Samra v. Warden, Donaldson Correctional Facility , 626 F. App'x 227 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14869
________________________
D.C. Docket No. 2:07-cv-01962-LSC
MICHAEL BRANDON SAMRA,
Petitioner - Appellant,
versus
WARDEN, DONALDSON CORRECTIONAL FACILITY,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 8, 2015)
Before ED CARNES, Chief Judge, and HULL and ROSENBAUM, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Michael Brandon Samra was convicted and sentenced
to death by an Alabama court in 1998 for the murders of four people, including
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two children. Samra’s conviction and sentence were upheld on direct appeal, and
the Alabama state courts rejected his claims for postconviction relief. Samra
sought federal habeas relief under 28 U.S.C. § 2254, but the district court denied
Samra’s federal petition. Samra now appeals raising two issues. First, Samra
argues that his trial counsel was ineffective for failing to investigate evidence of
brain dysfunction and for introducing and emphasizing evidence of Samra’s
membership in a Satanic gang, which he contends strengthened the state’s
aggravation case. Second, Samra asserts that his appellate counsel was ineffective
for not raising an argument on appeal that Samra was entitled to pretrial notice of
the specific statutory aggravating factor that the state intended to rely upon in
pursuing the death penalty. After a thorough review of the record, and with the
benefit of oral argument, we now affirm the denial of Samra’s federal habeas
petition.
I.
A. The Criminal Offense
Samra was convicted of capital murder, in violation of Alabama Code §
13A-5-40(a)(10), and he was sentenced to death for his role in the killings of
Randy Duke, Dedra Hunt, Chelsea Hunt, and Chelisa Hunt. See Samra v. State
(Samra Direct Appeal), 771 So. 2d 1108, 1111-12 (Ala. Crim. App. 1999); Samra
v. Price (Samra § 2254 Proceeding), No. 2:07-cv-1962-LSC, 2014 WL 4452676,
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at *1 (N.D. Ala. Sept. 5, 2014). According to the evidence established at trial and
by Samra’s own confession, Randy Duke’s sixteen-year-old son Mark Anthony
Duke (“Duke”) devised the murder following an argument where Randy Duke
refused to allow Duke to use a pickup truck. Samra § 2254 Proceeding, 2014 WL
4452676, at *1. After planning the murder with Samra and two other friends,
David Collums and Michael Ellison, the group obtained two guns and returned to
Duke’s house. Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Samra and
Duke entered the house while Collums and Ellison waited nearby. Id.
Once inside, Duke went to the living room and shot his father, killing him.
Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Meanwhile, Samra shot
Dedra1 non-fatally in the cheek, and she fled upstairs, locking herself in the master
bedroom’s bathroom with her six-year-old daughter Chelisa. Samra Direct
Appeal, 771 So. 2d at 1111; Samra § 2254 Proceeding, 2014 WL 4452676, at *1.
Duke broke down the bathroom door and shot Dedra to death. Samra § 2254
Proceeding, 2014 WL 4452676, at *1. But because they had run out of bullets,
Duke went downstairs to retrieve kitchen knives; he then slit Chelisa’s throat with
a kitchen knife. Id. Dedra’s seven-year-old daughter Chelsea was hiding under a
bed in another bedroom when Duke found her. Samra § 2254 Proceeding, 2014
WL 4452676, at *1. According to Samra’s statement, Chelsea pled with Duke to
1
Because three members of the Hunt family were involved in these facts, we refer to
each by first name to avoid confusion.
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stop and, as also evidenced by the defensive wounds on her body, vigorously
fought for her life. Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Unable
to kill her by himself, Duke held Chelsea down while Samra slit her throat. Samra
§ 2254 Proceeding, 2014 WL 4452676, at *1; Samra Direct Appeal, 771 So. 2d at
1112. According to the testimony of the medical examiner, both girls died as a
result of drowning in their own blood.
After committing the murders, Samra and Duke ransacked the house to
make it appear as though a burglary had gone wrong. Samra § 2254 Proceeding,
2014 WL 4452676, at *1. Duke later returned to his house on March 23, 1997,
where he called 911 to report the murders. After a couple of days of investigating,
the police determined that Duke, Samra, Collums, and Ellison were the
perpetrators. Samra confessed his role in the crime during questioning and assisted
police in recovering weapons. See Samra § 2254 Proceeding, 2014 WL 4452676,
at *1.
B. Trial Proceedings
Samra was indicted for the four murders under § 13A-5-40(a)(10), Ala.
Code, which makes it a capital crime when “two or more persons are murdered by
the defendant by one act or pursuant to one scheme or course of conduct.” Samra
Direct Appeal, 771 So. 2d at 1111. The indictment itself was a single paragraph
listing the victims’ names and the weapons used to kill them. Later, the indictment
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was amended to add an aiding-and-abetting component and to clarify that Dedra
Hunt was killed with a gun. The indictment did not describe any further details of
the crime, and it did not specify any of the then-existing statutory aggravating
circumstances under § 13A-5-49, Ala. Code, that would permit imposition of the
death penalty.
Samra was represented at trial and on appeal primarily by appointed counsel
Richard Bell, an experienced attorney who devoted approximately 35 to 40 percent
of his practice to criminal-defense work and had defended three capital cases prior
to Samra’s. Samra § 2254 Proceeding, 2014 WL 4452676, at *2. Based on his
initial investigations and interactions with Samra, Bell decided that his defense
strategy needed to focus on Samra’s mental condition and the influence of gang
membership on Samra’s actions. Samra § 2254 Proceeding, 2014 WL 4452676, at
*2. Bell concluded, though, that Samra had only “a very small chance of winning
the guilt phase,” and that the sentencing phase would be the main event. See Vol.
39 at 183.
Before trial, Bell filed a motion to compel the state to disclose the
aggravating circumstances upon which it intended to rely in seeking a death
sentence, arguing that Samra needed to be informed of the aggravating factors that
the state intended to prove in order to prepare for the sentence hearing. Samra §
2254 Proceeding, 2014 WL 4452676, at *2. The state argued that it was not
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required to reveal this information prior to the sentencing phase but that in any
event, “the aggravating circumstances are very straight forward in the indictment.”
Samra § 2254 Proceeding, 2014 WL 4452676, at *2. The court denied Samra’s
motion, noting that the statute sets forth a very “limited” and “particularized” set of
aggravating factors.
With respect to Samra’s mental condition, Bell enlisted the expertise of Dr.
Charles Scott, a forensic psychiatrist. Samra § 2254 Proceeding, 2014 WL
4452676, at *2. Dr. Scott prepared a 21-page report based on a six-hour
psychiatric interview with Samra, an interview with Samra’s parents, and a review
of Samra’s school and medical records. Id. Based on these interviews and records,
Scott concluded that Samra was not suffering from a mental illness or defect that
precluded him from distinguishing right from wrong and that he appreciated the
wrongfulness of his conduct. In light of Samra’s history and Dr. Scott’s
interactions with Samra, Dr. Scott recommended to Bell that Samra undergo “a
complete neuropsychological evaluation, neurology consultation and brain
imaging,” either through a SPECT or PET2 scan, or if those tests were unavailable,
at least an MRI or x-ray. See Samra § 2254 Proceeding, 2014 WL 4452676, at
2
“SPECT” stands for single-photon emission computed tomography, a method for
imaging the function of internal organs, including blood flow to the brain. Tests and
Procedures: SPECT Scan, MAYO CLINIC (Feb. 20, 2014), http://www.mayoclinic.org/tests-
procedures/spect-scan/basics/definition/prc-20020674. “PET” stands for positron emission
tomography, a similar function-imaging procedure. Tests and Procedures: Positron Emission
Tomography (PET) Scan, MAYO CLINIC (May 6, 2014), http://www.mayoclinic.org/tests-
procedures/pet-scan/basics/definition/prc-20014301.
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*2.3 Dr. Scott’s report noted that his “preliminary opinion” of Samra’s culpability
could change based on the results of these tests.
In accordance with Dr. Scott’s recommendation, Bell obtained an MRI of
Samra’s brain. It showed no structural abnormalities. Bell did not procure a
SPECT or PET scan. 4 Samra § 2254 Proceeding, 2014 WL 4452676, at *2.
Ultimately, Bell chose not to present Dr. Scott as a witness since he believed that
Dr. Scott’s testimony would be unfavorable to Samra. Samra § 2254 Proceeding,
2014 WL 4452676, at *2.
Because Bell had no evidence of brain dysfunction or mental disease and
could not suppress Samra’s confession, he rested his guilt-phase trial strategy on
Samra’s gang membership. As Bell explained, “Frankly . . . it appeared that that
was the only thing I had.” Bell began laying the groundwork for this strategy
during voir dire and in his opening statement, referring to Samra’s and Duke’s
membership in the Forever Our Lord King Satan (“FOLKS”) gang.
3
Dr. Scott’s report listed as examples of types of brain imaging only MRI or PET
scanning. Bell testified during the state postconviction hearing that Dr. Scott had also
recommended to him obtaining a SPECT scan. The SPECT scan was also mentioned in an
affidavit that Bell prepared on Dr. Scott’s behalf but was never signed by Dr. Scott. Although
the state contends, correctly, that Dr. Scott’s report did not mention a SPECT scan, the record
supports Samra’s claims that Dr. Scott did otherwise recommend a SPECT scan to Bell.
4
An MRI images anatomical structure, while a SPECT or PET scan images the function
of organs. Magnetic Resonance Imaging (MRI), WEBMD, http://www.webmd.com/a-to-z-
guides/magnetic-resonance-imaging-mri (last updated Sept. 9, 2014).
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During trial, the prosecution introduced photos and video recordings of the
walls in Duke’s bedroom, which had various symbols and words carved into them.
These etchings included Samra’s nickname, “Baby D.” At one point, the
prosecutor described Duke’s room as having “gang-type writings” in it. During
cross-examination of multiple police witnesses at trial, Bell emphasized the
etchings and their affiliation with FOLKS and a “gang within a gang” known as
the “Insane Gangster Disciples.” Photos of Samra’s tattoos were also admitted into
evidence, although it is not clear if they were ever identified as gang-related.
The defense called three witnesses during the guilt-phase of the trial. Dr.
Kathleen Ronan, a clinical psychologist at the state’s Taylor Hardin Secure
Medical Facility, testified that she had been ordered by the court to evaluate
Samra’s competency to stand trial and his mental state at the time of the murders.
Samra § 2254 Proceeding, 2014 WL 4452676, at *3. Dr. Ronan conducted a
background interview, a mental status exam, a personality inventory, a discussion
of the crime, and a trial-competency assessment. Vol. 13 at 19-20. Although Dr.
Ronan did not perform a full IQ test, she testified that Samra possessed borderline
intelligence based on her screening and the results of a test performed by another
psychologist. She also opined that Samra displayed signs of depression and
anxiety, had internal conflicts about being dependent on others, was “insecure in
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his interpersonal interactions,” and could become confused during periods of high
stress.
In addition, Dr. Ronan also testified that Samra told her he was affiliated
with the FOLKS gang. The prosecutor then interrupted Bell’s questioning to point
out that the gang question opened the door, allowing the prosecutor to present Dr.
Ronan’s opinion that the murders had nothing to do with the gang membership,
testimony the prosecutor conceded was otherwise inadmissible. Bell
acknowledged that he understood that the prosecutor would ask that question, and
the court also commented that it “underst[ood] all of that could be very appropriate
strategy.”
On cross examination, Dr. Ronan testified that she concluded Samra was
competent to stand trial and that she found no evidence of any psychiatric disorder
or mental disease that rendered him out of touch with reality or that impaired his
sense of right and wrong. Samra § 2254 Proceeding, 2014 WL 4452676, at *3.
She also testified that there was no evidence that Samra acted under duress or
under the substantial domination of anyone at the time of the offense. The
prosecutor asked Dr. Ronan what Samra told her about the connection between his
gang membership and the murders, to which she answered that Samra said the
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killings had nothing to with the gang.5 Dr. Ronan also testified that Samra had a
lack of emotionality when recounting the killings and that, based on the
information available, she would “lean towards” that being indicative of antisocial
personality disorder rather than emotional repression.
The defense’s second witness was Dr. George Twente, a licensed
psychiatrist. Samra § 2254 Proceeding, 2014 WL 4452676, at *3. Dr. Twente
testified that he had studied the FOLKS gang, which he described as a close-knit
drug-distribution organization that offered its members a sense of identity,
belonging, and excitement. Dr. Twente also testified that to rise in the ranks of the
gang, a member had to commit various illegal activities, and to rise to the highest
level of “Set King,” he had heard a rumor that the member was required to kill his
own mother. Dr. Twente confirmed that the symbols found in Duke’s bedroom
were similar to symbols used by other FOLKS affiliates. According to Dr.
Twente, if a member wanted to leave the gang he was told that he or a family
member would be killed, but in Dr. Twente’s experience, nothing bad ever actually
happened to members who left the gang. Dr. Twente asserted that usually gang
killings were over territory or drugs, or they were retaliation for insults. Finally,
5
Before the prosecutor asked this question, he asked for a bench conference to find out if
Bell would object. Bell said he would object because he did not think that asking about Samra’s
gang affiliation opened the door to Samra’s statements about whether the killings were related to
that affiliation. The court overruled the objection and permitted the state to ask Dr. Ronan a
single question about what Samra told her about the killings’ relation to gang membership.
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Dr. Twente conceded that he had never spoken with Samra nor made any
determination whether these killings were in any way gang related.
Samra’s final witness was Sara Woodruff, a FOLKS member and friend of
Samra, Duke, Collums, and Ellison. She commented that Samra was her “least
favorite” because he wasn’t “all there,” although he could carry on normal
conversations with her. Woodruff testified that Duke told her about the killings.
On cross examination, she stated that Samra and Duke were good friends who got
along well, and the local “gang” consisted basically of the four boys and her. With
respect to the night that Duke told her about the killings, Woodruff observed no
indication of hostility or threat between Duke and Samra, and she thought that they
were friendly to each other. She also added that Duke said that the killings were
about a dispute he had with his father and that he did not tell her it had anything to
do with the gang, although Duke did make her swear an oath before he discussed
the killings with her.
On March 16, 1998, the jury returned a verdict of guilty on the charges of
capital murder. Following a half-hour recess after receiving the verdict, the court
began the sentencing phase of the trial. At this point, the state confirmed that it
was pursuing the eighth statutory aggravating factor under § 13A-5-49, Ala.
Code—that the offense was especially heinous, atrocious, or cruel—to justify
imposition of a death sentence.
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The evidence introduced during the guilt phase was adopted for the
sentencing phase. The state called a single witness, Thomas Hunt, the father of the
two girls and ex-husband of Dedra, who testified as to the impact of their murders
on him.
During the penalty phase, Bell’s strategy shifted towards humanizing Samra.
The defense called three members of Samra’s family: his aunt, his father, and his
mother. The aunt testified that Samra was a loving and non-violent child. Samra’s
father testified that, as a small child, Samra was developmentally slow and suffered
tremors in his hands. His father testified that Samra was a good, obedient child
until about 15 or 16 when he started using marijuana. His father then recounted
various legal troubles Samra had concerning marijuana, until eventually he gave
Samra an ultimatum: attend rehab for the marijuana use or leave the house. Samra
moved out. Samra’s father stated that he suspected Samra was hanging around
“gang-type people.” His father also recalled that Samra had been in special
education most of his life and eventually dropped out of high school. Finally, he
noted that Samra was never really capable of expressing his emotions, but could
still be loving. Samra’s mother echoed his father’s testimony about Samra’s
developmental difficulties and learning disabilities and his lack of emotionality.
On the same day that the penalty phase began, March 16, 1998, the jury
returned a unanimous verdict recommending death. Samra § 2254 Proceeding,
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2014 WL 4452676, at *4. The court sentenced Samra to death on May 7, 1998.
The court found that the sole aggravating circumstance proved was that the crime
was especially heinous, atrocious, or cruel as compared to other capital offenses.
The court determined that two of seven statutory mitigating factors existed: a lack
of significant criminal history and Samra’s age (nineteen) at the time of the
offense. Ala. Code § 13A-5-51. In addition, the court concluded that the
following non-statutory mitigating factors existed “to some degree” and were
“worthy of consideration in the weighing of mitigating circumstances and
aggravating circumstances”: Samra’s age and maturity; learning difficulties and
disabilities; “family history and background and caring nature of Defendant”; “the
effect of gang or group involvement upon Defendant”; Samra’s cooperation and
truthfulness with law enforcement; Samra’s remorse; and the existence of only a
solitary aggravating factor. The court nevertheless found that “when weighed
against the many mitigating circumstances, both statutory and non-statutory, the
aggravating circumstance substantially outweighs the mitigating circumstances,”
and imposed a sentence of death by electrocution.
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C. Direct Appeals
Samra raised several issues on direct appeal, including a claim of ineffective
assistance of trial counsel6 for failing to investigate whether Samra “suffered from
any neurological or organic mental disease or defect that would have rendered him
unable to appreciate the nature and quality or wrongfulness of his acts at the time
of the offense.” Samra Direct Appeal, 771 So. 2d at 1119. Samra also argued that
counsel was ineffective for failing to adequately prepare a defense that Samra was
not guilty by reason of mental disease or defect. Id. The Alabama Court of
Criminal Appeals (“ACCA”) rejected the ineffective-trial-counsel claim, finding
that Samra failed to support it with evidence but that, in any event, counsel
“adequately investigated the appellant’s competence and sanity.” Id. at 1120.
Samra’s counsel did not raise on direct appeal the argument rejected by the
trial court that Samra was entitled to advance notice of which statutory aggravating
factors the state planned to rely on to support the death penalty.
The ACCA affirmed the death sentence. Samra Direct Appeal, 771 So. 2d
at 1121-22. After finding no plain error and agreeing that the evidence supported
the death sentence, the Alabama Supreme Court affirmed. Ex parte Samra, 771
So. 2d 1122, 1122 (Ala. 2000). The United States Supreme Court denied certiorari
6
Samra was represented by Bell on appeal with respect to all of his claims except the
ineffective-assistance claim. The court appointed a separate attorney to argue that claim. See
Samra Direct Appeal, 771 So. 2d at 1119 n.3.
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on October 10, 2000, making Samra’s conviction final. Samra v. Alabama, 531
U.S. 933, 121 S. Ct. 317 (2000) (mem.).
D. State Collateral Proceedings
Samra filed a state petition for postconviction relief under Rule 32 of the
Alabama Rules of Criminal Procedure on October 1, 2001. The petition was
amended three times, with the final petition being filed on August 16, 2002. Of the
claims advanced in his Rule 32 petition, the following ones are relevant here:
(1) Samra was denied effective assistance of trial counsel during the penalty
phase because of counsel’s “failure to adequately investigate organic brain
damage/brain dysfunction.”
(2) Trial counsel during the penalty phase “was ineffective for presenting
mitigating evidence that was actually aggravating,” citing counsel’s repeated
references to Samra’s membership in a Satanic gang.
(3) Trial counsel was ineffective for “failing to adequately object to the
admission of pictures of wall etchings, ‘gang-type’ writings, and tattoos on Mr.
Samra’s arms.”
(4) Appellate counsel was ineffective for arguing that Samra’s death
sentence “violates the due process clause of the Fourteenth Amendment because
the petitioner did not receive notice of the actual statutory aggravating
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circumstance used at the sentencing phase, until after he had already been
convicted of capital murder.”
The Rule 32 court held a hearing on the brain-dysfunction claim. See Samra
§ 2254 Proceeding, 2014 WL 4452676, at *5. During the hearing, Samra called
two medical witnesses and two attorney witnesses, including Bell. Bell testified
that he did not obtain a SPECT test because he was told none were available in
Birmingham, Alabama, and the closest machine was located in Nashville,
Tennessee. Bell also submitted an affidavit stating that he did not request that
Samra be transferred out of state for SPECT or PET testing. Although Bell
recognized that a SPECT scan showing abnormalities could have been used as
mitigating evidence, he testified that he did not obtain further neuropsychological
testing on Samra because, “The neuropsychologist that we had contacted I believe
stated that he would not or could not for some reason that I really don’t know what
the reasons were that he could not do the testing of our client.” In addition, Bell
attested that no further neuropsychological testing was conducted because Bell
“believed Dr. Scott’s psychiatric examination covered this area.”
Dr. Michael Gelbort, a clinical psychologist specializing in
neuropsychology, also testified at the Rule 32 hearing. Dr. Gelbort performed a
neuropsychological evaluation on Samra in 2002. His evaluation established that
Samra possessed a verbal IQ of 79 (11-12th percentile), a nonverbal IQ of 87 (40th
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percentile),7 and a full-scale IQ of 81. Dr. Gelbort gave Samra the Categories Test,
a test that measures “primarily frontal lobe and whole brain functioning.” Samra
made 51 errors, placing him on the “cusp” between normal and brain impaired. As
for Samra’s reading and math abilities, Dr. Gelbort found them to be in the 30th
and 19th percentiles, respectively. On the Trailmaking test, which tests “cognitive
flexibility and processing speed or efficiency,” Samra’s scores again placed him on
the “cusp” between normal and slightly impaired. Samra’s scores on a memory
test were also consistent with being on the line between average and mildly
impaired. On the MMPI, which tests for gross psychopatholgy, Samra showed
signs of mild depression but no signs of psychosis.
Based on his clinical evaluations, Dr. Gelbort opined that Samra’s brain
“would not be classified as normal or typical,” and that Samra possessed “some
type of brain dysfunction.” Dr. Gelbort observed that this dysfunction “ha[d] more
to do with verbally mediated skills as opposed to nonverbal or visual spatial
skills.” Dr. Gelbort localized the dysfunction to the left side and frontal lobe,
although he noted that there was no “focal damage” but “rather a diffuse pattern of
dysfunction.” Ultimately, Dr. Gelbort concluded that Samra would have a more
difficult time functioning than a normal person but that he was not “grossly
impaired.” Dr. Gelbort also testified that he reviewed the testing results that the
7
This test was incomplete because the prison would not allow Dr. Gelbort to bring in
certain equipment.
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state’s expert, Dr. Glen King, had obtained and found those to be consistent with
his own testing.
Besides these witnesses, Samra presented the testimony of Dr. James
Mountz, a specialist in nuclear medicine and radiology. Between 1991 and 2003,
Dr. Mountz was at the University of Alabama—Birmingham (“UAB”) where he
“built up” the “functional brain imaging protocols.” Dr. Mountz testified that a
dual-head camera SPECT machine was available at UAB at least by the time he
arrived there in late 1990, and possibly as early as 1988. A PET scan was not
available at UAB, however, until July 2001.
Dr. Mountz testified that a SPECT scan, as relevant to this case, measures
blood flow in the brain. As Dr. Mountz explained SPECT scans, a SPECT scan
does not distinguish between a normal and an abnormal brain but rather between
normal and abnormal blood flow. Dr. Mountz also distinguished a SPECT scan
from an MRI, in that an MRI measures anatomical structure while the SPECT scan
measures blood flow to those structures; “function as opposed to structure.” He
further explained that an MRI may show a normal structure, but a decreased blood
flow may lead to abnormal brain functioning.
Dr. Mountz conducted a SPECT scan on Samra on August 1, 2002. From
the scan, Dr. Mountz concluded that “[t]here were areas of decreased blood flow
which were abnormal.” Dr. Mountz testified to two basic abnormalities: one that
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“falls into the milder category” and could just constitute normal variability, and a
second “obvious abnormality in blood flow to the posterior frontal superior
temporal region” of the right side of Samra’s brain. Dr. Mountz did not reach an
opinion about Samra’s brain function but did opine that his brain blood flow was
about one standard deviation below normal. He later characterized the blood flow
as “low normal.” In a carefully worded answer, Dr. Mountz testified that the
“abnormalities found in [Gelbort’s neuropsychological report] are not inconsistent
with the brain SPECT scan” conducted on Samra. On cross examination, Dr.
Mountz testified that a SPECT scan does not provide any insight into why a person
commits murder or whether he can appreciate the wrongfulness of his conduct. He
also testified that a more detailed analysis would be required to determine what
functions the abnormal area controls in Samra’s specific case. Finally, Dr. Mountz
also conceded that Samra’s brain scan could have looked much different in 1998.
The state called two witnesses. The first, Dr. King, a clinical psychologist
and attorney, conducted a neuropsychological evaluation of Samra. Dr. King
performed an achievement test with Samra, where he scored Samra as reading at
an eighth-grade level, spelling at a high-school level, and completing arithmetic at
a sixth-grade level. According to Dr. King, an individual who has dropped out of
school can be expected to score lower on these tests, as would an individual with a
low IQ.
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Dr. King administered an outdated IQ test, but the corrected results placed
Samra’s full-scale IQ in the high borderline range of around 79 and his verbal and
nonverbal IQ scores were consistent with what Dr. Gelbort found. Samra
performed well on some perceptual tests but poorly on others. His nondominant
hand was weaker than expected, indicating “some lateralizing effect,” and his fine
motor control was “below the cutoff.” Dr. King also concluded that Samra had
some impairment in his visual-spatial area.
Dr. King also administered the MMPI test. Consistent with Dr. Gelbort’s
MMPI, Dr. King found that Samra suffered from mild depression and anxiety and
immature interpersonal development but not any psychosis. Besides these tests,
Dr. King administered the Categories Test, and Samra committed 52 errors,
consistent with Dr. Gelbort’s testing and finding of mild impairment. Similarly,
Samra scored slightly impaired on Dr. King’s Trailmaking test.
As a result of his examinations, Dr. King concluded that Samra suffers from
some impairment in his cognitive functioning. He further opined that at the time of
the offense, Samra did not have any serious mental illness or mental defect that
would have rendered him incapable of understanding the nature and consequences
of his actions. While acknowledging a debate among experts about whether
someone with borderline or retarded intellectual ability suffers from brain
impairment, Dr. King ultimately concluded that Samra “has impairment of
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functioning that is consistent with what we would expect in someone who is in the
borderline range of intellectual ability” but that this impairment did not impact
Samra’s ability to appreciate the criminality of his conduct.
Dr. Helen Mayberg, a neurologist, also testified for the state. She stated that
the “generally accepted clinical uses of a SPECT technology are extremely
limited,” and include diagnosing strokes, evaluating dementia, and identifying
abnormalities associated with epilepsy, and identifying abnormalities following
trauma. Like with any radiological procedure, Dr. Mayber explained, experience
in evaluating SPECT scans is important in determining when a scan is “normal.”
Dr. Mayberg reviewed Dr. Mountz’s report and found that it contained the
typical elements of a SPECT report. According to Dr. Mayberg, though, one
standard deviation was not abnormal but rather, still fell within the normal range.
In Dr. Mayberg’s view, “brain damage” is too generalized a term, and the SPECT
scan is too sensitive to blood-flow variation to make a good screening test for brain
damage. Dr. Mayberg also reviewed Samra’s childhood records and speculated
that he may have had a neurological problem as a child that improved over time.
Finally, she agreed that Samra’s MRI from 1998 was normal.
On January 12, 2005, the trial court denied Samra’s Rule 32 petition. See
Samra § 2254 Proceeding, 2014 WL 4452676, at *9. With regard to the brain-
dysfunction claim, the court held that Bell’s performance was not deficient as far
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as investigating brain damage because he had pursued some investigation and had
settled on another strategy. The court also determined that Samra suffered no
prejudice because the results of Dr. Gelbort’s and Dr. Mountz’s testing only
affirmed the information of Samra’s borderline intellectual abilities already before
the jury. The court also rejected the idea that Samra suffered from any organic
brain dysfunction. Id. Nonetheless, the court added that even if Samra had
reduced blood flow to his brain at the time of the offense, no evidence established
that it would have affected Samra’s culpability, judgment, or insight. Further
elaborating on prejudice, the trial court determined that no reasonable probability
existed that the jury would have reached a different recommendation if Samra had
presented Dr. Gelbort’s and Dr. Mountz’s evidence during the penalty phase of
Samra’s trial.
With respect to Samra’s argument that the gang evidence was more
aggravating than mitigating, the Rule 32 court found that Bell’s strategy to portray
Samra as gang-influenced was reasonable in light of the fact that Bell had no
evidence of any other mental defect or prior history of violence. The court
determined that Samra’s argument about Bell’s failure to object to the admission of
gang etchings and tattoos was “wholly without merit” because the evidence
complemented Bell’s own defense strategy. Apparently, the Rule 32 court did not
reach the prejudice prong of the ineffective-assistance analysis with respect to
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these gang-related claims. The Rule 32 court also did not address the aspect of
Samra’s due-process claim regarding notice of the aggravating factors; instead, it
dealt with Samra’s related argument that Alabama’s sentencing procedure violated
due process because it allows the judge to impose the sentence.
On August 24, 2007, the ACCA affirmed the denial of postconviction relief.
With respect to Samra’s due-process claim that he had not received notice of the
aggravating factors, the ACCA determined that the claim failed on the merits
because neither Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)—
decided before Samra’s conviction became final—nor Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428 (2002)—decided after—“modified prior Alabama caselaw,
‘which holds that aggravating circumstances do not have to be alleged in the
indictment.’” And to the extent that Ring could be read to support Samra’s
argument, the ACCA noted that it was decided two years after his conviction
became final and that appellate counsel could not have been ineffective for failing
to anticipate changes in the law.
The ACCA also affirmed the Rule 32 court’s ruling on the brain-dysfunction
claim, finding that Bell employed a “well thought-out defense strategy,” and
determining that Bell had no cause to investigate Samra’s organic brain function
any further than he did. As for the evidence provided by Dr. Gelbort and Dr.
Mountz, the ACCA concluded that it was not compelling and that, in any event,
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this additional evidence would not have “influenced the jury’s appraisal of Samra’s
moral culpability.” After quoting the trial court’s discussions of whether the
evidence was more aggravating than mitigating and whether Bell was ineffective
for not objecting to the gang writings, the ACCA adopted and affirmed those
conclusions without discussion. Following the ACCA’s affirmance of the denial
of Samra’s Rule 32 petition, the Alabama Supreme Court denied certiorari on
September 19, 2008. See Ex parte Samra, 34 So. 3d 737, 737 (Ala. 2008) (table
decision).8
E. Federal Habeas Proceedings
Samra filed a petition for habeas corpus under 28 U.S.C. § 2254 in the
Northern District of Alabama on October 26, 2007, and an amended petition on
February 21, 2014. See Samra § 2254 Proceeding, 2014 WL 4452676, at *10.
The district court denied Samra’s § 2254 petition on September 5, 2014. Id. at
*46. Applying the doubly deferential standard of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052 (1984), and § 2254 to Samra’s ineffective-assistance-of-
counsel claims, the district court determined that the ACCA did not misapply
Strickland when it held that Bell’s investigation of Samra’s brain condition was not
8
After Duke’s death sentence was vacated in light of the United States Supreme Court’s
decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), because Duke was under
eighteen at the time of the murders, Samra filed a successive Rule 32 petition arguing that his
death sentence should be set aside because, essentially, it was unjust and disproportionate to
execute Samra, who, although nineteen years old at the time of the offense, was a less culpable
party than Duke. The state courts rejected this argument. The issues raised in Samra’s
successive Rule 32 petition are not before us.
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deficient. Id. at *27. The district court noted that Bell had obtained Dr. Scott’s
evaluation and an MRI, and he had investigated Samra’s background (including his
tremors) and interacted with Samra. Id. Because nothing uncovered by Bell would
have raised “red flags” as to an organic brain dysfunction, the district court deemed
Bell’s investigation to be extensive and not deficient. Id. at *28-29.
The district court also distinguished Samra’s reliance on the Fifth Circuit
case of Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000). After observing that
was it not a Supreme Court precedent, the district court concluded that “Samra has
not presented any evidence that he has a mental illness or any connection between
his purported ‘organic brain damage’ and his participation in these murders.” Id. at
*29. Nor did the district court find that the prejudice determination was contrary to
law. As the district court viewed the record, the murders were heinous, the SPECT
test was not trustworthy, and all of the Rule 32 testing was merely cumulative of
the evidence of Samra’s low IQ. Id. at *30-31.
The district court similarly found Bell’s decision to emphasize Samra’s
membership in the FOLKS gang as unassailable because Bell reached that decision
after concluding that Samra had no mental defect or illness that would serve as a
defense. Id. at *34. With regard to Bell’s presentation of Dr. Ronan’s testimony,
the district court saw no error because her overall conclusion supported Bell’s
defense theory, even if her testimony about the lack of gang involvement did not.
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Id. at *35. The district court likewise determined that Bell’s failure to object to the
photographic gang-related evidence was in keeping with his defense strategy, so
the state court did not misapply Strickland when it rejected Samra’s argument. Id.
at *37. The district court did not discuss the prejudice prong of Strickland with
respect to the gang-related claims. See id. at *31-37.
Turning to Samra’s ineffective-assistance-of-appellate-counsel claim, the
district court concluded that the ACCA “mischaracterized” the claim as a defective
indictment issue rather than a notice issue. See id. at *38. And because the state
courts did not address the merits of the notice claim, the district court determined
that de novo review was appropriate rather than deferential review under § 2254.
Id. at *39.
Even applying de novo review, though, the district court determined that
Samra’s claim failed. Id. at *39-40. The district court held that due process
requires that a defendant receive notice of the charges against him only, not notice
of the statutory aggravating factors that the state intended to use to justify a death
sentence. Id. at *40. Because no due-process right existed, the district court
reasoned, Bell was not deficient for failing to raise the argument on appeal. Id.
Having concluded that Bell’s performance was not deficient, the court did not
further address the prejudice prong of this inquiry. See id.
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Following the district court’s rejection of his federal habeas petition, Samra
sought appellate review. We granted a certificate of appealability with respect to
two issues:
(1) Did the Alabama courts unreasonably apply
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984), when they determined that Samra’s trial counsel
was not ineffective when trial counsel (a) failed to
investigate and present evidence of brain impairment in
mitigation of the death penalty; (b) introduced evidence
during trial of Samra’s affiliation with a Satanic gang;
and (c) did not object to the introduction at trial of
Satanic markings found in his co-defendant’s bedroom
and Samra’s own gang tattoos.
(2) As to the claim that appellate counsel rendered
ineffective assistance by failing to raise the issue of
whether due process requires pretrial notice to a capital
defendant of the specific statutory aggravating
circumstances that the State intends to rely on in seeking
a death sentence: (a) Is any component of this claim
barred by the Teague 9 non-retroactivity doctrine? (b) Is
28 U.S.C. § 2254(d) deference due on any component of
this claim? (c) Does due process require pre-trial notice
to a capital defendant of which specific statutory
aggravating circumstances the State intends to rely on in
seeking a death sentence? (d) Was it ineffective
assistance for the petitioner’s appellate counsel not to
raise this issue on direct appeal?
9
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989).
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II.
A. General Habeas Standards
Federal law permits a prisoner held “in custody pursuant to the judgment of
a State court” to seek habeas relief “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Generally, a prisoner must first “fairly present” his federal claims to the
state court and exhaust his state-court remedies before seeking federal habeas
relief. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).
We review a district court’s denial of a § 2254 petition de novo. Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). If the state courts do not address
the merits of a fairly presented claim, a federal court’s review of that claim is de
novo. See Davis v. Sec’y for the Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir.
2003) (per curiam). But when a state court has adjudicated a prisoner’s claim on
the merits, a federal court may not grant habeas relief with respect to such a claim
unless the state court’s adjudication
(1) 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
(2) 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.
28 U.S.C. § 2254(d).
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These standards are highly deferential and demand that we give state-court
decisions the benefit of the doubt. Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316,
1325 (11th Cir. 2013) (en banc). A decision “is not ‘contrary to’ federal law unless
it ‘contradicts the United States Supreme Court on a settled question of law or
holds differently than did that Court on a set of materially indistinguishable facts.’”
Id. (quoting Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1355 (11th Cir.
2009)). Nor is a state court’s decision “an ‘unreasonable application’ of federal
law unless the state court ‘identifies the correct governing legal principle as
articulated by the United States Supreme Court, but unreasonably applies that
principle to the facts of the petitioner’s case, unreasonably extends the principle to
a new context where it should not apply, or unreasonably refuses to extend it to a
new context where it should apply.’” Id. The federal court does not ask whether
the state decision is correct, but rather whether it is unreasonable. Id.
B. Ineffective Assistance of Counsel
To prevail under Strickland on a claim of ineffective assistance of trial
counsel, a petitioner must show that (1) counsel’s performance was so deficient
that “counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth
Amendment and (2) that counsel’s performance prejudiced the defense to the
extent that the defendant was deprived of a fair, reliable trial. Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064. A court need not conduct this analysis in a particular
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sequence, and a court need not address both prongs if a petitioner fails to make a
required showing on one of them. Id. at 697, 104 S. Ct. at 2069.
Establishing deficient performance requires the petitioner to demonstrate
that “‘counsel’s representation fell below an objective standard of
reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787
(2011) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). A court applies a
strong presumption that counsel’s representation fell within the wide range of
reasonable professional conduct. Id. To show prejudice, a petitioner “must
demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). We evaluate claims of ineffective
assistance of appellate counsel under the same Strickland standards. Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam).
III.
Samra contends that he is entitled to federal habeas relief because his trial
counsel was ineffective. Specifically relevant to this appeal, he asserts that his
counsel failed to adequately investigate and present evidence of brain dysfunction
in mitigation of the death penalty. He also contends that Bell’s strategy of
emphasizing Samra’s involvement in a satanic gang, including Bell’s failure to
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object to evidence of certain gang-related drawings and tattoos was more
aggravating than mitigating. For the reasons discussed in this section, we find that
Samra has failed to establish prejudice with respect to his ineffective-trial-counsel
claim. And because he has not shown prejudice, we neither reach nor offer any
opinion on trial counsel’s performance. See Strickland, 466 U.S. at 697, 104 S. Ct.
at 2069.
A. Bell’s Investigation of Samra’s Brain Function
Samra argues that the ACCA unreasonably applied federal law when it
determined (a) that Bell’s investigation of Samra’s neuropsychological health was
not deficient and (b) that the failure to introduce the evidence developed by Dr.
Gelbort and Dr. Mountz during the Rule 32 proceedings did not prejudice Samra.
With respect to the deficient-performance prong of the Strickland analysis, Samra
contends that Bell was deficient for not pursuing functional brain testing,
particularly a SPECT test, and also for not pursuing further neuropsychological
testing when Bell’s own expert, Dr. Scott, had recommended those tests. Samra
asserts that the failure to investigate prejudiced him because the postconviction
evidence establishes that Samra does suffer from organic brain dysfunction and
that such evidence is powerfully mitigating, thus undermining confidence in the
death sentence.
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The state counters that Bell’s investigation of Samra’s brain function was
adequate. In the state’s view, moreover, Samra was not prejudiced because the
new evidence is cumulative and consistent with the evidence presented of Samra’s
borderline intellectual ability, does not undermine Samra’s culpability, and would
have had no chance of altering the jury’s balance of aggravating and mitigating
factors in light of the brutal nature of the killings. We agree with the state that
Samra has failed to establish that the state courts unreasonably applied Strickland
when they found no prejudice.
As we have noted, to demonstrate prejudice under Strickland, Samra must
“show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. “In assessing prejudice, we reweigh the evidence
in aggravation against the totality of available mitigating evidence,” including all
mitigating evidence produced at trial and developed during the collateral
proceedings. Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003);
Williams v. Taylor, 529 U.S. 362, 397-98, 120 S. Ct. 1495, 1515 (2000).
As described above, Dr. Gelbort’s examination, which was largely
consistent with Dr. King’s examination, suggested some mild impairment of
Samra’s brain’s functioning. But Dr. Mountz’s SPECT scan indicated just a
different blood flow in one region of Samra’s brain approximately one standard
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deviation below the “normal” level of flow. And while Samra emphasizes what he
describes as the abnormal nature of this blood flow, Dr. Mayberg opined that this
result still fell within “normal” levels. Nor does Samra present any argument or
evidence that his blood-flow level has had any cognitive or behavioral impact. In
other words, there is no evidence that the blood flow level was so much an organic
brain problem, as opposed to merely an organic brain anomaly, to the extent that it
was even anomalous. Even Dr. Mountz testified, carefully, that the abnormal
blood flow was “not inconsistent” with Dr. Gelbort’s diagnosis of mild
impairment, not that the blood flow itself was indicative of impairment. And Dr.
Mountz added that further analysis would be required to determine what the
section of Samra’s brain with the different blood flow actually controls. While we
recognize, of course, that any abnormality is admissible mitigation evidence, even
assuming that the blood flow was abnormal, in the absence of any evidence
explaining its effect on Samra, its mitigating impact is significantly reduced.
Samra cites a number of cases that stand for the proposition that organic
brain damage can be a significant mitigating factor in capital sentencing
proceedings. And we agree and have recognized in the past that evidence of
organic brain damage can be a powerful mitigating factor. See, e.g., Debruce v.
Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263, 1276 (11th Cir. 2014); Ferrell v.
Hall, 640 F.3d 1199, 1234-35 & n.17 (11th Cir. 2011). But in those cases, the
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evidence established the existence of impairment—indeed, significant brain
impairment. See Debruce, 758 F.3d at 1270 (petitioner suffered from “lingering
emotional damage and social impairments associated with having been raised in a
violent community,” as well as “blackout episodes consistent with seizures
accompanied by periods of non-responsive staring and loss of memory”); Ferrell,
640 F.3d at 1203, 1234 (petitioner suffered from “extensive” and “disabling . . .
organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe
epilepsy”). Even Lockett, the Fifth Circuit case upon which Samra heavily relies,
dealt with a defendant who likely suffered from temporal-lobe epilepsy and
paranoid schizophrenia. 230 F.3d at 713-14. Unlike the cases he cites, Samra
possesses mild functional impairments and, based on his MRI scan, suffers from
no structural brain abnormalities.
Contrary to Samra’s argument on appeal that his counsel presented a paucity
of mitigating evidence at his trial, the sentencing jury heard, and the sentencing
judge found, several mitigating factors related to Samra’s mental health, including
his borderline intelligence, schooling problems, substance abuse, childhood hand
tremors, and lack of emotionality. And unlike in cases such as Wiggins, Debruce,
or Ferrell, there is absolutely no evidence in Samra’s case of an abusive
upbringing that could have contributed to a mental disorder.
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Ultimately, after weighing the evidence adduced in the postconviction
proceedings from Dr. Gelbort and Dr. Mountz along with the evidence introduced
during the guilt and sentencing phases, the state court concluded that Samra had
not established a reasonable probability that this mitigating evidence undermines
confidence in his unanimous death sentence. This was not an unreasonable
application of Strickland’s prejudice analysis. Harrington, 562 U.S. at 100-01,
131 S. Ct. at 785.
The fact remains that Samra participated in the gruesome murders of four
people—including personally slitting the throat of a seven-year-old girl, causing
her to drown in her own blood—all because his friend Duke’s father refused to let
Duke use a pickup truck. Samra § 2254 Proceeding, 2014 WL 4452676, at *1.
None of the brain-impairment evidence Samra has provided leads us to conclude
that a jury would have found that the killings were less heinous, atrocious, or cruel,
or that Samra’s mild brain impairments outweighed the heinousness, atrociousness,
or cruelty of the crime, had evidence similar to that presented at the Rule 32
hearing been introduced during the penalty phase of Samra’s trial. Absent the
required showing of prejudice, we do not consider the sufficiency of Bell’s
investigation. Samra’s claim that his trial counsel was ineffective for failing to
adequately investigate Samra’s brain function must be denied.
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B. Bell’s Gang-Influence Strategy
Samra contends that Bell’s strategy of emphasizing Samra’s membership in
the FOLKS gang—including its connection to Satan, its violent character
(including alleged matricide), and its association with drugs and prison—put
evidence that was more aggravating than mitigating in front of the jury. In
Samra’s view, Bell was deficient for choosing and presenting this strategy and for
failing to object to the prosecution’s introduction of other photographic evidence of
FOLKS-related markings found in Duke’s room and Samra’s tattoos. For its part,
the state contends that Bell’s strategic decision to present a “substantial
domination” defense is unassailable.
While neither the state courts nor the district court reached the prejudice
prong of this analysis, we find under a de novo review that, regardless of the
competency of Bell’s chosen strategy, Samra has failed to establish a reasonable
probability that it undermines confidence in the death sentence. We acknowledge,
as we have previously, that evidence of gang membership and satanic worship has
the potential to unduly prejudice a defendant. See United States v. Jernigan, 341
F.3d 1273, 1284-85 (11th Cir. 2003) (“[W]e do not wish to understate the
prejudicial effect that evidence of a criminal defendant’s gang membership may
entail. Indeed, modern American street gangs are popularly associated with a
wealth of criminal behavior and social ills, and an individual’s membership in such
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an organization is likely to provoke strong antipathy in a jury.”); cf. McCorkle v.
Johnson, 881 F.2d 993, 995 (11th Cir. 1989) (per curiam) (recognizing the
“violence inherent in Satan worship”).
But the facts of this crime belie this prejudice here. Even if we disregard the
gang-related evidence and argument, the state presented overwhelming evidence—
including Samra’s own confession—of the heinousness of this crime. By Samra’s
own admission, after he assisted in killing three people, he slit the throat of a
seven-year-old girl who was pleading and struggling for her life. Samra § 2254
Proceeding, 2014 WL 4452676, at *1. We find no reasonable probability that,
absent evidence or discussion of Samra’s gang involvement, the jury would not
have found these murders to be as especially heinous, atrocious, or cruel as it
found them. Harrington, 562 U.S. at 104, 131 S. Ct. at 787. As a result, Samra’s
claim that his trial counsel was ineffective for pursing a gang-related strategy and
for failing to object to gang-related evidence must be denied.10
IV.
Samra also contends that he is entitled to federal habeas relief because his
appellate counsel was constitutionally ineffective. Specifically, Samra argues that
he had a due-process right to be informed before his trial of the actual aggravating
10
As with the brain-dysfunction claim, we do not opine on whether counsel’s selection
and implementation of this defense strategy was constitutionally sufficient. See Strickland, 466
U.S. at 697, 104 S. Ct. at 2069.
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factor or factors upon which the state intended to rely in seeking the death penalty
and that his appellate counsel was deficient for not challenging the trial court’s
rejection of this argument. Without deciding whether such a due-process right
exists, we find that Samra’s counsel was not deficient in failing to raise the issue
during Samra’s direct appeals. 11
Samra bases his due-process notice argument on two Supreme Court cases
that were decided before his conviction became final: Jones v. United States, 526
U.S. 227, 119 S. Ct. 1215 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000). In Jones, the Supreme Court construed the federal carjacking
statute, 18 U.S.C. § 2119, and concluded that the statutory provisions that
enhanced a sentence based on a finding of bodily injury or death should not be
viewed merely as sentencing factors but as elements of distinct offenses that must
be charged in an indictment. See 526 U.S. at 251-52, 119 S. Ct. at 1228.
Similarly, in Apprendi, the Court confirmed the principle expressed in Jones:
“Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at
2362-63. Under Apprendi, sentencing factors that increase punishment beyond the
11
The state contends that the district court erred in considering this claim de novo after
determining that the Alabama state courts had mischaracterized Samra’s claim. Instead, the state
urges that we extend double deference under § 2254 and Strickland to the manner in which the
state courts did decide this claim. We need not resolve this issue, however, because even under
de novo review, Samra has failed to demonstrate deficient performance.
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statutory maximum are “the functional equivalent of an element of a greater
offense than the one covered by the jury’s guilty verdict.” Id. at 494 n.19, 120 S.
Ct. at 2365 n.19 (emphasis added).
Because the statutory aggravating factors are required under Alabama law to
increase the maximum punishment from life imprisonment to death, in Samra’s
view, they constitute elements of the capital offense. And because due process
generally requires advance notice of offense elements, Samra argues that he had a
constitutional entitlement to advance notice of the specific aggravating factors that
the state was pursuing in his case. Samra asserts that the performance of his
appellate counsel was constitutionally deficient because counsel neglected to
challenge the trial court’s refusal to provide this notice.
But Samra cannot demonstrate that his appellate counsel was
constitutionally deficient for failing to raise this due-process argument. We judge
counsel’s performance from the perspective of an attorney operating at the time
that the challenged decision was made. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Here, Samra has cited no precedent—and we have found none—existing at
the time of his direct appeal that required a state to provide advance notice of the
specific aggravating factor it intended to prove. In fact, in our view, the
circumstances existing at that time actually counseled that such an argument lacked
merit.
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First, the Supreme Court had granted certiorari in Jones just a month before
Samra filed his notice of direct appeal, and it did not decide Apprendi until after
the Alabama Supreme Court upheld Samra’s death sentence. See Jones v. United
States, 523 U.S. 1058, 118 S. Ct. 1405 (1998) (Mem.) (amending the grant of
certiorari to two specific questions); Apprendi, 530 U.S. at 466, 120 S. Ct. at 2348;
Ex parte Samra, 771 So. 2d at 1122. Samra suggests that his appellate counsel
should have recognized from the grant of certiorari in Jones—a case involving the
federal carjacking statute—that the issue of whether a state is required to provide
capital defendants with advance notice of specific aggravating factors was an
unresolved question of law. Although an exceptionally skilled or creative attorney
may have anticipated the arguments and outcome of Jones (and later Apprendi)
and sought to extend that rationale to the capital-sentencing context, we have
repeatedly held that an attorney is not required to foresee changes in the law to
provide constitutionally sufficient representation. See, e.g., LeCroy v. Sec’y, Fla.
Dep’t of Corr., 421 F.3d 1237, 1261 n.27 (11th Cir. 2005) (“[A]ppellate counsel
was not ineffective for failing to anticipate the change in the law”); Spaziano v.
Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“We have held many times that
‘[r]easonably effective representation cannot and does not include a requirement to
make arguments based on predictions of how the law may develop.’” (quoting
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Elledge v. Dugger, 823 F.2d 1439, 1443 (11th Cir.) (per curiam), modified in
unrelated part, 833 F.2d 250, 250 (11th Cir. 1987) (per curiam)).
Second, a substantial body of federal and state case law available to his
appellate counsel at the time, while not necessarily foreclosing Samra’s due-
process argument, strongly suggested such an argument would face an uphill battle
with little chance of success. See, e.g., Walton v. Arizona, 497 U.S. 639, 647-49,
110 S. Ct. 3047, 3054-55 (1990) (expressly holding that capital aggravating factors
are not elements of the offense, a holding that was specifically affirmed in Jones
and Apprendi and not overruled until Ring), overruled by Ring, 536 U.S. at 589,
122 S. Ct. at 2432; Spenkelink v. Wainwright, 442 U.S. 1301, 1303-06, 99 S. Ct.
2091, 2092-94 (Rehnquist, Circuit Justice 1979) (denying stay of execution and
asserting belief that no four Justices would agree to hear a claim that due process
required advance notice of capital aggravating factors); Clark v. Dugger, 834 F.2d
1561, 1566 (11th Cir. 1987) (due process satisfied by statute listing potential
aggravating factors and particularized notice of specific factors is not required);
Knotts v. State, 686 So. 2d 431, 448-449 (Ala. Crim. App. 1995) (“A defendant has
no right to advance notice of the state's intention to rely on any of the aggravating
circumstances enumerated in § 13A–5–49.”).
In light of this case law existing at the time that Samra’s appeal was filed, an
attorney could not be faulted for declining to pursue the argument that capital
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Case: 14-14869 Date Filed: 09/08/2015 Page: 42 of 42
sentencing factors were functionally equivalent to the elements of an offense and
were required by due process to be disclosed in advance of trial. Philmore, 575
F.3d at 1264 (“In assessing an appellate attorney’s performance, we are mindful
that ‘the Sixth Amendment does not require appellate advocates to raise every non-
frivolous issue.’ Rather, an effective attorney will weed out weaker arguments,
even though they may have merit.” (citation omitted) (quoting Heath v. Jones, 941
F.2d 1126, 1130-31 (11th Cir. 1991)). Thus, even if counsel had foreseen such an
argument—and he was not required to have done so—counsel would not have
been deficient in declining to pursue that argument. Because Samra’s appellate
counsel’s performance was not deficient, Samra cannot prevail on his ineffective-
appellate-counsel claim here. We therefore do not address the prejudice prong and
the underlying merits of Samra’s due-process argument. See Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069; Philmore, 575 F.3d at 1264-65.
V.
For the reasons set forth above, we find that Samra has failed to make the
required showings to prevail on his ineffective-assistance-of-counsel claims.
Accordingly, we affirm the district court’s denial of Samra’s § 2254 petition.
AFFIRMED.
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