                                                                             PUBLISH



                      IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                            ________________________________

                                       No. 95-6776
                                                                              FILED
                            ________________________________ U.S. COURT OF APPEALS
                               D.C. Docket No. 91-0390-RV-M    ELEVENTH CIRCUIT
                                                                            09/01/98
                                                                         THOMAS K. KAHN
                                                                             CLERK

BRIAN KEITH BALDWIN,

                                                     Petitioner-Appellant,


       versus


WILLIE JOHNSON,

                                                     Respondent-Appellee.


_________________________________________________________________

                     Appeal from the United States District Court
                        for the Southern District of Alabama
_________________________________________________________________
                                 (September 1, 1998)


Before HATCHETT, Chief Judge, 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

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 (1980). See Baldwin v. Alabama, 448




       1
        For a recitation of the underlying facts, see Baldwin v. State, 372 So. 2d 26, 26-27 (Ala.
Crim. App. 1978).

                                                  2
U.S. 903 (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 (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 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




       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.
       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.
       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
       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 (1984) (granting certiorari review); 472 U.S. 372 (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. 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 (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. Thus, the Court had “no reason to consider the issue . . . .” 472 U.S. at 381 n.7.

       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


                                                 4
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 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



                                                  5
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

       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 (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



       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.

                                                 6
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 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 (1984)). We

determine the reasonableness of Baldwin’s counsel’s performance through a deferential



                                                 7
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 (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.

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 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 (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



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

                                                8
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 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

                                               9
proved at the hearing, would entitle petitioner to relief.”), cert. denied, 507 U.S. 950

(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 (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 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)



       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, 117 S. Ct. 2059, 2068 (1997).

                                              10
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 (1992)), cert. denied, 517 U.S. 1214 (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 state of

                                               11
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

(1977); Birt v. Montgomery, 725 F.2d 587, 606-07 (11th Cir.) (en banc), cert. denied,

469 U.S. 874 (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

(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]

                                             12
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 (“[S]trategic 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

       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.”).

                                                13
“[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 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

                                            14
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 (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 effect of the publicity

must be shown.”), aff’d, 459 So. 2d 959 (Ala. 1984), cert. denied, 471 U.S. 1030 (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.


      Owens “never had any indication from [Baldwin] that that should be done.”
       9

Coram Nobis Hr’g at 43.

                                            15
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 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

                                             16
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.

       At the time of Baldwin’s trial, Swain v. Alabama, 380 U.S. 202 (1965), governed

challenges to prosecutorial use of peremptory strikes to remove blacks from a jury.10 To

       10
          Because Baldwin’s conviction became final before the Supreme Court decided Batson
v. Kentucky, 476 U.S. 79 (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 (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).

                                               17
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. 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. 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 (1995).

Having conducted a thorough 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) (alteration in original); see also Waters v. Thomas, 46 F.3d 1506, 1510

                                                18
(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 (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) (applying



                                             19
the statutory presumption of correctness under section 2254(d) to the state court’s

credibility determination), cert. denied, 516 U.S. 1122 (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 (“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




        Owens placed Baldwin on the stand, who testified to his difficulties as a child
       11

and other circumstances of his background.

                                             20
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.

       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. 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


       12
            Owens stated, “I thought I knew the people pretty intimately myself -- every one
on the jury panel.” Coram Nobis Hr’g at 72.
       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.

                                               21
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 (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 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 (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 (1994).

                                             22
       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, 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, 118 S. Ct. 1305 (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

                                                23
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 (1989)), cert. denied, 117 S. Ct. 967 (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 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


        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 Coleman v. Thompson, 111 S. Ct.
2546, 2566-68 (1991)).

                                               24
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 (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 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


       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.

                                              25
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, 112 S. Ct. 2514, 2528 (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

                                                  26
“cause,” the procedural default “must result from some objective factor external 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 (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 (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. 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




                                             27
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 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

                                              28
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 (1992) (“Just as the State must afford the

petitioner a 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



       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
(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.

                                                29
       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 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 (1985)), cert. denied, 117 S. Ct.

247 (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 section 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

                                             30
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), cert. denied, 493 U.S. 1011 (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 (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 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

                                              31
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

       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


       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
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 (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.

                                                32
(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 (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 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 (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


       19
         We note that Baldwin does not allege that the court prevented him from presenting
nonstatutory mitigating evidence.

                                              33
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 (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 stated that (1) he was a drug addict in prison; (2) he and Horsley

                                              34
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:


                                              35
       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 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,

       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.

                                             36
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.

       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 (1995); Palmes v. Wainwright, 725



       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.

                                              37
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 (1984). “Our review is completed once it is established that a full hearing was

conducted in which appellant’s counsel was given an opportunity 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

                                             38
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

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, 113 S. Ct. 1710, 1722 (1993)), cert. denied, 513 U.S.
1022 (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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