                                                                      PUBLISH

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                        __________________________    FILED
                                                            U.S. COURT OF APPEALS
                                   No. 99-6178                ELEVENTH CIRCUIT
                                                                  MAY 16 2000
                           __________________________
                                                               THOMAS K. KAHN
                                                                    CLERK
                            D.C. Docket No. 93-B-0958-S


DANNY JOE BRADLEY,

                                                              Petitioner-Appellant,

versus

JOHN E. NAGLE, Warden, et al.,

                                                           Respondents-Appellees.
                           __________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                         __________________________
                                 (May 16, 2000)


Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

             Danny Joe Bradley appeals the denial of his petition for habeas

corpus, filed pursuant to 28 U.S.C. § 2254. On appeal, Bradley asserts the same

claims for relief asserted before the district court:
1.    His conviction was obtained by use of evidence gained pursuant to an
      unlawful arrest and an unconstitutional search and seizure, in violation of the
      Fourth, Fifth, and Fourteenth Amendments.

2.    The State violated his due process rights by failing to disclose material
      exculpatory evidence which was in its possession and which was sought in
      discovery by Bradley’s counsel prior to trial.

3.    His conviction should be reversed because the evidence was insufficient to
      support the finding that he committed a murder “during the commission” of
      a rape or sodomy in the first degree (i.e., a sexual offense involving “forcible
      compulsion”) and thus the conviction violates the Fourteenth Amendment.

4.    His sentence violates the Eighth Amendment because the evidence did not
      support the application of the statutory aggravating circumstance that the
      capital offense was committed while he was engaged in the commission of a
      rape.

5.    His sentence violates the Eighth Amendment because the evidence did not
      support the application of the statutory aggravating circumstance that the
      offense of which he was convicted was “especially heinous, atrocious or
      cruel compared to other capital offenses.”

                                 BACKGROUND

      On January 24, 1983, twelve-year-old Rhonda Hardin and her younger

brother, Gary “Bubba” Hardin, were left in the care of their stepfather, Danny Joe

Bradley. The children’s mother, Judy Bradley, had been hospitalized for more

than one week. The children normally slept in one bedroom of the residence and

Danny Joe Bradley and Mrs. Bradley in another. On the night of January 24, 1983,

Jimmy Isaac, Johnny Bishop, and Dianne Mobley went to the Bradley home where

they saw Rhonda and Bubba together with Danny Joe Bradley. When Bishop,

                                          2
Mobley, and Isaac left the Bradley home at approximately 8:00 p.m., Rhonda was

watching television with Bubba and Bradley. Rhonda was lying on the couch,

having taken some medicine earlier in the evening. She asked Bubba to wake her

if she fell asleep so that she could move to the bedroom. When Bubba decided to

go to bed, Bradley told him not to wake Rhonda but to leave her on the couch.

Bradley also told Bubba to go to sleep in the room normally occupied by Mr. and

Mrs. Bradley instead of his own bedroom.

      At approximately 11:30 p.m., Bradley arrived at the home of his brother-in-

law, Robert Roland. Roland testified that Bradley arrived driving his automobile

and that he was “upset” and “acted funny.” Roland testified that Bradley “talked

loud and acted like he was nervous and all, which [Roland] had never seen him do

before.” Bradley’s father-in-law, Ed Bennett, testified that Bradley came to his

house at approximately midnight and told him that Rhonda was gone. Bradley’s

next-door neighbor, Phillip Manus, testified that at approximately 12:50 a.m.,

Bradley appeared at his home. Manus testified that Bradley told him that he and

Rhonda had argued over some pills Rhonda wanted to take. He claimed that he

had fallen asleep and when he awoke, Rhonda was missing. Bradley then said

“[l]et me run over to Rhonda’s grandma’s house and I’ll be back in a few minutes.”

Bradley returned ten or fifteen minutes later. Manus suggested that they walk to


                                         3
the hospital to tell Judy Bradley that Rhonda was missing. Manus testified that

Bradley wanted to go to the hospital rather than report Rhonda’s disappearance to

the police. Manus and Bradley waited at the hospital for one and one-half hours

before they were able to enter Mrs. Bradley’s room. Throughout that period of

time, Manus tried to persuade Bradley to go to the police station to report that

Rhonda was missing. When the men eventually saw Mrs. Bradley, she told Danny

Joe Bradley to report Rhonda’s disappearance to the police.

      Manus and Bradley went to the police station where Bradley told Officer

Ricky Doyle that Rhonda was missing. Bradley also told Officer Doyle that he and

Rhonda had argued earlier in the evening and that she had left the house sometime

around 11:00 or 11:30 p.m. Bradley claimed that he had fallen asleep and that

when he awoke, Rhonda was gone. He stated that he left the house at 11:30 p.m. to

go to his neighbor’s house to look for Rhonda. Bradley specifically indicated that

he had not left the house until he began looking for Rhonda and that he went to the

Manus home when he learned that Rhonda was missing. After talking with Officer

Doyle, Bradley and Manus returned to Manus’s apartment.

      At approximately 7:30 a.m. on January 25, 1983, Rhonda’s body was found

in a wooded area less than six-tenths of a mile from Bradley’s apartment.

Rhonda’s body was dressed in a pair of maroon-colored corduroy pants, a short-


                                          4
sleeved red knit shirt, green, white, brown, and purple striped leg warmers, a bra,

and a blue windbreaker. Rhonda’s tennis shoes were tied in single knots. Several

members of her family testified that she always tied her shoes in double knots.

      Within ninety minutes after Rhonda’s body was discovered, two plainclothes

officers from the Piedmont Police Department arrived at Bradley’s residence. The

officers had neither an arrest warrant nor probable cause. Although the

government contends that Bradley was not placed under arrest at that time, Bradley

claims that he was told he was under arrest for suspicion of murder, handcuffed,

placed in a police vehicle, and taken to the Police Station, where an interrogation

began at around 9:30 a.m. Bradley was in the custody of the Piedmont Police from

that time until approximately 4:00 a.m. on the following morning. During this

period of almost nineteen hours, the officers read Bradley his Miranda rights and

questioned him. Bradley told the police that he had discovered Rhonda missing at

approximately 11:20 or 11:25 p.m. and had gone to Phillip Manus’s house in

search of her. He also told officers that he had not left the apartment until he began

his search for Rhonda.

      In addition to giving a statement, Bradley executed a consent-to-search form

authorizing the police to search his residence and his automobile, submitted to

fingernail scraping, and was transported to and from Birmingham, Alabama.


                                          5
While in Birmingham, he submitted to a polygraph test and blood and saliva tests,

and gave his clothing to the authorities. Although Bradley cooperated with the

police in their investigation during this time period, he claims that he did so

because the police clearly indicated to him that he would remain in police custody

unless he cooperated. After obtaining the consent-to-search form, the police

searched his residence and his automobile, seizing several items of physical

evidence. Among the seized items of evidence were a pillowcase, a damp blue

towel from a bathroom closet, the living room light switch plate cover, a red,

white, and blue sheet from the children’s bedroom, a white “heavy” sheet from the

washing machine, and fiber samples from the trunk of Bradley’s automobile.

Prior to the trial, the court denied Bradley’s two motions to suppress this evidence.

      At trial, the State presented testimony that, contrary to Bradley’s statements

to police on both January 24 and January 25, 1983, Police Officer Bruce Murphy

had seen Bradley in his car at 9:30 p.m. in the area where Rhonda’s body was

discovered. Officer Murphy, who had known Bradley for more than twenty years,

positively identified him. The State’s forensic evidence demonstrated that

Bradley’s fingernail scrapings matched the red, white, and blue sheet taken from

the children’s bedroom, the fibers from the leg warmers found on Rhonda’s body,

and the cotton from the pants Rhonda was wearing on January 24, 1983. The State


                                           6
also proved that fibers found in the trunk of Danny Joe Bradley’s car matched the

fibers from Rhonda’s clothing. A pathologist testified that Rhonda’s body had

“evidence of trauma – that is, bruises and abrasions on her neck.” She had seven

wounds on her neck; the largest was an abrasion over her Adam’s apple. The

pathologist testified that he had taken swab and substance smears from Rhonda’s

mouth, rectum, and vagina. He also removed the gastric contents from Rhonda’s

stomach and turned them over to the toxicologist.

      An expert in forensic serology testified that Danny Joe Bradley and Rhonda

Hardin were of type O blood. Bradley is a non-secretor of the H-antigen. Rhonda

was a secretor. The serology expert testified that the H-antigen was not present in

the semen taken from the rectal swab of Rhonda. The rectum does not produce

secretions or H-antigens. On the inside of Rhonda’s pants, a stain containing a

mixture of fecal-semen was found with spermatozoa present. The pillowcase

found in the bathroom revealed high levels of seminal plasma and spermatozoa

consistent with the type O blood group. There were small blood stains on the

pillowcase mixed with saliva. These stains were also consistent with an O blood

group.

      The red, white, and blue sheet on the bed in the children’s bedroom

contained a four by two and one-half inch stain which included spermatozoa. The


                                         7
white blanket which had been placed in the washing machine also had two large

stains consistent with fecal-semen. In both stains, spermatozoa was present and no

H-antigens were detected. A combination of semen and sperm with the H-antigen

was found on the blue towel located in the bathroom. Although the written report

indicated that the blue towel contained a fecal-semen stain containing the H-

antigen, the expert testified at trial that her analysis revealed that the towel

contained a vaginal-semen stain not a fecal-semen stain and that the word fecal

instead of vaginal had been essentially a scriveners’ error.1 She testified that

because the blue towel contained a vaginal semen stain, the H-antigen secretions

could have come from Rhonda’s vaginal secretions. The serologist testified that the

low level of H-antigen was consistent with a female secretor because the H-antigen

is present in low levels in the vagina. The mattress cover contained a number of

seminal stains.

       At trial, Bradley’s sister-in-law also testified that a day after Rhonda’s

funeral she heard Bradley say “I know deep down in my heart that I done it,” and

Bradley’s stepson, Bubba Hardin, testified that Bradley had frequently rendered the

children unconscious by squeezing their necks.



1
 Had it been a fecal-semen stain containing the H-antigen, it could not have come from either
Bradley or Rhonda as Bradley was a non-secretor and the rectum does not secrete the H-antigen.

                                              8
      Bradley testified in his own defense. He explained his inconsistent

statements to police by suggesting that he had left his home at the time he was

observed by Officer Murphy, because he had intended to steal a car, remove its

motor, and sell it. He claimed that Gary Hardin, the father of Bubba and Rhonda,

had asked him to obtain such a motor. Hardin testified that he had made no such

request.

      The jury returned a verdict of guilty of capital murder on counts one and

three of the indictment. These counts charged murder during the commission of a

rape or sodomy in the first degree. The same jury deliberated in the punishment

phase and recommended twelve to zero that Bradley be sentenced to death.

Bradley’s conviction, which was predicated on Alabama Code § 13A-5-40(a)(3)

(1975), was affirmed by the Alabama Court of Criminal Appeals on November 26,

1985. Bradley v. State, 494 So.2d 750 (Ala. Crim. App. 1985). The Court of

Criminal Appeals denied rehearing on January 7, 1986. The Supreme Court of

Alabama affirmed Bradley’s conviction 5-4 on July 25, 1986. Ex parte Bradley,

494 So.2d 772 (Ala. 1986). Rehearing was denied on September 12, 1986.

Bradley filed a petition for writ of certiorari before the Supreme Court of the

United States which was denied on March 9, 1987, with Justices Brennan,




                                          9
Marshall, and White dissenting from the denial. Williams v. Ohio, 480 U.S. 923

(1987).

      On June 4, 1987, Bradley filed a Petition for Writ of Error Coram Nobis

and/or Motion for Relief from Judgment. On January 9, 1989, the Circuit Court

for Calhoun County, Alabama denied Bradley’s petition for extraordinary relief.

The Alabama Court of Criminal Appeals affirmed. Bradley v. State, 557 So.2d

1339 (Ala. Crim. App. 1989). A petition for writ of certiorari to the Alabama

Supreme Court was denied in February of 1990. The United States Supreme Court

denied certiorari, with Justice Marshall dissenting. Bradley v. Alabama, 498 U.S.

881 (1990). Bradley then filed this petition for habeas corpus in the district court

pursuant to 28 U.S.C. § 2254. The district court denied the petition, and Bradley

now appeals. For the reasons that follow, we affirm the district court’s denial of

relief in this case. We address each claim in turn.

                                   DISCUSSION

I. Claim 1: The conviction should be reversed because evidence was obtained
pursuant to an illegal arrest.

      In his first argument, Bradley asserts that neither his statement nor the

evidence obtained from his home should have been admitted at trial because both

were obtained in violation of the Fourth and Fifth Amendments to the Constitution.

As to Bradley’s argument that his Fourth Amendment rights were violated, we find

                                          10
that the district court correctly ruled that it was precluded from reviewing that

claim. The Supreme Court, in Stone v. Powell, has held that federal courts are

precluded from conducting post-conviction review of Fourth Amendment claims

where state courts have provided “an opportunity for full and fair litigation” of

those claims. 428 U.S. 465, 494 (1976).

       In Stone, the Court reasoned that, so long as a defendant has had the

opportunity to present his Fourth Amendment claims to the state trial and appellate

courts, the objectives of the exclusionary rule have been satisfied. This Court’s

predecessor has held that “full and fair consideration” in the context of the Fourth

Amendment includes “at least one evidentiary hearing in a trial court and the

availability of meaningful appellate review when there are facts in dispute, and full

consideration by an appellate court when the facts are not in dispute.” Carver v.

Alabama, 577 F.2d 1188, 1191 (5th Cir. 1978).2

       Bradley does not contend that he was denied the opportunity to present facts

to the trial court or to argue the issue before an appellate court, and in fact he did

so. Rather, he argues that the procedural bar of Stone should not apply here

because the Alabama courts applied the law incorrectly in evaluating his claim.


2
 We have adopted the decisions of the United States Court of Appeals for the Fifth Circuit decided
prior to September 30, 1981, as binding precedent of the Eleventh Circuit. Bonner v. Pritchard, 661
F.2d 1206, 1207 (11th Cir.1981) (en banc).

                                                11
The Alabama Court of Criminal Appeals determined that Bradley’s statement and

consent-to-search were sufficiently attenuated from Bradley’s illegal arrest to

render them admissible under the Fourth Amendment. In so concluding, the court

relied heavily on the fact that, prior to his arrest, Bradley had initiated contact with

the police, had made statements materially similar to those made after the arrest,

and was generally cooperative. Given this pre-arrest conduct, the court concluded

that Bradley had his own motives for continuing to cooperate with the police, and

that such cooperation was therefore not the result of the illegal arrest. Although

another court might not agree that Bradley’s pre-arrest conduct could serve as an

“intervening event” for the purposes of demonstrating attenuation between the

illegal arrest and the statements Bradley gave, the Alabama courts did fully

consider Bradley’s claims and the caselaw on which he relied, and having done so,

based their rulings on cases which did hold that pre-arrest conduct could be

considered as an intervening event. We cannot now say that Bradley was denied a

full and fair opportunity to litigate his Fourth Amendment claims, even were we to

disagree with the state courts’ analysis or conclusion. To do so would vitiate the

Supreme Court’s decision in Stone, which we are not empowered to do.

      Bradley also argues that the statement he gave to police while in custody

should have been suppressed under the protection of the Fifth Amendment because


                                           12
it was involuntary. It is clear that when Bradley was taken in handcuffs without a

warrant to the police station, he was in fact arrested, and the arrest was illegal. The

district court, and the Alabama Court of Criminal Appeals before it, so held on the

grounds that the police had neither a warrant nor probable cause to arrest.

      Because Bradley was illegally arrested, in order the satisfy the protections of

the Fifth Amendment, the State had to prove that any evidence obtained pursuant

to that arrest was purged of the taint of illegality, or was given knowingly,

intelligently, and voluntarily. Bradley does not claim that his waiver was

unknowing or unintelligent. Rather, he claims that his waiver was not voluntary

because the police told him that the sooner he cooperated, the sooner he would be

allowed to leave. Thus, our inquiry is limited to the question whether

“relinquishment of the right was voluntary in the sense that it was the product of a

free and deliberate choice rather than intimidation, coercion or deception.”

Dunkins v. Thigpen, 854 F.2d 394, 398 (11th Cir. 1988) (quoting Moran v.

Burbine, 475 U.S. 412 (1986)).

      To support his position, Bradley directs us to United States v. McCaleb, 522

F.2d 717 (6th Cir. 1977), in which the Sixth Circuit held that, for the purposes of

analyzing voluntariness under a Fourth Amendment claim, the fact that the

defendants had been told that they would remain in detention if they did not


                                          13
consent to a search was a relevant factor in assessing the voluntariness of a consent

to search. We do not find McCaleb persuasive because it is quite dissimilar to the

case before us. In McCaleb, the totality of the circumstances indicated only that

the illegally arrested citizen merely unlocked his suitcase after the detaining

officers told him that he and his companions would remain in detention until the

officers obtained a warrant. Neither an oral consent nor a consent in writing was

obtained by the officers. The court in that case found that the circumstances did

not reflect a free and voluntary consent.

      In this case, Bradley was cooperative during his extensive conversations

with the police and ultimately expressed his consent to allow the police to search

his car and his home affirmatively by agreeing orally and in writing. Bradley

allowed the police to collect fingernail scrapings, blood, and saliva samples. He

also submitted to a polygraph examination. Moreover, the detaining officers did

not indicate to him that they would obtain a search warrant absent his cooperation,

and, as the Alabama state courts noted, after being informed of his Miranda rights

before giving his statement and signing a consent-to-search form, Bradley

expressly stated that he did not need a lawyer because he had “nothing to hide.”

We recognize that the giving of a Miranda warning is not necessarily dispositive of

the question of voluntariness. However, the suggestion that cooperation would


                                            14
yield a speedier release, when considered under the totality of the circumstances

here, does not constitute sufficient “police overreaching or coercion” to invalidate

Bradley’s waiver of his Miranda rights. Dunkins, 854 F.2d at 399.

II. Claim 2: The conviction should be reversed because the State violated Brady v.

Maryland.

       Bradley contends that the State suppressed three items of exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the

exclusion of the evidence was sufficiently prejudicial to warrant a new trial under

Kyles v. Whitley, 514 U.S. 419 (1995). The allegedly withheld items of evidence

were: 1) the identity of the person to whom a Rickey McBrayer allegedly said that

he had killed Rhonda;3 2) notes taken by the police concerning a call from an

anonymous woman saying that a Keith Sanford killed Rhonda; and 3) the fact that

the police had received a note stating that a Ricky Maxwell killed Rhonda.4

       In order to demonstrate a Brady violation, Bradley must prove 1) that the

evidence was favorable to him because it was exculpatory or impeaching; 2) that

the evidence was suppressed by the State, either willfully or inadvertently; and 3)



3
  Although the prosecution told Bradley that McBrayer had confessed, they did not disclose the
identity of the person to whom McBrayer had confessed.
4
 Sheriff’s deputies from Cherokee County, Alabama, received the note from an Anita Kay Beecham
while she was reporting being assaulted by her live-in boyfriend, Ricky Maxwell.

                                             15
that the evidence was material and, therefore, that the failure to disclose it was

prejudicial. See Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999). Under Brady,

excluded evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Moreover, the

materiality inquiry should be applied to the “suppressed evidence considered

collectively, not item-by-item.” Kyles, 514 U.S. at 435. For the purposes of

determining whether reversal is warranted, we assume without deciding that all

three items of evidence should have been disclosed to Bradley’s counsel. We

conclude nonetheless that the district court did not err in determining that there was

no reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.

      The district court found that none of the evidence in question was material

because 1) hearsay rules would prohibit its introduction at trial, 2) the items of

evidence did not undermine the reliability of the evidence on which Bradley was

convicted, 3) Bradley’s trial counsel expressed doubts as to how helpful the

evidence might have been, and 4) the State investigated each lead and found that

none of the three suspects was involved in Rhonda’s murder.




                                          16
      Each item of evidence was in fact inadmissible at trial under Alabama Rules

of Evidence. See Johnson v. Alabama, 612 So.2d 1288, 1293 (Ala. Crim. App.

1992). Thus, in order to find that actual prejudice occurred – that our confidence

in the outcome of the trial has been undermined – we must find that the evidence in

question, although inadmissible, would have led the defense to some admissible

material exculpatory evidence. See Spaziano v. Singletary, 36 F.3d 1028, 1044

(11th Cir. 1994) (“A reasonable probability of a different result is possible only if

the suppressed information is itself admissible evidence or would have led to

admissible evidence.”). The State contends that no such evidence would have been

obtained had the prosecution disclosed these items of evidence. Their argument

was based in part on the fact that, at the post-conviction hearing on Bradley’s

Brady claims, the prosecution presented evidence that police investigation pursuant

to those leads led prosecutors to conclude that McBrayer, Sanford, and Maxwell

were not legitimate suspects in the case. Serology evidence suggested that

McBrayer could not have been the person who raped or sodomized Rhonda, and

the prosecution contended that both Sanford and Maxwell had alibis for the night

of Rhonda’s murder.

      Bradley counters that, had he been aware of the evidence, he might himself

have uncovered evidence that these men were involved in the rape and/or murder


                                          17
of Rhonda that the prosecution failed to uncover. Failing that, he might have

presented to the jury the evidence that other suspects existed and, suggesting that

the investigation into those suspects was not robust, he might have successfully

created a reasonable doubt in jurors’ minds as to his guilt.

      In assessing this claim, it is important to keep in mind that Bradley need not

prove that it is more likely than not that he would have received a different verdict

with the evidence, “but whether in its absence he received a fair trial, understood as

a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.

419, 434 (1995). The question is not whether there would have been sufficient

evidence to support a guilty verdict had the exculpatory evidence been included,

but rather whether the favorable evidence, taken as a whole, puts the case “in such

a different light as to undermine the confidence in the verdict.” Id. at 435. Based

on this record, we cannot say that such a lack of confidence in the verdict exists

here. Moreover, Bradley presents only speculation that he would have uncovered

any admissible evidence from these three hearsay leads. Nor can we say that, had

the jury heard evidence of the existence of these tenuous and ultimately fruitless

police suspicions, and weighed that evidence with all the evidence against Bradley,

they would have reached a different conclusion. Considering all the undisclosed




                                          18
evidence as a whole, we are unable to say that this verdict is not worthy of

confidence.

III. Claim 3A: The conviction should be reversed because the evidence was
insufficient to support a conviction that Bradley committed murder during the
commission of rape or sodomy.

      Bradley was convicted of murder during the commission of a rape in the first

degree and murder during the commission of sodomy in the first degree. He now

contends that there was insufficient evidence to support a jury finding beyond a

reasonable doubt that he murdered Rhonda during a rape or sodomy. Under

Alabama law, in order to find that Bradley committed murder during the

commission of a rape, the jury must have found that he committed the murder “in

the course of, or in connection with, or in immediate flight from” raping or

sodomizing Rhonda. Ala. Code § 13A-5-39 (1975).

      Bradley suggests that this claim falls under the line of cases beginning with

Jackson v. Virginia, which held that a defendant is entitled to habeas relief “if it is

found upon the record evidence adduced at the trial that no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324

(1979). In viewing the evidence in the light most favorable to the prosecution, as

we must under Jackson, id. at 319, the record reflects that:




                                           19
•   Rhonda was observed by at least three people to be watching

    television in her home prior to 8:15 p.m. on the night she was

    murdered.

•   Around 9 p.m., Rhonda’s brother Bubba was told by Bradley

    not to wake the sleeping Rhonda and not to sleep in the room

    Bubba and Rhonda shared, but instead to sleep in Bradley’s

    bed.

•   Around 9:30 p.m., Officer Bruce Murphy saw Bradley in his

    car in the area where Rhonda’s body was later discovered,

    contradicting Bradley’s statement that he had not left the house

    until 11:30 p.m.

•   At approximately 11:30 p.m., Bradley arrived at the home of

    his brother-in-law, who later testified that Bradley was upset

    and “act[ing] funny.”

•   When Rhonda’s body was discovered the next morning, it was

    clothed in the clothing she wore the previous day. However,

    her shoes were tied in single knots while several family

    members testified that she always tied them in double knots,

    suggesting that she had been clothed after her death.


                                20
       •       Examination of Rhonda’s body found semen in her mouth,

               anus, and vagina. Semen was also found in her stomach,

               suggesting that she had swallowed or been forced to swallow

               semen before she was murdered.5

       •       Several bruises were found around her neck, and it was found

               that strangulation was the cause of her death.

       •       Bubba testified that Bradley had frequently rendered him and

               Rhonda unconscious by squeezing their necks.

       •       Forensic analysis of bedding and items of clothing taken from

               Bradley’s home suggested that the rape and sodomy had taken

               place in the home. One of the sheets was taken from the

               washing machine and another from a closet.

       •       Fibers taken from Bradley’s trunk were generally consistent

               with the clothing Rhonda was found to be wearing, suggesting

               that she had been in his trunk that night.



5
 This detail is significant because, under Alabama law, it is not a capital offense to rape or sodomize
a person after murdering them if the rape or sodomy is “unrelated to the murder,” i.e., if the intent
to commit the rape or sodomy was not formed until after the murder. If, however, the intent to
commit the rape or sodomy existed at the time of the murder, the offense is a capital offense whether
the rape/sodomy happened before or after the murder. See Williams v. State, 1999 WL 1128985,
at *13 (Ala. Crim. App. Dec. 10, 1999); Thompson v. State, 615 So.2d 129, 133 (Ala. Crim. App.
1992).

                                                  21
      •      A witness at trial testified that he had heard Bradley say, “I

             know deep down in my heart that I done it.”

Given this evidence, the jury could reasonably have concluded that Bradley raped

and sodomized Rhonda. They could also have concluded that he dressed her after

her death and transported her in the trunk of his car. They could also have

concluded that these events transpired between approximately 9 p.m., when Bubba

went to bed, and 9:30 p.m., when officer Murphy saw Bradley in his car, or at most

11:30 p.m., when Bradley appeared at his brother-in-law’s home. Bradley

correctly points out that the prosecution presented no testimony about the

approximate time of Rhonda’s death or about the approximate time of the sexual

activity in question. But given this relatively narrow window of time, it would not

be unreasonable for the jury to have concluded that the murder and sexual activity

all occurred during that time frame, that they were perpetrated by Bradley, and that

Bradley committed the murder “in connection” with, if not “in the course of”

raping and sodomizing Rhonda.

IV. Claim 3B: The conviction should be reversed because the evidence was
insufficient to prove that the sexual activity connected to the murder was forcible.

      In convicting Bradley, the jury necessarily had to conclude that the rape and

sodomy of Rhonda involved “forcible compulsion,” defined by the trial judge to

mean “physical force that overcomes earnest resistance, or a threat expressed or

                                          22
implied that places a person in fear of immediate death or serious physical injury to

oneself or to another person.” Force was defined to mean “physical action or

threat against another” including “confinement, serious physical injury which

creates a substantial risk of death or which causes serious or protracted

disfigurement, protracted impairment of health, or protracted loss or impairment of

the function of any bodily organ.” Threat was defined to mean “a menace,

however communicated to, among other things, cause physical harm in the future

to the person threatened or to any other person.”

      The district court found sufficient evidence to prove forcible compulsion

from the fact that “Rhonda had been strangled. She was four feet, ten and three-

eighths inches tall and weighed seventy-seven pounds. She had seven wounds or

bruises on her neck.” Bradley insists that, because the prosecution failed to prove a

temporal nexus between the rape/sodomy and the strangulation, a jury could not

reasonably infer from the fact of the strangulation that Rhonda was forced to

submit to oral, anal, and vaginal sex. For the same reasons that a jury reasonably

could have concluded that the rape/sodomy and murder were temporally linked, we

find that they could also have concluded that the sexual activity was forced upon

Rhonda within the meaning of the Alabama first degree rape/sodomy statute. We

note also that Alabama courts have found that “forcible compulsion” can be


                                         23
established “by the relationship of a child victim with the defendant charged with a

sex crime involving forcible compulsion.” Rhodes v. Alabama, 651 So.2d 1122,

1123 (Ala. Crim. App. 1994) (quoting Howell v. Alabama, 636 So.2d 1260, 1261

(Ala. 1993)). Here, Bradley was twelve-year-old Rhonda’s stepfather. Based on

this record, the district court did not err in concluding that sufficient evidence

supported the jury’s finding of forcible compulsion.

V. Claims 4 & 5: The death sentence should be vacated because the evidence was
insufficient to support the aggravating circumstances that 1) the murder was
committed during the commission of a rape and 2) the murder was “especially
heinous, atrocious or cruel.”

      In Bradley’s only challenge to the imposition of the sentence of death, he

argues that neither of the aggravating circumstances applied was supported by

sufficient evidence and, therefore, their application was arbitrary and capricious in

violation of the Eighth Amendment, as explicated by the Supreme Court in Lewis

v. Jeffers, 497 U.S. 764, 782 (1990). In the sentencing phase of Bradley’s trial, the

jury was instructed that it could consider two aggravating factors should they find

beyond a reasonable doubt that those factors applied: 1) whether Rhonda’s murder

was committed “while the defendant was engaged in the commission of, or an

attempt to commit, or flight after committing, or attempting to commit rape,” and

2) whether Rhonda’s murder was “especially heinous, atrocious or cruel” in

comparison to capital murders generally. After briefly deliberating, the jury

                                           24
returned a death sentence. At the separate sentencing hearing held thereafter, the

trial judge stated his own view that both aggravating circumstances were supported

by sufficient evidence to satisfy the “beyond a reasonable doubt” standard, and that

those aggravating circumstances far outweighed any mitigating circumstances in

the case.

      Bradley’s argument with respect to the first aggravating circumstance is

identical to his argument that his conviction should not stand because there was

insufficient evidence to support a conclusion that the murder was committed

during a rape or sodomy. For the same reasons that we rejected Bradley’s

argument as to his conviction, we must likewise reject his argument as it relates to

the application of this aggravating circumstance.

      With respect to the second aggravating circumstance, the jury was instructed

that the term “heinous” means extremely wicked or shockingly evil, the term

“atrocious” means outrageously wicked or violent, and the term “cruel” means

designed to inflict a high degree of pain with utter indifference to or even

enjoyment of the suffering of others. They were also informed that the degree to

which this crime is heinous, atrocious, or cruel must exceed that which exists in all

capital offenses, and that in order to find the aggravating circumstance, they must

find that the crime was “unnecessarily torturous to the victim.” As the district


                                          25
court found, in order to be valid, an aggravating circumstance must “genuinely

narrow the class of persons eligible for the death penalty,” Zant v. Stephens, 462

U.S. 862, 877 (1983), i.e., must provide a “principled way to distinguish this case,

in which the death penalty was imposed, from the many cases in which it was not,”

Godfrey v. Georgia, 446 U.S. 420, 433 (1980).

      Bradley contends that the standard “especially heinous, atrocious, or cruel”

is unconstitutionally vague, and that the definition of those words, as given to the

jury in this case, does not cure that vagueness. The Supreme Court has held that,

on their own, the words “especially heinous, atrocious, or cruel,” when used as an

aggravating factor, are so vague as to run afoul of the Eighth Amendment. See

Maynard v. Cartwright, 486 U.S. 356, 365 (1988). Thus, in order to apply that

aggravating factor in a constitutional manner, the sentencing court must give a

limiting instruction to the jury. See Lindsey v. Thigpen, 875 F.2d 1509, 1514

(11th Cir. 1989). This Court has held that a “court’s consideration of the

‘especially heinous, atrocious or cruel’ aggravating factor must satisfy a three part

test.” Id. First, the appellate courts of the state must have narrowed the meaning

of the words “by consistently limiting their application to a relatively narrow class

of cases, so that their use” informs the sentencer of what it must find before it

imposes the death penalty. Id. Bradley concedes that the Alabama courts have


                                          26
done that, and that the sentencing court in this case advised the jury of that

narrowed construction. See Ex parte Kyzer, 399 So.2d 330, 333-35 (Ala. 1981).

Second, “the sentencing court must have made either an explicit finding that the

crime was ‘especially heinous, atrocious or cruel’ or an explicit finding that the

crime exhibited the narrowing characteristics set forth” in the state courts’

construction. Lindsey, 875 F.2d at 1514. Third, the sentencer’s conclusion as to

step two “must not have subverted the narrowing function of those words by

obscuring the boundaries of the class of cases to which they apply.” Id. Bradley

argues that the sentencing court failed to satisfy the second and third prongs of the

Lindsey test.

      Bradley contends that the trial court failed the second prong of the test

because the judge failed to recount any of the facts supporting his conclusion that

Bradley’s crime was “especially heinous, atrocious or cruel” within the narrowed

meaning given in Ex parte Kyzer. Bradley relies on several cases wherein the

sentencing judge enumerated the facts supporting his or her finding that the

underlying offense warranted application of the aggravating factor. Although none

of these cases explicitly states that such an enumeration is required over and above

the “explicit finding that the crime was ‘especially heinous, atrocious or cruel’”

that is required by Lindsey, Bradley urges us to find that the trial court’s mere


                                          27
announcement that he had made such a finding without explaining which facts

supported that finding, is insufficient to satisfy standards of constitutionality.

      We need not decide this question, however, because on direct review the

Alabama Court of Criminal Appeals did recount the facts it found to support its

conclusion that the murder was “especially heinous, atrocious or cruel.” That court

stated:

      This Court has no difficulty in independently determining that this
      capital offense was especially heinous, atrocious, or cruel compared to
      other capital offenses. . . . Here, Rhonda was not only raped but she
      was sexually abused and strangled to death. Rhonda was not an adult
      but a twelve-year-old child. Her assailant was her twenty-two-year-
      old stepfather. The especially heinous, atrocious, or cruel aggravating
      circumstance was warranted and fully justified in this case.

494 So.2d 750, 771. In order to uphold this sentence, we must find that this

explanation did not “subvert the narrowing function by obscuring the boundaries

of the class of cases to which” this factor should apply. Lindsey, 875 F.2d at 1514.

In other words, we must find that the Alabama court’s conclusion that this murder

was “unnecessarily torturous” to Rhonda was clearly erroneous. Given the fact

that a jury found that twelve-year-old Rhonda was forcibly subjected to anal,

vaginal, and oral sex by her stepfather, an authority figure in her life, and then

strangled, it would be difficult for us to find that the Alabama court’s conclusion

that those events were unnecessarily tortuous to Rhonda was clearly erroneous.


                                           28
      For all of the forgoing reasons, the opinion of the district court denying

Bradley’s petition for habeas corpus is AFFIRMED.




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