            Case: 15-11797   Date Filed: 04/28/2016   Page: 1 of 21


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-11797
                        ________________________

                 D.C. Docket No. 1:05-cv-00831-WKW-WC



ARTEZ HAMMONDS,


                                                            Petitioner-Appellant,

                                   versus


COMMISSIONER, Alabama
Department of Corrections,


                                                          Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________

                              (April 28, 2016)

Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
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PER CURIAM:

      For the reasons below, and pursuant to Alabama Rule of Appellate

Procedure 18, we certify the following questions to the Alabama Supreme Court:

   1. Whether corrected page 228 of the trial transcript in Artez Hammonds’s trial

      for the capital murder of Marilyn Mitchell, attached hereto as Appendix A,

      was part of “the record that was before the [Alabama Supreme Court]” when

      it “adjudicated [Artez Hammonds’s claim that the trial court erred in

      denying his motion for a mistrial following the prosecutor’s reference to his

      decision not to testify] on the merits.” Cullen v. Pinholster, 563 U.S. 170,

      181, 131 S. Ct. 1388, 1398 (2011).

   2. If so, whether page 228 of the original trial transcript or corrected page 228

      constitutes the official transcript of Hammonds’s trial.

                                 BACKGROUND

      Petitioner Artez Hammonds was convicted of capital murder and sentenced

to death by an Alabama trial court on December 19, 1997. The facts of the crime

for which he was convicted are thoroughly detailed in Hammonds v. State, 777 So.

2d 750 (Ala. Crim. App. 1999), aff’d sub nom. Ex parte Hammonds, 777 So. 2d

777 (Ala. 2000).




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      Relevant to this appeal, Hammonds invoked his Fifth Amendment right

against self-incrimination during the guilt phase of his trial and elected not to

testify. Concerned by the prosecutor’s history of making improper arguments at

trial, Hammonds’s counsel filed a motion in limine prior to Hammonds’s trial

requesting that the prosecutor be instructed not to reference Hammonds’s decision

not to testify.   The prosecutor objected, arguing that if he made improper

comments at trial the court could sustain any objection from defense counsel or

otherwise remedy the comments.         The trial court, however, instructed the

prosecutor that “arguments on the defendant’s conduct and failure to testify” were

“clearly improper” for trial. The trial court granted the motion in limine and

ordered the prosecutor not to reference Hammonds’s decision not to testify.

      Undeterred by the trial judge’s warning, the prosecutor violated the pretrial

order and, while objecting to the cross-examination of a state witness, referenced

Hammonds’s decision not to testify:

            Q [Defense counsel]: Let’s say there’s a phone next to
            the wall on the floor. You wouldn’t have thought
            anything at all about sitting down and picking up that
            phone and putting [it on a nightstand], would you?

            A: No.

            Q: Mr. Hammonds would have done the same thing,
            wouldn’t he?

            MR. VALESKA [Prosecutor]: Objection. He can’t
            testify—
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             THE COURT: Sustained.

             MR. VALESKA:—what Mr. Hammonds would do. Let
             him testify.

Hammonds’s counsel asked to approach the bench and immediately moved for a

mistrial on the ground that Valeska had improperly referenced Hammonds’s

decision not to testify. After determining that the “him” to whom Valeska had

referred was indeed Hammonds, the trial court denied Hammonds’s motion for a

mistrial but immediately issued a curative jury instruction on the matter.

      In the original trial transcript, the curative instruction reads as follows:

                     Ladies and gentlemen of the jury, there was a
             statement made by the Prosecution, an objection by the
             Defense, which was sustained. The remark, and I’m not
             sure in which manner it was intended, but it basically
             said, let him testify. It can be taken several ways, but
             such remarks are improper, and the jury should disregard
             that remark by Mr. Valeska. Statements of counsel as I
             told you are not any evidence in this case and should not
             be used by you or considered by you as evidence. Under
             the law the Defendant has the privilege to testify in his
             own behalf or not. He cannot be compelled to testify
             against himself, and that no presumption of guilt or
             innocence of any kind should be drawn from his failure
             to testify.

(emphasis added). Trial proceeded and Hammonds was convicted.

      On direct appeal, Hammonds argued that the trial court erred in denying his

motion for a mistrial. Hammonds, 777 So. 2d at 763-65. Relying on the jury

instruction as reported in the original trial transcript, the Alabama Court of
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Criminal Appeals disagreed and held that “[b]ecause of the trial judge’s complete

and timely instruction, the error created by the prosecutor’s improper remark was

vitiated so as to render the error harmless.” Id. at 765.

      Hammonds appealed to the Alabama Supreme Court, again arguing that the

trial court erred in refusing to declare a mistrial after the “[l]et him testify” remark.

But, on June 23, 2000, the Alabama Supreme Court upheld Hammonds’s

conviction. Ex parte Hammonds, 777 So. 2d 777. In doing so, it concluded that

the trial court’s curative instruction, as memorialized in the original trial transcript,

“corrected any harm” caused by the prosecutor’s improper remark. Id. at 778.

Notably, three justices dissented, and one did so, in part, because the curative

instruction failed to instruct the jury that it could not draw an adverse inference

from Hammonds’s decision not to testify:

             The curative instruction given by the trial court omits the
             required statement that the jury could not draw any
             inference from the defendant’s failure to testify. . . .
             While the trial judge did caution the jury not to draw any
             “presumption of guilt or innocence” from the defendant’s
             failure to testify, the defendant was more imperiled by
             the likelihood that the jury would draw an adverse
             inference, a much more common legal and mental
             operation. The prosecutor’s comment was both flagrant
             and prejudicial, and the curative instruction was
             inadequate . . . .

Id. at 780 (Johnstone, J., dissenting).




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      Following the Alabama Supreme Court’s decision, the judge who presided

over Hammonds’s trial asked Carla Woodall, the court reporter who transcribed

the part of the transcript at issue, to review her notes and compare the audio

recording of Hammonds’s trial with the original trial transcript. Woodall did so

and concluded that the original trial transcript erroneously substituted the word

“innocence” for “inference” in the judge’s curative instruction.

      On June 27, 2000, four days after the Alabama Supreme Court upheld

Hammonds’s conviction, Woodall filed a “Certificate of Replacement Page To The

Official Record On Appeal” in the Alabama circuit court, purporting to correct the

error. On Woodall’s corrected page 228, the curative instruction reads:

                    Ladies and gentlemen of the jury, there was a
             statement made by the Prosecution, an objection by the
             Defense, which was sustained. The remark, and I’m not
             sure in which manner it was intended, but it basically
             said, let him testify. It can be taken several ways, but
             such remarks are improper, and the jury should disregard
             that remark by Mr. Valeska. Statements of counsel as I
             told you are not any evidence in this case and should not
             be used by you or considered by you as evidence. Under
             the law the Defendant has the privilege to testify in his
             own behalf or not. He cannot be compelled to testify
             against himself, and that no presumption of guilt or
             inference of any kind should be drawn from his failure to
             testify.

(emphasis added). Woodall forwarded a copy of the corrected page 228 to the

Alabama Supreme Court and the Alabama Court of Criminal Appeals. And, on

June 28, 2000, Woodall’s Certificate of Replacement was docketed.
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      On July 7, 2000, Hammonds timely filed an application for rehearing with

the Alabama Supreme Court requesting that it reconsider its opinion upholding his

conviction. On September 1, 2000, the Alabama Supreme Court summarily denied

his application without modifying its opinion or otherwise referencing the

corrected jury instruction. The three dissenters also did not modify their dissents.

And, on September 20, 2000, the Alabama Supreme Court and the Alabama Court

of Criminal Appeals issued a Certificate of Judgment affirming Hammonds’s

conviction.

      After Hammonds unsuccessfully pursued post-conviction relief in Alabama,

he filed the 28 U.S.C. § 2254 habeas petition at issue here in the District Court for

the Middle District of Alabama. In his petition, among other issues, Hammonds

again complained that the trial court erred in failing to declare a mistrial following

the prosecutor’s “[l]et him testify” remark. The district court eventually denied

Hammonds’s habeas petition. Relying on the original jury instruction, the district

court concluded that the Alabama Supreme Court’s decision upholding

Hammonds’s conviction based, in part, on the original jury instruction was not an

unreasonable application of federal law. The district court recognized that

              [T]he trial judge by no means offered a perfect curative
              instruction. Instead of telling the jury that they could not
              use Hammonds’ silence to infer his guilt, he instructed
              jurors that they should draw neither an inference of guilt
              nor innocence from his silence. This is arguably
              incorrect because the jury was required to presume
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            Hammonds’ innocence until the point in time when the
            State had proven his guilt beyond a reasonable doubt.

But the district court concluded that the “innocence” portion of the instruction

amounted merely to a “semantic flaw” because the instruction overall conveyed to

the jury that they must disregard the prosecutor’s remark, that the remark was not

evidence, and that Hammonds had a right not to testify.

      On September 8, 2015, we granted Hammonds a certificate of appealability

to address whether Hammonds’s rights under the Fifth and Fourteenth

Amendments were violated by two statements that the prosecutor made during the

guilt/innocence stage of trial, one of those being the prosecutor’s reference to

Hammonds’s decision not to testify. 1     The parties completed their briefing on

January 12, 2016, and the case was set for oral argument on April 25, 2016.

      In their briefing, the parties did not seriously dispute that the prosecutor’s

“[l]et him testify” remark violated Hammonds’s Fifth Amendment Right against

self-incrimination. Nor could they. See Griffin v. California, 380 U.S. 609, 85 S.

Ct. 1229 (1965). Instead, the parties’ arguments centered on whether the Alabama




      1
        The other statement at issue is the prosecutor’s reference, in his closing
argument, to the fact that Hammonds was incarcerated at the time of his trial for a
prior conviction for an attempted murder. The record related to that statement is
not in dispute. As with the corrective instruction that appeared to have used the
word “innocence” instead of “inference,” Hammonds argues that the “prison”
remark also violated his right to a presumption of innocence.
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Supreme Court unreasonably applied federal law in holding that the curative jury

instruction issued by the trial court rendered the Griffin error harmless.

      On April 20, 2016, or five days before oral argument, Respondent-Appellee

filed a motion to correct our record pursuant to Federal Rule of Appellate

Procedure 10(e) 2 and swap out page 228 of the original trial transcript with

Woodall’s corrected page 228. Motion to Correct the Record Pursuant to Rule

10(e), Fed. R. App. P., Hammonds v. Comm’r, Ala. Dep’t Corr., No. 15-11797-P.

      2
          Federal Rule of Appellate Procedure 10(e) provides as follows:

              (e) Correction or Modification of the Record.

                     (1) If any difference arises about whether the
                     record truly discloses what occurred in the district
                     court, the difference must be submitted to and
                     settled by that court and the record conformed
                     accordingly.

                     (2) If anything material to either party is omitted
                     from or misstated in the record by error or
                     accident, the omission or misstatement may be
                     corrected and a supplemental record may be
                     certified and forwarded:

                           (A) on stipulation of the parties;

                           (B) by the district court before or after the
                           record has been forwarded; or

                           (C) by the court of appeals.

                     (3) All other questions as to the form and content
                     of the record must be presented to the court of
                     appeals.
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Two days later, Petitioner-Appellee opposed the motion on four grounds: first, that

Rule 10(e) does not permit us to supplement a habeas record beyond the record

presented to the district court; second, that the Supreme Court’s decision in Cullen

v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011), precludes us from granting the

motion because corrected page 228 was not before the Alabama Supreme Court

when it upheld Hammonds’s conviction; third, that the Commissioner should be

estopped from enlarging the record; and fourth, that the corrected page 228 is

unreliable and, in any event, a legal nullity. Motion to Strike and Otherwise

Opposing Motion To Correct The Record Pursuant to Rule 10(e), Fed. R. App. P.

at 3-16, Hammonds v. Comm’r, Ala. Dep’t Corr., No. 15-11797-P. Alternatively,

Appellant asked that we certify the issue to the Alabama Supreme Court so that it

may determine whether the corrected page 228 was in the record when that court

ruled on the merits of Hammonds’s Griffin claim. Id. at 16.

      For the reasons below, we certify the issue to the Alabama Supreme Court.

                                   ANALYSIS

      As an initial matter, there is no need to “correct” our record pursuant to

Federal Rule of Appellate Procedure 10(e). Contrary to Appellee’s contention,

Woodall’s corrected page 228 is already in the record. When the State filed the

habeas record in the district court in 2005, it included the original page 228,

corrected page 228, and Woodall’s “Certificate of Replacement Page To The


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Official Record On Appeal.” Corrected page 228 is, therefore, already part of the

record on appeal.

      Whether we may rely on corrected page 228, however, is another matter. In

Cullen, the Supreme Court held that “review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on the merits.”

563 U.S. at 181, 131 S. Ct. at 1398. Here, the Alabama Supreme Court considered

and rejected Hammonds’s Griffin-error claim on the merits. Ex parte Hammonds,

777 So. 2d 777, 778 (Ala. 2000). Therefore, we can rely on corrected page 228

only if it was part of “the record . . . before” the Alabama Supreme Court when it

upheld his conviction. Cullen, 563 U.S. at 181, 131 S. Ct. at 1398.

      Under the Alabama Rules of Appellate Procedure, corrected page 228 was

arguably part of the record before the Alabama Supreme Court. The Committee

Comments to Alabama Rule of Appellate Procedure 36 explain that “[n]o

provision is made for the issuance of a mandate as is the case with the federal

system, and the certificate of judgment and opinion of the court constitute the

necessary directions encompassed by the concept of a mandate.” Ala. R. App. P.

36 cmt. In other words, it appears that both a certificate of judgment and an

opinion must issue before a decision by the Alabama Supreme Court is final. “The

issuance of the certificate of judgment is governed by Rule 41.” Id. Rule 41, in

turn, provides that “[i]n the [Alabama] Supreme Court, the timely filing of an


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application for rehearing will stay the issuance of the certificate of judgment until

disposition of the application unless otherwise ordered by the Court.” Ala. R. App.

P. 41(a)(2).

      In this case, corrected page 228 was not before the Alabama Supreme Court

when it published its opinion on June 23, 2000. But it was brought to the attention

of the Alabama Supreme Court on June 27, 2000. Hammonds subsequently filed

an application for rehearing on July 7, 2000, thereby staying the issuance of the

certificate of judgment. Then, on September 1, 2000, with the corrected page 228

apparently on its docket, the Alabama Supreme Court overruled Hammonds’s

application for rehearing without modifying its initial opinion. The certificate of

judgment issued nineteen days later, on September 20, 2000. If the Alabama

Supreme Court’s decision denying Hammonds’s Griffin claim on the merits was

not final until September 20, 2000, then corrected page 228 may have been part of

the record before the Alabama Supreme Court when it ruled on the merits of

Hammonds’s Griffin-error claim.

      On the other hand, at least two equally compelling reasons suggest that

corrected page 228 was not “before” the court. First, as Hammonds points out,

Alabama Rule of Appellate Procedure 10(g) governs supplements and corrections

to criminal records on appeal. That rule, promulgated in 1991 and apparently

unchanged since, specifies that “if any question arises as to whether the record


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correctly reflects what occurred in the trial court and the parties cannot stipulate as

to what action should be taken to supplement or correct the record,” the party

seeking to supplement the record must file a motion to do so with the trial court.

Ala. R. App. P. 10(g). The trial court must then “enter such orders as are necessary

to ensure that the record is complete and that it conforms to the truth.” Id.

      The rule does not indicate whether a trial court or a court reporter may sua

sponte correct the record as Woodall attempted to do here. See id. It does,

however, provide that an “appellate court may, on motion of a party or on its own

initiative, order that a supplemental or corrected record be certified and transmitted

to the appellate court if necessary to correct an omission or misstatement.” Id.

(emphasis added). Here, though, no party filed a motion to supplement the record

pursuant to Rule 10(g), and no court, trial or appellate, entered an order correcting

the record to include Woodall’s corrected page 228.

      Second, Alabama Rule of Appellate Procedure 40 governs applications for

rehearings, and subdivision (e) provides as follows:

             (e) Statement of Facts to Be Contained in Application
             for Rehearing. If a court of appeals issues an opinion or
             an unpublished memorandum containing a statement of
             facts and a party applying for rehearing is not satisfied
             with that court’s statement of the facts, the party applying
             for rehearing may present in the application for rehearing
             a proposed additional or corrected statement of facts or
             the applicant’s own statement of facts. If the applicant is
             not satisfied with the facts stated in the main opinion or
             the unpublished memorandum of the court of appeals, but
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             the applicant is satisfied with the facts as stated in a
             dissent or a special writing by a judge or judges of the
             court of appeals, the applicant shall indicate those facts
             with which the applicant is in agreement and indicate in
             which part of the dissent or special writing the facts are
             found. If the applicant does not present in the application
             an additional or corrected statement of facts or the
             applicant’s own statement of facts, it will be presumed
             that the applicant is satisfied with the facts as stated in
             the court of appeals’ main opinion or unpublished
             memorandum.

Ala. R. App. P. 40(e). Rule 40 does not address a scenario in which a party

opposing rehearing disagrees with the statement of facts in an opinion, and

provides that, in fact, “[n]o brief opposing the application is required.” Ala. R.

App. P. 40(f).

      Hammonds’s rehearing application was filed on July 7, 2000. The state did

not respond. A copy of Hammonds’s application for rehearing is not in our record

so we do not know whether Hammonds referenced corrected page 228. If he did

not, the Alabama Supreme Court may have simply accepted its original statement

of facts, including its reference to the jury instruction in the original trial transcript,

as undisputed under Rule 40(e).

      For these two reasons, corrected page 228 may not have been “before” the

Alabama Supreme Court when it upheld Hammonds’s conviction. If that is the

case, we would be precluded from considering it now. Cullen, 563 U.S. at 181,

131 S. Ct. at 1398.


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         There is no clear answer as to whether, as a matter of Alabama law,

corrected page 228 was in “the record . . . before” the Alabama Supreme Court

when it adjudicated the merits of Hammonds’s Griffin-error claim. Id. In these

circumstances, we think it best to certify the question to the Alabama Supreme

Court.

              Certification should never be automatic or unthinking.
              We use much judgment, restraint and discretion in
              certifying. In determining whether to exercise our
              discretion in favor of certification, we consider many
              factors. The most important are the closeness of the
              question and the existence of sufficient sources of state
              law to allow a principled rather than conjectural
              conclusion. But also to be considered is the degree to
              which considerations of comity are relevant. And we
              must also take into account practical limitations of the
              certification process.

Royal Capital Dev., LLC v. Maryland Cas. Co., 659 F.3d 1050, 1055 (11th Cir.

2011) (alterations and quotation marks omitted) (quoting State of Fla. ex rel.

Shevin v. Exxon Corp., 526 F.2d 266, 274–75 (5th Cir. 1976)). 3

         Here, we are unable to draw a principled, rather than a conjectural

conclusion as to whether corrected page 228 was (a) in the record under the

Alabama Rules of Appellate Procedure; and (b) if so, whether corrected page 228

or the original page 228 is the official transcript of Hammonds’s trial. Concerns of


         3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), we adopted as binding precedent all of the decisions of the former Fifth
Circuit handed down prior to October 1, 1981.
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comity point strongly towards certification—the Alabama Rules of Appellate

Procedure are state-law rules promulgated by the Alabama Supreme Court

pursuant to its power under the Alabama Constitution. Ala. Const. art. VI, § 150

(“The supreme court shall make and promulgate rules governing the administration

of all courts and rules governing practice and procedure in all courts . . . .”); Ala.

R. App. P. 1 cmt. (explaining that the Alabama Rules of Appellate Procedure were

promulgated pursuant to the Alabama Supreme Court’s constitutional power to

promulgate rules).

      Rather than speculate as to whether the Alabama Supreme Court would

conclude that corrected page 228 was part of the record under state law, we think it

appropriate to certify the question to the Alabama Supreme Court, particularly

since this issue could arise again in other cases. Cf. Escareno v. Noltina Crucible

& Refractory Corp., 139 F.3d 1456, 1460 (11th Cir. 1998) (“Because this case

involves an unsettled question of Georgia law, we would rather certify the question

of the proper interpretation of § 15–9–31(2) to the Georgia Supreme Court than

speculate as to how the Georgia courts would resolve the issue.”). And, because

our review must start and end with only “the record . . . before” the Alabama

Supreme Court when it upheld Hammonds’s conviction, Cullen, 563 U.S. at 181,

131 S. Ct. at 1398, the information we seek is critical to our analysis of

Hammonds’s § 2254 petition.


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                                  CONCLUSION

      For the reasons stated above, we certify the following questions to the

Alabama Supreme Court pursuant to Alabama Rule of Appellate Procedure 18:

                1. WHETHER CORRECTED PAGE 228 OF THE
                   TRIAL        TRANSCRIPT     IN    ARTEZ
                   HAMMONDS’S TRIAL FOR THE CAPITAL
                   MURDER        OF    MARILYN    MITCHELL,
                   ATTACHED HERETO AS APPENDIX A, WAS
                   PART OF “THE RECORD THAT WAS BEFORE
                   THE [ALABAMA SUPREME COURT]” WHEN
                   IT “ADJUDICATED [ARTEZ HAMMONDS’S
                   CLAIM THAT THE TRIAL COURT ERRED IN
                   DENYING HIS MOTION FOR A MISTRIAL
                   FOLLOWING          THE    PROSECUTOR’S
                   REFERENCE TO HIS DECISION NOT TO
                   TESTIFY] ON THE MERITS.” CULLEN V.
                   PINHOLSTER, 563 U.S. 170, 181, 131 S. CT.
                   1388, 1398 (2011).

                2. IF SO, WHETHER PAGE 228 OF THE
                   ORIGINAL   TRIAL   TRANSCRIPT   OR
                   CORRECTED PAGE 228 CONSTITUTES THE
                   OFFICIAL TRANSCRIPT OF HAMMONDS’S
                   TRIAL.

As in other cases in which we have certified questions to the Alabama Supreme

Court, we note that “[o]ur phrasing of the question[s] is not intended to restrict the

scope or inquiry by the Supreme Court of Alabama.” Tillman v. R.J. Reynolds

Tobacco, 253 F.3d 1302, 1308 (11th Cir. 2001), certified question answered sub

nom. Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28 (Ala. 2003).

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             The particular phrasing used in the certified question[s] is
             not to restrict the Supreme Court’s consideration of the
             problems involved and the issues as the Supreme Court
             perceives them to be in its analysis of the record certified
             in this case. This latitude extends to the Supreme Court’s
             restatement of the issue or issues and the manner in
             which the answers are to be given . . . . That means,
             among other things, that if we have overlooked or
             mischaracterized any state law issues or inartfully stated
             any of the questions we have posed, we hope the
             Alabama Supreme Court will feel free to make the
             necessary corrections.

Id. (quoting Spain v. Brown & Williamson, 230 F.3d 1300, 1312 (11th Cir. 2000)).

The entire record, including the briefs of the parties, is transmitted herewith.

QUESTIONS CERTIFIED.




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                   APPENDIX A




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