            Case: 12-13535     Date Filed: 08/28/2013   Page: 1 of 34


                                                                        [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                                _____________

                                 No. 12-13535
                             Non-Argument Calendar
                                _____________

                 D.C. Docket No. 2:08-cv-00683-MEF-SRW

TORREY TWANE MCNABB,

                                                         Petitioner-Appellant,

                                     versus

COMMISSIONER ALABAMA DEPARTMENT
OF CORRECTIONS,

                                                         Respondent-Appellee.

                                ______________

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

                               (August 28, 2013)

Before TJOFLAT, DUBINA and JORDAN, Circuit Judges.

DUBINA, Circuit Judge:
              Case: 12-13535     Date Filed: 08/28/2013   Page: 2 of 34


      Petitioner, Torrey Twane McNabb, is currently serving a death sentence

following his convictions for two counts of capital murder in connection with the

murder of a Montgomery, Alabama, police officer. After unsuccessful state

appeals and post-conviction proceedings, McNabb filed a federal habeas petition

pursuant to 28 U.S.C. § 2254. The federal district court denied McNabb relief and

also denied his motion to alter or amend the final judgment pursuant to Rule 59(e)

of the Federal Rules of Civil Procedure. However, the district court did grant

McNabb’s petition for a certificate of appealability (“COA”) on the issues that he

raised in his Rule 59(e) motion. Upon review of the record, including the briefs of

the parties, and having the benefit of oral argument, we affirm the district court’s

judgment denying McNabb’s federal habeas petition and his Rule 59(e) motion.

                                I. BACKGROUND

      Facts

      At trial, the State presented the testimony of numerous witnesses who were

near the intersection of Rosa Parks Avenue and National Avenue in Montgomery,

Alabama, on September 24, 1997, the day McNabb shot and killed Officer

Anderson Gordon. Sanford Sharpe, a bail bondsman, testified that he was

attempting to locate McNabb pursuant to a capias warrant because McNabb had

failed to appear for two court appearances relating to charges of receiving stolen

                                          2
              Case: 12-13535     Date Filed: 08/28/2013    Page: 3 of 34


property and possession of a controlled substance. [R. Vol. 13 p. 1759‒Vol. 14 p.

1857.] On this fateful day, Sharpe located McNabb sitting in an automobile parked

on the street outside his grandmother’s residence. Sharpe attempted to pull his

truck in front of McNabb’s vehicle to block McNabb, but McNabb sped away

when he saw Sharpe. While pursuing McNabb, Sharpe saw McNabb run past a

stop sign and strike another vehicle. As Sharpe approached the accident, McNabb

got out of his vehicle, pulled a gun, and began shooting at Sharpe. Sharpe began to

speed from the scene and telephoned 911. When he returned to the scene of the

vehicle accident, Sharpe parked next to a Montgomery police patrol car and saw

that the officer in the patrol car had been shot several times.

      Annie Gamble testified that she was driving on Rosa Parks Avenue when a

white vehicle ran a stop sign and struck her car. [R. Vol. 14, p. 1858‒1889.] She

stated that a man, whom she later identified as McNabb, exited the white vehicle

and waved a gun in her direction. Gamble pleaded with him not to shoot her. She

saw a red truck drive by and McNabb began shooting at it. After the truck

disappeared from sight, Gamble testified that McNabb walked to the patrol car

with his gun hidden from the officer’s view. She noticed that “some words were

passed” between McNabb and the officer, and when McNabb reached the rear of

the patrol car, he began firing into the car. [Id. at 1871.] When the officer

                                           3
                 Case: 12-13535    Date Filed: 08/28/2013   Page: 4 of 34


attempted to return fire, Gamble stated that McNabb fled, running behind a nearby

church.

          Christopher Best testified that he was walking toward the Beulah Baptist

Church at the time of the vehicle accident involving McNabb and Gamble. [R.

Vol. 14, p. 1894‒1910.] He saw McNabb exit the white vehicle and begin

shooting at a red truck that was driving down National Avenue. When Best heard

the first shot, he ran behind the church for cover and later heard several gunshots in

rapid succession. He then heard Gamble screaming for someone to call 911 so he

entered the church and asked someone to call emergency. When he returned to the

intersection, a crowd had gathered, and he noticed that both the front and back

windows on the driver’s side of the police car had been shot and were no longer

intact.

          The State also presented the testimony of Michael Johnson, who lived in a

residence located at the intersection where the crime occurred. [Id. at 1911‒1928.]

Johnson testified that he heard what he thought were firecracker explosions about

the time of the vehicle accident and looked out his front window. [Id. at 1912‒13.]

From there, Johnson saw a Montgomery police patrol car stop in front of the

church. He then saw a young black male, wearing dark-colored shorts and no shirt,

approach the patrol car, holding a gun behind his back. After the police officer

                                            4
              Case: 12-13535     Date Filed: 08/28/2013    Page: 5 of 34


rolled down his window and spoke to the young man, the man opened fire on the

officer “out of the blue.” [Id. at 1915.] Johnson testified that when the young man

first fired at the police officer, he did not see a weapon in the hands of the police

officer. Jeffrey Dyson testified that he was working on the cable near the corner of

the intersection and saw the two wrecked vehicles. [Id. at 1928‒1941.] He noticed

a man with green shorts and no shirt walk toward a Montgomery police patrol car

with his hands behind his back. Dyson testified that he returned to work at this

point, but almost immediately, heard gunshots. When he turned around, Dyson

saw the man shooting at the officer in the patrol car. [Id. at 1931.] John Reynolds

testified that he was working behind Beulah Baptist Church on the day in question

when he heard what sounded like a vehicle collision at the roadway intersection.

[Id. at 1942‒1945.] He then heard gunshots, ran for cover, then heard more

gunshots, and saw a man wearing green shorts and no shirt run behind the church

and “scale the fence.” [Id. at 1943.] Reynolds saw the man drop a gun on the

ground, but he picked it up before he climbed the fence. The man then ran toward

a ditch behind the church.

      Corporal E. B. White testified that he received a call about a shooting at the

intersection of Rosa Parks Avenue and National Avenue on September 24, 1997.

[R. Vol. 14, p. 1947‒1956.] He saw Corporal Gordon “slumped over in the seat,”

                                           5
              Case: 12-13535     Date Filed: 08/28/2013   Page: 6 of 34


and he tried to revive him, but was unsuccessful. [Id. at 1949‒50.] Officer Perkins

testified that he responded to the emergency call regarding the gunshots and met

Officer Danny Jackson at the Beulah Baptist Church. [R. Vol. 14, p. 1985‒Vol. 15

p. 2011.] While they surveyed the area around the ditch, a man who was in the

vicinity alerted the officers to McNabb’s hiding place in the ditch. At that point,

McNabb stood up in the ditch and fired at Officer Perkins one time. Officer

Jackson returned fire, wounding McNabb.

      Procedural History

      A grand jury indicted McNabb for the capital offense of murdering

Montgomery County Police Officer Anderson Gordon, in violation of Alabama

Code § 13A-5-40(a)(5) (1975) (murder of police officer on duty), and for the

capital offense of murdering Officer Gordon while he was sitting in his patrol car,

in violation of Alabama Code § 13A-5-40(a)(17) (1975) (murder committed by or

through the use of a deadly weapon while the victim is in a vehicle). In separate

indictments, the grand jury indicted McNabb for the offense of attempted murder

of Montgomery County Police Officer William Perkins and the attempted murder

of Sanford Sharpe, violations of Alabama Code § 13A-4-2 (1975). The trial court

consolidated the charges for trial.




                                          6
              Case: 12-13535     Date Filed: 08/28/2013    Page: 7 of 34


      At trial, McNabb admitted that he shot and killed Officer Gordon and that he

had fired at Sharpe and Officer Perkins. However, he asserted two somewhat

conflicting defenses. As to the charge of attempted murder of Sanford Sharpe,

McNabb asserted that he acted in self-defense. As to both capital murder charges

and both attempted murder charges, McNabb asserted that he did not have the

intent to kill when he shot Officer Gordon and shot at the other two men because

he had ingested so much cocaine on the morning of the shootings that he was in a

cocaine-induced state of paranoia that left him unaware of his actions.

      The jury found McNabb guilty of all charges. After a penalty phase

proceeding, the jury recommended, by a vote of ten to two, that McNabb be

sentenced to death. The trial court followed the jury’s recommendation and

imposed a death sentence. On direct appeal, the Alabama Court of Criminal

Appeals (“ACCA”) affirmed McNabb’s convictions but remanded the case to the

trial court with instructions that the trial court make corrections to its sentencing

order. McNabb v. State, 887 So. 2d 929, 989 (Ala. Crim. App. 2001). On return

from remand, the ACCA affirmed McNabb’s convictions and sentence.

      While McNabb’s case was pending in the ACCA on his application for

rehearing, the United States Supreme Court issued its decision in Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428 (2002). At the ACCA’s request, the parties filed

                                           7
              Case: 12-13535     Date Filed: 08/28/2013   Page: 8 of 34


supplemental briefs addressing the effect, if any, of this decision upon McNabb’s

sentence. The ACCA denied McNabb’s application for rehearing, finding that his

death sentence did not violate Ring. The Alabama Supreme Court affirmed his

convictions and death sentence, Ex parte McNabb, 887 So. 2d 998 (Ala. 2004), and

the United States Supreme Court denied his petition for certiorari review, McNabb

v. Alabama, 543 U.S. 1005, 125 S. Ct. 606 (2004).

      McNabb filed a petition for post-conviction relief, pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure. The state circuit court summarily

dismissed his petition for post-conviction relief, and the ACCA affirmed. McNabb

v. State, 991 So. 2d 313, 335‒36 (Ala. Crim. App. 2007). The Alabama Supreme

Court denied the petition for certiorari. Ex parte McNabb, 991 So. 2d 336 (Ala.

2008). Thereafter, McNabb filed a federal petition for writ of habeas corpus,

which the district court denied. McNabb filed a motion to alter or amend the

district court’s final judgment, pursuant to Rule 59(e), which the district court

denied. The district court then granted McNabb’s request for a COA on the issues

he raised in his Rule 59(e) motion.

                                      II. ISSUES




                                          8
                 Case: 12-13535   Date Filed: 08/28/2013   Page: 9 of 34


      1. Whether the district court abused its discretion in dismissing McNabb’s

habeas petition before the parties had filed additional briefs addressing the merits

of his claims.

      2. Whether the district court erred in denying relief on McNabb’s claims

alleging that his counsel were ineffective for failing to investigate adequately and

present mitigation evidence regarding his background.

      3. Whether the district court erred in dismissing McNabb’s challenge to

Alabama’s lethal injection protocol as unconstitutional because it determined that

McNabb’s manner of execution claim would be more properly raised in a 42

U.S.C. § 1983 action.

      4. Whether the district court erred in conducting a deferential review of

McNabb’s ineffective assistance of counsel claims.

                          III. STANDARDS OF REVIEW

      “We review de novo the denial of a petition for writ of habeas corpus.”

Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005). The

Antiterrorism and Effective Death Penalty Act (“AEDPA”) precludes federal

courts from granting habeas relief on any claim adjudicated on the merits in state

court unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

                                           9
             Case: 12-13535     Date Filed: 08/28/2013    Page: 10 of 34


Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Berghuis v.

Thompkins, 560 U.S. 370, ___, 130 S. Ct. 2250, 2259 (2010). This standard is “a

highly deferential” one that “demands that state-court decisions be given the

benefit of the doubt.” Renico v. Lett, 559 U.S. 766, ___, 130 S. Ct. 1855, 1862

(2010) (internal quotation marks omitted). “A state court decision is ‘contrary to’

clearly established federal law if it applies a rule that contradicts the governing law

set forth by the United States Supreme Court, or arrives at a result that differs from

Supreme Court precedent when faced with materially indistinguishable facts.”

Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1331 (11th Cir. 2013). An

“unreasonable application” of federal law occurs when a state court correctly

identifies the governing legal principle from the relevant Supreme Court decisions

but unreasonably applies that legal principle to the facts of the particular case. Id.

“[A]n unreasonable application of federal law is different from an incorrect

application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct.

1495, 1522 (2000). “A state court’s application of clearly established federal law

or its determination of the facts is unreasonable only if no ‘fairminded jurist’ could

agree with the state court’s determination or conclusion.” Ferguson, 716 F.3d at

1332 (quoting Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257

(11th Cir. 2012)).

                                          10
             Case: 12-13535      Date Filed: 08/28/2013    Page: 11 of 34


      To prevail on his claim of ineffective assistance of counsel, McNabb must

establish “both that trial counsel’s ‘performance was deficient, and that the

deficiency prejudiced the defense’” during the penalty phase. Ponticelli v. Sec’y,

Fla. Dep’t of Corr., 690 F.3d 1271, 1294 (11th Cir. 2012) (quoting Wiggins v.

Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003)), cert. denied, ___ S. Ct.

___, 81 U.S.L.W. 3702 (June 24, 2013) (No. 12-9386). The performance prong is

satisfied only if the petitioner “show[s] that counsel’s representation fell below an

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,

688, 104 S. Ct. 2052, 2064 (1984). In other words, the petitioner “must establish

that no competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Under

the prejudice prong, the petitioner must show a “reasonable probability” that, but

for counsel’s errors, the outcome of his trial would have been different. Strickland,

466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.

Furthermore, “[b]ecause the failure to demonstrate either deficient performance or

prejudice is dispositive . . . there is no reason for a court deciding an ineffective

assistance claim to address both components of the inquiry if the defendant makes




                                           11
              Case: 12-13535     Date Filed: 08/28/2013    Page: 12 of 34


an insufficient showing on one.” Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227,

1248 (11th Cir. 2009) (internal quotation marks and alteration omitted).

                                  IV. DISCUSSION
      A. Dismissal of habeas petition

      McNabb asserts that the district court violated his procedural due process

rights when it decided the merits of his habeas claims without allowing him an

opportunity to submit a brief in support of his claims. McNabb claims that he

relied upon the magistrate judge’s scheduling order, which stated that the court

would determine first whether any claims were procedurally barred from federal

review and then order briefing on the merits of the remaining claims. We agree

that McNabb should have been able to rely upon the court’s scheduling order;

however, the failure of the district court to give notice to the parties that it would

decide the merits of the claims without briefing does not rise to the level of a due

process violation.

      First, the Rules Governing Section 2254 Cases do not specifically provide

for briefing before a district court disposes of a habeas petition. Rule 2(c) provides

that the petition must specify all grounds for relief, state the facts supporting all

grounds, and state the relief requested. See Jones v. Sec’y, Dep’t of Corr., 607

F.3d 1346, 1354 (11th Cir. 2010) (“By rule, in the district court, a petition for a


                                           12
             Case: 12-13535      Date Filed: 08/28/2013   Page: 13 of 34


writ of habeas corpus must specify all the grounds for relief available to the

petitioner.” (internal quotation marks omitted)). Rule 4 provides that a district

court must examine promptly a petition and must dismiss it “[i]f it plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to

relief in the district court.” Rules Governing Section 2254 Cases, Rule 4. Rule 5

governs the filing of the respondent’s answer, and it specifies the specific material

the respondent must include with its filing. Rule 6, 7, and 8 address discovery,

expansion of the record, and procedure for an evidentiary hearing, respectively.

None of the remaining rules address briefing. Thus, there is no provision in the

habeas rules that contemplates that a district court should grant the parties leave to

file briefs addressing the merits of the claims that are contained in the habeas

petition. See, e.g., Maynard v. Dixon, 943 F.2d 407, 411‒12 (4th Cir. 1991)

(affirming a district court’s order adjudicating a habeas petition without briefing

and stating that “the district court acted consistently with the rules in deciding on

its own that no evidentiary hearing was required and that briefing was

unnecessary”). Although adversarial briefing is vital to the court’s decision-

making process, a petitioner has no right to briefing in his habeas proceeding.

Accordingly, we conclude that the district court did not violate McNabb’s due

process rights in this circumstance.

                                          13
              Case: 12-13535        Date Filed: 08/28/2013   Page: 14 of 34


       We are hard-pressed, however, to understand why the district court

permitted the case to languish for approximately four years without any

determination on which issues were procedurally barred from federal review. It

was the State who brought the matter to the district court’s attention by filing a

motion requesting a ruling on the issues that were procedurally barred. Of course,

at that time, McNabb could have requested leave of court to file a brief on the

merits of his petition before the district court ruled, or he could have filed a brief

because the scheduling order provided a time table for such filing. Instead,

McNabb remained silent and did not raise any challenge to this procedure until he

filed his Rule 59(e) motion. The district court did address the challenge in its order

denying McNabb’s Rule 59(e) motion, stating that the court had exhaustively

reviewed the record and concluded that because no evidentiary hearing was

necessary, the court was within its discretion to dispose of the habeas petition

without merits briefing. We may not fully condone this procedure, but neither can

we say it amounted to a due process violation. Accordingly, McNabb is not

entitled to relief on this claim.

       B. Ineffective assistance of penalty phase counsel

       McNabb contends that the district court erred in determining that the state

courts reasonably applied Strickland to his claims of ineffective assistance of

                                             14
             Case: 12-13535     Date Filed: 08/28/2013    Page: 15 of 34


penalty phase counsel because there was no evidence that his counsel conducted an

adequate mitigation investigation and his counsel failed to introduce any mitigation

evidence at his sentencing proceeding. McNabb also asserts that the state courts

unreasonably applied Strickland’s prejudice prong because there was significant

mitigation evidence that counsel failed to present that would have changed the

outcome of his sentencing. The specific mitigation evidence that McNabb claims

would have changed the outcome of his sentence was the fact that he grew up in a

housing project living with ten people in a two-bedroom apartment; that his mother

was a sexual abuse victim and long-term drug addict who prostituted herself for

drugs; that McNabb had no contact with his father during his formative years

because his father was in prison; that McNabb was very attached to his

grandmother, the only stable influence in his life, who moved away when he was

14 years old; and that his mother had a relationship with a drug dealer who enlisted

McNabb to deal drugs for him.

      In his state post-conviction petition, McNabb argued that his trial counsel

performed deficiently because they did not investigate his family life and social

history, did not locate and interview family members, teachers, and social workers

who knew him, and did not request any health or education records. In rejecting

his claim, the state circuit court reasoned as follows:

                                          15
               Case: 12-13535   Date Filed: 08/28/2013    Page: 16 of 34


              This claim is dismissed because McNabb has not met his
      burden of pleading with specificity. Ala. R. Crim. P. 32.6(b).
      Although McNabb alleges that his trial counsel were ineffective for
      failing to investigate mitigation evidence, he has not alleged in his
      petition any mitigation evidence that trial counsel should have
      uncovered. . . . In fact, at the September 30, 2005, hearing held on the
      State’s motion to dismiss McNabb’s petition, his counsel admitted
      that he does not know whether trial counsel investigated any
      mitigation evidence or to what extent they may have investigated
      claims. Furthermore, McNabb has not named any witness that
      counsel should have called in the penalty phase. Nor has he pleaded
      what those witnesses’ testimony would be or pleaded how it would
      have affected the outcome of that phase of the trial. Additionally,
      McNabb has not pleaded what specific records were not obtained by
      trial counsel, what information is contained in those records, or how
      their contents would have affected the outcome of the penalty phase.
      Finally, McNabb has not named any “medical or mental health
      expert,” that should have been called to testify or stated what their
      testimony would have been had they been called to testify. Thus,
      McNabb has utterly failed to satisfy Rule 32.6(b)’s requirement of full
      factual pleading, and this claim is summarily dismissed.
[R. Vol. 27, Tab R-61, p. 21‒22 (internal citations omitted).] The ACCA affirmed

the circuit court’s order dismissing McNabb’s Rule 32 post-conviction petition on

this ground.

      Furthermore, the state court adjudicated McNabb’s claim that his trial

counsel failed to present valuable, readily-available, mitigation evidence at his

sentencing proceeding. The state circuit court first dismissed the claim because it

found no material issue of law or fact to exist that would entitle McNabb to relief.

[Id., p. 23 (citing Ala. R. Crim. P. 32.7(d).] The state court then found that the


                                          16
             Case: 12-13535       Date Filed: 08/28/2013   Page: 17 of 34


information McNabb alleged his family members or former teachers could have

provided to the jury were, in fact, presented through his own testimony.

Specifically, the court stated:

      McNabb testified that he was addicted to cocaine at the time of the
      murder and that he had been addicted to cocaine for one to two years
      prior to the murder. (R. 2184) He thoroughly and vividly described his
      drug use and his uses progression to addiction. (R. 2196‒98) He
      testified that his mother had been addicted to drugs for as long as he
      could remember, and he began using drugs when he was fourteen or
      fifteen years old. (R. 2185)
            McNabb testified that he lived in Gibbs Village with his
      grandmother, mother, siblings, aunts, and cousins. (R. 2186) He
      informed the jury that there were nine to ten people living in the two-
      bedroom apartment in Gibbs Village. (R. 2186)
             McNabb informed the jury that his father was in prison during
      his childhood. (R. 2189) He also testified that his paternal family
      would take him to visit his father in prison when he was a child. (R.
      2189)
             McNabb thoroughly explained to the jury that his mother was
      rarely around, that she received welfare checks, and that she probably
      wasted the welfare money on drugs. (R. 2186‒87) He also explain[ed]
      that as a child he would find his mother in various crack houses. (R.
      2186‒87) McNabb further testified that his mother did not provide for
      the family and that she spent all of the money that she received on
      drugs. (R. 2186‒87, 2193) Through his testimony, McNabb informed
      the jury that he, himself, had to provide for the family, using the
      money he earned from selling drugs to buy food for his siblings and to
      buy drugs to feed his own habit. (R. 2193‒94)
[R. Vol. 27, Tab R-61, p. 23‒24.]




                                           17
               Case: 12-13535   Date Filed: 08/28/2013      Page: 18 of 34


       The state circuit court further noted that McNabb explained to the jury that

his family was evicted from their government subsidized home because Keith

Chainey, who had moved into their apartment after McNabb’s grandmother moved

to Florida, was selling drugs from their apartment. After their eviction, McNabb’s

mother and siblings moved into Chainey’s apartment, but Chainey did not allow

McNabb to live with them. Thus, McNabb moved often, living with different

family members, including his father. McNabb also informed the jury about his

emotional and educational difficulties in school, and that he quit school while in

the ninth grade. McNabb testified to numerous encounters with law enforcement,

and how one encounter led the county court to order that he attend a rehabilitation

program similar to boot camp.

       The state circuit court then concluded by stating:
             Clearly, both this Court and the jury were well aware that
       McNabb experienced a deprived childhood. McNabb thoroughly
       informed this Court and the jury of the mitigation evidence that he
       now alleges his trial counsel were ineffective for failing to present.
       Furthermore, this Court found to exist the non-statutory mitigation
       evidence that McNabb now claims was not presented, balanced that
       information with the aggravating circumstances, and found that the
       aggravating circumstances far outweighed the mitigation
       circumstances in his case.
[Id. at 25.]
       On appeal, the ACCA affirmed, noting that the record indicated that the very

mitigating evidence McNabb contended was not presented to the jury was, in fact,
                                          18
             Case: 12-13535      Date Filed: 08/28/2013    Page: 19 of 34


before the jury via McNabb’s own testimony during the guilt phase. McNabb, 991

So. 2d at 331‒32. The ACCA also noted that the record showed that the trial court

instructed the jury at the penalty phase to consider not only the evidence presented

at the sentencing phase, but also any evidence presented during the guilt phase that

was relevant to the existence of any aggravating or mitigating circumstance. Id. at

331. In addition, the ACCA commented that the trial court instructed the jury on a

number of mitigating circumstances, and defense counsel stated during closing

argument that McNabb’s cocaine usage and deprived childhood were mitigating

factors that outweighed the aggravating circumstances. Id. at 331‒32.

      On federal habeas review, the district court first found that the state courts’

adjudication of this claim of ineffective assistance of counsel was neither contrary

to, nor an unreasonable application of, Strickland because McNabb failed to plead

the claim with specificity and failed to show how his attorneys’ deficient

investigation into his background prejudiced him. The district court then found

that the state courts’ adjudication was reasonable in light of the evidence presented

to the state courts. The district court noted that there is no clearly established

federal law holding that counsel’s failure to present evidence during the penalty

phase that was offered at the guilt phase establishes deficient performance.

Moreover, the district court found that the state trial court weighed the three

                                           19
             Case: 12-13535       Date Filed: 08/28/2013   Page: 20 of 34


statutory aggravating circumstances with the non-statutory mitigating

circumstances and found that the aggravating circumstances outweighed the

mitigating ones. On appeal, the ACCA independently weighed the two and

concurred with the trial court.

      The district court properly denied relief to McNabb on this claim. The state

courts reasonably rejected the claims of ineffective assistance of counsel because,

first, McNabb failed to plead specific facts to support his claim. The ACCA

affirmed on appeal, and this adjudication is a ruling on the merits. See Borden v.

Allen, 646 F.3d 785, 815 (11th Cir. 2011) (reviewing claims under AEDPA

deference because state court “plainly utilized Rule 32.6(b) as a tool with which to

address the merits” of the petitioner’s claims), cert. denied, 132 S. Ct. 1910 (2012).

Second, even if McNabb pled specific facts to demonstrate that his counsel

performed deficiently, he cannot satisfy the prejudice prong of Strickland.

McNabb failed to plead any specific facts or provide any specific names or

information about his horrific childhood that would mitigate his sentence, or in

other words, that would have lessened his culpability for the crimes. See Price v.

Allen, 679 F.3d 1315, 1325 (11th Cir. 2012) (finding that the allegations in

petitioner’s Rule 32 petition regarding the evidence that his friends, family

members, and school records would have revealed was “too general and

                                           20
             Case: 12-13535     Date Filed: 08/28/2013    Page: 21 of 34


conclusory to be able to say that there is a reasonable probability that this evidence

would have changed the outcome of the petitioner’s sentencing.”), cert. denied,

133 S. Ct. 1493 (2013). Moreover, the mitigation evidence McNabb contends

should have been presented during the penalty phase was provided during the guilt

phase via his own testimony; thus, this evidence would have been cumulative. See,

e.g., Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1409 (2011) (finding no

reasonable probability that the additional evidence presented in state habeas

proceeding would have changed jury’s verdict because the “new” evidence largely

duplicated the mitigation evidence at trial); Wong v. Belmontes, 558 U.S. 15, 22,

130 S. Ct. 383, 387 (2009) (finding no prejudice in part where portion of the

evidence “was merely cumulative of the humanizing evidence” that defendant

presented at trial); Holsey, 694 F.3d at 1271 (“The cumulative nature of [the

mitigating] evidence weakens its usefulness to [the capital habeas petitioner] on the

prejudice inquiry.”); Rose v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011) (“[A]

petitioner cannot satisfy the prejudice prong of the Strickland test with evidence

that is merely cumulative of evidence already presented at trial.”). Hence,

McNabb cannot demonstrate prejudice.

      Additionally, the trial court found the existence of three aggravating

circumstances: (1) McNabb knowingly created a great risk of death to many

                                          21
               Case: 12-13535     Date Filed: 08/28/2013   Page: 22 of 34


persons, pursuant to Alabama Code § 13A-5-49(3); (2) the capital offense was

committed for the purpose of avoiding or preventing a lawful arrest or effecting an

escape from custody, pursuant to Alabama Code § 13A-5-49(5); and (3) the capital

offense was committed to disrupt or hinder the lawful exercise of any government

function or the enforcement of laws, pursuant to Alabama Code § 13A-5-49(7).

After considering these aggravating circumstances, and the non-statutory

mitigating evidence that McNabb presented during his guilt phase, the trial court

found that the aggravating circumstances outweighed the mitigating circumstances

and sentenced McNabb to death. In light of the nature of his crimes and the

specific findings of the trial court and McNabb’s own testimony about his deprived

childhood, we conclude that there is no reasonable probability that the presentation

of further, mainly cumulative, evidence regarding McNabb’s horrific home life

would have changed the outcome of his sentence. Accordingly, the district court

properly denied relief on this claim, and we affirm its judgment with respect to this

issue.

         C. Lethal injection

         McNabb contends that the district court erred in dismissing his claim that

Alabama’s lethal injection protocol is unconstitutional. He asserts that because his

claim challenges the entire method of execution—an ineffective first drug or

                                           22
             Case: 12-13535     Date Filed: 08/28/2013   Page: 23 of 34


improper administration of a first drug in a three-drug protocol would violate the

constitution—the district court erred in dismissing his claim because it determined

that the claim was more properly cognizable in a 42 U.S.C. § 1983 action. His

contention fails.

      Issues sounding in habeas are mutually exclusive from those sounding in a

§ 1983 action. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“An

inmate convicted and sentenced under state law may seek federal relief under two

primary avenues:” a petition for habeas corpus or a complaint under 42 U.S.C.

§ 1983.). “The line of demarcation between a § 1983 civil rights action and a

§ 2254 habeas claim is based on the effect of the claim on the inmate’s conviction

and/or sentence.” Id. A claim is properly raised under § 1983 when “an inmate

challenges the circumstances of his confinement but not the validity of his

conviction and/or sentence.” Id. (internal quotation marks omitted). By contrast,

“habeas corpus law exists to provide a prisoner an avenue to attack the fact or

duration of physical imprisonment and to obtain immediate or speedier release.”

Valle v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1267 (11th Cir. 2011), cert.

denied, 132 S. Ct. 73 (2011).

      Usually, an inmate who challenges a state’s method of execution is attacking

the means by which the State intends to execute him, which is a circumstance of

                                         23
               Case: 12-13535        Date Filed: 08/28/2013        Page: 24 of 34


his confinement. It is not an attack on the validity of his conviction and/or

sentence. For that reason, “[a] § 1983 lawsuit, not a habeas proceeding, is the

proper way to challenge lethal injection procedures.” Tompkins v. Sec’y, Dep’t of

Corr., 557 F.3d 1257, 1261 (11th Cir. 2009). Hence, we conclude that the district

court did not err in dismissing McNabb’s lethal injection challenge in his federal

habeas petition. That avenue of relief is still available to him in a § 1983 action.

       D. District court’s application of AEDPA standard of review

       McNabb challenges the district court’s resolution of three of his claims

alleging that his counsel were ineffective at the penalty phase of his trial and one of

his claims alleging that his counsel were ineffective at the guilt phase of his trial.

In particular, McNabb claims that the district court should not have applied

AEDPA’s deferential standard of review in disposing of these claims because the

state courts did not adjudicate these claims on the merits. He requests that this

court vacate the district court’s order and remand the case with directions that the

district court conduct a de novo review of these claims.1

       1. Mitigation expert


       1
           We have disposed of one of these claims—that counsel were ineffective in failing to
investigate potential mitigation evidence. The other claims are: (1) that his counsel were
ineffective for failing to obtain a mitigation expert; (2) that his counsel failed to present an
effective closing argument at the penalty phase; and (3) that his counsel were ineffective for
failing to procure appropriate expert witnesses to challenge the State’s guilt phase case against
him.
                                                  24
              Case: 12-13535     Date Filed: 08/28/2013   Page: 25 of 34


      McNabb asserts that the district court erred in denying him relief, under the

deferential standard of review, on his claim that his counsel were ineffective for

failing to secure the services of a mitigation expert. He contends that because the

state court did not adjudicate this claim on the merits, the district court should have

reviewed the claim de novo. We agree with the district court, however, and find no

error in its deferential review of this claim.

      The state circuit court dismissed this specific claim, holding that McNabb

failed to plead any specific facts to support it and, thus, failed to comply with the

requirements of Rule 32.6(b) of the Alabama Rules of Criminal Procedure. Then,

the state circuit court made an alternative ruling. It dismissed the claim because no

material issue of fact or law existed that entitled McNabb to relief. [R. Vol. 27,

Tab R-61, p. 17.] The court found that “McNabb, himself, thoroughly testified

regarding the mitigation evidence to which he now claims a mitigation expert

should have testified. Further, trial counsel did hire an expert, John Holbrook, who

testified directly to the defense’s claim of cocaine paranoia.” [Id.] The court

concluded that any further testimony regarding McNabb’s deprived childhood and

addictions would have been cumulative, and that counsel cannot be deemed

ineffective for failing to present cumulative evidence. [Id.] In affirming the state




                                           25
             Case: 12-13535      Date Filed: 08/28/2013   Page: 26 of 34


trial court’s denial of this particular claim, the ACCA adopted the trial court’s

findings. See McNabb, 991 So. 2d at 321‒23, 327‒28.

      The district court properly conducted a deferential review and correctly

determined that the state courts’ merits adjudication of this claim was neither

contrary to, nor an unreasonable application of, clearly established Supreme Court

precedent. As the district court noted, there is no clearly established federal law

holding that trial counsel’s performance is deficient when counsel fails to repeat

evidence at the penalty phase that has already been offered at the guilt phase.

Moreover, contrary to McNabb’s contention, counsel did hire an expert who

testified regarding McNabb’s defense of cocaine paranoia. The fact that this expert

was not a mitigation expert and did not opine on specific mitigating factors does

not, by itself, demonstrate that McNabb’s trial counsel were deficient in failing to

procure such a particular expert. McNabb cannot meet his burden of showing that

counsel’s failure to hire a mitigation expert fell below an objective standard of

professional reasonableness and that, but for this failure to hire a mitigation expert,

the result of McNabb’s trial would have been different. Accordingly, we affirm

the district court’s judgment as to this claim.

      2. Closing argument at penalty stage




                                          26
             Case: 12-13535      Date Filed: 08/28/2013    Page: 27 of 34


      McNabb contends that the district court erred in conducting a deferential

review of his claim that the attorney who presented the closing argument at the

penalty phase of his trial was ineffective. Finding that the state courts conducted a

merits adjudication of this particular claim, the district court determined that its

adjudication was neither contrary to, nor an unreasonable application of, clearly

established federal law. The district court did not err.

      The state circuit court reviewed McNabb’s post-conviction claim alleging

that his counsel was ineffective in the penalty-phase closing argument and

dismissed it because McNabb failed to plead any specific facts to support it. [R.

Vol. 27, Tab R-61, p. 26‒27.] Alternatively, the court found that in light of the

overwhelming evidence presented by the State and “the cold-blooded manner in

which McNabb murdered Officer Gordon, trial counsel’s closing argument was not

only coherent, but effective.” [Id.] The state court noted that during the closing

argument, trial counsel argued several mitigating circumstances that surrounded

the crime, such as McNabb’s use of, and addiction to, cocaine and McNabb’s

difficult childhood. Additionally, the state court noted that trial counsel thoroughly

argued that the State had not met its burden of proving beyond a reasonable doubt

any of the three proffered aggravating circumstances. On review, the ACCA stated

that McNabb did not present any argument on appeal in support of this particular

                                           27
             Case: 12-13535     Date Filed: 08/28/2013    Page: 28 of 34


claim, but did address the claim on the merits. See McNabb, 991 So. 2d at 327‒29.

The ACCA adopted the state circuit court’s findings and affirmed its judgment. Id.

      The district court correctly found that the state courts’ merits adjudication of

this claim was neither contrary to, nor an unreasonable application of, clearly

established federal law. McNabb cannot meet his burden of showing that his

counsel performed deficiently and that this deficient performance prejudiced him.

Considering the overwhelming evidence the State presented against McNabb, trial

counsel provided an effective closing argument highlighting McNabb’s deprived

childhood, lack of parental influence, cocaine addiction, and absence of past

violence, in an attempt to save McNabb’s life. Under AEDPA, we cannot say that

this closing argument was objectively unreasonable. Accordingly, we affirm the

district court’s judgment as to this claim.

      3. Expert witnesses at guilt stage

      McNabb contends that the district court erred in denying relief, under the

deferential standard of review, on his claim that counsel were ineffective for failing

to procure an appropriate expert witness to testify on his behalf at the guilt phase of

his trial. Specifically, McNabb claims that his counsel were deficient for not

obtaining the assistance of a forensic social worker to conduct an extensive social

history and background to cull relevant information about his childhood. On

                                           28
              Case: 12-13535      Date Filed: 08/28/2013   Page: 29 of 34


review, the district court determined that the state courts made an adjudication on

the merits of this claim, and under its deferential review, denied relief on this

claim. The district court did not err.

      On post-conviction review, the state circuit court dismissed the claim,

finding that McNabb failed to plead any specific facts to support it. [R. Vol. 27,

Tab R-61, p. 14.] The state court noted that McNabb did not plead the name of

any forensic social worker who would have testified at trial, and that McNabb did

not state specifically what evidence the forensic social worker would have

uncovered. The state court further noted that McNabb did not allege how the

employment of a forensic social worker would have changed or enhanced the

defense’s trial strategy. [Id.]

      The state court also dismissed the claim because there was no material issue

of law or fact that would have entitled McNabb to relief, citing Alabama Rule of

Criminal Procedure 32.7(d). It found “that the information McNabb alleges a

forensic social worker would have uncovered—‘a childhood that included drug

addiction, violence and abandonment’—was known by trial counsel and presented

at trial.” [Id. at 15.] Thus, it reasoned that there was “no probability, much less a

reasonable probability, that discovering the same information from two different

sources would have enhanced trial counsels’ ability ‘to make important decisions

                                           29
             Case: 12-13535      Date Filed: 08/28/2013    Page: 30 of 34


about the defense strategy’ as McNabb claims.” [Id.] The court further found that

any testimony by a forensic social worker about McNabb’s deprived childhood

would have been cumulative to McNabb’s own testimony. The ACCA affirmed

the state circuit court’s denial of post-conviction relief, adopting the circuit court’s

findings as part of its opinion. See McNabb, 991 So. 2d at 321‒22, 327‒28.

      The district court correctly determined that the state courts’ merits

adjudication of McNabb’s claim was neither contrary to, nor an unreasonable

application of, clearly established federal law. The district court noted that Dr.

Holbrook, a Professor of Pharmacology at Mercer University, whose specialty was

psychopharmacology, testified immediately after McNabb and buttressed

McNabb’s testimony regarding his cocaine use and the extreme fear it caused him

during the crime. [R. Vol. 16, Tab R-12, p. 2312.] After highlighting much of Dr.

Holbrook’s testimony, the district court found that the doctor was a strong witness

in support of McNabb’s cocaine-paranoia defense. The district court then

addressed McNabb’s claim that counsel were also ineffective because they did not

call Dr. Stanley Brodsky, who actually examined McNabb, to testify. The district

court found that, without McNabb presenting any evidence to the contrary, his trial

counsel had a reason for not calling Dr. Brodsky to testify. Regardless, the district

court concluded that any information Dr. Brodsky would have provided would

                                           30
               Case: 12-13535     Date Filed: 08/28/2013   Page: 31 of 34


have been cumulative to the information already presented to the jury. As such,

we conclude that McNabb was not prejudiced by his counsel’s alleged deficiency

for failing to call Dr. Brodsky to testify.

         The district court did not err in denying relief to McNabb on this claim of

ineffective assistance of counsel. Accordingly, we affirm its judgment as to this

claim.

                                  V. CONCLUSION
         The district court correctly determined that McNabb was not entitled to

relief on his federal habeas petition. Accordingly, we affirm its judgment denying

McNabb’s § 2254 petition for habeas relief and his Rule 59(e) motion to alter or

amend the judgment.

         AFFIRMED.




                                              31
             Case: 12-13535     Date Filed: 08/28/2013   Page: 32 of 34


JORDAN, Circuit Judge, concurring.

      I concur in all of the court’s opinion except for the portion addressing Mr.

McNabb’s due process claim.        As to that claim, I agree that reversal is not

warranted, but for different reasons.

      Our cases have long held that certain procedural due process violations, such

as the flat-out denial of the right to be heard on a material issue, can never be

harmless. See Republic Nat’l Bank of Dallas v. Crippen, 224 F.2d 565, 566 (5th

Cir. 1955) (reversing district court’s refusal, in bankruptcy proceeding, to allow

creditor to present testimony on its proof of claim for costs and fees: “The right to

be heard on their claims was a constitutional right and the denial of that right to

them was the denial of due process which is never harmless error.”); Parker v.

Williams, 862 F.2d 1471, 1481–82 (11th Cir. 1989) (vacating jury verdict in favor

of plaintiff in action under 42 U.S.C. § 1983 because district court, through

incorrect application of collateral estoppel, had precluded defendant from

presenting evidence on whether rape occurred: “[P]rocedural due process is an

absolute right protected by our Constitution, and an opportunity to be heard on an

issue is an essential element of procedural due process.         The denial of an

opportunity to litigate can never be harmless error. A party must have his day in

court.”), overruled on other grounds by Turquitt v. Jefferson Cnty., 137 F.3d 1285,

                                         32
             Case: 12-13535     Date Filed: 08/28/2013    Page: 33 of 34


1292 (11th Cir. 1998) (en banc). Although the Supreme Court has applied harmless

error analysis to a different type of procedural due process violation—the

consideration of ex parte evidence following an adversarial evidentiary hearing—

in Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 303–04

(2007), it is not clear to me that Brentwood Academy has undermined cases like

Crippen and Williams to the point of abrogation. See generally United States v.

Weeks, 711 F.3d 1255, 1260 (11th Cir. 2013) (explaining that a published panel

decision is binding unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or the circuit sitting en banc).

      It is true, as the court explains, that the rules governing habeas corpus cases

do not expressly require a separate round of merits briefing by the parties. But the

fact that those rules do not mandate such adversarial briefing does not answer

whether the failure to permit such briefing in a case like this one violates the Due

Process Clause. It is inconceivable to me that a district court could rule on the

merits of a complicated habeas corpus petition in a capital case without allowing

the parties to articulate their views on the claims presented. After all, notice and an

opportunity to be heard “are among the most important procedural mechanisms for

purposes of avoiding erroneous deprivations.” Wilkinson v. Austin, 545 U.S. 209,

226 (2005). I can only imagine how the State of Alabama would have reacted if

                                          33
             Case: 12-13535     Date Filed: 08/28/2013   Page: 34 of 34


the district court, instead of denying relief to Mr. McNabb, had granted his habeas

corpus petition without permitting briefing on the merits. I would confidently

wager a fair amount of money that the State would have been indignant (and

rightly so) because it had lost without being heard, and that it would have sought

reversal on that ground here.

      Having said this, the district court’s adjudication of the merits without

allowing the additional briefing contemplated by the magistrate judge’s order did

not deprive Mr. McNabb of his constitutional right to procedural due process. Mr.

McNabb filed an 83-page habeas corpus petition in which he laid out the factual

and legal bases for each of his claims, and in response the State filed an 89-page

answer. These pleadings—which contained detailed factual recitations, presented

legal arguments, and cited to the relevant legal authorities—in essence functioned

like legal briefs or memoranda, and fully presented the parties’ contentions. Mr.

McNabb, in short, was heard on his claims, and so was the State.




                                         34
