                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 95-6776.

                          Brian Keith BALDWIN, Petitioner-Appellant,

                                                 v.

                            Willie JOHNSON, Respondent-Appellee.

                                           Sept. 1, 1998.

Appeal from the United States District Court for the Southern District of Alabama. (No. 91-0390-
RV-M), Richard Vollmer, Jr., Judge.

Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.

       HATCHETT, Chief Judge:

       Appellant Brian Baldwin challenges the district court's denial of his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 and the court's failure to conduct an evidentiary hearing.

We affirm.

                                        I. BACKGROUND

A. Direct Appeal

       On August 9, 1977, a jury in the Circuit Court of Monroe County, Alabama, convicted

Baldwin of the capital felony of robbery during which the victim was intentionally killed, in

violation of section 13-11-2(a)(2) of the 1975 Alabama Code.1 After holding a separate hearing, the

court sentenced Baldwin to death. On October 3, 1978, the Alabama Court of Criminal Appeals

affirmed Baldwin's conviction and sentence.            See Baldwin v. State, 372 So.2d 26

(Ala.Crim.App.1978). On direct appeal, Baldwin contended that the State of Alabama did not have


   1
   For a recitation of the underlying facts, see Baldwin v. State, 372 So.2d 26, 26-27
(Ala.Crim.App.1978).
jurisdiction to try him where the charged offense, robbery, occurred in North Carolina, while only

the aggravating circumstance of intentionally killing the victim occurred in Alabama. Pursuant to

its "statutory duty to search the entire record for error[,]" the court also addressed, among other

things, (1) whether Baldwin's confessions were knowingly and voluntarily made; and (2) whether

the aggravating circumstances of the offense outweighed the mitigating circumstances to warrant

the death penalty. 372 So.2d at 28. On June 1, 1979, the Supreme Court of Alabama affirmed the

judgment of the court of criminal appeals, addressing only the jurisdiction issue. See Baldwin v.

State (Ex parte Baldwin), 372 So.2d 32 (Ala.1979). On June 30, 1980, the United States Supreme

Court granted Baldwin's petition for writ of certiorari, vacated the Supreme Court of Alabama's

affirmance and remanded the case for further consideration in light of Beck v. Alabama, 447 U.S.

625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). See Baldwin v. Alabama, 448 U.S. 903, 100 S.Ct.

3043, 65 L.Ed.2d 1133 (1980).2 The Supreme Court of Alabama, in turn, remanded the case to the

Alabama Court of Criminal Appeals with directions to consider Beck. See Baldwin v. State (In re

Baldwin), 405 So.2d 698 (Ala.1981). The court of criminal appeals reversed Baldwin's conviction

without opinion. See Baldwin v. State, 405 So.2d 699 (1981).

       After the Supreme Court's decision in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72

L.Ed.2d 367 (1982), the court of criminal appeals granted the state's request for rehearing, vacated

its previous reversal and affirmed Baldwin's conviction and sentence. See Baldwin v. State, 456




   2
    In Beck, the Supreme Court held that a court may not constitutionally impose a death
sentence after a jury renders a guilty verdict for a capital crime where the jury was precluded
from considering a verdict of guilty for a lesser included offense. See Beck, 447 U.S. at 645-46,
100 S.Ct. 2382.

                                                 2
So.2d 117 (Ala.Crim.App.1983).3 On rehearing, the court of criminal appeals concluded, among

other things, that (1) the trial court properly considered Baldwin's conviction under North Carolina's

youthful offender statute as an aggravating circumstance, but unmistakably erred in considering his

delinquency adjudication as an aggravating circumstance; (2) the aggravating circumstances far

outweighed the only mitigating factor, Baldwin's age at the time of the offense; (3) the sentencing

judge did not impose the sentence under the influence of any passion or prejudice or for an arbitrary

reason; and (4) death sentences had been imposed in Alabama in similar cases. 456 So.2d at 124-

28.4

       On July 13, 1984, the Supreme Court of Alabama affirmed the judgment of the Alabama

Court of Criminal Appeals on the rehearing issues. See Baldwin v. State (Ex parte Baldwin), 456

So.2d 129 (Ala.1984). In addition, the court rejected Baldwin's challenge to the sentencing

provisions of Alabama's 1975 death penalty statute as unconstitutional. The court also "reviewed

the entire record of the trial proceeding and [found] no error which "ha[d] or probably ha[d]

adversely affected the substantial rights of the petitioner.' " 456 So.2d at 137 (quoting Ala. R.App.

P. 39(k)).

       On December 10, 1984, the Supreme Court granted Baldwin's petition for writ of certiorari,

and on June 17, 1985, affirmed the judgment of the Supreme Court of Alabama. See Baldwin v.

Alabama, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984) (granting certiorari review); 472


   3
    The Hopper Court held that the jury must be permitted to consider a verdict of guilty for a
lesser included offense only when the evidence would have supported such a verdict. See
Hopper, 456 U.S. at 613, 102 S.Ct. 2049.
   4
    The court, however, determined that the trial court's error in considering the delinquency
adjudication was harmless "when viewed in light of the other aggravating circumstances in this
case." 456 So.2d at 127.

                                                  3
U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985) (affirming Baldwin's conviction and sentence).

In so holding, the Supreme Court upheld the constitutionality of Alabama's death penalty statute,

which required jurors to "fix the punishment at death" once they found a defendant guilty of a capital

offense. Ala.Code § 13-11-2(a) (1975); see also Baldwin, 472 U.S. at 389, 105 S.Ct. 2727.

Additionally, the Court noted that although Baldwin asserted in his statement of facts that the

sentencing judge limited his consideration of mitigating circumstances to those specified in section

13-11-7 of the Alabama Code, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57

L.Ed.2d 973 (1978), "[t]hat issue was not addressed by the Supreme Court of Alabama in the

decision under review, and was not raised in the petition for certiorari." 472 U.S. at 381 n. 7, 105

S.Ct. 2727. Thus, the Court had "no reason to consider the issue...." 472 U.S. at 381 n. 7, 105 S.Ct.

2727.

B. State Collateral Review

        On October 23, 1985, Baldwin filed a petition for writ of error coram nobis and/or motion

for relief from judgment in the Circuit Court of Monroe County, Alabama. On October 2, 1987, the

circuit court denied Baldwin's petition, finding that Baldwin was procedurally barred from

presenting the following claims because he failed to raise them at trial or on direct appeal: (1)

Alabama's death penalty statute was unconstitutional because the death penalty was "mandatory";

(2) the death penalty was applied in a discriminatory manner against defendants on the grounds of

race, gender and poverty, in general and in Baldwin's case; (3) Alabama's death penalty statute and

practices provided no standards for determining the burden of proof and persuasion in capital cases;

(4) the state's appellate review of death sentences was inadequate because it did not provide for a

comparative review, and was arbitrary and without governing standards; (5) electrocution was an


                                                  4
unnecessary and cruel means of execution; (6) the death penalty was excessive; (7) Baldwin's jury

did not constitute a representative cross-section of the community under the Sixth Amendment

because potential jurors with religious principles against capital punishment were systematically

excluded; (8) Baldwin's jury did not reflect a representative cross-section of the community in

violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses; (9) Baldwin's

jury was "unrepresentative and biased in favor of the prosecution on the issue of [his] guilt"; (10)

his constitutional rights were violated because an improperly impaneled grand jury of all white

persons indicted him; and (11) the prosecutor violated his constitutional rights when he used his

peremptory strikes to remove all black potential jurors from Baldwin's petit jury. The court found

that Baldwin could not raise the following claims in his petition for writ of error coram nobis

because the Alabama appellate courts decided them on direct appeal: (1) the jury's inability to

consider lesser included offenses denied Baldwin due process of law and violated Beck; (2) under

the facts of this case, the death penalty was disproportionately severe; and (3) the death penalty

statute had been generally, and in this case, arbitrarily and capriciously applied. In addition, after

conducting an evidentiary hearing, the court denied Baldwin's ineffective assistance of counsel claim

on the merits.5




   5
    Baldwin contended that he received ineffective assistance because his trial counsel failed to:
(1) request a psychiatric examination; (2) move to change venue; (3) hire expert witnesses to
assist in the preparation and presentation of a defense concerning the effects of drugs and alcohol
on Baldwin; (4) question the potential jurors more extensively at voir dire and request that the
court individually question the jurors as to their beliefs about capital punishment; (5) prepare
Baldwin for, and present mitigating evidence at, the sentencing hearing; (6) move to recuse all
elected Alabama judges; (7) challenge the composition of the all white grand jury that indicted
Baldwin; and (8) move for a mistrial and/or object to the state's use of its peremptory strikes to
remove all black potential jurors from the petit jury.

                                                  5
       On October 28, 1988, the court of criminal appeals affirmed the denial of Baldwin's coram

nobis petition. See Baldwin v. State, 539 So.2d 1103 (Ala.Crim.App.1988). The court summarily

affirmed the lower court's findings that some of Baldwin's claims were procedurally barred. 539

So.2d at 1104-05. The court then quoted the lower court's opinion on the ineffective assistance of

counsel claim and adopted that opinion as its own. 539 So.2d at 1105-09. The Supreme Court of

Alabama denied Baldwin a writ of certiorari on March 3, 1989, and the United States Supreme Court

denied certiorari review on October 2, 1989, bringing Baldwin's state collateral attack of his

conviction and sentence to a close. See Baldwin v. State, 539 So.2d 1103 (Ala.1989); Baldwin v.

Alabama, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989).

C. Federal Habeas Corpus Review

       On May 20, 1991, Baldwin filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the Southern District of Alabama. On October 29,

1991, he filed a second superseding petition; that petition, as supplemented, serves as the focus of

this case. The district court declined to conduct an evidentiary hearing because it found that

Baldwin's allegations concerning cause and prejudice for his defaulted claims were conclusory and

that the record did not support them, and the underlying facts of his ineffective assistance claim were

fully developed in the state court. The district court thereafter denied Baldwin's petition in a 177-

page order, concluding that many of Baldwin's 43 claims were procedurally barred, and that the

remaining claims did not warrant relief on the merits.

                                          II. DISCUSSION

       Baldwin's issues on appeal include an ineffective assistance of counsel claim and substantive

challenges to alleged trial errors. Because we conclude that Baldwin is not entitled to relief on the


                                                  6
merits of some of his claims and has procedurally defaulted the remaining claims, we affirm the

district court's denial of his petition for writ of habeas corpus. We address each of Baldwin's issues

in turn.

A. Ineffective Assistance of Counsel

           Baldwin contends that the state violated his right to counsel under the Sixth and Fourteenth

Amendments of the United States Constitution when he received ineffective assistance at trial, at

sentencing and on direct appeal. An ineffective assistance of counsel claim presents a mixed

question of law and fact, which we review de novo. Huynh v. King, 95 F.3d 1052, 1056 (11th

Cir.1996). To obtain relief on this claim, Baldwin bears the burden of demonstrating that (1) his

"counsel's representation fell below an objective standard of reasonableness," and (2) "a reasonable

probability exists that but for counsel's unprofessional conduct, the result of the proceeding would

have been different." Huynh, 95 F.3d at 1056 (citing Strickland v. Washington, 466 U.S. 668, 689,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We determine the reasonableness of Baldwin's counsel's

performance through a deferential review of all of the circumstances from the perspective of counsel

at the time of the alleged errors. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984) ("A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the time."); Huynh,

95 F.3d at 1056. In addition, a "reasonable probability" is a probability "sufficient to undermine

confidence in the outcome" of the proceeding. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. With

regard to showing prejudice as a result of his trial counsel's sentencing errors, Baldwin must prove

that but for his counsel's deficient performance, "a reasonable probability [existed] that the balance


                                                    7
of aggravating and mitigating circumstances would have been different." Horsley v. Alabama, 45

F.3d 1486, 1493 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995).

        Although Baldwin raises numerous grounds for his ineffective assistance of counsel claim,

we address on the merits only those grounds that Baldwin alleged in his petition for writ of error

coram nobis and again in the district court. The remaining claims are procedurally barred. See

Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir.1992) ("[A] habeas [corpus] petitioner may

not present instances of ineffective assistance of counsel in his federal petition that the state court

has not evaluated previously.").6 During his state coram nobis proceeding and in the district court,

Baldwin asserted that his trial counsel rendered constitutionally deficient performance in failing:

(1) to challenge the racial composition of the grand jury that indicted Baldwin; (2) to request a

change of venue; (3) to challenge the prosecutor's use of peremptory strikes to remove all black

prospective jurors from Baldwin's petit jury; (4) to request a psychiatric evaluation of Baldwin; (5)

to obtain an expert witness to address the effects of Baldwin's use of drugs and alcohol; (6) to

prepare Baldwin for sentencing; (7) to conduct an adequate voir dire; and (8) to move to recuse the

state trial judge.

         The state coram nobis court held a two-day hearing on Baldwin's ineffective assistance of

counsel claim.       Although Baldwin presented witnesses and submitted additional deposition

testimony in support of his claim, the state court found that he failed to demonstrate that his

counsel's performance was deficient or that he suffered prejudice therefrom. The court thus denied

him relief. Additionally, the district court denied Baldwin relief on his ineffective assistance claim

without conducting an evidentiary hearing. Baldwin asserts that the lack of a hearing in the district


   6
    In addition, see Part II.B for a discussion of Baldwin's defaulted claims.

                                                  8
court was erroneous because the state prevented him from fully developing the facts underlying his

claims before the state court.

        Upon careful review of the record, we conclude that Baldwin received a full and fair hearing

in the state coram nobis court on his ineffective assistance of counsel claim, and that he has not

demonstrated that he was entitled to an evidentiary hearing. See Meeks v. Singletary, 963 F.2d 316,

319 (11th Cir.1992) ("[A] habeas corpus petitioner is entitled to an evidentiary hearing on his or her

claims if he or she alleges facts that, if proved at the hearing, would entitle petitioner to relief."),

cert. denied, 507 U.S. 950, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993); Routly v. Singletary, 33 F.3d

1279, 1284 (11th Cir.1994) (stating that the petitioner bears the burden of establishing the need for

a federal evidentiary hearing in addition to a state court hearing on the claim at issue), cert. denied,

(1995). We find that the record "fairly supports" the state court's findings of fact and presume,

pursuant to 28 U.S.C. § 2254(d), that those factual findings are correct. Weeks v. Jones, 26 F.3d

1030, 1034 (11th Cir.1994), cert. denied, 513 U.S. 1193, 115 S.Ct. 1258, 131 L.Ed.2d 137 (1995);

see also Meeks, 963 F.2d at 319.7 We also agree with the district court that "[n]one of the evidence

Baldwin suggest[ed] he would adduce [at an evidentiary hearing] [was] newly discovered in the

sense that it was not known or, through the exercise of reasonable diligence could not have been

discovered, at the time of the coram nobis hearing." District Court Order at 120. Baldwin failed to

demonstrate cause and prejudice for his failure to produce the evidence earlier, or a fundamental

miscarriage of justice in not receiving a hearing. See Weeks, 26 F.3d at 1043 ("A habeas [corpus]

petitioner is not entitled to an evidentiary hearing to develop facts that he failed to show in state


   7
    Because Baldwin filed his habeas corpus petition before the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996, that act does not apply to Baldwin's
petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

                                                   9
court unless he can establish cause for and prejudice from such failure."); Mills v. Singletary, 63

F.3d 999, 1022 (11th Cir.1995) ("A petitioner seeking a federal evidentiary hearing based on the

inadequate development of a material fact at an earlier state court hearing ... must show either: (1)

cause ... and prejudice ...; or (2) that a fundamental miscarriage of justice will result unless a federal

evidentiary hearing is held.") (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715,

118 L.Ed.2d 318 (1992)), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

        On the merits, Baldwin's claim fails. At the state coram nobis evidentiary hearing, Windell

Owens, Baldwin's trial and direct appellate counsel, testified to the following facts. Owens became

licensed to practice law in 1948 and practiced continuously in Monroe County, doing about fifty

percent criminal work. At the time of Baldwin's trial, in 1977, Owens had twenty-nine years of

experience and had tried approximately fifteen or twenty felony jury trials per year. In preparation

for Baldwin's trial, Owens met with Baldwin on at least eight occasions and discussed Baldwin's

version of the facts of the case—which matched Baldwin's statements to law enforcement

officials—and his personal and family history. Owens also interviewed Baldwin's codefendant,

Edward Horsley, law enforcement officers and other witnesses, including questioning them about

the voluntariness of Baldwin's confession. In addition, Owens "discussed at length any possible

witnesses [with Baldwin] but ... was never given any [names] other than generally the people who

either took statements and things of that sort. [Baldwin] never furnished [him] with a single fact

witness that was not already involved in the case." Coram Nobis Hr'g at 38. Thereafter, Owens

made "a number of efforts" to contact Baldwin's family, but they would not return his telephone calls

or respond to his letters. Coram Nobis Hr'g at 38. He acknowledged that he did not secure any

written documents or evidence about Baldwin's family life or anything else from Baldwin's home


                                                   10
state of North Carolina prior to the trial or sentencing. With the above information as foundation,

we move to Baldwin's specific allegations.

        Baldwin first alleges that his trial counsel was ineffective in failing to challenge the racial

composition of the grand jury that indicted him. Upon due consideration, it is clear that Owens

made a strategic decision not to launch such a challenge. At the time of Baldwin's trial, in order to

challenge the composition of the grand jury under the Equal Protection Clause of the Fourteenth

Amendment, Baldwin would have had to demonstrate, among other things, that blacks were

excluded from grand juries in Monroe County "over a significant period of time[,]" and not just that

they were under-represented on his particular grand jury. See Castaneda v. Partida, 430 U.S. 482,

494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Birt v. Montgomery, 725 F.2d 587, 606-07 (11th Cir.)

(en banc ), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984). In addition, to

challenge the racial composition under the Sixth Amendment's requirement that jury venires be

selected from a fair cross-section of the community, Baldwin would have had to show that the

under-representation was due to the "systematic exclusion of [blacks] from the selection process."

See Cunningham v. Zant, 928 F.2d 1006, 1013 (11th Cir.1991) (citing Duren v. Missouri, 439 U.S.

357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)).

       Owens testified that he did not challenge the racial composition of the grand jury because,

although he apparently discovered who was on the grand jury and thought that he looked at its racial

composition, he did not think he could succeed at such a challenge. He stated that "[such

challenges] had been done on several occasions prior to [Baldwin's] trial and [they] had never been

successful." Coram Nobis Hr'g at 47. Owens's testimony evinces that he strategically considered

and rejected this plan of action. See Strickland, 466 U.S. at 681, 104 S.Ct. 2052 ("[S]trategic


                                                 11
choices must be respected ... if they are based on professional judgment."). When we view his

decision in light of the circumstances at the time of Baldwin's trial, we cannot say that it was

unreasonable. Baldwin is not entitled to relief on this claim.8

        Baldwin next alleges that his trial counsel rendered ineffective assistance in failing to

request a change of venue. Baldwin's supporting facts as alleged in the supplement to his second

amended habeas corpus petition are that (1) his case was "one of the most highly publicized cases

in Monroe County[ ]"; and (2) "[h]ad counsel competently moved for a change of venue, said

motion should have been granted and [Baldwin] would have received a trial in a venue which would

have provided him with an impartial jury." Supp. to Second Amended Petition at 4-5. Baldwin also

submitted during his coram nobis proceeding, newspaper articles from the Monroe Journal

concerning his case—the only local newspaper in Monroe County at the time—and the testimony

of Steven Stewart. Stewart's family owned the only local radio station in Monroe County during the

relevant time, and Stewart himself was the editor of the Monroe Journal. Stewart testified that

"[t]here was probably more coverage of this crime than any other crime that occurred that year or

any years before or after that." Coram Nobis Hr'g at 120.

       At the state coram nobis proceeding, Owens testified that he and Baldwin discussed a

possible change of venue. Owens stated that (1) he did not believe that a venue change was

warranted because neither Baldwin nor the victim was from Monroe County, and thus the impact


   8
    Although Baldwin attempts to establish a prima facie case that his equal protection rights
were violated through proffering statistics concerning the percentage of blacks in Monroe
County at the time of his trial and the make-up of the grand jury that indicted him, it appears that
he did not present this evidence to the state coram nobis court. See Coram Nobis Order at 17
("Baldwin ... introduced no evidence to show that there was any defect in the grand jury
selection process or the racial composition of the grand jury. Baldwin never proved the racial
makeup of the grand jury that indicted him.").

                                                12
of the offense on the community was less than if the victim had been a local resident; (2) he did not

think that the court would have granted the request; and (3) he thought that Baldwin had "a better

chance ... in Monroe County because at the time [Owens] knew all the jurors." Coram Nobis Hr'g

at 42. In fact, "there was not a single member of that jury panel that [he] did not know[,] and [he]

knew their background and knew their families and ... thought that was an advantage to [him], or

to Mr. Baldwin, [his] client[.]" Coram Nobis Hr'g at 50-51.

        We affirm the denial of relief to Baldwin on this claim. First, Baldwin failed to show that

his counsel's performance was deficient in not requesting a change of venue. Owens's decision was

clearly a tactical one that was reasonable under the circumstances. In addition, Baldwin failed to

demonstrate that he suffered any prejudice from Owens's alleged error. Under Alabama law,

"[n]ewspaper articles alone would not necessitate a change of venue unless it was shown that the

articles so affected the general citizenry through the insertion of such sensational, accusational or

denunciatory statements, that a fair and impartial trial was impossible." Thompson v. State, 581

So.2d 1216, 1233-34 (Ala.Crim.App.1991) (internal quotation marks omitted) (concluding that

Thompson had not demonstrated prejudice concerning his ineffective assistance of counsel claim

based on a failure to request a change of venue, because petitioner's evidence—newspaper articles

about his case—failed to establish an entitlement to a change of venue and thus no reasonable

probability existed that, "but for the absence of a properly supported motion for a change of venue,

the outcome of his trial would have been different"), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116

L.Ed.2d 774 (1992). The fact that a case generates widespread publicity does not, in and of itself,

warrant a change of venue. See, e.g., Waldrop v. State, 459 So.2d 953, 955 (Ala.Crim.App.1983)

("Publicity alone, even if inordinate, is not sufficient to warrant a change of venue. Some prejudicial


                                                  13
effect of the publicity must be shown."), aff'd, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S.

1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985); Knight v. Dugger, 863 F.2d 705, 713-23 (11th

Cir.1988). Because Baldwin did not satisfy either the performance or prejudice prong of Strickland,

we affirm the district court's denial of relief on this claim.

        Baldwin also contends that his counsel rendered ineffective assistance when he failed to

request a psychiatric evaluation of Baldwin. At the state coram nobis hearing, Owens testified that

he did not request a psychiatric examination of Baldwin because he had no reason to make such a

request, in that Baldwin never did or said anything to indicate to him that he had any mental

problems.9    Additionally, according to Owens, Baldwin did not appear to have trouble

communicating and was generally cooperative. When asked if he had considered the possibility of

having Baldwin examined psychiatrically, Owens testified that he and Baldwin "had some

discussion one time about going in lines like that but [they] decided against it." Coram Nobis Hr'g

at 60. Owens also attested that Baldwin once told him that he was not crazy, stating, "I've got more

sense than you've got." Coram Nobis Hr'g at 78. We note that in addition to having experience as

a criminal defense attorney, Owens had legal experience with civil commitments.

        In light of the above testimony, Owens's decision to forgo a psychiatric examination was a

reasonable, strategic decision and did not constitute ineffective assistance. See Weeks, 26 F.3d at

1037 (stating that trial counsel's observations of petitioner did not "put [him] on notice that he was

dealing with less than a rational individual" in support of the court's finding that the lawyer's failure

to locate previous psychological examinations did not constitute ineffective assistance). Owens did



   9
    Owens "never had any indication from [Baldwin] that that should be done." Coram Nobis
Hr'g at 43.

                                                   14
not have a reason to request such an examination, and Baldwin does not point to anything that

should have indicated to Owens that such an evaluation was necessary. See, e.g., Weeks, 26 F.3d

at 1040 (petitioner alleged that his counsel was ineffective for not requesting a psychological

examination "when [petitioner] waived jury participation in his sentencing following his

conviction[,]" and demanded the death penalty.).

       Baldwin also failed to demonstrate that he suffered any prejudice, i.e., that but for Owens's

alleged unprofessional errors, a reasonable probability exists that the outcome of his trial would have

been different, or that the "sentencer would have weighed the balance of the aggravating and

mitigating factors to find that the circumstances did not warrant the death penalty." Weeks, 26 F.3d

at 1042 (internal quotation marks omitted). In the supplement to his second amended petition for

writ of habeas corpus, Baldwin states that "[h]ad counsel had [him] evaluated by a psychologist or

psychiatrist counsel would have been able to minimize [his] involvement in the commission of the

charged offenses and would have been able to individualize [him] at sentencing." Supp. to Second

Amended Petition at 4. Baldwin's attempted showing of prejudice was insufficient to satisfy his

burden under Strickland.

        Baldwin's next ground for his ineffective assistance of counsel claim is based on his trial

counsel's failure to challenge the prosecutor's use of peremptory strikes to remove all of the black

prospective jurors from Baldwin's petit jury. Owens testified at the state coram nobis hearing that

he noticed the prosecutor removing all the blacks from the jury. When asked why he did not

challenge the prosecutor's actions, he replied that he "thought it would be useless to do so" given the

state of the law at that time. Coram Nobis Hr'g at 50. However unfortunate, Owens's view of the

law, and thus his decision, was not unreasonable.


                                                  15
        At the time of Baldwin's trial, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759

(1965), governed challenges to prosecutorial use of peremptory strikes to remove blacks from a

jury.10 To state a claim under Swain, it was not enough for a defendant to show that the prosecutor

removed blacks from his or her particular jury. 380 U.S. at 223, 85 S.Ct. 824, 13 L.Ed.2d 759. The

defendant had to demonstrate that the prosecutor, over time, systematically excluded blacks from

serving on petit juries. Swain, 380 U.S. at 223-24, 85 S.Ct. 824. Based on Swain, Owens's belief,

that a challenge to the prosecutor striking all the blacks from Baldwin's jury alone would not have

succeeded, was correct. Baldwin did not even successfully show at the state coram nobis hearing

that the prosecutor's actions in his case constituted a systematic practice. Although Owens testified

that the juries in Monroe County tended to have a larger percentage of white jurors than black jurors,

he denied that, in his years of practice, the prosecutor struck all black individuals from the juries.

Baldwin is not entitled to relief on this claim.

        Even if we assume that Baldwin's trial counsel rendered ineffective assistance in failing to

challenge the prosecutor's use of peremptory strikes, Baldwin has not demonstrated any prejudice

therefrom. Although "[w]e would have more confidence in the verdict had it been delivered by a

constitutionally composed jury, with both black and white members[,]" overwhelming evidence

supported Baldwin's conviction in this case. Jackson v. Herring, 42 F.3d 1350, 1362 (11th Cir.),

cert. denied, 515 U.S. 1189, 116 S.Ct. 38, 132 L.Ed.2d 919 (1995). Having conducted a thorough



   10
     Because Baldwin's conviction became final before the Supreme Court decided Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Batson does not apply
retroactively, the applicable standard is the one articulated in Swain. See Allen v. Hardy, 478
U.S. 255, 257-58, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) ("We conclude that our decision in
Batson should not be applied retroactively on collateral review of convictions that became final
before our opinion was announced.") (footnote omitted).

                                                   16
review of the record, however, "we cannot conclude there is a "reasonable probability that, but for

counsel[s'] ... errors, the result of the proceeding would have been different.' " Jackson, 42 F.3d at

1362 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052) (alteration in original); see also Waters

v. Thomas, 46 F.3d 1506, 1510 (11th Cir.) ("[Petitioner's] guilt stage ineffective assistance of

counsel claims are due to be denied because the evidence of guilt was so overwhelming that [he]

cannot show prejudice from any of the claimed shortcomings of his counsel at the guilt stage."), cert.

denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995).

        Baldwin also contends that his trial counsel failed to present mitigating evidence at, and to

prepare him for, the sentencing hearing. We find this claim to be without merit. Owens testified

that he made "several efforts to try to get anything [from Baldwin] that [Owens] thought might help

him[.]" Coram Nobis Hr'g at 40. Although Owens discussed the sentencing hearing with Baldwin

at length, Baldwin was unable to provide him with any beneficial witnesses. After getting

information from Baldwin about his family, Owens made numerous efforts to contact them, but they

did not return his telephone calls or respond to his letters.

       We recognize that Baldwin's testimony contradicted that of Owens. Baldwin testified that

Owens came to see him only twice for ten minutes each between the verdict and sentencing hearing,

once asking about his childhood. Baldwin denied that Owens asked him for sentencing witnesses

and stated that he did not understand what was occurring during the sentencing hearing. The state

coram nobis court found that "Owens [was] a credible witness and that Baldwin [was] not." Coram

Nobis Order at 15. We must accept the state court's credibility determination and thus credit

Owens's testimony over Baldwin's. See Coulter v. Herring, 60 F.3d 1499, 1503 (11th Cir.1995)




                                                  17
(applying the statutory presumption of correctness under § 2254(d) to the state court's credibility

determination), cert. denied, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996).

        In light of the above testimony, Baldwin has not demonstrated that his counsel's performance

was deficient. We agree with the state coram nobis court and the district court that Baldwin's failure

to be forthcoming with information that may have been helpful to him hindered Owens's ability to

obtain and present any additional mitigating evidence. See Strickland, 466 U.S. at 691, 104 S.Ct.

2052 ("The reasonableness of counsel's actions may be determined or substantially influenced by

the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on

informed strategic choices made by the defendant and on information supplied by the defendant.").11

Once again, even if Owens's preparation for sentencing was deficient, Baldwin failed to demonstrate

that "the balance of aggravating and mitigating circumstances would have been different." Horsley,

45 F.3d at 1493.

        Baldwin next contends that his trial counsel rendered ineffective assistance in failing to

conduct more extensive questioning of the potential jurors about their racial attitudes and views of

the death penalty on voir dire. Owens testified that he did not further question the jurors because

he knew all of the jurors on the venire and felt that he knew what their attitudes were.12 In addition,

Owens did not believe that it was necessarily appropriate to question them about their racial views

because he felt that when a lawyer was preparing to try a case before a jury, "the less you rile a

prospective juror, ... the better off you are going to be." Coram Nobis Hr'g at 50.


   11
     Owens placed Baldwin on the stand, who testified to his difficulties as a child and other
circumstances of his background.
   12
    Owens stated, "I thought I knew the people pretty intimately myself—every one on the jury
panel." Coram Nobis Hr'g at 72.

                                                  18
        We cannot say that Owens's choice concerning the amount of voir dire constituted ineffective

assistance of counsel. At the time of Baldwin's trial, Owens had about twenty-nine years of

experience practicing in Monroe County and personal knowledge of all of the potential jurors. He

testified that he knew the entire jury panel, including their families and backgrounds. Owens's

amount of questioning of the potential jurors was clearly a reasonable, strategic choice, in light of

his personal knowledge of, and familiarity with, them. See Strickland, 466 U.S. at 681, 104 S.Ct.

2052. We thus reject this ground of Baldwin's ineffective assistance claim.

        Baldwin also argues that Owens's representation was ineffective because he failed to obtain

mitigating evidence concerning the effects of Baldwin's use of drugs. At the state coram nobis

hearing, Owens testified that he did not investigate Baldwin's prior drug use, because Baldwin had

never mentioned any such use until he testified at the sentencing hearing.13 Baldwin's failure to

mention such use occurred despite Owens's efforts to obtain favorable mitigating evidence, including

interviewing Baldwin and attempting to contact his family. In addition, from his interaction with

Baldwin, Owens had no reason to believe that Baldwin had ever had any problems with drugs.

Baldwin, however, testified at the state coram nobis hearing that he told Owens about his drug use

prior to the sentencing hearing.

        Again, we give deference to the state court's finding that "Owens's testimony [was] credible

and Baldwin's [was] not." Coram Nobis Order at 10; see Marshall v. Lonberger, 459 U.S. 422, 434,

103 S.Ct. 843, 74 L.Ed.2d 646 (1983) ("Title 28 U.S.C. § 2254(d) gives federal habeas [corpus]

courts no license to redetermine credibility of witnesses whose demeanor has been observed by the



   13
    "[I]t had never been mentioned to [Owens] or to [his] associate trying the case that [Baldwin
and Horsley] had ever taken a drug in their life [sic]." Coram Nobis Hr'g at 62.

                                                 19
state trial court, but not by them."); Smith v. Kemp, 715 F.2d 1459, 1465 (11th Cir.) ("Resolution

of conflicts in evidence and credibility issues rests within the province of the state habeas court,

provided petitioner has been afforded the opportunity to a full and fair hearing."), cert. denied, 464

U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983). We therefore accept Owens's testimony and

conclude that, under the circumstances, his failure to obtain drug-use mitigating evidence was not

a basis for a finding of ineffective assistance of counsel. In addition, we find that Baldwin has not

demonstrated that had Owens obtained and presented such evidence, the result of his sentencing

would have been different. See Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.) (to prove

prejudice from a sentencing-phase error, petitioner must show that a "reasonable probability

[existed] that the balance of aggravating and mitigating circumstances would have been different"),

cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).

        Finally, Baldwin contends that his lawyer was constitutionally ineffective because he failed

to request the recusal of the state trial judge. Owens testified that he did not request the trial judge's

recusal because he saw no reason to do so. "In fact, [Owens] thought [Baldwin's] trial [judge] had

more knowledge of the law than anybody [they] could [have gotten] and probably would [have been]

more fair than anybody else...." Coram Nobis Hr'g at 63-64. In addition, based on his experience

with the court, he had no reason to think that the judge was biased in any way. We agree with the

district court that "[a]bsent some evidence that recusal was warranted, Baldwin has failed to show

that his lawyer's performance was deficient or that he was prejudiced by the absence of a recusal

motion." District Court Order at 141.

        In summary, we conclude that Baldwin is not entitled to relief on his ineffective assistance

of counsel claim on the basis of any of the grounds that he has raised. With respect to each ground,


                                                   20
he failed to demonstrate that his counsel rendered deficient performance or that he suffered prejudice

from the alleged errors. We affirm the judgment of the district court on this issue.

B. Procedurally Barred Claims

        Whether Baldwin is procedurally barred from raising a particular claim is a mixed question

of law and fact, which we review de novo. Agan v. Vaughn, 119 F.3d 1538, 1541 (11th Cir.1997),

cert. denied, --- U.S. ----, 118 S.Ct. 1305, 140 L.Ed.2d 470 (1998). Federal courts may not review

a claim that the petitioner procedurally defaulted under state law "if the last state court to review the

claim state[d] clearly and expressly that its judgment rest[ed] on a procedural bar, and the bar

present[ed] an independent and adequate state ground for denying relief." Hill v. Jones, 81 F.3d

1015, 1022 (11th Cir.1996) (citing Harris v. Reed, 489 U.S. 255, 260-61, 109 S.Ct. 1038, 103

L.Ed.2d 308 (1989)), cert. denied, --- U.S. ----, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997); Agan, 119

F.3d at 1548.

        Baldwin raises five claims that we find to be procedurally barred from federal habeas corpus

consideration as a result of his failure to adhere to state procedural rules.14 First, Baldwin failed to


   14
     Baldwin has procedurally defaulted the following alleged deficiencies in the performance of
his trial and direct appellate counsel because he failed to raise them to support his ineffective
assistance of counsel claim during the state coram nobis proceeding: (1) failure to challenge the
under-representation of blacks from service on the petit juries in Monroe County; (2) failure to
investigate the robbery; (3) failure to investigate the rape allegations; (4) failure to request
money for expert witnesses; (5) failure to investigate adequately the circumstances surrounding
Baldwin's custodial statements; (6) failure to investigate the aggravating circumstances; (7)
failure to raise the defaulted claims on direct appeal; (8) failure to challenge the trial judge's and
prosecutor's practice of intentional racial discrimination in selecting grand jury forepersons in
Monroe County; and (9) failure to object to the state's introduction at sentencing of his
codefendant's hearsay statement. See Footman v. Singletary, 978 F.2d 1207, 1211 (11th
Cir.1992). Although Baldwin alleges that the ineffective assistance of his coram nobis counsel
constitutes cause for these defaulted claims, "[t]he Supreme Court has clarified that attorney
error or ineffective assistance of counsel in a state collateral proceeding is not cause to override a
procedural bar that precludes review of a claim in federal court." Weeks, 26 F.3d at 1046 (citing

                                                   21
raise the following issues in the state court—at trial, on direct appeal or during his state coram nobis

proceeding: (1) the state violated his Sixth and Fourteenth Amendment rights where blacks were

systematically under-represented from serving on petit juries in Monroe County, at the time of his

trial; (2) the state violated his rights under the Eighth Amendment when an unacceptable risk of

racial prejudice affected the imposition of his death sentence;15 and (3) the state violated his right

to confrontation under the Sixth Amendment when his codefendant's hearsay statement was

introduced during Baldwin's sentencing hearing. Under Alabama law, his failure to raise these

claims at trial or on direct appeal constituted a procedural bar to presenting them in a subsequent

state collateral proceeding. See, e.g., Jackson v. State, 501 So.2d 542, 544 (Ala.Crim.App.1986)

("Coram nobis is not available to review issues which could have been raised at trial or on direct

appeal."), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 746 (1987). Baldwin is therefore

procedurally barred from raising them for the first time when seeking federal habeas corpus relief.

See Collier v. Jones, 910 F.2d 770, 772 (11th Cir.1990) ("[W]hen a petitioner has failed to present

a claim to the state courts and under state procedural rules the claim has become procedurally

defaulted, the claim will be considered procedurally defaulted in federal court.").

        In addition, Baldwin presented the following issues for the first time during his state coram

nobis proceeding: (1) the state violated his Sixth and Fourteenth Amendment rights where blacks




Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991)).
   15
     Baldwin argues that he raised this claim during the state coram nobis proceeding as a
challenge to the Alabama death penalty statute for its discriminatory and arbitrary application to
poor black males, and that he presented this claim as part of Count 12(f), which the district court
reviewed on the merits, in his federal habeas corpus petition. As did the district court, we find
this claim to be distinct from his general challenge of the Alabama death penalty statute, and
conclude that it is procedurally barred.

                                                  22
were systematically under-represented on grand juries in Monroe County, at the time of his trial;

and (2) the state violated his rights under the Equal Protection Clause of the Fourteenth Amendment

when the prosecutor used his peremptory strikes to exclude all black persons from the petit jury in

Baldwin's case. The state coram nobis court found that Baldwin procedurally defaulted these claims

because he did not raise them at trial or on direct appeal, and that he failed to demonstrate

successfully cause for, and prejudice from, the defaults. The Alabama Court of Criminal Appeals

affirmed the decision. See Baldwin, 539 So.2d at 1104-05. Because the state court concluded that

Baldwin procedurally defaulted these claims, he is not entitled to federal habeas corpus review of

them on the merits. See Agan, 119 F.3d at 1548 ("A state court's determination that a claim is barred

from review in state court because of the petitioner's failure to comply with state law procedures for

presenting the claim precludes federal habeas [corpus] review of that claim....").

        Baldwin, however, may overcome these procedural defaults—and obtain federal habeas

corpus review of his barred claims on the merits—if he can demonstrate cause for the defaults and

actual prejudice resulting therefrom, or a fundamental miscarriage of justice in this court's refusing

to review his claims. See Agan, 119 F.3d at 1548-49; Horsley, 45 F.3d at 1489 ("The Supreme

Court has held that, "[u]nless a habeas [corpus] petitioner shows cause and prejudice, a court may

not reach the merits of ... procedurally defaulted claims in which the petitioner failed to follow

applicable state procedural rules in raising the claim.' ") (quoting Sawyer v. Whitley, 505 U.S. 333,

112 S.Ct. 2514, 2528, 120 L.Ed.2d 269 (1992)) (alteration in original and emphasis omitted); Hill,

81 F.3d at 1023 ("[I]n extraordinary cases, a federal habeas [corpus] court may grant the writ

without a showing of cause and prejudice to correct a fundamental miscarriage of justice."). For

Baldwin to show "cause," the procedural default "must result from some objective factor external


                                                 23
to the defense that prevented [him] from raising the claim and which cannot be fairly attributable

to his own conduct." McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.), cert. denied, 504 U.S.

944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). Under the prejudice prong, Baldwin must show that

"the errors at trial actually and substantially disadvantaged his defense so that he was denied

fundamental fairness." McCoy, 953 F.2d at 1261. In addition, before a federal habeas corpus court

will excuse a default of a guilt-phase claim under the fundamental miscarriage of justice standard,

"a petitioner must prove "a constitutional violation [that] has probably resulted in the conviction of

one who is actually innocent.' " Hill, 81 F.3d at 1023 (quoting Murray v. Carrier, 477 U.S. 478,

496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). For a petitioner to gain habeas corpus review of a

defaulted sentencing phase claim based on a fundamental miscarriage of justice, he or she "must

show that "but for constitutional error at his sentencing hearing, no reasonable juror could have

found him eligible for the death penalty under [state] law.' " Hill, 81 F.3d at 1023 (quoting Sawyer,

112 S.Ct. at 2522-23).

        As an initial matter, Baldwin asserts that the district court erred in not conducting an

evidentiary hearing on the issues of cause and prejudice for each of his defaulted claims. A habeas

corpus petitioner, however, is not entitled to an evidentiary hearing on the threshold issues of cause

and prejudice, or fundamental miscarriage of justice, unless he or she proffers "specific facts which

support a finding that one of [the] exceptions to the procedural default rule exists." Hill, 81 F.3d at

1023. We conclude that Baldwin has failed to make the requisite showings that would entitle him

to a hearing, or to overcome the procedural defaults.

        Baldwin cites as "cause" for his defaults the facts that: (1) the trial judge and prosecutor

practiced intentional racial discrimination and condoned a racially discriminatory system at the time


                                                  24
of his trial; and (2) his trial counsel rendered ineffective assistance in defaulting the claims. We

acknowledge that constitutionally ineffective assistance of trial counsel may establish cause for a

procedural default. See Hill, 81 F.3d at 1024. Because we concluded, however, that Baldwin's

counsel did not render ineffective assistance, Baldwin must demonstrate some other "cause" to

overcome the procedural bar. See Part II.A above (concerning the ineffective assistance of counsel

claim); see also Hill, 81 F.3d at 1030 ("[P]rocedurally-defaulted claims of ineffective assistance

cannot serve as cause to excuse a default of a second claim."). With regard to his first assertion of

cause, we reject it as overly broad. Assuming for the sake of argument that the trial judge and

prosecutor were practicing intentional racial discrimination, Baldwin fails to explain how their

conduct hindered his compliance with the procedural rules. Therefore, Baldwin is not entitled to

relief on his defaulted claims or an evidentiary hearing.

        With regard to his failure to challenge the prosecutor's use of peremptory strikes, Baldwin

also asserts that "[w]ithin an environment which tolerated and encouraged racial prejudice and racial

discrimination, there existed cause for the Petitioner's failure to raise [this] claim...." We reject his

"environment" argument as meritless. In addition, we reject Baldwin's contention that he was unable

to raise his claim concerning the unacceptable risk of racial prejudice in his receiving the death

penalty because the "procedural context in which the default occurred impeded [him] from raising

the claim in a timely manner." Baldwin did not present the issue at trial, on direct appeal, or before

the state coram nobis court, which means in essence that he believes that in his case, the federal

court was the only proper "procedural context" in which he could even present this claim. This

assertion is without merit and warrants no further discussion. See Keeney v. Tamayo-Reyes, 504

U.S. 1, 10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) ("Just as the State must afford the petitioner a


                                                   25
full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair

opportunity to address and resolve the claim on the merits.").16

C. Voluntariness of Baldwin's Confessions17

        Baldwin contends that the state trial court failed to make a finding by a preponderance of

the evidence that his custodial statements were voluntary, because the court admitted the confessions

after stating that they were "prima facie voluntary." After considering, on its own initiative during

Baldwin's direct appeal, whether the trial court properly admitted Baldwin's custodial statements,

the Alabama Court of Criminal Appeals concluded that the trial court properly admitted the

statements. See Baldwin, 372 So.2d at 28-30. Baldwin asserts that the independent determinations

of the Alabama appellate court and the district court may not remedy the trial court's failure to make

a preponderance finding prior to admitting the statement. We agree with the district court that




   16
     Under the prejudice prong, Baldwin must show that "the errors at trial actually and
substantially disadvantaged his defense so that he was denied fundamental fairness." McCoy,
953 F.2d at 1261. He must demonstrate "not merely, that the errors at ... trial created a
possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478, 494,
106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (internal quotation marks omitted). He has failed in this
regard with respect to all of his barred claims.

                Additionally, Baldwin has not demonstrated that a fundamental miscarriage of
        justice would result from this court's declining to consider the merits of his defaulted
        claims. Baldwin has not showed that he was "actually innocent" to overcome his
        guilt-phase defaults, or that "no reasonable juror could have found him eligible for the
        death penalty under [state] law[ ]"to overcome his sentencing-phase defaults. Hill, 81
        F.3d at 1023 (internal quotation marks omitted).
   17
     Although Baldwin did not raise the issues in Parts II.C and II.D of this opinion in his state
coram nobis petition, the district court addressed the claims on the merits. We assume, without
deciding, that the claims are not procedurally barred and accordingly, also conduct a merits
review of them.

                                                 26
Baldwin unduly focuses on semantics, and reject Baldwin's implied assertion that trial courts must

use exact words when determining the admissibility of custodial statements.

         "On review of a habeas [corpus] petition, we make an independent assessment of the

voluntariness of the [petitioner's] confession." Waldrop v. Jones, 77 F.3d 1308, 1316 (11th Cir.)

(citing Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)), cert. denied, ---

U.S. ----, 117 S.Ct. 247, 136 L.Ed.2d 175 (1996); see also McCoy, 953 F.2d at 1263. In so doing,

we presume the state court's subsidiary and historical findings of fact to be correct pursuant to §

2254(d). See Waldrop, 77 F.3d at 1316; McCoy, 953 F.2d at 1263 (stating that subsidiary findings,

such as the circumstances of the defendant's interrogation and the actions of law enforcement

officers, "are entitled to a presumption of correctness if fairly supported by the record[ ]"); Harris

v. Dugger, 874 F.2d 756, 762 (11th Cir.) ("As the Court stated in Miller, "... subsidiary factual

questions, such as ... whether in fact the police engaged in the intimidation tactics alleged by the

defendant ... are entitled to the § 2254(d) presumption.' ") (quoting Miller, 474 U.S. at 112, 106 S.Ct.

445), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989). In addition, "[w]hen a

state court fails to make explicit findings, a state court's denial of the claim "resolves all conflicts

in testimony bearing on that claim against the criminal defendant.' " Waldrop, 77 F.3d at 1316

(quoting Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)).

This court must assess Baldwin's claim under the totality of the circumstances surrounding the

statements. Waldrop, 77 F.3d at 1316; Harris, 874 F.2d at 761 ("A confession is voluntary if, under

the totality of the circumstances, it is the product of the defendant's free and rational choice.").

        After reviewing the record, we conclude that the evidence in this case is substantial that law

enforcement officers advised Baldwin of his constitutional rights before taking each of his


                                                  27
statements, that Baldwin understood and waived those rights, and that the officers did not use

promises, threats, force or coercion to induce Baldwin into making the statements. The trial court

conducted an in camera evidentiary hearing, at which Baldwin testified and presented witnesses,

to determine the admissibility of his custodial statements. Although Baldwin testified that his

statements were coerced through threats and physical beatings, the witnesses that he called to testify

on his behalf did not corroborate his story. The district court found that law enforcement officers

read Baldwin the Miranda warnings on five separate occasions before questioning him or obtaining

statements from him—the first time in connection with their questioning him only about the stolen

truck in which he was arrested and not about the murder—and that Baldwin signed at least four

separate forms waiving his Miranda rights. In addition, at the state evidentiary hearing, the state

presented testimony from the law enforcement officer who took Baldwin's statement, that he, or

anyone in his presence, did not threaten or physically abuse Baldwin to induce him to confess. We

agree with the district court and conclude that Baldwin made his statements knowingly and

voluntarily.

D. Non-statutory Mitigating Evidence18


   18
     We also reject Baldwin's contentions that (1) the district court erred in denying his motion to
expand the record with portions of his trial that had been recorded but never transcribed, and (2)
this court should allow him to adopt certain claims and remand the case to the district court. As
Baldwin acknowledges, we granted his motion to supplement the record on appeal with his
proffered evidence.

                In November 1995, a representative of the Alabama Attorney General's Office
        met with Baldwin's counsel and counsel for his codefendant and advised them to get
        certain disks containing portions of the trials recorded onto audio tapes so that they could
        be transcribed. In a subsequent telephone conversation, however, Baldwin's lawyer
        declined to have Baldwin's disks audiotaped at that time. Because Baldwin deliberately
        forwent the opportunity to have the missing records transferred into a usable format, he
        cannot now use the unavailability of the tapes (and as a result the transcripts) as a crutch

                                                 28
        Baldwin contends that the state court denied him a meaningful sentencing hearing when the

court limited its consideration solely to those mitigating factors listed in the Alabama death penalty

statute, in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).19

In capital cases, the "sentencer" may not refuse to consider, or be precluded from considering, any

relevant mitigating evidence. Hitchcock v. Dugger, 481 U.S. 393, 394, 107 S.Ct. 1821, 95 L.Ed.2d

347 (1987). Baldwin alleges that the sentencing court did not consider: (1) the fact that Baldwin

was neglected as a child; (2) Horsley's dominance over Baldwin; (3) the effects of Baldwin's drug

and alcohol abuse; (4) his prison record; (5) his good deeds; (6) his positive relationships; (7) his

lack of education; (8) the effects of racial discrimination on him; (9) the effects of his incarceration

at an early age; and (10) the uncertainty concerning his role in the offense. The district court

rejected this claim on the merits, concluding that no Hitchcock error had occurred in this case, and

even if any such error had occurred, it was harmless.

        We conclude after considering the totality of the circumstances, that the sentencing court

gave Baldwin an open opportunity to present whatever evidence he thought would be helpful as

statutory or nonstatutory mitigating circumstances, and did not believe itself to be constrained to

consider, and did not limit its consideration to, only statutory mitigating circumstances. See Delap




        for postponing review, or obtaining further review, of his claims. See United States v.
        Garrison, 133 F.3d 831, 846 n. 28 (11th Cir.1998) (stating that it is the parties'
        responsibility "to ensure that the record on appeal is complete for our review of the
        appellate issues"). In addition, we do not read the Supreme Court's decision in Dobbs v.
        Zant, 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993), to require courts to consider
        information when the party proffering it has purposefully forgone the opportunity to
        present it to the court in a readable format.
   19
    We note that Baldwin does not allege that the court prevented him from presenting
nonstatutory mitigating evidence.

                                                  29
v. Dugger, 890 F.2d 285, 304 (11th Cir.1989) ("In judging whether a violation of Hitchcock

occurred ... the court must consider the totality of the circumstances."), cert. denied, 496 U.S. 929,

110 S.Ct. 2628, 110 L.Ed.2d 648 (1990). Although whether a Hitchcock error occurred is a legal

question, "it is almost entirely dependent upon the answer to a question of fact: did the sentencing

judge consider any and all nonstatutory mitigating circumstance evidence that was presented to

him?" Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115

S.Ct. 911, 130 L.Ed.2d 793 (1995). The district court's finding, therefore, with regard to this factual

question—i.e., what the sentencing judge knew or did—is subject to reversal only if clearly

erroneous. See Spaziano, 36 F.3d at 1032 (reviewing the district court's findings—based on the state

record, documentary evidence, or inferences from other facts—that the sentencing judge knew he

was bound to consider, and did consider, nonstatutory mitigating evidence for clear error).

       The state court conducted a sentencing hearing on September 9, 1977. Baldwin's trial

counsel put him on the stand to testify on his own behalf with regard to mitigating evidence.

Baldwin testified that (1) he was nineteen at the time of the sentencing hearing; (2) he moved into

a hotel at the age of thirteen because he and his father did not get along; (3) he then made a living

"street hustling"; (4) he attended school for about two months into his tenth-grade year before he

was "terminated"; (5) his two older brothers had served or were still serving time in the penitentiary;

(6) he had not spoken to his sister in about six years; (7) he had not seen his family in about three

years; (8) his family did not come to see him while he was in prison in North Carolina or in

Alabama on the instant charges; and (9) he had been arrested about thirty times since he left home.

After his attorney impressed upon him that the sentencing hearing was the time to tell the court

whatever he thought might help him to get a life sentence rather than the death penalty, Baldwin


                                                  30
stated that (1) he was a drug addict in prison; (2) he and Horsley obtained and ingested some

"T.H.C." pills in Atlanta, Georgia, during the underlying offense; and (3) he "had a hard time

growing up."

          Thereafter, the following colloquy occurred:

          THE COURT: Brian Keith Baldwin, today is the day you have in court to tell this judge
               whatever is on your mind and as Mr. Owens has told you, now is your time to tell the
               judge anything that you feel like might be helpful to you in the position that you find
               yourself in. I want to give you every opportunity in the world that I know about.

          BALDWIN: You mean problems in growing up and stuff?

          THE COURT: Anything you feel like you can tell this Judge that will help you in your
               present position.

Sentencing Hr'g at 260-61. Baldwin then testified that people, particularly at school, accused him

of many things that he had not done, that he got into a lot of fights at school and was suspended, and

that his witnesses did not testify that they knew the law enforcement officers had beat Baldwin

because the officers threatened them. Baldwin then stated, "I ain't saying I'm guilty but I might be

guilty for murder but I ain't guilty for robbery down here. That's all I got to say." Sentencing Hr'g

at 262.

          Owens subsequently asked Baldwin questions about any possible injuries or accidents that

may have affected his mind. Baldwin recounted a truck accident when he was ten years old, after

which he suffered headaches. After Owens stated that he had no further questions for Baldwin, the

sentencing judge asked Owens if he had "anything else that [he] might be able to offer in the way

of mitigating circumstances[.]" Sentencing Hr'g at 263. Owens replied:

          No, sir, Your Honor, I'm sorry to say that I can't think of any other matter. I've gone over
          this particular hearing with the defendant at length and have been absolutely unable to dig
          into his background much through his family because I haven't—I've made several attempts
          to contact them and they, for some reason, have not seen fit to even answer a letter or to

                                                  31
        return a call and I've had no way of delving too deeply into his background other than what
        he himself tells me. Based on those interviews, his age and what he has told from the
        witness stand are the only mitigating circumstances that I have been able to dig up, Your
        Honor.

Sentencing Hr'g at 263-64. The prosecution then presented arguments concerning the aggravating

factors of the offense, and Baldwin's lawyer urged the court to sentence Baldwin to life

imprisonment and not to the death penalty "based on his age at the time he was arrested and also on

the hard life that he obviously lived...." Sentencing Hr'g at 266.

        After a recess, the court sentenced Baldwin to the death penalty, finding that the aggravating

circumstances outweighed the mitigating circumstances.           The court found four aggravating

circumstances: (1) Baldwin committed the charged offense while under a sentence of imprisonment

in North Carolina, from which he had escaped; (2) Baldwin pleaded guilty as a youthful offender

in North Carolina for a felony involving the use of violence against the victim; (3) the capital felony

occurred during the commission of a robbery or flight after a robbery; and (4) the offense was

especially heinous, atrocious or cruel.20 The court then "consider[ed] mitigating circumstances as

described in Title 15, Section 342(9) of the 1940 Code of Alabama as amended[,]" and found

Baldwin's age at the time of the offense to be the only mitigating circumstance. Sentencing Hr'g at

269.




   20
     The court also found as an aggravating circumstance the fact that Baldwin was adjudged
"delinquent by reason of the charge of assault to commit rape." Sentencing Hr'g at 269. The
Alabama Court of Criminal Appeals found this to be an improper aggravating circumstance
because delinquency was not considered a conviction under North Carolina law. See Baldwin,
456 So.2d at 125.

                                                  32
          At the time of Baldwin's sentencing, Alabama law required the court to hold a separate

hearing to determine whether to sentence the defendant to death or to life imprisonment without

parole.

          In the hearing, evidence may be presented as to any matter that the court deems relevant to
          sentence and shall include any matters relating to any of the aggravating and mitigating
          circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the
          court deems to have probative value may be received, regardless of its admissibility under
          the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity
          to rebut any hearsay statements....

Ala.Code § 13-11-3 (1975) (emphasis added). From the plain language of the statute, it is clear that

the defendant could present evidence that was relevant to his or her sentence, including but not

limited to, the statutory mitigators.

          Upon careful consideration, we conclude that Baldwin's claim is without merit.21 See Atkins

v. Singletary, 965 F.2d 952, 962 (11th Cir.1992) (after reviewing the record, the court rejected

petitioner's argument that the sentencing judge did not consider nonstatutory mitigating factors, and

finding "it ... more correct to say that the [sentencing] judge did not accept—that is, give much

weight to—[the defendant's] nonstatutory factors."), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624,

132 L.Ed.2d 865 (1995); Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.) (stating that this

court could not conclude, just because the sentencing judge only discussed the statutory aggravating

and mitigating factors in her order, that the other evidence in mitigation was not considered), cert.

denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). "Our review is completed once it is

established that a full hearing was conducted in which appellant's counsel was given an opportunity



   21
    I acknowledge my dissent on a similar issue in the case of Baldwin's codefendant. See
Horsley, 45 F.3d at 1495-99 (Hatchett, J., dissenting). The majority opinion in that case
provides binding precedent for Baldwin's claims, to which I must defer.

                                                   33
to present all of the mitigation evidence. There is no indication whatsoever that the trial judge did

not conscientiously consider everything presented." Palmes, 725 F.2d at 1523. Indeed, in Card v.

Dugger, we stated that the "[l]ack of reference in a sentencing report to nonstatutory circumstances

is not ..., standing alone, sufficient evidence of a Hitchcock violation to justify relief." 911 F.2d

1494, 1522 (11th Cir.1990).

        In this case, during the sentencing hearing the judge made it clear that he welcomed any

information in mitigation that Baldwin had to offer, not just concerning the statutory mitigating

circumstances. In addition, the prosecutor made no comment or objection to the evidence of

mitigating—whether statutory or nonstatutory—circumstances. Additionally, Baldwin's lawyer

stated that "[Baldwin's] age and what he has told from the witness stand " were the only mitigating

circumstances that he could present. Although the court did not discuss any nonstatutory mitigating

evidence, and found Baldwin's age—a statutory mitigating circumstance—to be the only mitigating

factor, the court preceded his findings through stating that it had "considered the evidence presented

at trial and at said sentence hearing [.]" Sentencing Hr'g at 268; see also Card, 911 F.2d at 1523

("[W]hile the sentencing order did not specify a finding of the presence or absence of nonstatutory

mitigating circumstances, ... the judge did not state that he had only reviewed those mitigating

factors spelled out in the statute, but rather stated that he had considered and weighed "all the

evidence in the case.' "); Horsley, 45 F.3d at 1491 ("We believe that Horsley's focus on one isolated

statement of the sentencing judge place[d] far too much stress on just one statement in a long




                                                 34
discourse, a discourse which, taken as a whole, shows that the sentencing court probably considered

nonstatutory mitigating evidence.") (dicta).22

                                        III. CONCLUSION

        For the foregoing reasons, we conclude that Baldwin is not entitled to federal habeas corpus

relief. The claims that he has not procedurally defaulted, are without merit. Accordingly, we affirm

the judgment of the district court.

        AFFIRMED.




   22
     Even if any error had occurred, it would have been harmless under the facts of this case. A
Hitchcock error is harmful only if it " "had substantial and injurious effect or influence in
determining the jury's [or the court's] verdict.' " Bolender v. Singletary, 16 F.3d 1547, 1567
(11th Cir.) (quoting Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 1722, 123 L.Ed.2d
353 (1993)), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). After
reviewing the mitigating circumstances that Baldwin alleges the sentencing court did not
consider with the aggravating circumstances and facts of this case, we find that Baldwin has not
demonstrated the requisite "effect" to obtain habeas corpus relief on this claim. See Bolender, 16
F.3d at 1567.

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