gordons’ car was found in a parking lot near Freeman's apartment. Freeman's fingerprint was found on the car and blood that was consistent with that of Sylvia Gordon and Mary Gordon was also in the car.

Additionally found in the car was a butcher knife that had been cleaned of blood. The butcher knife was examined by an expert in trace evidence with the Department of Forensic Sciences and was determined to be consistent with having caused the wounds to Mary Gordon, to cut the bra and panties of Mary Gordon, and to cut the jeans of Sylvia Gordon.

When the police arrived at Freeman's apartment, Freeman answered the door, and the officers noted a bandage on Freeman's right hand. When asked how he cut his hand, Freeman lied, claiming that he had cut his hand while repairing a chair. Freeman was arrested at his apartment. The police, upon a consent to search, found the clothing worn by Freeman, which had blood consistent with that of Sylvia Gordon on them. A mixture of blood and semen was found in the underwear that he had worn. His shoes were seized and compared to the prints found on the shirt of Mary Gordon and the card found in the Gordon home. Examination revealed that Freeman's shoes were consistent with the prints found at the scene. Bite marks were noted on Freeman's arm, which were [determined to have been] made by Sylvia Gordon.

Freeman initially lied to the police as to his involvement in the crimes. He tried to establish an alibi for his whereabouts. However, when confronted with the evidence, Freeman admitted to stabbing Sylvia Gordon and stated that upon Mary Gordon's entering the home he had no choice but to stab her. Freeman also claimed to have blacked out on two occasions during the crimes.

Id. at 169–70 (alterations in original); see also Ex parte Freeman , 776 So. 2d 203, 204–05 (Ala. 2000) (reiterating a condensed statement of the facts surrounding the murder and stating that "[t]he opinion of the Court of Criminal Appeals provides a thorough treatment of the facts of this case").

A. State Court Trial and Direct Appeal

In June 1988, Freeman was indicted on six counts of capital murder. Ex parte Freeman , 776 So. 2d at 203. Specifically, Count I of the indictment charged Freeman with murder where two or more persons are murdered by one act or pursuant to one scheme or course of conduct. See Ala. Code § 13A–5–40(a)(10). Counts II and III charged Freeman with murder during a burglary in the first degree. See id. § 13A–5–40(a)(4). Counts IV and V charged Freeman with murder during a robbery in the first degree. See id. § 13A–5–40(a)(2). Count VI of the indictment charged Freeman with murder during a rape in the first degree. See id. § 13A–5–40(a)(3).

The case proceeded to trial in the Fifteenth Judicial Circuit for Montgomery County, Alabama, on June 17, 1996. Freeman was represented by lead counsel Allen Howell ("Howell"), and attorneys William Abell ("Abell") and John David Norris ("Norris").¹ At trial, Freeman "pleaded not guilty by reason of mental disease or defect, and he argued to the jury that as a result of his alleged mental disease or defect, he was unable to conform his conduct to the requirements of the law." Freeman , 776 So. 2d at 169.

During his opening statement, Freeman's counsel claimed the evidence would show that Freeman suffered from borderline personality disorder, and that the condition caused him to be unable to conform his conduct to the requirements of law. Freeman's counsel argued that the State of Alabama was responsible for the crimes, given Freeman's lifetime of placements in foster and state care, during which he was abused. He also argued that the evidence would show Freeman was diagnosed at age thirteen by Dr. Barry Burkhart, a clinical psychologist, as needing long-term psychiatric treatment but none was given, and that some of the psychologists employed by the State of Alabama did not do proper evaluations.

The State presented fifteen witnesses in its case in chief, including homicide detectives, the medical examiner, and Deborah Gordon Hosford, who was Mary's daughter and Sylvia's sister.

The defense began its case in chief by presenting the testimony of Marvin Hartley ("Hartley"). From 1986 to 1987, Hartley was a child-care worker at the Bell Road Group Home where Freeman lived. Hartley described Freeman as being a loner who was isolated from other children in the home and as "starving for love." He stated that Freeman would have occasional outbursts when he did not get his way and once punched a hole in a wall.

Dr. Burkhart then testified extensively for the defense. Dr. Burkhart evaluated Freeman as a teenager at the Lee County Youth Development Center and saw him on four occasions in 1989—twice in June and twice in August. He spent twelve hours with Freeman and administered numerous tests. His evaluation of Freeman was based on the test results, along with his history, the previous psychological evaluations performed on Freeman, and observation. He reviewed the records concerning Freeman's history, which were admitted into evidence during his testimony. Specifically, he reviewed records from the following entities: the Children's Hospital of Alabama at Birmingham; the Eufaula Adolescent Center; the Taylor Hardin Hospital in Tuscaloosa; Mobile Clinical & Neuropsychological Associates; the Talladega County Department of Human Resources (the "Department"); the Rolla Regional Center for the Developmentally...