Rieber v. Hamm

1

JEFFERY DAY RIEBER, Petitioner, v. JOHN HAMM, Commissioner of the Alabama Department of Corrections,^[1] Defendant.

No. 5:18-cv-00337-ACA

United States District Court, N.D. Alabama, Northeastern Division

August 7, 2023

MEMORANDUM OPINION AND ORDER

ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE

In 1990, Petitioner Jeffery Day Rieber murdered Glenda Phillips Craig, a convenience store clerk, in the course of robbing the convenience store of $506. An Alabama jury convicted Mr Rieber of capital murder and recommended, by a seven to five vote, that the state court sentence him to life imprisonment without the possibility of parole. The state court overrode that recommendation and sentenced him to death. Mr. Rieber petitions for a writ of habeas corpus under 28 U.S.C. § 2254, asserting that his trial and appellate counsel were ineffective, the judicial override of the jury's recommendation invalidates his sentence, Alabama's capital sentencing scheme is unconstitutionally vague and arbitrary, Alabama's methods of execution involve a substantial and unreasonable risk he will suffer unnecessary and prolonged pain, the State violated his constitutional rights by limiting the fee for court-appointed trial counsel, and the State permitted the spoliation of exculpatory evidence. (Doc. 1).

One of Mr. Rieber's claims-Claim Nine, a challenge to Alabama's method of execution-is not properly brought in a habeas petition, so the court WILL DISMISS that claim WITHOUT PREJUDICE to refiling under 42 U.S.C. § 1983. The rest of Mr. Rieber's claims are either meritless or procedurally defaulted, so the court WILL DENY his § 2254 petition and WILL DENY him a certificate of appealability. The court also DENIES his requests for discovery and an evidentiary hearing.

I. BACKGROUND

“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The court therefore draws its description of the facts from the state courts' findings.

1. The Crime

Just before 8:00 P.M. on October 9, 1990, Mr. Rieber entered the convenience store where Ms. Craig worked. (Doc. 16-93 at 98); see also Rieber v. State, 663 So.2d 985, 987 (Ala.Crim.App.1994) (“Rieber I”). A surveillance camera captured him approaching the counter, where he withdrew a .22 caliber revolver and shot Ms. Craig, piercing her wrist and the back of her head. (Doc. 16-93 at 98). He took the contents of the cash register, which amounted to $506, then leaned over the counter so that he could see Ms. Craig, shot her in the head a second time, and fled. (Doc. 16-93 at 98); Rieber I, 663 So.2d at 988. Several minutes later, another customer entered the store. (Doc. 16-93 at 98-99). She found Ms. Craig, still alive but choking on her own blood. (Id.); Ex parte Rieber, 663 So.2d 999, 1004 (Ala. 1995) (“Rieber II”). Ms. Craig died at the hospital soon after, widowing her husband and orphaning her two children from a previous marriage. (Doc. 16-93 at 99); Rieber II, 663 So.2d at 1005; Rieber I, 663 So.2d at 987.

At trial, the State presented evidence that, about a week before the murder, Mr. Rieber purchased a .22 caliber revolver. (Doc. 16-93 at 97). A few days before the murder, Tommy Erskine saw Mr. Rieber sitting in a car outside the convenience store. Rieber I, 663 So.2d at 987. Mr. Erskine testified that when he spoke to Ms. Craig, she seemed “very nervous and afraid,” and he suggested that she call the police. Id. After Mr. Erskine left, he became uneasy and went back to the store, where he saw Mr. Rieber drive by. Id.; (see also doc. 16-93 at 97). He went into the store and told Ms. Craig to call the police because Mr. Rieber “was patrolling the store.” Rieber I, 663 So.2d at 987. In addition, Allen Wayne Gentle, who had gone to high school with Mr. Rieber, saw Mr. Rieber in the store about three hours before the murder. Id. Ms. Craig asked Mr. Gentle several questions, in response to which he identified Mr. Rieber and said, “I don't think he would do nothing like that.” Id.

Shortly after the murder, Mr. Gentle identified Mr. Rieber on the surveillance video. Rieber I, 663 So.2d at 987. Several hours after the murder, the police arrested Mr. Rieber and searched his house and car. Id. at 987-88. In Mr. Rieber's room, they found clothing similar to the clothes worn by the gunman and $292 in cash, and in his car, they found a .22 caliber revolver with two spent rounds. Id. at 988. During questioning, Mr. Rieber denied involvement in the murder. Id.

2. Trial Proceedings

A jury found Mr. Rieber guilty of murder during a first degree robbery, a capital offense. (Doc. 16-85 at 161); see Ala. Code § 13A-5-40(a)(2) (1987). Under the statute in effect at the time, a finding of guilt on a capital offense triggered a penalty hearing, after which the jury would issue a sentencing recommendation. Ala Code §§ 13A-5-43(d), 13A-5-45 (1981). At the penalty hearing, trial counsel presented evidence that Mr. Rieber had a good reputation in the community. (Doc. 16-78 at 59-100). Trial counsel also submitted a psychiatric report about Mr. Rieber's mental state at the time of the offense. (Id. at 100; Doc. 16-79 at 3; Doc. 16-86 at 128).

In the report, Dr. Kathy Rogers found no evidence of any major psychiatric disorder but noted a significant self-reported history of drug and alcohol abuse beginning at a young age. (Doc. 16-86 at 129-30). Dr. Rogers noted that Mr. Rieber was able to describe, “at length and in detail, his behavior leading up to” the offense, although he denied any memory of “a couple of hours during the actual offense.” (Id. at 130). Dr. Rogers opined that “a reported lack of memory for that period would have been related to substance abuse or deliberate misrepresentation of [Mr. Rieber's] memory, although the former is more likely in my opinion.” (Id. at 131; see also id. at 133 (addendum to the original report)). In an addendum to the report, Dr. Rogers stated that Mr. Rieber had reported that, on the night of the murder, he drank six or seven beers, smoked six joints, and took three hits of acid. (Id. at 135). She further stated that Mr. Rieber had denied having blackouts when using acid, but had occasionally suffered blackouts from alcohol, and “the combination of substances and the possibility that the ‘acid' which he used caused an idiosyncratic reaction, such that he experienced a blackout, is not untenable.” (Id. at 135).

Trial counsel argued to the jury that Mr. Rieber had a reputation in the community for being kind, gentle, helpful, trustworthy, and nonviolent; that he did not have any significant criminal history; and that the drugs he had consumed caused “an aberration completely different to anything that has ever occurred in this man's life.” (Doc. 16-79 at 24-26). The jury recommended, seven to five, that the court impose a sentence of life imprisonment without parole. (Doc. 16-85 at 162).

But under the law in effect at the time, the jury's recommendation was “not binding upon the court.” Ala. Code § 13A-5-47(e) (1981). Instead, the trial court was required to hold another hearing, where it considered the evidence presented at trial, during the penalty hearing, and in a pre-sentence investigation report, along with arguments by the parties about “the existence of aggravating and mitigating circumstances and the proper sentence to be imposed in the case.” Id. § 13A-5-47(c)-(d). In deciding the sentence, the trial court had to enter specific written findings about the factors and determine “whether the aggravating circumstances it [found] to exist outweigh[ed] the mitigating circumstances it [found] to exist.” Id. § 13A-5-47(d)-(e).

At the sentencing hearing before the court, trial counsel called Mr. Rieber's mother, who testified about Mr. Rieber's gentle nature and limited criminal history. (Doc. 16-79 at 54-60). The State argued that the commission of the murder in the course of a first degree robbery was alone enough to warrant the death penalty, but that in addition the murder was especially heinous, atrocious, and cruel. (Id. at 7172). In response, trial counsel argued that the murder was not especially heinous, atrocious, or cruel compared to other capital offenses; attempted to distinguish the cases the State had cited in support of that aggravating circumstance; and argued that Mr. Rieber had a limited criminal history, no history of violence, no memory of the offense because of his drug use, that he had shown improvement and helpfulness in prison, and that the court should weigh heavily the jury's recommendation of a life sentence. (Id. at 73-86).

The state trial court found two aggravating circumstances: first, that Mr. Rieber committed the murder while engaged in the commission of a first degree robbery and second, that this offense was especially heinous, atrocious, or cruel compared to other capital offenses. (Doc. 16-62 at 93-95). The court based its factual finding about the first aggravating circumstance on the jury's verdict. (Id. at 93). In support of the second aggravating circumstance, the court explained that Ms. Craig had been “completely defenseless and posed no threat” to Mr. Rieber; Mr. Rieber had “stalked the victim for several days before the murder,” causing her fear; Mr. Rieber planned the crime in advance; Mr. Rieber intended to kill Ms. Craig; Ms. Craig suffered pain; and the murder was “a conscienceless and pitiless killing performed for no reason whatsoever . . . perpetrated under circumstances which caused fear and pain to the victim.” (Id. at 93-95).

The state trial court also found two mitigating circumstances first, that Mr. Rieber...