                                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                       ________________________            ELEVENTH CIRCUIT
                                                               JULY 12, 2011
                                                                JOHN LEY
                                No. 09-14322                     CLERK
                          ________________________

                 D. C. Docket No. 04-01335-CV-VEH-TMP

JEFFERY LYNN BORDEN,



                                                           Petitioner-Appellant,

                                   versus

RICHARD F. ALLEN,
Commissioner Alabama Department of
Corrections,

                                                         Respondent-Appellee.

                          ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                               (July 12, 2011)



Before TJOFLAT, WILSON and BLACK, Circuit Judges.

TJOFLAT, Circuit Judge:
       Jeffery Lynn Borden is a death row inmate in the Alabama prison system;

he was convicted of capital murder in the Circuit Court of Jefferson County,

Alabama, in September 1995. He seeks a writ of habeas corpus vacating his death

sentence on the ground that his attorneys rendered ineffective assistance of counsel

during the penalty phase of his murder trial in violation of the Sixth and Fourteenth

Amendments to the United States Constitution.1 To obtain the writ, Borden must

establish that the decision of the Alabama Court of Criminal Appeals denying his

ineffective assistance of counsel claims “(1) was contrary to, or involved an

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

Supreme Court of the United States; or (2) was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). The United States District Court for the

Northern District of Alabama held that it was not and denied the writ. After

reviewing the record that was before the Court of Criminal Appeals and



       1
           The Sixth Amendment, which has been made applicable to the States, see Gideon v.
Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797, 9 L. Ed. 2d 799 (1963), states, in pertinent
part, “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his
defence,” U.S. Const. amend. VI. The “Assistance of Counsel” means the “effective” assistance
of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984). Borden contends that his death sentence should be vacated on additional
grounds, but those grounds are not cited in the certificate of appealability, which limits the issues
to be considered in this appeal. See 28 U.S.C. § 2253(c)(2), (3); Diaz v. Sec’y for Dep’t of
Corr., 362 F.3d 698, 702 (11th Cir. 2004) (citing Murray v. United States, 145 F.3d 1249,
1250–51 (11th Cir. 1998) (per curiam)).


                                                  2
considering the arguments of the parties’ counsel—both in their briefs to this court

and in oral argument—we conclude that Borden has established neither point. We

explain why Borden is not entitled habeas corpus relief after recounting the facts

that led to his conviction and the reasons why the Court of Criminal Appeals

rejected his claim that his attorneys’ performance in the penalty phase of his trial

was constitutionally deficient.

                                           I.

      On December 24, 1993, Cheryl Borden and her father, Roland Dean Harris,

were murdered during a family holiday gathering. The facts relating to the crime

are not in material dispute:

             The evidence tended to show that on Christmas Eve of 1993,
      there was a large family gathering at the home of Juanita and Roland
      Harris in Gardendale. At around 6:45 p.m., [Borden], who was
      married to but legally separated from the Harris’s daughter, Cheryl
      Borden, arrived at the Harris’s residence with his and Cheryl’s three
      children. The children, who had continued to live with their mother in
      Gardendale after her separation from [Borden], had spent the previous
      week visiting [Borden] in Huntsville—where [Borden] was then
      residing. [Borden] was to return the children to Gardendale in time to
      spend Christmas with their mother. When the children arrived at their
      grandparents’ house, their grandfather, Roland Harris, came outside to
      help unload their clothes and Christmas gifts from [Borden]’s car.
      Shortly thereafter, the children’s mother, Cheryl Borden, arrived at
      her parents’ house and began to help her children move some of their
      things from [Borden]’s car to her car. In front of the children,
      [Borden] then took out [a] .380 caliber semiautomatic pistol and shot
      Cheryl Borden in the back of her head. Cheryl fell to the ground. Her
      father, Roland Harris, who was also present in the front yard, began to
      run toward the front door of the house yelling for someone to

                                           3
      telephone 911. [Borden] chased Harris and fired several shots toward
      him and in the direction of the house. Harris made it into the house as
      [Borden] continued to shoot at him from the yard. One of the bullets
      fired from [Borden]’s gun struck and shattered a glass storm door at
      the front entrance of the house. Once inside the house, Harris
      collapsed on the floor. At some point during the shooting, a bullet
      had struck Harris in his back. As [Borden] shot at Harris, the three
      children ran through the garage of the residence and came into the
      house through a back entrance, screaming that their father had shot
      their mother and that she was dead. Several other family members
      were inside the house during the incident and scrambled to take cover
      from the gunfire.
             Cheryl Borden and her father, Roland Harris, were transported
      to a local hospital, where they died later that evening. [Borden] was
      arrested and charged with their murders.
             The pistol used in the shooting incident was recovered at the
      crime scene. Testimony at trial indicated that the pistol held a total of
      eight rounds of ammunition and that when it was recovered, it
      contained one unfired cartridge. There was evidence that at least
      some of the bullets fired by [Borden] entered the living area of the
      house.

Borden v. State, 711 So. 2d 498, 500–01 (Ala. Crim. App. 1997) (footnote

omitted).

                                         A.

      On May 6, 1994, a Jefferson County grand jury returned an indictment

charging Borden with two counts of capital murder for the deaths of Cheryl Borden

and Roland Harris. Count I of the indictment charged Borden with the capital

offense of “[m]urder wherein two or more persons are murdered by the defendant

by one act or pursuant to one scheme or course of conduct.” Ala. Code § 13A-5-

40(a)(10). Count II charged Borden with the capital offense of “[m]urder

                                          4
committed by or through the use of a deadly weapon fired or otherwise used from

outside a dwelling while the victim is in a dwelling.” Id. § 13A-5-40(a)(16).

        Judge Michael W. McCormick presided over the jury trial in the Circuit

Court of Jefferson County, and Borden was represented by two court-appointed

attorneys, J. Massey Relfe, Jr., and Michael Shores,2 both of Birmingham,

Alabama. Following voir dire and jury selection, the trial began on September 12,

1995.

        At the guilt phase of the trial3 Borden pled the affirmative defense of not

guilty by reason of mental disease or defect.4 Borden’s counsel sought to shift the

focus away from the facts of the crime to Borden’s mental capacity from the

        2
         Though both attorneys were present throughout the entire trial, Shores handled the guilt
phase, while Relfe handled the penalty phase.
        3
         While we ultimately focus on Borden’s counsel’s performance surrounding the penalty
phase of his trial, we discuss extensively the arguments and evidence presented at the guilt phase
because that evidence was incorporated by reference during the penalty phase.
        4
            Alabama law provides:

        (a) It is an affirmative defense to a prosecution for any crime that, at the time of
        the commission of the acts constituting the offense, the defendant, as a result of
        severe mental disease or defect, was unable to appreciate the nature and quality or
        wrongfulness of his acts. Mental disease or defect does not otherwise constitute a
        defense.

        (b) “Severe mental disease or defect” does not include an abnormality manifested
        only by repeated criminal or otherwise antisocial conduct.

        (c) The defendant has the burden of proving the defense of insanity by clear and
        convincing evidence.

Ala. Code § 13A-3-1.

                                                 5
outset. In his opening statement, defense counsel conceded that “[t]here’s not

going to be a whole lot of dispute about the underlying facts in this case” and

quickly turned the jury’s attention to a watershed event in Borden’s life: a severe

1977 automobile accident in which he suffered closed-head trauma and that left

him comatose for four days. Continuing, counsel discussed Borden’s “bizarre

behavior patterns” as “what the doctors, I think, would call depressive patterns

with psychotic features that culminated in 1981 with a suicide attempt when Jeff

was rehospitalized.” Counsel walked the jury through Borden’s storied mental

health history, replete with hospitalizations, suicide attempts, and medications

designed to address mental health issues. He culminated this history by stating,

“Over the course of this time that we’ve just talked about Jeff has been hospitalized

a total of eight times particularly for mental problems. . . . He’s placed on seven

different medications . . . .” Importantly, counsel indicated that the jury would

hear from several witnesses, including Borden’s mother and expert medical

witnesses who had evaluated Borden, and that the jury would be able to examine

medical records to “find out what the doctors were saying then about Jeff’s mental

problems.”

       Following the close of the State’s case in chief,5 the defense first called


       5
          The State did not present any evidence regarding Borden’s mental health during its
case in chief.

                                                6
Borden’s mother, Eloise Borden (“Mrs. Borden”), to the stand. Mrs. Borden

testified that as a child and young man Borden did not experience any problems

that were “out of the ordinary,” save “some depression” following his brother’s

death in 1971—when Borden was eleven years old. Defense counsel then shifted

his attention to Borden’s 1977 automobile accident. Mrs. Borden testified that her

son was unconscious for four days following the accident, and that once he

regained consciousness he was “not aware of everything that was going on around

him.” Apparently seeking to establish the accident as a turning point for Borden’s

psychological profile, counsel asked Mrs. Borden about Borden’s behavioral

changes following the accident. Mrs. Borden noted a change in sleep patterns as

well as depression, stating that “[h]e was just, you know, a different—total

change.”

      Mrs. Borden further testified that her son’s psychological problems reached

such a point that she and her husband took him to a hospital in 1981, at which

point he was diagnosed as “severely depressed” and placed on “a bunch of”

medication. She spoke further of injuries Borden suffered throughout the 1980s,

one of which ultimately required neck surgery in November 1992. When asked if

Borden was “exhibiting any or beginning to exhibit any other bizarre behaviors,”

Mrs. Borden replied, “He was seeing things that weren’t there. People were after

him. They were after his family to hurt them.” She discussed his twelve-day

                                          7
placement in a “secure facility” in July 1992 at Brookwood Hospital under the

supervision of a Dr. L. E. Shehi, and his return to that facility in October of the

same year. She spoke of his re-hospitalization—this time in Tennessee—after “he

overdosed again” by taking 250 extra-strength Tylenol and 100 ibuprofen.

Moreover, Mrs. Borden told the jury that Borden had been subjected to nine

“shock treatments” at the Centennial Medical Center in the summer of 1993.6

       On cross-examination, the State focused on Borden’s spotty work record.

Most importantly for our analysis, the prosecutor asked Mrs. Borden whether “the

medical doctor who knows the most about Jeff, who saw him most frequently

[from late 1992 until late 1993] is Dr. Shehi; is that right?” She answered

affirmatively.

       The defense next called Dr. J. Wesley Libb, a clinical psychologist working

at the University of Alabama at Birmingham in the Department of Psychiatry. Dr.

Libb was “primarily involved in psychological assessment of in-patients within the

Center for Psychiatric Medicine.” While he had never evaluated or treated Borden

prior to the murders of Cheryl Borden and Roland Harris, he later administered a

“neuro-psychological battery of tests” as well as “general[] psychological testing.”


       6
         Mrs. Borden’s testimony covered a wider range of topics than just Borden’s
psychological history, but as our focus is on Borden’s ineffective assistance of counsel claim
based on counsel’s failure to investigate and present mitigating mental health evidence at the
penalty phase, we decline to discuss her testimony in its entirety. Likewise, we will not belabor
testimony or evidence not relevant to Borden’s claims now before us.

                                                8
After an extensive description of the tests that he administered to Borden, Dr. Libb

testified that Borden “experiences likely relatively severe character logic or

personality disorder. His coping resources were really quite limited. . . . [H]e

basically had very limited ability to deal with stress, . . . a lot of difficulty in

emotional control, the ability to plan ahead and to control and manage his

behavior.” While Dr. Libb’s testing did not indicate schizophrenia or bipolar

disorder, “all the testing suggests that he does experience episodic depression.” He

added, “I could see him becoming psychotic and having psychotic-like episodes

and becoming paranoid and becoming severely depressed.” Dr. Libb opined that

“part of the picture here could also be consistent with the possibility that some of

these deficits are related to some sort of organic brain impairment as well” and that

his observations “could be” consistent with a “history of psychotic episodes.” In

sum, Dr. Libb testified that he believed that Borden “historically suffered from a

psychiatric disorder” that “was moderately severe or moderate” and “[n]ot

inconsistent with closed-head trauma.”

       On cross-examination, the State sought to discredit Dr. Libb’s testimony by

undermining the ability of his testing to detect “faking.”7 After seeking to establish

that Dr. Libb’s field of expertise was incongruent with testifying regarding legal


       7
          For example, the prosecutor asked about one of the tests administered by Dr. Libb: “Is
there a control built into that test to prevent or inhibit faking?”

                                                9
insanity, the prosecutor asked, “You’re not telling these ladies and gentlemen that

this defendant doesn’t know the difference between right and wrong?” The

witness replied, “No, I’m not.” On re-direct examination, Borden’s counsel

elicited that Dr. Libb was not a “professional witness” and that his findings with

regard to Borden’s mental health left open “the possibility of a more severe

psychiatric disorder” than simply a neurosis.

      The defense next called Dr. Douglas Sargent, a psychiatrist with fifty years’

experience who had authored about 112 publications. Like Dr. Libb, Dr. Sargent

had not treated Borden prior to the murders, but had instead evaluated him in jail at

the request of defense counsel. After outlining his extensive credentials, Dr.

Sargent described his methodology for evaluating Borden, stating that he relied on

medical records, interviews with Borden, and discussions with those close to

Borden. Regarding the interviews, Dr. Sargent stated that he “ma[de] an

assessment of the credibility of the stories and then tr[ied] to check them out

against other sources of information to see if [he could] validate them or refute

them.”

      When asked specifically, “Did you have an opinion as to what his diagnosis

was on” December 24, 1993, Dr. Sargent replied:

      Yes. I believe he suffered from two conditions at that time: One,
      a—an uncertainty or weakness in impulse control and some other
      features which I could describe, which I would call an organic closed-

                                          10
      head injury encephalop[athy] or post-concussive syndrome. And in
      addition a super imposed depressive disorder, which I call a schizo
      affective disorder for reasons that I can describe, which he has had
      more or less continually since at least 1981 and which flares up from
      time to time requiring him to be hospitalized and for which he has
      been all but continuously under treatment at one mental health center
      or another.

Dr. Sargent went on to define “schizo affective disorder” as “a mood disorder—a

depression in this case, coupled with other features that suggest schizophrenia so

that you can’t say he’s either schizophrenic or depressed but is—suffers from a

disorder which is a combination of the two.” The witness described Borden as

exhibiting “signs of a delusional disorder” who had “unrealistic false beliefs of

persecution” and was “profoundly depressed” with suicidal tendencies. He

described how Borden had related to him that one of his hospitalizations occurred

as the result of grief that overcame him after beating his wife—explosive behavior

that Borden had said “was like he couldn’t help it. He couldn’t stop it. He had no

control over it.”

      Dr. Sargent linked this behavior to Borden’s automobile accident, stating it

was a “symptom commonly found in people with closed-head injuries of the kind

Jeff suffered . . . called episodic discontrol.” The witness testified that Borden

exhibited a “sudden disappearance of the control mechanism . . . throughout the

record in the frequent references by one or the other psychiatrists who had seen

him in the past of his impulsive behavior.” He continued at length, discussing

                                           11
relevant mental diseases and disorders, including “thought disorder” and “mood

congruent hallucinations and delusions.” He also discussed Dr. Libb’s report, as

he had hired Dr. Libb to examine Borden.

      Following an explanation of the battery of drugs Borden had taken over the

years, Dr. Sargent was asked, “Doctor, considering your education and

experience, . . . do you have an opinion as to whether or not at the time of this

incident now, which was December the 24th, 1993, Jeff was suffering from a

mental disease or defect?” Dr. Sargent answered affirmatively, explaining, “I

believe that he was suffering from chronic schizo affective disorder partially

compensated and from a closed-head injury that I have described before.”

Following up, Borden’s counsel asked if Dr. Sargent had “an opinion as to whether

or not Jeff’s actions as—that occurred on December the 24th, 1993, were as a

result of rational behavior?” The witness replied, “No, I don’t.” He also testified

that he did not think that Borden could “appreciate the criminality” of his behavior.

He explained,

      I think that he was operating under the control of a very strong
      impulse that he could not control, that his behavior was
      disorganized, . . . that his mood was disordered and that he was
      therefore unable to . . . appreciate the criminality. I don’t even think
      he thought about the criminality of the act at the time.

      On cross-examination, the State sought to emphasize the lack of objectivity

inherent in the field of psychology, and walked Dr. Sargent through the medical

                                          12
records to point out data inconsistent with his testimony.8

       During re-direct examination, Dr. Sargent took up the notion that Borden

was “feigning” his mental illness, testifying,

       when you have a person hospitalized eight times for mental illness
       when there’s no apparent advantage to that, it’s a little hard to believe
       that they would be feigning mental illness in the way that they were.
       Besides the totality of his behavior and the reports of his behavior on
       the part of the medical staff who are generally quite experienced
       would very quickly raise the suspicion of falsification of an illness. I
       don’t see any reason to believe that [] he was not as sick as they say
       he was when they attended him.

Defense counsel continued, asking Dr. Sargent if any of the information brought

up by the prosecutor on cross-examination had had any effect on his opinion as to

Borden’s diagnosis. Dr. Sargent’s responded, “None whatsoever.”

       Before calling his next witness, DeWayne King, a medical assistant at the

county jail, defense counsel introduced into evidence Borden’s complete relevant

medical history, which included records from ten medical and mental health

facilities.9 King then testified that Borden had been placed in the “psychiatric

block” of the jail, which included a single bunk and a camera, as a result of his


       8
          For example, the prosecutor asked, “[A]re you familiar with another [incident] on May
the 5th, 1993, in which he tells the nurse . . . that he’s going to be a model patient so he can get
out and put his hands around his wife’s scrawny neck and kill her?” Looking at the medical
records, he later corrected his statement, saying, “Excuse me, I said ‘kill her.’ He said ‘choke
her.’”
       9
          Following King’s testimony, defense counsel also introduced Borden’s medical records
from jail into evidence.

                                                 13
psychiatric history. He also discussed the medication that Borden was taking while

incarcerated. King stated that Borden was in the psychiatric block for “an awfully

long time.” The defense presented no more witnesses.

      After the defense rested, the State presented testimony on rebuttal designed

to undercut Borden’s affirmative defense of not guilty by reason of mental disease

or defect. The State called Dr. C. J. Rosecrans, a certified forensic examiner and a

professor of psychiatry in the Department of Psychiatry at the University of

Alabama at Birmingham. Dr. Rosecrans was appointed by the court to determine

Borden’s competency to stand trial as well as his mental state at the time of the

commission of the offense. He described at length his methodology and

discussions with Borden, and made several statements relevant to Borden’s

defense—particularly focusing on the difference between what a psychiatrist

would deem a mental disease and what the law would consider “insanity.” Dr.

Rosecrans stated that he did “not believe [Borden] was operating under irresistible

impulse” and that a review of Dr. Libb’s and Dr. Sargent’s reports did not change

his opinion as to Borden’s mental condition at the time of the incident. Dr.

Rosecrans conceded that he would not “necessarily dispute that [Borden] may have

at some time in the past been suffering from mental illness or psychosis.”

Elaborating, Dr. Rosecrans stated, “my impression from [Borden’s] recitation of

the event at that time is that he was upset, he was angry, he was hurt, I think he was

                                          14
irritated, I think he was emotionally distressed, but I think . . . it was not a random

activity.” He concluded with a statement that, as to “the legal question you have,”

Borden “could have restrained” and “it was not an irresistible impulse.”

      On cross-examination, defense counsel focused on Dr. Rosecrans’s limited

study of Borden; the doctor had known that Borden had been admitted to a wide

variety of medical facilities, but had not received or reviewed the majority of

Borden’s medical records. Further, Dr. Rosecrans based his conclusions on an

interview lasting ninety minutes, the contents of which defense counsel inquired

about extensively. Referencing testimony given on direct examination, defense

counsel asked Dr. Rosecrans, “Are you aware that irresistible impulse is not a legal

defense in Alabama?” The witness indicated that he was not. Defense counsel

also inquired, “So you don’t determine sanity yourself, that’s for the ladies and

gentlemen of the jury?” Dr. Rosecrans replied, “Exactly so.” The prosecution

called no further rebuttal witnesses to testify regarding Borden’s mental state.

      During closing argument, the State discussed the evidence that had been

presented in support of Borden’s affirmative defense. The prosecutor sought to

characterize the defense as an “excuse,” arguing that Borden had “lived a life of

excuses.” Further, he asked the jury to examine Borden’s medical records and

argued that “Dr. Sargent is the only one who says that this automobile accident has

anything to do with this defendant’s condition. The paid expert of the defense, the

                                           15
only one.” The State conceded that Borden had suffered from depression, but that

depression alone was insufficient to find him not guilty by reason of insanity.

Rather, the prosecutor argued, this was a case of “[j]ealousy and control.”

       Defense counsel directly engaged the prosecutor’s argument that Borden’s

defense was merely an “excuse”:

       How do you determine whether or not it is an excuse? History is
       helpful. Here’s a man who has been hospitalized eight times for, as
       [the prosecutor] says, excuses. He’s using it as an excuse. Well, if
       it’s an excuse, then he’s fooled eight doctors. He ought to get an
       academy award because he’s the best actor that there could be. He’s
       fooled eight different doctors at separate times and separate places.
       Read the medical reports. There’s bad stuff in the medical reports.
       We know there was bad stuff in there, and we know that you’re going
       to look at that bad stuff. But the defense offers the medical reports to
       you, not the State. They were admitted from the defense. . . . What he
       says in there is consistent with the defect the way those doctors see it.
       Not the way the doctors that testified here, but those doctors.

Defense counsel also walked the jury through testimony presented by both the

State and defense witnesses, the evidence contained within Borden’s medical

records, and the legal standard for insanity,10 reminding the jury that it was

ultimately up to them, and not the experts who testified, to determine the validity

of Borden’s defense.



       10
          Defense counsel misstated the standard for insanity in Alabama: “There is reasonable
doubt here as to his sanity, ladies and gentlemen. And if there’s reasonable doubt, the
appropriate verdict in this case is not guilty by reason of mental defect or disease. . . . That’s
what the law says.” The prosecutor corrected him during the State’s rebuttal, explaining that
Borden had pled an affirmative defense and therefore bore the burden of persuasion.

                                                16
       On rebuttal, the prosecutor discussed the strengths and weaknesses of the

witnesses that the jury had seen, and, in doing so, made an argument that is

relevant to Borden’s ineffective assistance of counsel claim:

       And if there was a serious attempt here, folks, to give you the big
       picture and all the information, we’re missing somebody, aren’t we?
       The defendant’s mother said that in the year 1993 leading up to these
       shootings that nobody, nobody, knew the defendant’s condition better
       than Dr. Shehi. Where is he? Have you seen him? . . . And don’t you
       think you’ve got a right to expect if they want to prove something to
       you, they’re going to bring the person who according to the
       defendant’s own mother knows more about him than anything else?
       And they chose not to. And I think you can infer from that why.

       The court then gave its instructions to the jury, which deliberated for

roughly three hours. On the afternoon of September 14, 1995, the jury found

Borden guilty of the capital offense charged in Count I and guilty of the lesser-

included offense of non-capital intentional murder under Count II.

                                                B.

       Shortly after the jury delivered its verdict, the sentencing phase of Borden’s

trial began.11 The State readopted all of the evidence and testimony from the guilt

       11
            Following a capital conviction, Alabama law requires a jury—the same jury that
convicted the defendant “unless it is impossible or impracticable to do so”—to return an
advisory verdict that recommends a sentence of either life imprisonment without parole or death.
Ala. Code § 13A-5-46. A jury recommendation of a sentence of death must be based on the vote
of at least ten of the twelve jurors, while a jury recommendation of a sentence of life without
parole requires a vote of a majority of the jurors. Id. § 13A-5-46(f). If the jury is unable to
reach an advisory verdict recommendation, then the trial court may declare a mistrial of the
sentence hearing and conduct another such hearing before a new jury. Id. § 13A-5-46(g).
         Despite this jury procedure, it is the trial court that ultimately determines a defendant’s
sentence. Id. § 13A-5-47(e) (“While the jury’s recommendation concerning sentence shall be

                                                 17
stage of the trial and sought to prove one aggravating circumstance: “this defendant

at the time he fired those shots through that door created a great risk of death to a

number of people.”12 Similarly, defense counsel readopted “the evidence that you

had before you in this case in the guilt phase” and sought to prove three mitigating

circumstances: first, that Borden had no prior significant criminal history, see Ala.

Code § 13A-5-51(1); second, that “this offense was committed while [Borden] was

under the influence of extreme mental or emotional disturbance,” see id. § 13A-5-

51(2); and third, that Borden’s ability to “appreciate the criminality of his conduct

to the requirements of the law” was “substantially impaired,” see id. § 13A-5-

51(6).13

       To prove its aggravating circumstance, the State called one witness at the

penalty phase: Cindy Smith, Cheryl Borden’s sister. Smith was in attendance at

the Harris household on the night of the murders and had previously testified at the

guilt phase of the trial. At the penalty phase, she testified to the location of the



given consideration, it is not binding upon the court.”).
       12
           The above-quoted language is how the prosecutor described the aggravating
circumstance; the precise statutory language is, “The defendant knowingly created a great risk of
death to many persons.” Ala. Code § 13A-5-49(3). In its charge to the jury, the court correctly
stated the aggravating circumstance.
       13
           Alabama law allows a defendant to introduce both enumerated and unenumerated
mitigating circumstances at the penalty phase of a capital trial. See Ala. Code §§ 13A-5-51, 52.
Each of the mitigating circumstances presented by Borden’s counsel is specifically enumerated.
See id. § 13A-5-51.

                                                 18
various people at the Harris’s at the time of the murders. According to her

testimony, there were around ten people in the house at the time Borden shot

Cheryl Borden and Roland Harris.

      The defense presented Borden’s mother and his three sisters as witnesses at

the penalty phase of his trial. Borden’s mother testified that Borden had been

receiving disability benefits for “mental disease” and that he had been living with

her since his separation from his wife. Mrs. Borden stated that he would pace

around like “a caged animal” because he believed that “[s]omebody was always

after him.” She also relayed information about his “very poor” hygiene habits and

his inability to get any sustained sleep. Finally, she testified that Borden

“definitely” had an emotional disturbance in 1993, and that he was on heavy

medication “for the majority of 1993.” The State did not cross-examine her.

      The defense next called Jennifer Borden (“Jennifer”), Borden’s nineteen-

year-old sister. Jennifer lived with her parents at the time of trial, and also had

lived in their home when Borden moved back following his separation from his

wife. Jennifer testified that Borden returned to live at home in February 1993 and

that his conduct had been “very unusual.” Elaborating, she stated that “he rarely

slept if any at all. And he would sit and just stare for hours. And he would

mumble things sometimes . . . .” She echoed Mrs. Borden’s testimony about

Borden’s belief that people were “after him,” relaying an incident in which Borden

                                           19
had hurt himself falling off a shed and claimed that a non-existent “someone” had

thrown him off. Jennifer also testified that, to her knowledge, Borden had never

been charged with or convicted of a felony. Finally, she testified about his hospital

visits and his 1993 suicide attempt in Tennessee. The State very briefly cross-

examined Jennifer, asking her if Borden had “acted this way all the time” he lived

at home. Jennifer responded affirmatively.

      The defense next called Denise Borden Purser, Borden’s older sister. Purser

testified about changes in Borden’s mental state following his 1977 accident,

recalling an incident in 1978 when Borden hallucinated, conjuring in his mind a

“big black dog” with “snarling long black teeth” and “red glowing eyes.” Next,

she testified about Borden’s behavior at a family reunion during the summer of

1993 when Borden “had just gotten out of the hospital from the shock treatments.”

She stated that he “was like a little wild man.” Asked to describe what she meant,

Purser said, “A wild man. His eyes were wild and open and all. He didn’t know

us at times. He didn’t know the people around him. He would ask repeated

questions over and over.” She also testified to his “very bad” hygiene habits, and

that, to her knowledge, he had never been charged with or convicted of a felony.

The State did not cross-examine Purser.

      The defense called as its last witness Becky Taylor, Borden’s oldest sister.

In her brief testimony, Taylor recalled changes to Borden’s behavior after his car

                                          20
accident, stating that he imagined people were after him. She also testified that she

had no knowledge of any past felony charges or convictions. Regarding his

behavior in 1993, she said, “Jeff always was pacing the floor. And he would sit

and blank stare. . . . He got to where he didn’t take baths or eat right, you know.

That’s about basically it.” The State also declined to cross-examine Taylor.

      During its closing argument, the State conceded that Borden had no prior

significant history of criminal activity. With regard to mitigating circumstances

pertaining to Borden’s mental state, the State argued,

      And I believe by your verdict that you’ve already rejected any severe
      mental disease or defect on his part. And you’ve heard no evidence
      that at the time he committed this act he was under extreme mental or
      emotional disturbance or that he was severely impaired so as to be
      unable to understand the criminality of his conduct.

The prosecutor concluded, “What we do have is a great risk of death to many

people versus no significant history of prior criminal activity. One to one. What is

more important is up to you.”

      Defense counsel took issue with the State’s characterization of the factors to

be weighed as “[o]ne to one,” and argued that all three proposed mitigating

circumstances had been proved. He concluded with a lengthy argument about the

rationale behind the prohibition of executing the legally insane, tying in the ability

to “repent” and other religious themes. He also admonished the jury with a

reminder that “Thou shall not kill,” seemingly arguing that sentencing Borden to

                                           21
death as opposed to life without parole would be in contravention of concepts that

“go[] back to the biblical law.”

      On rebuttal, the State referred to defense counsel’s arguments based on the

Ten Commandments as “disgraceful,” stating that he “isn’t going to succeed in

shaming you or making you feel ashamed or embarrassed or guilty about

return[ing] the fair and just verdict in this case.” Notably, the State did not

emphasize that defense counsel never called Dr. Shehi or any of Borden’s treating

physicians at the penalty phase of trial.

      The court gave a lengthy charge to the jury. Significantly, in its explanation

of mitigating circumstances, the court stated:

      a person’s capacity to appreciate the criminality of his conduct or
      conform his conduct to the requirements of law is not the same as his
      ability to know right from wrong generally or to know what he is
      doing at a given time or to know what he is doing is wrong. A person
      may indeed know that doing the act that constitutes the capital offense
      is wrong, and still not appreciate its wrongfulness because he does not
      fully comprehend or is not fully sensible to what he is doing or how
      wrong it is. For this mitigating circumstance to exist, the defendant’s
      capacity to appreciate does not have to have been totally
      obliterated. . . .

On the morning of September 15, 1995, the jury recommended that Borden be

sentenced to death by a vote of 10-2. In delivering its verdict, the jury did not

reveal which mitigating circumstances it found, if any.

      On November 13, 1995, the circuit court followed the jury’s


                                            22
recommendation and sentenced Borden to death by electrocution for the conviction

under Count I. The following day, the court sentenced him to life imprisonment

for the conviction of the lesser-included offense under Count II.

      On September 26, 1996, the circuit court issued a written sentencing order

specifically identifying aggravating and mitigating circumstances found by the

court as required by Alabama Code § 13A-5-47(d). The court found one

aggravating circumstance: “The defendant knowingly created a great risk of death

to many persons.” Id. § 13A-5-49(3). In contrast, the court found two mitigating

circumstances, to wit, that the defendant had “no significant history of prior

criminal activity,” id. § 13A-5-51(1), and that “[t]he capital offense was committed

while the defendant was under the influence of extreme mental or emotional

disturbance,” id. § 13A-5-51(2). The court concluded “that the aggravating

circumstance noted above outweighs the mitigating circumstances noted and the

jury’s 10 to 2 recommendation for death is the appropriate sentence.”

                                           C.

      On direct appeal,14 the Alabama Court of Criminal Appeals affirmed

Borden’s death sentence but reversed his conviction for the intentional murder of




      14
        While Borden had counsel on appeal, Michael Shores and J. Massey Relfe,
Jr.—Borden’s counsel at trial—no longer represented him.

                                            23
Roland Harris because it violated the principle of double jeopardy.15 Borden v.

State, 711 So. 2d 498, 503–04 (Ala. Crim. App. 1997). In a brief opinion, the

Supreme Court of Alabama affirmed Borden’s capital conviction and sentence of

death. Ex parte Borden, 711 So. 2d 506 (Ala. 1998). The United States Supreme

Court denied Borden’s petition for a writ of certiorari. Borden v. Alabama, 525

U.S. 845, 119 S. Ct. 113, 142 L. Ed. 2d 91 (1998).

       On August 30, 1999, Borden began his attempt to obtain state post-

conviction relief by filing a Petition for Relief from Judgment Pursuant to Rule 32

of the Alabama Rules of Criminal Procedure16 in the Circuit Court of Jefferson

County. In his petition, Borden argued, inter alia, that his trial counsel had

rendered ineffective assistance of counsel at the penalty phase of his trial. The

State filed an answer to this petition on October 5, 1999. Three days later, the

State filed a pair of motions, each seeking partial dismissal of Borden’s claims.

One of the State’s motions sought dismissal of many of Borden’s


       15
            In short, the court held that

       where, as here, the jury returns guilty verdicts for both a capital offense alleged in
       one count of the indictment and the lesser included offense of intentional murder
       of a capital offense alleged in another count of the indictment, and the same
       murder was an element of the capital offense and the intentional murder
       conviction, the trial court should enter a judgment on only one of the offenses.

Borden v. State, 711 So. 2d 498, 503 (Ala. Crim. App. 1997) (citations omitted).
       16
          Rule 32 of the Alabama Rules of Criminal Procedure governs available post-
conviction remedies under Alabama law.

                                                 24
claims—including his ineffective assistance of counsel claims—for failure to

comply with Rule 32.6(b) of the Alabama Rules of Criminal Procedure. This

motion requested that the court “dismiss those claims in the petition which fail to

state a claim for relief or establish any material facts which entitle Borden to

relief.” (emphasis added). Rule 32.6(b) provides:

      Specificity. The petition must contain a clear and specific statement
      of the grounds upon which relief is sought, including full disclosure of
      the factual basis of those grounds. A bare allegation that a
      constitutional right has been violated and mere conclusions of law
      shall not be sufficient to warrant any further proceedings.

Ala. R. Crim. P. 32.6(b).

      The State’s other motion sought dismissal of some of Borden’s

claims—claims not at issue here—under Rule 32.2(a) of the Alabama Rules of

Criminal Procedure, which precludes collateral relief for a petitioner who fails to

comply with state procedural rules.

      Borden filed a response to these motions on November 1, 1999, and then, on

November 15, 1999, filed a Motion for Discovery to obtain institutional records

and files regarding his medical and mental health.

      On May 15, 2000, the circuit court issued a pair of orders granting both of

the State’s motions. In the order granting the State’s motion on the ground that

Borden failed to plead his claims with sufficient specificity, the court stated that

“the following claims, as written, are foreclosed from review under Rule 32.6(b).”

                                           25
Borden’s ineffective assistance of counsel claims were included in this dismissal.

Nonetheless, the court ruled that “Borden may, within thirty (30) days of this

Order, amend the above-cited claims to comply with the requirements of Rule

32.6(b), Ala. R. Crim. P. If Borden fails to amend his petition, the above-cited

claims are foreclosed from review by this Court.”17

       In contrast, the court’s other order dismissing claims under Rule 32.2 of the

Alabama Rules of Criminal Procedure stated, “the following claims are

procedurally barred under Rule 32.2(a), Ala. R. Crim. P.” (emphasis added).

       On September 20, 2000, Borden filed an amended Rule 32 petition for post-

conviction relief.18 Two days later, the court granted Borden discovery of all

pertinent records from the Alabama Department of Corrections. In addition, the

court granted Borden discovery of materials from the prosecution pertaining to its

investigation into the murders, as well as documents relating to his arrest and

prosecution.

       For the purposes of our analysis, this amended Rule 32 petition (the

“Amended Rule 32 Petition” or the “Amended Petition”) is the operative pleading

in this case. See infra part II.B. In the Amended Petition, Borden presented


       17
           The granting of time to amend is consistent with the Alabama Rules of Criminal
Procedure. See Ala. R. Crim. P. 32.7(b) (“Amendments to pleadings may be permitted at any
stage of the proceeding prior to the entry of judgment.”).
       18
            The court accepted the September 20 filing despite its apparent untimeliness.

                                                 26
fourteen separate grounds for post-conviction relief. The relevant ground for relief

was entitled: “Trial Counsel Was Ineffective During the Penalty Phase of Mr.

Borden's Trial, and This Ineffectiveness Resulted in the Unjust and

Unconstitutional Imposition of the Death Penalty.” Borden laid out his claims:

              54. Trial counsel was grossly ineffective at the penalty phase of
      the trial, and the jury subsequently returned a 10-2 death
      recommendation, which was followed by the trial court’s sentence of
      death. Despite the wealth of mitigating factors – both statutorily
      enumerated and nonenumerated – trial counsel called only four
      witnesses, whose extremely brief testimony spans a total of only 25
      pages of the transcript. Trial counsel’s deficient performance
      prevented the jury and the trial court from hearing and considering an
      abundance of mitigating evidence, and thus denied Mr. Borden a fair
      and accurate penalty phase determination as required under the
      Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
      United States Constitution, the Alabama Constitution, and Alabama
      law. Quite simply, trial counsel abdicated its constitutionally
      mandated obligation to present a defense at the most important phase
      of Mr. Borden’s capital trial.
              55. It is absolutely essential that trial counsel in a capital case
      fully investigate the history of the client in preparation for the penalty
      phase of a capital proceeding. It is constitutionally required that the
      trial court and the jury consider “as a mitigating factor, any aspect of a
      defendant’s character or record and any of the circumstances of the
      offense that the defendant proffers as a basis for a sentence less than
      death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). This includes any
      evidence about the defendant’s history and life that may be considered
      by the jury or judge as a mitigating factor. Woodson v. North
      Carolina, 428 U.S. 280 (1976). Thus, Mr. Borden was entitled to have
      all aspects of his background, family life, medical history, school
      records, and any other life-experience that may be considered
      mitigating evidence presented to the jury and judge at the penalty
      phase of his capital trial. Counsel for Mr. Borden fell far short of this
      constitutionally required mandate.
              56. In order to have prepared properly for the penalty phase of

                                          27
Mr. Borden’s capital trial, counsel should have obtained complete and
accurate information relevant to Mr. Borden’s medical history,
educational history, employment and training history, family and
social history, his correctional history, and any religious or cultural
influences. See American Bar Association, Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases,
11.4.1(A)(2)(c) (adopted by the ABA house of delegates Feb. 7,
1989). Counsel in Mr. Borden’s case failed these minimum
requirements of an adequate investigation. “At the heart of effective
representation is the independent duty to investigate and prepare [the
client’s case.]” Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.
1982), cert. denied 460 U.S. 1098 (1983). Counsel is under a clear
duty to thoroughly investigate a client’s background in preparation for
a capital penalty phase, and the failure to do so precludes a finding
that the absence of a penalty phase investigation was strategic. See,
e.g., Baxter v. Thomas, 45 F. 3d 1501 (11th Cir. 1995) (finding
counsel ineffective for failing to request state hospital records, school
records, social service records, and failed [sic] to contact the
defendant’s sister, neighbor, or social worker); Cave v. Singletary,
971 F.2d 1513 (11th Cir. 1992) (finding that the complete failure to
investigate and prepare for the penalty phase rendered counsel’s
assistance ineffective and required a new penalty phase); Cunningham
v. Zant, 928 F.2d 1006) (11th Cir. 1991) (failure to put on evidence of
defendants [sic] disadvantaged background, the death of defendant’s
father when the defendant was six, and evidence of defendant’s mild
retardation deprived the defendant of the constitutionally mandated
individual sentence determination); Thomas v. Kemp, 796 F.2d 1322
(11th Cir. 1986), cert. denied, 479 U.S. 996 (1986) (finding
ineffective assistance of counsel where little effort was made to
investigate possible sources of mitigation evidence); Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991), cert. denied, 504 U.S. 943
(1992) (criticizing counsel who did not attempt to contact family
members or prepare for the penalty phase until the trial was underway,
and who failed to put on any mental health mitigating evidence);
Jackson v. Herring, 42 F. 3d 1350 (11th Cir. 1995) (finding that the
failure of counsel to investigate family history and background of
client is inexplicable, could not be considered strategic, and required
reversal); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985) (finding a
presumption of prejudice where trial counsel made no effort to

                                   28
      prepare for the penalty phase of a capital trial); see also Douglas v.
      Wainwright, 714 F.2d 1532, 1556 (11th Cir. 1983) (“Permissible trial
      strategy can never include the failure to conduct a reasonably
      substantial investigation.”). In this instance, effective preparation and
      investigation by defense counsel would have revealed a host of
      mitigating factors, which should have been presented at Mr. Borden’s
      penalty phase. This failure constitutes clear ineffectiveness, cannot be
      characterized as strategic, and requires that this Court reverse Mr.
      Borden’s sentence of death.
              57. Trial counsel failed to conduct a reasonable independent
      investigation of the case, failing, among other things, to interview
      adequately Mr. Borden’s family, friends and acquaintances. In
      addition to failing to investigate facts available from individuals then
      unknown to them, such as Mr. Borden’s friends and acquaintances,
      trial counsel failed to adequately interview the witnesses of which
      they were then aware. For example, trial counsel failed to sufficiently
      meet with Mr. Borden’s family prior to trial, despite the fact that Mr.
      Borden’s parents both possessed information that would have been
      useful to Mr. Borden’s defense.
              58. Had counsel contacted other people who had interacted
      with Mr. Borden, they would have been able to present a complete
      portrait of Mr. Borden, which would have lessened his culpability for
      the crime, revealed numerous mitigating circumstances, and led the
      jury to impose a lesser sentence of life without possibility of parole.
              59. In addition to defense counsel’s failure to contact people
      who could offer useful mitigation evidence, counsel failed to procure
many necessary records documenting Mr. Borden’s life. These records include
school records, health records, employment records, and religious records of both
Mr. Borden and his parents and siblings.
              60. If counsel had obtained these records and interviewed even
      a portion of the potential witnesses who were willing to testify for Mr.
      Borden, counsel could have established numerous mitigating factors
      that could have swayed the jury to a finding of life in prison rather
      than death.
              61. Trial counsel even failed to present the vast majority of the
      mitigating evidence that was available to them even without an
      investigation. For example, trial counsel failed to offer any of the
      mitigating evidence which tended to show that Mr. Borden had not
      premeditated the crime and which tended to show that at the time of

                                        29
       the crime he was acting under an extreme mental or emotional
       disturbance and his capacity to appreciate the criminality of his
       conduct or to conform his conduct to the requirements of the law was
       substantially impaired.
              62. In addition, counsel was ineffective for not obtaining the
       services of expert assistance for the penalty phase of the trial.
       Medical experts could have explained the likely causes and
       consequences of Mr. Borden’s emotional and physical problems;
       without such assistance, counsel was in no position to adequately
       understand or even recognize such evidence if it were encountered
       during the investigation for Mr. Borden’s penalty phase.19
       ...

               B.    Trial Counsel Failed to Call Any Witnesses at All
                     Regarding Mr. Borden’s Mental Health.
              65. During the penalty phase, trial counsel failed to call any
       witnesses at all with regard to Mr. Borden’s mental health. New
       testimony was needed since, as discussed more fully below, the legal
       standards related to Mr. Borden’s mental health at the guilt stage are
       significantly different from those at the penalty phase. Indeed, during
       closing arguments of the penalty phase, trial counsel did not even
       refer to the mental health testimony that had been presented during the
       guilt phase of Mr. Borden’s trial.
              66. As during the guilt phase, trial counsel at the penalty phase
       failed to present testimonial evidence from any of Mr. Borden’s
       mental health care providers.
              67. Mental health testimony would have played an important
       part in Mr. Borden’s mitigation case, given the reduced level of
       mental health deficiency necessary to create a mitigating condition.
       ...

               F.     Trial Counsel Failed to Relate Any of the Evidence
                      Offered During the Mitigation Phase to the Statutory
                      Mitigation Requirements.

       19
           Footnote 3 of the Amended Petition here stated: “Of course, counsel did not even
conduct a threshold level of investigation, nor did they procure any of the records or interview
any of the friends, teachers, professional associates, and medical personnel that would have led
to information to be assessed by such experts.”

                                                30
             74. During the penalty phase, some potentially mitigatory
      evidence was presented to the jury. However, trial counsel failed to
      inform the jury of what this mitigation evidence was and how it
      related to the statutory mitigation factors.
             75. This failure hampered the jury’s ability to apply the
      minimal amount of mitigating evidence offered by trial counsel to the
      statutory mitigation factors.
      ....

(emphasis added).

      On October 24, 2000, the State filed an answer to Borden’s Amended Rule

32 Petition. On that day, the State also filed a separate motion for partial dismissal

of Borden’s relevant claims under Rule 32.6(b). Borden responded to the State’s

answer on November 9, 2000, claiming that the Amended Petition sufficiently pled

his ineffective assistance of counsel claims to comply with the requirements of

Rule 32.6(b). On February 28, 2001, the circuit court dismissed Borden’s entire

Amended Petition, stating in a minute entry:

      The Court having considered the pleadings of the parties and the
      record of the Court grants the State’s Motion to Dismiss all of the
      petitioner’s claims alleging ineffective assistance of counsel at the
      guilt phase and the penalty phase of his trial on the following ground.

             1. This Court tried the petitioner’s case and finds that he
             has failed to meet his burden of proof regarding
             allegations of ineffective assistance of counsel.

            This Court has also reviewed the District Attorney’s file
      provided by the State and finds no discoverable material; however, the
      Court has provided the petitioner with the Grand Jury notes in their
      file.


                                          31
              The petition for relief from judgment (Rule 32) is dismissed.

(emphasis added).

       Borden appealed, and on March 22, 2002, the Alabama Court of Criminal

Appeals remanded the case to the circuit court, finding several deficiencies with

the circuit court’s summary dismissal of Borden’s Amended Petition. Borden v.

State, 891 So. 2d 393 (Ala. Crim. App. 2002). First, the appellate court found that

the circuit court “appears to have misapprehended Borden’s burden at the pleading

stage” when it stated that Borden had not met his “burden of proof” in his

Amended Petition. Id. at 396. Rather, the appellate court noted, Borden only had

the burden to plead under Rule 32.6(b). Id. Next, the appellate court chastised the

circuit court for “fail[ing] to adequately dispose of all of the claims Borden raised

in his amended petition.” Id. In addition to “not sufficiently address[ing] the

merits of” Borden’s ineffective assistance of counsel claims, the “trial court failed

to address any [sic] the remainder of the claims Borden raised in his petition . . . .”

Id. at 396–97. As such, the Court of Criminal Appeals remanded the case to the

circuit court, instructing it to

       determine whether an evidentiary hearing should be held on any of
       Borden’s claims. . . . If an evidentiary hearing is held, the trial court
       shall enter specific written findings with regard to each of the claims
       presented at the hearing. The trial court should submit a specific
       written order addressing any claims that are dismissed without a
       hearing.


                                           32
Id. at 397 (citation omitted).

       In April 2002, before the circuit court issued an order on remand, Borden

filed a second amended Rule 32 petition as well as a motion seeking to allow

licensed mental health professionals access to Borden for evaluative purposes. The

State moved to dismiss the second amended petition on the ground that the circuit

court had no jurisdiction to entertain amendments to the petition once an appeal

had been taken, arguing that “when a petitioner files a notice of appeal in the

appropriate appellate court, such as the Alabama Court of Criminal Appeals, that

act will transfer jurisdiction over the matter from the relevant circuit court to the

appellate court.” As such, the State claimed that the circuit court on remand could

only comply with the limited instructions provided by the Court of Criminal

Appeals.

       On August 27, 2002, the circuit court granted the State’s motion to dismiss

Borden’s second amended Rule 32 petition. The same day, the circuit court

entered an Order on Remand denying Borden’s Amended Rule 32 petition in its

entirety.20 The court never granted Borden an evidentiary hearing. Additionally,


       20
          Borden accuses the circuit court, in drafting the Order on Remand, of impermissibly
adopting the State’s proposed order as its own. The Alabama Court of Criminal Appeals
addressed this issue:

       [T]he trial court did not adopt the proposed order verbatim; rather, the trial court
       omitted portions of the proposed order and inserted additional findings of its own.
       The trial court was very familiar with the facts of the case and with the post-

                                                33
the court did not formally rule on the request that mental health professionals be

given access to Borden.

       In dismissing the entire Amended Petition in its Order on Remand, the

circuit court first divided many of Borden’s claims into two groups: “Procedurally

Barred Claims,” which were “procedurally defaulted from . . . review” under Rule

32.2 of the Alabama Rules of Criminal Procedure, and “Claims That Lack a

Sufficient Factual Basis,” which were “dismissed because they do not contain a

sufficient factual basis” under Rule 32.6(b). The claims dismissed for failure to

plead a sufficient factual basis included:

       Claim II (paragraphs 55–60) – The claim that trial counsel were
       ineffective because they failed to investigate mitigation;

       Claim II (paragraph 62) – The claim that trial counsel were ineffective
       because they failed to obtain the services of experts for the penalty
       phase of the trial;

       Claim II-B (paragraphs 65–67) – The claim that trial counsel were
       ineffective because they failed to call any witnesses at all regarding
       Borden’s mental health during the penalty phase;
       ...

       Claim II-F (paragraphs 74–75) – The claim that trial counsel were
       ineffective because they failed to relate any of the evidence offered


       conviction proceedings. The record indicates that the findings of fact and the
       conclusions of law contained in the final order are those of the trial court. The
       adoption of the majority of the State’s proposed order does not constitute
       reversible error here.

Borden v. State, No. CR-00-1379, at 3 (Ala. Crim. App. Aug 22, 2003).

                                                34
       during the penalty phase of the trial to the statutory mitigating
       circumstances;
       ....

       In addition, the court found fifteen claims that it “determine[d were] not

procedurally barred and contain[ed] a sufficient factual basis,” discussing them

separately in a section titled, “Merits of Remaining Ineffective Assistance of

Counsel Claims.” In dismissing these claims, the court generally relied on

information contained within the record to refute the allegations.21 Two of these

claims are relevant to our discussion.

       In discussing Borden’s general allegation that his counsel were ineffective

during the penalty phase of his trial—contained in paragraph 54 quoted above—the

circuit court quoted the Alabama Rules of Criminal Procedure at length and

concluded, “Borden’s claims concerning his attorneys’ failure to investigate and

present mitigation are denied because Borden failed to plead these claims with

specificity. Rule 32.6(b), Ala. R. Crim. P.” Declining to stop its analysis there, the

court continued to address the merits of Borden’s claim. The court concluded that

       Borden’s attorneys clearly investigated, presented, and argued
       mitigating circumstances during the penalty phase of his trial.
       Borden’s allegations in his amended Rule 32 petition that he failed to
       find and present more unspecified evidence does not establish
       deficient performance or that he was prejudiced by the actions of his

       21
           For example, Borden claimed that trial counsel was ineffective for failing to employ a
jury selection expert during voir dire, and the court dismissed this claim on the basis of record
evidence that Borden did in fact have the assistance of an expert during voir dire.

                                                35
       trial counsel. Because these claims are not sufficiently specific and
       fail to state a claim for relief, these claims are denied. See Rule
       32.7(d), Ala. R. Crim. P.

(emphasis added).

       Also in the “Merits” section of the Order on Remand, the circuit court

dismissed the claim that Borden’s counsel were ineffective during the penalty

phase of his trial for failing to “present the vast majority of the mitigating evidence

that was available to them even without an investigation.” Deeming this claim

“without merit,” the court discussed the “significant amount of mitigation evidence

[produced] during the penalty phase of his capital murder trial,” including

“testimony from two doctors, a medical assistant, and four family members.”22

The court stated its belief that “Borden’s trial counsel provided enough information

to the jurors to enable them to find that Borden’s alleged mental or emotional

disturbance constituted a mitigating circumstance.” As such, the court held that

Borden had “failed to establish deficient performance” and further had “not

attempted to demonstrate that he was prejudiced by the actions of his trial counsel.

The record in this case reveals that Borden can never satisfy his burden of proof as




       22
          As noted above, no doctors testified during the penalty phase, but their testimony
during the guilt phase was adopted by counsel during the penalty phase for the jury’s
consideration.

                                               36
to this claim. See Ala. R. Crim. P. 32.3. This claim is denied.”23

       On August 22, 2003, the Alabama Court of Criminal Appeals affirmed the

circuit court’s Order on Remand. Borden v. State, No. CR-00-1379 (Ala. Crim.

App. Aug 22, 2003). In doing so, the appellate court issued a lengthy

Memorandum discussing its reasoning in review of the circuit court’s decisions.

The Court of Criminal Appeals began by affirming the circuit court’s dismissal of

Borden’s second amended petition, stating that it would “review only the

allegations contained in the first amended petition in our analysis of whether the

circuit court correctly found that many of the claims of ineffective assistance of

counsel were not sufficiently pleaded.” Id. at 4. Citing Rule 32.3 of the Alabama

Rules of Criminal Procedure for the proposition that state petitioners seeking post-

conviction relief bear the burden to plead facts necessary to entitle relief, the court

continued on to affirm the denial of an evidentiary hearing:

       [A] Rule 32 petitioner is not automatically entitled to an evidentiary
       hearing on any and all claims raised in the petition. To the contrary,
       Rule 32.7(d), Ala. R. Crim. P., provides for the summary disposition
       of a Rule 32 petition if the court determines that the claims in the

       23
            Rule 32.3, “Burden of Proof,” states:

       The petitioner shall have the burden of pleading and proving by a preponderance
       of the evidence the facts necessary to entitle the petitioner to relief. The state
       shall have the burden of pleading any ground of preclusion, but once a ground of
       preclusion has been pleaded, the petitioner shall have the burden of disproving its
       existence by a preponderance of the evidence.

Ala. R. Crim. P. 32.3.

                                                37
       petition are not pleaded with sufficient specificity, in violation of Rule
       32.6(b), or if the claims are precluded, pursuant to Rule 32.2, or if the
       allegations fail to state a claim, or if the court determines that no
       material issue of law or fact exists which would entitle the petitioner
       to relief.

Id. at 5.

       The Court of Criminal Appeals then proceeded to address Borden’s claims

one by one, utilizing Rule 32.6(b) to dismiss relevant claims that Borden failed to

plead with the requisite specificity. For example, in dismissing Borden’s claim

that his counsel failed to investigate and introduce mitigating evidence at the

penalty phase of his trial, the court stated:

       In the allegations of the paragraphs which are set out above, Borden
       made only broad, vague assertions regarding counsel’s alleged
       failures, and he put forth conclusions of law and only bare allegations
       that his constitutional rights had been violated. Such vague assertions
       and unsupported conclusions are insufficient to withstand summary
       dismissal for they failed to contain the required specificity and a full
       disclosure of the factual basis. Rule 32.6(b), Ala. R. Crim. P.

Id. at 22. This language is representative of the court’s handling of Borden’s

ineffective assistance claims.

       The appellate court also criticized Borden for failing “to identify even a

single name of the many ‘family, friends and acquaintances’ who, he alleged,

should have been but were not interviewed ‘adequately.’” Id. at 22–23. Later in

the Memorandum, the court explicitly cited the Strickland test for determining

ineffective assistance of counsel when discussing Borden’s claim that counsel

                                            38
failed to present facts at the penalty phase of his trial that tended to support the

purported mitigating circumstances. The court stated, “Borden has failed to plead

this claim with sufficient specificity and has, as a result, failed to state a claim of

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668

(1984).” Id. at 29. Nowhere in the Memorandum did the court state that it was

refusing to adjudicate Borden’s relevant ineffective assistance claims due to the

operation of a state procedural rule; rather, it repeatedly stated that Borden simply

did not state a claim with sufficient factual support as required by Rule 32.6(b) to

preclude summary dismissal under Rule 32.7(d) of the Alabama Rules of Criminal

Procedure.

       On November 14, 2003, Borden’s application for rehearing in the Court of

Criminal Appeals was denied without opinion, and on May 28, 2004, the Alabama

Supreme Court denied Borden’s petition for a writ of certiorari.

                                            D.

       On June 25, 2004, Borden filed a petition seeking habeas relief pursuant to

28 U.S.C. § 2254 in the United States District Court for the Northern District of

Alabama. On September 9, 2008, the district court denied Borden’s petition

without conducting an evidentiary hearing. In its Memorandum of Opinion, the

district court found that Borden had procedurally defaulted on his ineffective

assistance of counsel claims, because Rule 32.6(b) was an independent and

                                            39
adequate state procedural rule. In addition, the district court undertook an

“Alternative Merits Consideration,” finding that

       [e]ven if the state courts’ procedural default ruling . . . can be
       construed as a decision on the merits, Borden cannot show that the
       decision was contrary to or an unreasonable application of clearly
       established federal law, nor can he show that the decision was based
       upon an unreasonable determination of the facts in light of the
       evidence before the state courts.24

       On August 28, 2009, the district court granted Borden’s motion requesting a

Certificate of Appealability (“COA”), certifying three issues for our review:

       1. Was the “specificity requirement” of Rule 32.6(b) of the Alabama
       Rules of Criminal Procedure firmly established and regularly followed
       by the Alabama courts at the time of petitioner’s Rule 32 proceedings,
       so that it was an “adequate” basis for procedural default under federal
       law?

       2. Did counsel provide ineffective assistance when they failed to
       interview and present as witnesses during the penalty phase of trial the
       petitioner’s “treating” physicians, identified in medical and
       psychological records admitted into evidence, where the records were
       available to the jury and two other (non-treating) mental health
       experts testified about the petitioner’s mental state during the guilt
       phase of trial?

       3. Can a claim of ineffective assistance of counsel be based on the

       24
            To justify this conclusion, the district court found that

       almost all of the evidence Borden contends should have been investigated,
       prepared, and presented at the penalty phase of trial was presented during the guilt
       phase and was referred to at the penalty phase of trial. It is simply not true that
       there was any substantial mental-illness evidence that was not presented to the
       jury and available for their consideration.

(emphasis added).

                                                   40
       “cumulative effect” of multiple non-prejudicial errors by counsel
       when none of the individual errors themselves warrants a finding of
       ineffective assistance under Strickland? 25

       We address these questions in turn.

                                                II.

                                                A.

       As a threshold matter, we must determine whether the application of Rule

32.6(b) by the Alabama courts to Borden’s ineffective assistance claims precludes

our review. See, e.g., Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “A

state court’s rejection of a petitioner’s [federal] constitutional claim on state

procedural grounds will generally preclude any subsequent federal habeas review

of that claim.” Id. (citing Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.

1990)).26 In contrast, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) dictates that a federal court deferentially review a petitioner’s claims


       25
           On September 21, 2009, this court granted Borden’s motion to expand the COA to
include all of his ineffective assistance of counsel claims relating to the investigation and
presentation of mitigation evidence at the penalty phase of his trial. We nonetheless quote the
original COA because his counsel’s alleged failure to present the testimony of his treating
physicians at the penalty phase of his trial constitutes the crux of Borden’s relevant Sixth
Amendment claims. We have, of course, considered all claims cognizable under the expanded
COA.
       26
           Of course, a state’s purported reliance on a procedural bar does not necessarily
preclude federal habeas review; a habeas petitioner may overcome a procedural default if he can
show adequate cause and actual prejudice, or, alternatively, if the failure to consider the merits
of his claim would result in a fundamental miscarriage of justice. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564–65, 115 L. Ed. 2d 640 (1991).
Because we find no procedural default here, we need not analyze these issues.

                                                41
that a state court has “adjudicated on the merits.” 28 U.S.C. § 2254; see also infra

part II.B. The district court determined that Borden’s ineffective assistance of

counsel claims dismissed under Rule 32.6(b) were procedurally barred, a mixed

determination of fact and law that we review de novo. Judd, 250 F.3d at 1313.

Upon thorough review of Alabama law and the record in this case, we hold that the

state court summary dismissals of Borden’s constitutional claims under Rule

32.6(b) were adjudications on the merits, and are therefore not procedurally barred,

but subject to review under AEDPA.27

                                                 1.

       To begin, we observe that Alabama, like several of the States, has adopted a

post-conviction scheme that closely resembles the post-conviction scheme

Congress established for the review of state court convictions under 28 U.S.C.

§ 2254 and federal court convictions under 28 U.S.C. § 2255. An extensive

comparison of the federal scheme to Alabama’s informs our final determination


       27
           In urging this court to affirm the district court’s ruling that adjudications under Rule
32.6(b) serve as a procedural bar, Alabama relies on the unpublished opinion in Jenkins v.
Bullard, 210 F. App’x 895 (11th Cir. 2006), which held that Rule 32.6(b) was an independent
and adequate state ground to preclude review of ineffective assistance of appellate counsel
claims. Id. at 900–01. We are unpersuaded to follow this ruling. “Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2.
Furthermore, “[t]he court may cite to [unpublished opinions] where they are specifically relevant
to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist
in the case, to ascertain the law of the case, or to establish the procedural history or facts of the
case.” 11th Cir. R. 36, I.O.P. 7. None of these considerations apply here, and we decline to
follow Jenkins, particularly where the issue has been addressed in a published opinion. See
Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010).

                                                 42
that Rule 32.6(b) summary dismissals are adjudications “on the merits.”

       Beginning with the federal rules,28 Rule 2 of the Rules Governing Section

2254 Cases in the United States District Courts (the “§ 2254 Rules”) and Rule 2 of

the Rules Governing Section 2255 Proceedings in the United States District Courts

(the “§ 2255 Rules”) contain provisions very similar to those in Rule 32.6 of the

Alabama Rules of Criminal Procedure. Rule 2 of the 2254 Rules, entitled “The

Petition,” states in subsection (c):

       Form. The petition must:
       (1) specify all the grounds for relief available to the petitioner;
       (2) state the facts supporting each ground;
       (3) state the relief requested;
       ....

and in subsection (d):

       Standard Form. The petition must substantially follow either the
       form appended to these rules or a form prescribed by a local district-
       court rule.

28 U.S.C. § 2254 Rule 2 (emphasis added).29



       28
           Stylistic amendments were made to the federal habeas rules, effective December 1,
2004. See, e.g., 28 U.S.C. § 2254 Rule 2 advisory committee notes (“The language of Rule 2
has been amended as part of general restyling of the rules to make them more easily understood
and to make style and terminology consistent throughout the rules. These changes are intended
to be stylistic and no substantive change is intended, except as described below.”). No
substantive changes affect our analysis. We therefore quote the current version of the rules for
the sake of clarity, despite the fact that Borden’s initial habeas petition was filed prior to
December 1, 2004.
       29
         Rule 2 of the § 2255 Rules is identical (except that the petition is referred to as “The
Motion” and the petitioner is “the moving party”). See 28 U.S.C. § 2255 Rule 2.

                                                43
       The “Appendix of Forms” annexed to the § 2254 Rules is prefaced with a

list of ten “Instructions.” The ninth instruction reads:

    9. CAUTION: You must include in this petition all the grounds for relief
      from the conviction or sentence that you challenge. And you must
      state the facts that support each ground. If you fail to set forth all the
      grounds in this petition, you may be barred from presenting additional
      grounds at a later date.

28 U.S.C. § 2254 Appendix of Forms (emphasis in original).

       The form petition set out in the Appendix provides for the presentation of

grounds for relief:

       GROUND ONE: ___________________________
       _________________________________________
       (a) Supporting facts (Do not argue or cite law. Just state the specific
       facts that support your claim.): ________________
       _________________________________________
       (b) If you did not exhaust your state remedies on Ground One, explain
       why. ______________________________________
        __________________________________________
       ....

Id. The form goes on to elicit the state court disposition of Ground One on direct

appeal or in post-conviction proceedings, whichever the case may be.30

       The § 2254 Rules and the § 2255 Rules mandate “fact pleading” as opposed

to “notice pleading,” as authorized under Federal Rule of Civil Procedure 8(a).



       30
           The Appendix of Forms annexed to the § 2255 Rules contains the same “CAUTION”
instruction and sets out a form closely resembling the form petition used in § 2254 cases; the
differences between the forms simply reflect the differences inherent in §§ 2254 and 2255
proceedings. See 28 U.S.C. § 2255 Appendix of Forms.

                                              44
Coupled with the form petition or motion, the federal rules give the petitioner or

movant ample notice of this difference. If, for example, Rule 2(c)(1) and (2) of the

§ 2254 Rules should cause a petitioner (or his counsel) to doubt what the words

“specify all grounds” and “state the facts supporting each ground” mean, the

CAUTION contained in paragraph (9) of the “Instructions” should remove such

doubt. As the Supreme Court has observed, “[h]abeas corpus petitions must meet

heightened pleading requirements, see 28 U.S.C. § 2254 Rule 2(c).” McFarland v.

Scott, 512 U.S. 849, 856, 114 S. Ct. 2568, 2572, 129 L. Ed. 2d 666 (1994).

      The reason for the heightened pleading requirement—fact pleading—is

obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner

ordinarily possesses, or has access to, the evidence necessary to establish the facts

supporting his collateral claim; he necessarily became aware of them during the

course of the criminal prosecution or sometime afterwards. The evidence

supporting a claim brought under the doctrine set forth in Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), for example, may not be

available until the prosecution has run its course. The evidence supporting an

ineffective assistance of counsel claim is available following the conviction, if not

before. Whatever the claim, though, the petitioner is, or should be, aware of the




                                          45
evidence to support the claim before bringing his petition.31

       Rule 4 of the § 2254 Rules puts the petitioner on notice of what is likely to

happen if his petition fails to comply with the fact pleading requirements of Rule

2(c) and (d). “If it plainly appears from the petition and any attached exhibits that

the petitioner is not entitled to relief in the district court, the judge must dismiss the

petition and direct the clerk to notify the petitioner.”32 The judge acts sua sponte.

“Federal courts are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face, see 28 U.S.C. § 2254 Rule 4.” McFarland,

512 U.S. at 856, 114 S. Ct. at 2572. As discussed below, such a summary

dismissal by a federal court constitutes a ruling on the merits of a petitioner’s or

movant’s claims.

       By comparison, Rule 32 of the Alabama Rules of Criminal Procedure

establishes essentially the same fact pleading scheme the federal district courts use

in §§ 2254 and 2255 proceedings.33 Rule 32.6(b) of Alabama’s rules,


       31
          Inherent in the fact pleading requirement of the federal habeas rules is the notion that a
habeas case is not a vehicle for a so-called fishing expedition via discovery, an effort to find
evidence to support a claim.
       32
           Rule 4(b) of the § 2255 Rules mirrors Rule 4 of the § 2254 Rules. “If it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party.” 28 U.S.C. § 2255 Rule 4(b).
       33
           The Rule 32 in effect at the time Borden filed the petition at issue is essentially
identical to the Rule 32 in effect today. We quote the current version.

                                                  46
“Specificity,” requires the same information the federal rules require:

       The petition must contain a clear and specific statement of the grounds
       upon which relief is sought, including full disclosure of the factual
       basis of those grounds. A bare allegation that a constitutional right
       has been violated and mere conclusions of law shall not be sufficient
       to warrant any further proceedings.

Ala. R. Crim. P. 32.6(b). The petitioner must fact plead his claim. If Rule 32.6(b)

does not make this clear, Rule 32.6(a) does. Rule 32.6(a) states that “[t]he petition

should be filed by using or following the form accompanying this rule. If that

form is not used or followed, the court shall return the petition to the petitioner to

be amended to comply with the form.” Ala. R. Crim. P. 32.6(a).34

       The form is like the one used in §§ 2254 and 2255 cases. It is prefaced with

instructions and the command: “READ THESE INSTRUCTIONS CAREFULLY

BEFORE YOU BEGIN PREPARING THE PETITION.” Ala. R. Crim. P. 32

Appendix. There are nine instructions. Instructions (4) and (5) are unambiguous:35

       (4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS
       FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF
       IN THIS PETITION MAY RESULT IN YOUR BEING BARRED


       34
           Alabama first introduced a form petition for those seeking state post-conviction relief
in 1987, appending it to Rule 20 of the Alabama Temporary Rules of Criminal Procedure, the
predecessor to the modern Rule 32. In contrast, the federal form petition attached to the § 2254
Rules was made effective in 1976. See 28 U.S.C. § 2254 Rule 2 advisory committee notes.
While we have no direct evidence as to the Alabama legislature’s intent in adopting the form, we
think it safe to infer from this chronology that Alabama lawmakers mimicked the federal post-
conviction scheme, including the form petition, in formulating Alabama’s.
       35
            Indeed, instructions (4) and (5) are the only instructions printed in all capital letters.

                                                    47
      FROM PRESENTING IT IN A FUTURE PETITION.

      (5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH
      GROUND FOR RELIEF AND YOU MUST BE AS SPECIFIC AS
      POSSIBLE AS TO THE FACTS.

Id. The need for a complete statement of facts is reiterated in paragraph 12 of the

form. That paragraph contains a non-exhaustive list of “the possible grounds for

relief under Rule 32.” Id. The petitioner is instructed to “[c]heck the ground(s)

that apply in your case, and follow the instruction under the ground(s).” Id. Nine

grounds are listed; ground (9) is: “Denial of effective assistance of counsel.” Id.

Immediately following ground (9), the form tells the petitioner how to state his

claim(s):

      If you checked this ground of relief, attach a separate sheet of paper
      with this ground listed at the top of the page. On this separate sheet of
      paper list each constitutional violation that you claim, whether or not
      it is one of the nine listed above, and include under it each and every
      fact you feel supports this claim. Be specific and give details.

Id. (emphasis added). In sum, the form petition is part of Rule 32 and should be

read in conjunction with Rule 32.6(b). That is, the above instruction—“include . . .

each and every fact you feel supports this claim” and “[b]e specific and give

details”—and Rule 32.6(b)’s instruction—make “full disclosure of the factual

basis” for a claim—are read together. Id.; Ala. R. Crim. P. 32.6(b).

      Rule 32.7(d), like Rule 4 of the § 2254 Rules and the § 2255 Rules, puts the



                                          48
petitioner on notice of what is likely to happen if his petition fails to comply with

Rule 32.6(a) and (b), because he has failed to state “every fact” that supports his

claim. Ala. R. Crim. P. 32.7(d). The court, acting sua sponte, will examine the

petition and summarily dismiss it if it fails to state a claim. If it fails to state a

claim, the court will, as it did here with regard to Borden’s first amended petition,

freely grant the petitioner leave to amend.36 See Ala. R. Crim. P. 32.7(b).

       Reliance on a rule of “procedure” does not foreclose the possibility that a

court is ruling “on the merits.” The dismissal of a claim pursuant to Federal Rule

of Civil Procedure 12(b)(6), for example, unambiguously constitutes a ruling “on

the merits.” See NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (“[T]he



       36
           If the petitioner is unable to state a claim within the statutory time limit because he is
unaware of the evidence that would support the claim, the Rule 32 form states, in paragraph
12.E., that he may nonetheless prosecute the claim if it meets the following requirements:

    Newly discovered material facts exist which require that the conviction or sentence be
vacated by the court, because:
       The facts relied upon were not known by petitioner or petitioner’s counsel at the
       time of trial or sentencing or in time to file a post-trial motion pursuant to Rule
       24, or in time to be included in any previous collateral proceeding, and could not
       have been discovered . . . through the exercise of reasonable diligence; and
       The facts are not merely cumulative of other facts that were known; and
       ....
       If the facts had been known at the time of trial or sentencing, the result would probably
       have been different; and
       The facts establish that petitioner is innocent of the crime for which he was convicted
       or should not have received the sentence that he did.

Ala. R. Crim. P. 32 Appendix (emphasis in original).


                                                  49
Supreme Court has clearly stated that ‘[t]he dismissal for failure to state a

claim . . . is a “judgment on the merits.”’” (quoting Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 399 n.3, 101 S. Ct. 2424, 2428 n.3, 69 L. Ed. 2d 103

(1981))). Similarly, a federal district court’s dismissal of a claim under Rule 4 of

the § 2254 Rules or the § 2255 Rules is a judgment on the merits of the claims

stated in the petition or motion—or, stated more accurately, a judgment that the

claims presented are nonmeritorious. See Granberry v. Greer, 481 U.S. 129, 135

n.7, 107 S. Ct. 1671, 1675–76 n.7, 95 L. Ed. 2d 119 (1987) (“Rule 4 authorizes a

district judge summarily to dismiss a habeas petition if ‘it plainly appears from the

face of the petition and any exhibits annexed to it that the petitioner is not entitled

to relief in the district court.’ . . . [T]he District Court’s dismissal of a

nonmeritorious petition under Rule 4 pretermits consideration of the issue of

nonexhaustion.”); see also Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987)

(“When ‘the applicant does not raise even a colorable federal claim,’ [Granberry,

481 U.S. at 135, 107 S. Ct.] at 1675, that is a reason for reaching the merits and

denying the petition, for this preserves judicial resources.” (emphasis added)).

       A ruling by an Alabama court under Rule 32.6(b) is also a ruling on the

merits. Here, the Alabama Court of Criminal Appeals, in disposing of claims in

the Amended Petition under Rule 32.6(b), necessarily considered the sufficiency of



                                             50
such claims, focusing in on the factors for determining whether the petition

presented a case sufficient to warrant relief under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In short, the Alabama Rules of

Criminal Procedure authorize summary dismissal of claims under Rule 32.7(d) for

failure to fact plead with sufficient specificity as required by Rule 32.6(b) and the

form petition, much as the § 2254 Rules and the § 2255 Rules permit summary

dismissal of claims under Rule 4 for failure to fact plead under Rule 2 and the

federal form petition. Because such dismissals under the federal rules constitute

rulings on the merits, we hold that a summary dismissal of a federal claim by

Alabama courts for failure to comply with Rule 32.6(b) is similarly a ruling on the

merits.

                                           2.

      Turning away from an abstract comparison of Alabama’s post-conviction

scheme to federal habeas rules, we must examine more closely the Alabama courts’

actual disposition of Borden’s relevant federal constitutional claims. Even if

adjudications under Rule 32.6(b) were not categorically “on the merits,” the

Alabama Court of Criminal Appeals’s ruling plainly shows that it did not rely on a

procedural bar in dismissing Borden’s relevant claims.

      “[A] federal claimant’s procedural default precludes federal habeas



                                          51
review . . . only if the last state court rendering a judgment in the case rests its

judgment on the procedural default.” Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct.

1038, 1043, 103 L. Ed. 2d 308 (1989) (citing Caldwell v. Mississippi, 472 U.S.

320, 327, 105 S. Ct. 2633, 2638, 86 L. Ed. 2d 231 (1985)). In Card v. Dugger, 911

F.2d 1494 (11th Cir. 1990), this court articulated a three-part inquiry for

determining whether a state court’s rejection of a federal constitutional claim on

supposed state procedural grounds will bar our subsequent review.37 Because

ambiguity often pervades state court opinions, the Supreme Court has devised a

plain statement rule: “in determining . . . whether we have jurisdiction to review a

case that is alleged to rest on adequate and independent state grounds, we merely

       37
            An adequate and independent state ground will bar federal review if:

       First, under Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308
       (1989), the last state court rendering a judgment in the case must fulfill the “plain
       statement rule” of Michigan v. Long, 463 U.S. 1032, 1042 & n. 7, 103 S. Ct.
       3469, 3477 & n. 7, 77 L. Ed. 2d 1201 (1983) and “clearly and expressly” state
       that it is relying on waiver as a ground for rejecting the petitioner’s claim. Harris,
       489 U.S. at 263, 109 S. Ct. at 1043. Second, the procedural rule relied on by the
       state court must serve as an independent state law ground for denying relief, and
       may not be intertwined with an interpretation of federal law. Caldwell v.
       Mississippi, 472 U.S. 320, 328, 105 S. Ct. 2633, 2639, 86 L. Ed. 2d 231 (1985);
       Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092, 84 L. Ed. 2d 53 (1985).
       Finally, the state’s application of the procedural bar must be adequate. That is, it
       must not be applied in an arbitrary or unprecedented fashion, such that it thwarts
       federal court review of those who, “in justified reliance upon prior decisions, seek
       vindication in state courts of their federal constitutional rights.” NAACP v.
       Alabama ex rel Patterson, 357 U.S. 449, 457-58, 78 S. Ct. 1163, 1169, 2 L. Ed. 2d
       1488 (1958).

Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990).


                                                52
assume that there are no such grounds when it is not clear from the opinion itself

that the state court relied upon” such grounds. Parker v. Sec’y for Dep’t of Corr.,

331 F.3d 764, 770–71 (11th Cir. 2003) (quoting Michigan v. Long, 463 U.S. 1032,

1042, 103 S. Ct. 3469, 3477, 77 L. Ed. 2d 1201 (1983)). Further, “[w]hen a federal

claim has been presented to a state court and the state court has denied relief, it

may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.”

Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 784–85 (2011) (citations

omitted). A review of the Alabama Court of Criminal Appeals’s disposition of the

ineffective assistance claims at issue here indicates that the court ruled on the

merits of those claims—that is, in determining that Borden failed to plead his

claims with the specificity required by Rule 32.6(b), the court considered the

underlying substance of his claims.

       Here, the “last state court rendering a judgment in the case,” Harris, 489 U.S.

at 262, 109 S. Ct. at 1043, was the Court of Criminal Appeals in its August 22,

2003 Memorandum affirming the circuit court’s August 27, 2002 Order on

Remand.38 Examining the reasoning of the Alabama Court of Criminal Appeals,


       38
           Where the Court of Criminal Appeals does not explain its reasoning, we may
alternatively evaluate the reasoning from the Order on Remand. We may do so based on the
presumption that


                                             53
we find ample evidence that the court did not expressly rely on a state procedural

default when it affirmed the dismissal of Borden’s relevant ineffective assistance

of counsel claims. To the contrary, as discussed in part I.C., supra, the appeals

court necessarily considered the merits of Borden’s relevant claims.

       First, we note that many of Borden’s claims that are not at issue here were

explicitly deemed “procedurally defaulted” in the Order on Remand under Rule

32.2 of the Alabama Rules of Criminal Procedure.39 For example, Borden’s claim


       [w]here there has been one reasoned state judgment rejecting a federal claim, later
       unexplained orders upholding that judgment or rejecting the same claim rest upon
       the same ground. If an earlier opinion “fairly appear[s] to rest primarily on
       federal law,” Coleman[ v. Thompson], 501 U.S. [722,] 740, 111 S. Ct. [2546,]
       2559, [115 L. Ed. 2d 640 (1991),] we will presume that no procedural default has
       been involved by a subsequent unexplained order that leaves the judgment or its
       consequences in place.

Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991). This
presumption is not irrebuttable; “strong evidence can refute it.” Id. at 804, 111 S. Ct. at 2595.
No such evidence exists here.
       39
            Rule 32.2 is entitled “Preclusion of Remedy,” and it reads in part:

       (a) Preclusion of Grounds. A petitioner will not be given relief under this rule
       based upon any ground:
       (1) Which may still be raised on direct appeal under the Alabama Rules of
       Appellate Procedure or by post-trial motion under Rule 24; or
       (2) Which was raised or addressed at trial; or
       (3) Which could have been but was not raised at trial, unless the ground for relief
       arises under Rule 32.1(b); or
       (4) Which was raised or addressed on appeal or in any previous collateral
       proceeding; or
       (5) Which could have been but was not raised on appeal, unless the ground for
       relief arises under Rule 32.1(b).
       ....

Ala. R. Crim. P. 32.2.

                                                 54
that pretrial publicity made it impossible for him to receive a fair trial was deemed

“barred from review because Borden raised [it] at trial but not on appeal.”

(emphasis added). Four other claims were dismissed by the circuit court on this

ground. Further, fourteen claims were declared “barred from review by [Borden’s]

failure to raise them at trial and then on direct appeal” under Rule 32.2(a) of the

Alabama Rules of Criminal Procedure. Borden apparently did not appeal these

claims to the Court of Criminal Appeals, which deemed them waived and declined

to review them. We note the disposition of these claims only to emphasize that the

Alabama state courts appear fully capable of utilizing adequate and independent

state procedural rules to avoid review of federal claims when they wish to do so.

      In contrast, the claims that we address today were dismissed under Rule

32.6(b) because they were not pled with sufficient specificity. The claim from

Borden’s Amended Petition that hews most closely to the issue presented in the

COA is found in paragraphs 65–67 of the petition, which alleged that “Trial

Counsel Failed to Call Any Witnesses at All Regarding Mr. Borden’s Mental

Health.” See supra part I.C. The Court of Criminal Appeals addressed this claim:

      The trial court correctly dismissed the allegations in Claim II.B for
      failing to meet the requirements of Rule 32.6(b), Ala. R. Crim. P.
      Borden failed to identify what type of mental health expert he
      believed should have been presented at the sentencing phase, or how
      that expert’s testimony would have differed from the testimony
      presented at the guilt phase. He further presented no legal basis to

                                          55
      support his claim, only a bare conclusion that the testimony was
      necessary. More is necessary to satisfy the pleading requirements of
      Rule 32, Ala. R. Crim. P., and dismissal of this portion of Claim II
      was proper.

      We simply cannot say that the Court of Criminal Appeals clearly relied on a

procedural bar in dismissing these claims. The Court of Criminal Appeals plainly

utilized Rule 32.6(b) as a tool with which to address the merits of Borden’s claims,

as discussed in part II.A.1, supra. Given this scenario, we do what the Second

Circuit did in Green v. Travis, 414 F.3d 288, 295–96 (2d Cir. 2005); we examine

the ineffective assistance of counsel allegations that were before the Court of

Criminal Appeals under the standards set forth by AEDPA. See infra part II.B.

That is, accepting as true the facts asserted in support of Borden’s ineffective

assistance of counsel claims, did the Alabama Court of Criminal Appeals

unreasonably apply Strickland and its progeny?

                                          3.

      Moreover, the nature of Rule 32.6(b) is not a matter of first impression for

this court. In Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010), we explicitly held

that an Alabama court adjudicating Rule 32 ineffective assistance of counsel

claims necessarily considered questions of federal law, thereby rendering Rule

32—at least in the context of summary dismissals that require some assessment of

the merits of federal constitutional claims—insufficiently independent to preclude

                                          56
federal review of state court decisions. According to the court in Powell:

       The Rule 32 court, affirmed by the state appellate court, found that
       [petitioner] failed to plead facts on which an ineffective assistance
       claim could be based and, for that reason, denied [petitioner’s] claim
       and request for an evidentiary hearing. See Boyd v. State, 913 So. 2d
       1113, 1125 (Ala. Crim. App. 2003) (only when “facts are pleaded,
       which, if true, entitle a petitioner to relief, [is] the petitioner then
       entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P.,
       to present evidence proving those alleged facts.” (citing Ala. R. Crim.
       P. 32.6) (emphasis omitted)). We thus review the Rule 32 court’s
       rejection of [petitioner’s] claim as a holding on the merits. Judd [v.
       Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)]; Stokes v. Anderson,
       123 F.3d 858, 860 (5th Cir. 1997) (finding no procedural bar from
       state court ruling on similar pleading rule because the ruling
       “require[d] some evaluation, however, cursory, of the merits of a
       petitioner’s claim”).

Id. at 1272–73 (emphasis added) (footnote omitted). In short, an Alabama court’s

consideration of the sufficiency of the pleadings concerning a federal constitutional

claim contained in a Rule 32 petition necessarily entails a determination on the

merits of the underlying claim; we cannot construe such a rule to be a state

procedural bar that would preclude our review. We therefore must review the

merits determination of the Court of Criminal Appeals under the deferential

standards set forth in AEDPA, discussed below.40

       40
           The State and Borden vigorously debate whether Rule 32 is sufficiently “firmly
established and regularly followed” to serve as an adequate state procedural rule, the application
of which would bar federal review. James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830,
1835, 80 L. Ed. 2d 346 (1984); see also Lee v. Kemna, 534 U.S. 362, 385, 122 S. Ct. 877, 890,
151 L. Ed. 2d 820 (2002). Having found that Rule 32.6(b) summary dismissals are rulings “on
the merits,” and that the Alabama Court of Criminal Appeals did not speak clearly enough to
warrant the application of a procedural bar, it is unnecessary for this court to wade into this

                                                57
                                             B.

          AEDPA, by its plain language and as interpreted by the Supreme Court,

limits the scope of federal habeas review of state court judgments in the spirit of

furthering “comity, finality, and federalism.” Michael Williams v. Taylor, 529

U.S. 420, 436, 120 S. Ct. 1479, 1490, 146 L. Ed. 2d 435 (2000). Section 2254(d)

of Title 28 states:

          An application for a writ of habeas corpus on behalf of a person in
          custody pursuant to the judgment of a State court shall not be granted
          with respect to any claim that was adjudicated on the merits in State
          court proceedings unless the adjudication of the claim–

                (1) resulted in a decision that was contrary to, or involved an
                unreasonable application of, clearly established Federal law, as
                determined by the Supreme Court of the United States; or

                (2) resulted in a decision that was based on an unreasonable
                determination of the facts in light of the evidence presented in
                the State court proceeding.

28 U.S.C. § 2254(d). Before elaborating on the application of 28 U.S.C. § 2254, it

is essential to establish precisely what allegations our review covers. As this court

stated in Powell:

          AEDPA limits our review to whether the state court’s determination
          that [the petitioner] failed to plead sufficient facts in his Rule 32
          petition to support a claim of ineffective assistance of counsel was
          contrary to or an unreasonable application of Supreme Court
          precedent. Thus, we look only to the allegations in [petitioner’s] Rule


debate.

                                             58
      32 petition and whether those allegations sufficiently state a claim for
      ineffective assistance of counsel.

602 F.3d at 1273 (emphasis added). Logically, that court could only undertake an

“adjudication of the claim” that was presented to it; we believe that a review of a

state court adjudication on the merits in light of allegations not presented to the

state court—for example, by examining additional facts or claims presented for the

first time in a petitioner’s federal habeas petition—would insufficiently respect the

“historic and still vital relation of mutual respect and common purpose existing

between the States and the federal courts.” Michael Williams, 529 U.S. at 436, 120

S. Ct. at 1490. We therefore follow the reasoning of Powell and examine the

reasonableness of the Court of Criminal Appeals’s adjudication of Borden’s claims

based upon the allegations contained in his Amended Petition. See also Cullen v.

Pinholster, 563 U.S. ---- (2011) (slip op. at 9) (“We now hold that review under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits.”).

      The Supreme Court has given significant guidance as to the application of

§ 2254(d)(1) in the review of state court merits adjudications. First, under the

“contrary to” clause, “a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by this Court on a question of law

or if the state court decides a case differently than this Court has on a set of

                                           59
materially indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362,

412–13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). Because the Court of

Criminal Appeals clearly did not reach such a conclusion, we focus our analysis on

the “unreasonable application” clause of § 2254(d)(1).

      The “unreasonable application[] of clearly established Federal law” clause

within § 2254(d)(1) “permits a federal habeas court to ‘grant the writ if the state

court identifies the correct governing legal principle from th[e Supreme] Court’s

decisions but unreasonably applies that principle to the facts’ of petitioner’s case.”

Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534–35, 156 L. Ed. 2d 471

(2003) (quoting Terry Williams, 529 U.S. at 413, 120 S. Ct. at 1523). “In other

words, a federal court may grant relief when a state court has misapplied a

‘governing legal principle’ to ‘a set of facts different from those of the case in

which the principle was announced.’” Id. at 520, 123 S. Ct. at 2535 (quoting

Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144

(2003)). Importantly, for a federal habeas court to find a state court’s application

of Supreme Court precedent “unreasonable,” it is not enough that the state court’s

adjudication be only “incorrect or erroneous”; it must have been “objectively

unreasonable.” Id. at 520–21, 123 S. Ct. at 2535 (internal citations omitted).

      Recently, the Supreme Court has reiterated the deferential nature of our



                                           60
review under AEDPA in a situation analogous to Borden’s: “A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664,

124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938 (2004)). Indeed, “[e]stablishing that a

state court’s application of Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Id. at 788

(citations omitted) (internal quotation marks omitted).41

                                               III.

       Our task, finally, is to evaluate whether the Court of Criminal Appeals’s

determination that Borden’s relevant ineffective assistance of counsel claims were

due to be dismissed for failure to state a claim with sufficient specificity under

Rule 32.6(b) was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).


       41
          Moreover, it matters not for our analysis whether the Court of Criminal Appeals
resolved Borden’s claim under Strickland or under a state rule. See Early v. Packer, 537 U.S. 3,
123 S. Ct. 362, 154 L. Ed.2d 263 (2002). Compliance with the “contrary to” language of
AEDPA “does not require citation of the [Supreme Court’s] cases—indeed, it does not even
require awareness of [those] cases, so long as neither the reasoning nor the result of the state-
court decision contradicts them.” Id. at 8, 123 S. Ct. at 365.

                                                61
      The right of a state criminal defendant to effective assistance of counsel

springs from the Sixth and Fourteenth Amendments to the United States

Constitution, and such a right has been clearly established and roundly reaffirmed

by the Supreme Court. We analyze Borden’s claim under the rubric set forth in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

and its progeny. Strickland requires us to apply a familiar two-part inquiry:

      A convicted defendant’s claim that counsel’s assistance was so
      defective as to require reversal of a conviction or death sentence has
      two components. First, the defendant must show that counsel’s
      performance was deficient. This requires showing that counsel made
      errors so serious that counsel was not functioning as the “counsel”
      guaranteed the defendant by the Sixth Amendment. Second, the
      defendant must show that the deficient performance prejudiced the
      defense. This requires showing that counsel’s errors were so serious
      as to deprive the defendant of a fair trial, a trial whose result is
      reliable. Unless a defendant makes both showings, it cannot be said
      that the conviction or death sentence resulted from a breakdown in the
      adversary process that renders the result unreliable.

466 U.S. at 687, 104 S. Ct. at 2064. While we undertake a cursory examination of

the performance of Borden’s counsel under the “performance prong” of Strickland,

we note at the outset that we “may decline to reach the performance prong of the

ineffective assistance test if convinced that the prejudice prong cannot be

satisfied.” Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995) (citing

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). “[T]here is no reason for a court

deciding an ineffective assistance of counsel claim . . . to address both components

                                          62
of the inquiry if the defendant makes an insufficient showing on one.” Strickland,

466 U.S. at 697, 104 S. Ct. at 2069.

                                            A.

      Under Strickland’s first prong, “[t]o be found deficient, capital counsel’s

performance must be ‘outside the wide range of professionally competent

assistance.’” Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (quoting

Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). To perform within constitutional

bounds, defense counsel must conduct a reasonable investigation in relation to

their representation. Id. (citing Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066).

In short, as this court stated in Powell:

      [O]nly when counsels’ choices are made after a “thorough
      investigation of law and facts relevant to plausible options” are those
      choices “virtually unchallengeable.” [Strickland, 466 U.S.] at 691,
      104 S. Ct. [at 2066]. When, however, “strategic choices [are] made
      after less than complete investigation [they] are reasonable precisely
      to the extent that reasonable professional judgments support the
      limitations on investigation.” Id. at 690–91, 104 S. Ct. [at 2066].
      Thus, at bottom, “counsel has a duty to make reasonable
      investigations or to make a reasonable decision that makes particular
      investigations unnecessary. In any ineffectiveness case, a particular
      decision not to investigate must be directly assessed for
      reasonableness in all the circumstances . . . .” Id. at 691, 104 S. Ct. [at
      2066]. This means that when we assess the attorney’s decision not to
      investigate, we “must consider . . . whether the known evidence would
      lead a reasonable attorney to investigate further.” Wiggins v. Smith,
      539 U.S. 510, 527, 123 S. Ct. 2527, [2538,] 156 L. Ed. 2d 471 (2003).

Id.

                                            63
      As discussed in part I.C, supra, Borden raised several allegations in his

Amended Rule 32 Petition regarding the performance of his counsel at the penalty

phase of his trial. With regard to the investigation undertaken in preparation for

the penalty phase, Borden claimed that his counsel “fell far short of th[e]

constitutionally required mandate” that counsel present to the judge and jury “all

aspects of his background, family life, medical history, school records, and any

other life-experience that may be considered mitigating evidence.” Citing

American Bar Association guidelines, Borden further asserted that his penalty

phase counsel failed to obtain “complete and accurate information relevant to Mr.

Borden’s medical history, educational history, employment and training history,

family and social history, his correctional history, and any religious or cultural

influences.” Additionally, Borden faulted his counsel for failing to interview

“adequately” his family, friends, acquaintances, and other potential witnesses.

      Borden’s Amended Petition also addressed his counsel’s actual performance

at the penalty phase, arguing that counsel failed to present mitigating evidence that

was available even absent any investigation. Further, Borden alleged that his

counsel were constitutionally ineffective as a result of their failure to present

“testimonial evidence from any of Mr. Borden’s mental health care providers.”

      Ultimately, we decline to conclusively determine whether Borden’s penalty



                                           64
phase counsel’s investigation and preparation met the constitutionally mandated

bar for performance as set under Strickland. Certainly, an evidentiary

hearing—where counsel, Borden’s family members, treating physicians, and other

potential witnesses would testify regarding the thoroughness of the

investigation—would settle this matter decisively. But given Borden’s failure to

specifically plead any prejudice flowing from the allegedly deficient performance

as required by the Alabama Rules of Criminal Procedure, as discussed in part III.B,

infra, we need not render a final judgment on the performance of penalty phase

counsel in the preparation and investigation for Borden’s defense.

       We think it important to note here that a counsel’s failure to satisfactorily

investigate potential mitigating factors does not give rise to a presumption of

prejudice.42 “[A] presumption of prejudice would be proper where counsel’s

representation was so deficient as to amount in every respect to no representation

at all.” Blake v. Kemp, 758 F.2d 523, 533 (11th Cir. 1985) (citing Adams v.

Balkcom, 688 F.2d 734, 739 n.1 (11th Cir.1982)); see also Strickland, 466 U.S. at

692, 104 S. Ct. at 2067 (“In certain Sixth Amendment contexts, prejudice is

presumed. Actual or constructive denial of the assistance of counsel altogether is



       42
          We address this issue because Borden, in his Amended Petition, cites Blake v. Kemp,
758 F.2d 523 (11th Cir. 1985), for the proposition that there is a “presumption of prejudice
where trial counsel made no effort to prepare for the penalty phase of a capital trial.”

                                              65
legally presumed to result in prejudice. . . . Prejudice in these circumstances is so

likely that case-by-case inquiry into prejudice is not worth the cost.” (citations

omitted)). Nowhere did Borden plead anything close to a “constructive denial of

the assistance of counsel altogether.” And, reviewing the record, we cannot say

that Borden was so denied; his counsel at the penalty phase presented four

witnesses, each of whom provided relevant testimony in an attempt to provide

support for three potential, statutorily enumerated, mitigating circumstances. To

extend to Borden a presumption of prejudice here would be to eviscerate

Strickland’s well-worn central holding and collapse the Sixth Amendment

ineffective assistance of counsel test into a single-pronged inquiry. We decline to

do so.

         As such, we must undertake an analysis of whether Borden suffered

prejudice flowing from the allegedly deficient performance of his counsel.

                                            B.

         To establish prejudice under Strickland, “[i]t is not enough for the defendant

to show that the errors had some conceivable effect on the outcome of the

proceeding.” 466 U.S. at 693, 104 S. Ct. 2067. Rather, “[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable



                                            66
probability is a probability sufficient to undermine confidence in the outcome.”

Id. at 694, 104 S. Ct. at 2068. In Borden’s case, we must determine whether the

facts pled in his Amended Petition establish that, had his counsel conducted a

reasonable investigation and presented additional mitigating evidence, there is a

reasonable probability that the jury would have recommended—and the judge

would have imposed—a sentence of life without parole. Or, more accurately, we

must determine whether the Court of Criminal Appeals’s determination that his

Amended Petition failed to sufficiently plead such facts—in light of Alabama’s

fact pleading post-conviction regime discussed in part II.A, supra—was “contrary

to, or involved an unreasonable application of, clearly established Federal law.”

       A review of the Amended Rule 32 Petition leads us to the conclusion that

Borden has not carried the burden of making this showing. A comparison of the

allegations made in the Amended Petition to the types of facts that the Supreme

Court has found sufficient to establish prejudice under Strickland in analogous

situations is instructive.

       In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471

(2003), the Supreme Court granted the writ where a counsel’s failure to adequately

investigate additional mitigating evidence prejudiced the petitioner. The

“powerful” undiscovered mitigating evidence led the Court to conclude that, had it



                                         67
been discovered and presented to the jury, there was a reasonable probability that

the result of the proceeding would have been different. Id. at 534, 123 S. Ct. at

2542–43 (citations omitted). State post-conviction proceedings in Wiggins

uncovered a brutal and tragic life for the petitioner, Wiggins:

      [P]etitioner’s mother, a chronic alcoholic, frequently left Wiggins and
      his siblings home alone for days, forcing them to beg for food and to
      eat paint chips and garbage. Mrs. Wiggins’ abusive behavior included
      beating the children for breaking into the kitchen, which she often
      kept locked. She had sex with men while her children slept in the
      same bed and, on one occasion, forced petitioner’s hand against a hot
      stove burner—an incident that led to petitioner’s hospitalization. At
      the age of six, the State placed Wiggins in foster care. Petitioner’s
      first and second foster mothers abused him physically, and, as
      petitioner explained to [a social worker], the father in his second
      foster home repeatedly molested and raped him. At age 16, petitioner
      ran away from his foster home and began living on the streets. He
      returned intermittently to additional foster homes, including one in
      which the foster mother’s sons allegedly gang-raped him on more than
      one occasion. After leaving the foster care system, Wiggins entered a
      Job Corps program and was allegedly sexually abused by his
      supervisor.

Id. at 516–17, 123 S. Ct. at 2533 (internal citations omitted).

      Similarly, in Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.

2d 360 (2005), the Supreme Court held that a defense counsel’s failure to make a

reasonable investigation sufficiently prejudiced the petitioner to warrant habeas

relief. The facts that defense counsel failed to uncover and present were

summarized by the Court:



                                          68
      Rompilla’s parents were both severe alcoholics who drank constantly.
      His mother drank during her pregnancy with Rompilla, and he and his
      brothers eventually developed serious drinking problems. His father,
      who had a vicious temper, frequently beat Rompilla’s mother, leaving
      her bruised and black-eyed, and bragged about his cheating on her.
      His parents fought violently, and on at least one occasion his mother
      stabbed his father. He was abused by his father who beat him when
      he was young with his hands, fists, leather straps, belts and sticks. All
      of the children lived in terror. . . . His father locked Rompilla and his
      brother Richard in a small wire mesh dog pen that was filthy and
      excrement filled. He had an isolated background, and was not
      allowed to visit other children or to speak to anyone on the phone.
      They had no indoor plumbing in the house, he slept in the attic with
      no heat, and the children were not given clothes and attended school
      in rags.

Id. at 391–92, 125 S. Ct. at 2468–69 (quoting Rompilla v. Horn, 355 F.3d 233, 279

(3d Cir. 2004) (dissenting opinion) (citations omitted)).

      Borden’s allegations stand in stark contrast to the allegations in Wiggins and

Rompilla. Even if we assume that his counsel failed completely to investigate

additional mitigating evidence, therefore removing any of the decisions to present

or not present evidence from the safe harbor of “strategic choices” that are

“virtually unchallengeable,” see Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535, there

are simply no facts presented in the Amended Petition that would warrant a finding

of prejudice and therefore habeas relief—only “bare allegation[s] . . . and mere

conclusions of law,” Ala. R. Crim. P. 32.6(b). The following quotes from

Borden’s Amended Petition are illustrative of the level of specificity with which he



                                          69
pled his claims in support of a finding of prejudice under Strickland: “Trial

counsel’s deficient performance prevented the jury and the trial court from hearing

and considering an abundance of mitigating evidence . . . .”; “Mr. Borden was

entitled to have all aspects of his background, family life, medical history, school

records, and any other life-experience that may be considered mitigating evidence

presented to the jury and judge at the penalty phase of his capital trial”; “effective

preparation and investigation by defense counsel would have revealed a host of

mitigating factors, which should have been presented at Mr. Borden’s penalty

phase”; “Mr. Borden’s parents both possessed information that would have been

useful to Mr. Borden’s defense”; “other people . . . would have been able to present

a complete portrait of Mr. Borden, which would have lessened his culpability for

the crime, revealed numerous mitigating circumstances, and led the jury to impose

a lesser sentence of life without possibility of parole”; a review of the records and

interviews with “potential witnesses who were willing to testify . . . could have

established numerous mitigating factors that could have swayed the jury to a

finding of life in prison rather than death”; and, with regard to the specific

allegation that counsel should have called Borden’s treating physicians at the

penalty phase, “[m]ental health testimony would have played an important part in

Mr. Borden’s mitigation case, given the reduced level of mental health deficiency



                                           70
necessary to create a mitigating condition.”43

       Considering these pleadings, we simply cannot say that the Alabama Court

of Criminal Appeals’s determination that the allegations put forth by Borden were

due to be summarily dismissed was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d).44 Nowhere

in his Amended Petition does Borden plead facts that would tend to show that he

was prejudiced by his counsel’s allegedly deficient performance. Indeed, we have

no substantive factual allegations that we may properly assess. It seems patent

that, at the very least, “‘fairminded jurists could disagree’ on the correctness of the


       43
           While our review is limited to the Amended Rule 32 Petition presented to the state
courts on collateral review, we note that Borden’s habeas petition, while more specific, does not
plead new facts that would serve to make a strong showing of prejudice. In essence, the habeas
petition summarizes evidence contained in Borden’s medical records—records which were
admitted into evidence at trial, made fully available to the jury, and discussed by experts at the
guilt phase of Borden’s trial. It also includes some new allegations, such as the claim that Mr.
Borden was “plagued by physical and mental abuse, caused by his parents, family members, and
acquaintances.” We decline to address these additional allegations.
       44
           We note that Borden also claimed that his counsel were constitutionally ineffective
because they failed to investigate and present evidence of his significant religious activities to
the jury at the penalty phase of his trial. This claim falls within the expanded COA. See supra
note 25. The Alabama Court of Criminal Appeals treated this claim differently than all of
Borden’s other relevant claims; rather than find it insufficiently pled, the Court of Criminal
Appeals summarily dismissed it under Rule 32.7(d) because it failed to present a material issue
of law or fact.
        This dismissal was on the merits, and therefore subject to AEDPA review by this court.
Upon review of the record and the Court of Criminal Appeals’s opinion, we hold that the
dismissal of this claim was not an unreasonable application of federal law. 28 U.S.C.
§ 2254(d)(1). Because the remainder of Borden’s claims covered by the COA were dismissed
under Rule 32.6(b), and because the parties emphasized the operation of Rule 32.6(b) in their
briefs and at oral argument, we have focused our attention on Borden’s claims that were
dismissed as insufficiently pled.

                                                 71
state court’s decision.” Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 786

(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140,

2149, 158 L. Ed. 2d 938 (2004)). We therefore cannot grant habeas relief. To

grant habeas here would be to open the door to habeas relief for any petitioner who

files a boilerplate, unspecific petition for collateral relief. We are convinced that

Supreme Court precedent would not support such an approach.

      We are not blind to the possibility that testimony from Borden’s treating

physicians at the penalty phase of his trial could have strengthened his ability to

fully present the mitigating circumstances he sought to prove to the jury; while the

jury had access to Borden’s complete medical history and defense counsel urged

the jurors to review this history, we can imagine that hearing testimony from his

doctors could have provided a more in-depth view of Borden’s mental state over

the years. But our inquiry into Strickland prejudice requires that we find more than

a possibility that the jury could have benefitted from additional testimony that

would shed light on evidence already produced for their review. As indicated

above, it requires that there be a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland. 466 U.S. at 694, 104 S. Ct. at 2068. Viewed through the further

deferential lens of AEDPA, Borden’s allegations do not satisfy this “doubly”



                                           72
demanding standard of review. Harrington, 131 S. Ct. at 788.

      Further, our conclusion comports with the similar Eleventh Circuit case

Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010). In Powell, the Alabama state

courts applied Rule 32.6(b) to deny the petitioner’s ineffective assistance of

counsel claims brought in a petition for post-conviction relief. The petitioner,

Powell, was not granted an evidentiary hearing by either the state courts or the

federal district court. Id. at 1267–68. Regarding claims analogous to the ones we

face today—that counsel failed to sufficiently investigate and present mitigating

factors at the penalty phase—the Powell court stated:

      Powell argues that his trial counsel should have obtained the
      testimony of his teachers or school records, because he asserts that
      “school records, military records, health records, employment records,
      correctional records, and religious records of both Mr. Powell and his
      parents and his siblings” were available and would have presented a
      complete picture of his life. However, Powell did not allege in his
      Rule 32 petition what any such records would show other than to
      make the conclusory allegation that such records would have revealed
      “numerous mitigating circumstances.” He does not, however, allege
      what those mitigating circumstances are. As such, we cannot
      conclude that the Rule 32 court’s dismissal of Powell’s ineffective
      assistance claim was an unreasonable application of Strickland.

Id. at 1275. Borden’s claims are no less conclusory than those presented by the

petitioner in Powell, and, as such, we similarly cannot conclude that the Court of

Criminal Appeals’s dismissal of Borden’s claims was an unreasonable application

of clearly established federal law.

                                          73
                                         IV.

      Finally, the COA asks that we determine whether a claim of ineffective

assistance of counsel may be based on the “cumulative effect” of multiple

non-prejudicial errors by counsel when no individual error standing alone would

warrant a finding of prejudice under Strickland. Because Borden has not

sufficiently pled facts that would establish prejudice—cumulative or

otherwise—we decline to elaborate further on the concept of “cumulative effect”

for fear of issuing an advisory opinion on a hypothetical issue.

      Accordingly, the district court’s decision denying Borden’s petition for a

writ of habeas corpus is hereby

      AFFIRMED.




                                          74
WILSON, J., concurring in part, dissenting in part:

       In light of Cullen v. Pinholster, — U.S. — , 131 S. Ct. 1388 (2011), I concur

in the result reached by the majority with respect to most of Borden’s claims.1 I

offer this separate opinion, however, to address two concerns regarding the Court’s

analysis.

1. Alabama Rule of Criminal Procedure 32.6(b)

       The majority holds that “a summary[2 ] dismissal of a federal claim by

Alabama courts for failure to comply with Rule 32.6(b) is . . . a ruling on the

merits.” Majority Op. at 52. I disagree with that categorical approach.

       To begin, I agree with the majority that, in substance, select applications of

Rule 32.6(b) in this case were essentially merits adjudications. Others, however,

were clearly not, as demonstrated by the Alabama Court of Criminal Appeals’s

language specifically disclaiming that those rulings were merit-based. Here are but

a few examples:



       1
          As indicated below, I believe two of Borden’s claims require remand to the district
court—the first, because it received no adjudication on the merits in state court; and the second,
because the state court’s disposition was an unreasonable application of clearly established
federal law. See notes 23 & 25, infra.
       2
           Courts use the label “summary” to describe both dismissals made after the pleading(s),
but without further proceedings, and dismissals (or denials) that are unaccompanied by written
explanations. Compare Majority Op. at 42–43, with Harrington v. Richter, — U.S. —, 131 S.
Ct. 770, 783 (2011). In this case, I use “summary dismissal” in the same fashion as the majority:
to refer to pleading-stage dismissals.

                                                75
                The circuit court addressed the merits of this claim,
                finding that the evidence overwhelmingly established
                that Borden murdered the two victims and that counsel
                conceded that fact and focused on a defense of insanity
                and lack of mental capacity. The trial court determined
                that Borden could not demonstrate prejudice and that his
                petition failed to state a claim for relief, so that summary
                dismissal was appropriate. We adopt the court’s findings
                of fact and conclusions of law as an alternative holding,
                but find that the claim was not sufficiently pleaded and
                need not have been addressed on the merits.[3]
                                             ***
                Therefore, in addition to failing to plead the claim with
                sufficient specificity, Borden has failed to state a claim
                which would have entitled him to relief.[4]
                                             ***
                Thus, the claim was subject to summary dismissal for
                failure to satisfy the pleading requirements. Moreover,
                as the trial court found, the claim was meritless. . . .
                Summary dismissal of Claim I.L. was proper for this
                additional reason.[5]
                                             ***
                The claim regarding defense counsel’s argument on the
                legal standard for insanity failed to satisfy the pleading
                requirements of Rule 32.3 and Rule 32.6(b), Ala. R.
                Crim. P., and it was due to be summarily dismissed.
                Even if we had addressed the claim on the merits, we
                would not have found that Borden was entitled to any
                relief . . . .[6]


       3
         Borden v. State, No. CR-00-1379 at 9 n.3 (Ala. Crim. App. Aug. 22, 2003) (emphasis
added). For convenience, the remainder of the citations to the Court of Criminal Appeals’s
opinion will indicated by “CCA Op. at __”.
       4
           CCA Op. at 13 (emphasis added).
       5
           CCA Op. at 14 (emphasis added).
       6
           CCA Op. at 20 (emphasis added).

                                             76
                                          ***
               We adopt the trial court’s holding on the merits as an
               alternative holding to our primary determination that the
               claim was not pleaded with specificity and was due to be
               dismissed.[7]
                                          ***
               The trial court addressed this claim on the merits and
               denied it, finding both that Borden failed to allege any
               prejudice and that most of the information Borden
               alleged his father would have conveyed in his testimony
               was presented to the jury by other witnesses. . . . We
               agree with the trial court’s analysis of this claim, and
               adopt its holding as an alternative holding to our primary
               determination that the claim was not sufficiently
               pleaded.[8]
                                          ***
               Even if the claim had not been subject to dismissal based
               on inadequate pleading, summary dismissal would have
               been proper because it was meritless.[ 9]

At one point, the Court of Criminal Appeals even reversed a trial-court ruling that

a particular claim “was sufficiently pleaded, but lacked merit,” deciding instead

that the claim did not, in fact, conform with Rule 32.6(b)’s specificity requirement

and was due to be dismissed on that basis. CCA Op. at 28 & n.11. Consequently,

at least with respect to a large number of its Rule 32.6(b) rulings, I believe the

Court of Criminal Appeals intended those rulings to be strictly procedural, not




      7
          CCA Op. at 23 n.8 (emphasis added).
      8
          CCA Op. at 25 (emphasis added).
      9
          CCA Op. at 27 (emphasis added).

                                                77
merit-based.10

       The majority rightly notes that some rules nominally categorized as

“procedural” may actually adjudicate substance, such as Federal Rule of Civil

Procedure 12(b)(6). See Majority Op. at 50. The majority takes just such a view

of Rule 32.6(b): “[T]he Alabama Court of Criminal Appeals, in disposing of claims

in the Amended Petition under Rule 32.6(b), necessarily considered the sufficiency

of such claims, focusing in on the factors for determining whether the petition

presented a case sufficient to warrant relief under Strickland v. Washington . . . .”

Majority Op. at 51. In the abstract, this proposition makes good sense.

Presumably, a “specificity” bar would hang lower than the threshold for

successfully stating a claim that would entitle the petitioner to either relief or



       10
           Our Seventh Circuit colleagues recently addressed a similar question in Kerr v.
Thurmer, 639 F.3d 315 (2011). Faced with a state court dismissal of a claim that was deemed
too “underdeveloped” to warrant a merits ruling, the Seventh Circuit decided that such a
dismissal was not on the merits, but was simply procedural. Id. at 326 (“[I]f the state court
issues a summary order that denies a petition for post-conviction relief and in the order it
furnishes a procedural reason for its decision . . . , then we must take the state court at its word
and treat the decision as procedural, not merits-based.”). Though I part ways with Kerr’s
additional determination that such a procedural ruling constituted an independent and adequate
state ground that precludes federal merits consideration, see Card v. Dugger, 911 F.2d 1494,
1516–17 (11th Cir. 1990) (explaining what constitutes an independent and adequate state ground
of decision); Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) (determining that a
specificity requirement such as that at issue in this case was not an “independent” state ground
barring federal habeas relief), I agree with its sentiment that we should treat state court rulings as
they were intended. See Wilson v. Workman, 577 F.3d 1284, 1293 (10th Cir. 2009) (en banc)
(“While [AEDPA] vindicates goals such as federalism and comity by affording great deference
to state court decisions, it prescribes deference only for decisions the state court has actually
made.”).

                                                  78
further proceedings. Therefore, by failing to plead his claim with sufficient

specificity under Rule 32.6(b), Borden would necessarily fail to state a claim for

relief. Unfortunately, at least as the rule was applied here, that proposition appears

not to have been reflected in practice.

       Both the trial court’s Order on Remand and the Court of Criminal Appeals’s

Memorandum Opinion divided their resolutions of Borden’s claims into two

distinct camps: (1) claims that were dismissed as insufficiently pled under Rule

32.6(b); and (2) claims that were denied on the merits in light of the prevailing

legal standard set forth in Strickland.11 It was only after ruling that many of

Borden’s claims failed to conform to Rule 32.6(b)’s specificity requirement and

dismissing them accordingly that the Court of Criminal Appeals addressed

Strickland. It began a new section of its opinion with the following words:

               The trial court determined that several of the claims of
               ineffective assistance of counsel Borden raised in his
               petition were not procedurally barred and that they
               contained a sufficient factual basis to avoid summary
               dismissal pursuant to Rule 32.6(b), Ala. R. Crim. P. The
               court considered each of the claims and determined, for
               the reasons discussed below, that the claims were due to
               be denied.

CCA Op. at 32. The court then launched into a thorough summary of the legal


       11
          For simplicity’s sake, I leave aside a third category of dismissals: claims properly
dismissed on undisputed grounds of procedural bar, such as failure to raise certain claims on
direct appeal, etc. None of those claims are relevant to this appeal.

                                                79
standards governing ineffective assistance claims, quoting at length from

Strickland itself and culminating in the following statement:

            With these legal standards in mind, we review the merits
            of the remaining allegations of ineffective assistance of
            counsel.

Id. at 34 (emphasis added).

      The court proceeded to do just that, analyzing Borden’s remaining claims in

ways that bore the clear hallmarks of summary, merit-based adjudications. See,

e.g., id. at 35 (“The trial court correctly determined that Borden established neither

deficient performance nor prejudice as to this claim.”). And whereas these later

rulings clearly evaluated the sufficiency of Borden’s allegations in light of

Strickland, most of those that came before—the 32.6(b) rulings—appeared to not.

      Upon my initial review of this case, I took the same view as the majority.

After all, what metric would the state court use to measure the sufficiency of the

pleadings other than the substantive yardstick of Strickland? However, after

poring over the state court decisions, I was left with the distinct impression that

many of the evaluations actually made were not based on substance, but rather on

form—driven, not by the allegations’ sufficiency in relation to the governing

substantive law, but instead their conformity with some hypothetical pleading

rubric or formula.



                                           80
       For example, Borden was death-eligible only because the trial court found

the existence of a sole aggravating factor: “The defendant knowingly created a

great risk of death to many persons.” Ala. Code § 13A-5-49(3). In his Amended

Rule 32 Petition, Borden argues his penalty-phase counsel was ineffective for

failing to object when the prosecutor mischaracterized that aggravating factor for

the jury, as well as for failing to challenge that the prosecutor had, in fact, proven

the required mental state.12 See Amended Petition ¶¶ 68–69, 71–73. Borden

quoted the statutory language. Id. ¶ 71. He recited the prosecutor’s

mischaracterization of that language. Id. ¶ 72. He indicated that he believed the

mischaracterization of law “was harmful . . . because it misrepresented a lower

degree of recklessness than what is legally required. . . .” Id. ¶ 73. And he argued

that “the state never presented any evidence that Mr. Borden knew there were any

people in the house.” Id. ¶ 68. He even stated that had this factor been

successfully challenged, “the death penalty would not have even been an option for


       12
           At the penalty phase, the prosecutor had simply presented evidence that there were
people in the house and that they were positioned such that they may have been in harm’s way.
There was no direct evidence presented that Borden was aware of how many persons were in the
house. While arguing to the jury, the prosecutor paraphrased the aggravating factor to eliminate
the scienter requirement and imply that Borden simply had to cause a grave risk of death to “a
number of,” as opposed to “many,” people. In full, the cited comment by the prosecutor reads:
                You can tell from what you’ve already heard and what you’ve seen
                that when you fire a gun and .380 bullets blazing through a house that
                you can easily kill more than the people that you intend to kill. You
                create a grave great risk of death to a number of people.


                                               81
the jury.” Id. ¶ 69.

      Nevertheless, the Court of Criminal Appeals found that these arguments

were due to be dismissed pursuant to Rule 32.6(b)’s specificity requirement,

reasoning:

             Borden failed to present a full disclosure of the factual
             basis for the ground for relief. Moreover, he presented
             mere conclusions based on the few facts he provided.
             Because these allegations do not satisfy the pleading
             requirements of Rule 32.6(b), Ala. R. Crim. P., the
             allegations in Claim II.C. were properly dismissed.

CCA Op. at 26. Or:

             This claim was due to be dismissed because it failed to
             satisfy the specificity requirements of Rule 32.6(b), Ala.
             R. Crim. P. . . . .
                    Borden failed to plead any facts indicating how he
             was prejudiced by trial counsel’s failure to object to this
             alleged mischaracterization of law. Therefore, the claim
             was not pleaded with sufficient specificity and it was due
             to be dismissed without further proceedings.

CCA Op. at 27. And after making these 32.6(b) rulings, the Court of Criminal

Appeals went on to conduct merits analyses, in the alternative.

      I have trouble conceiving of how Borden could have been more specific than

he was, or how he could have “failed to present a full disclosure of the factual basis

for relief.” I am even more puzzled as to how the court could have believed that

Borden failed to indicate in what way he was prejudiced by counsel’s alleged



                                          82
failure to object. The prejudice was not only explicitly pled, it was patently

obvious. This was the sole aggravating factor supporting Borden’s death sentence;

the prosecutor presented no evidence regarding an essential element; and the

prosecutor described the aggravating factor to the jury in a way that eliminated the

scienter requirement and relaxed the numerical threshold for persons threatened

with harm.13

       In light of this application and many others like it, I am at a loss to explain

the operation of Rule 32.6(b).14 Under these circumstances, I simply cannot join

       13
           To offer another example, Borden claimed that counsel was ineffective for failing to
object to the prosecutor’s improper interjection of his personal opinion during closing argument.
He provided a legal basis for the claim, complete with citations to state and federal cases, and
then cited to two pages of the trial transcript where “the prosecutor made statements of personal
opinion concerning Mr. Borden in direct contradiction of the law, as described above.”
        The Court of Criminal Appeals, however, found that this claim “was not pleaded with
sufficient specificity as required by Rule 32.6(b),” stating: “Borden cites to two pages of the
record, but he does not identify which of the prosecutor’s statements he finds objectionable. Nor
does he make a specific allegation regarding the alleged impropriety of any of the prosecutor’s
statements contained on those two pages.” CCA Op. at 15 (footnote omitted).
        Borden’s claim on this front is certainly meritless. But it is incorrect to say that he has
not made “a clear and specific statement of the grounds upon which relief [was] sought.” Rule
32.6(b). Borden stated exactly why the prosecutor’s comments were allegedly improper, and he
directed the court to a specific two pages of the lengthy trial record. On those pages, there is but
one statement of personal opinion offered by the prosecutor: “When they took him off [his
medication], he got better, which I think is evidence of the fact that there wasn’t anything wrong
with him.” Trial Transcript at 1037.
       14
           My confusion is compounded by the fact that, so far as I am aware, summary
adjudications “on the merits” can take one of only two forms. Either the petitioner’s allegations,
as pled, are insufficient, meaning that the petitioner has failed to state a claim for relief under the
relevant standard of pleading. Or, despite the allegation’s facial sufficiency in the abstract, the
broader record forecloses any actual possibility of relief. It is worth noting that Alabama Rule of
Criminal Procedure 32.7(d)—the provision that provides for summary dismissal of claims and
enforces Rule 32.6(b)’s specificity requirement—explicitly provides for both of these merit-
based grounds for dismissal in addition to “specificity”:

                                                  83
the majority’s determination that Rule 32.6(b) dismissals categorically constitute

rulings on the merits. Specificity rulings may often subsume a substantive

evaluation of a claim’s merit in exactly the way the majority perceives. And I

agree that where the record supports such a reading, we should treat those rulings

as adjudications on the merits under AEDPA. However, if it instead appears that a

rule is being applied procedurally, simply to object to a defect in form that does not

preclude the possibility that the petitioner has in fact asserted the substance of a

colorable federal claim, it simply cannot be credited as a ruling on the merits. See

Childers v. Floyd, — F.3d —, No. 08-15590, slip op. at 63–65 (June 2, 2011) (en

banc) (Wilson, J., concurring in the judgment); Wilson v. Workman, 577 F.3d

1284, 1293 (10th Cir. 2009) (en banc) (“To be entitled to deference under AEDPA,

the state court must similarly decide the ‘substance’ of the claim, which means to

‘apply the controlling legal principles to the facts bearing upon [his] constitutional

claim.’” (alteration in original) (quoting Picard v. Connor, 404 U.S. 270, 277, 92 S.



                (d) Summary Disposition. If the court determines that the petition is
                not sufficiently specific, or is precluded, or fails to state a claim, or
                that no material issue of fact or law exists which would entitle the
                petitioner to relief under this rule and that no purpose would be
                served by any further proceedings, the court may either dismiss the
                petition or grant leave to file an amended petition. Leave to amend
                shall be freely granted. Otherwise, the court shall direct that the
                proceedings continue and set a date for hearing.
Rule 32.7(d) (emphasis added). Considering Rule 32.6(b) rulings as being “on the merits,”
therefore, creates surplusage within Alabama’s statutory scheme.

                                              84
Ct. 509 (1971))).15

       “Whatever springes the State may set for those who are endeavoring to

assert rights that the State confers, the assertion of federal rights, when plainly and

reasonably made, is not to be defeated under the name of local practice.” Davis v.

Wechsler, 263 U.S. 22, 24, 44 S. Ct. 13 (1923). I am concerned that many of the

Rule 32.6(b) dismissals run afoul of that admonition. And because there were

clear, merit-based alternative rulings for the bulk of those claims at issue in this

appeal, I would rely on those rulings to satisfy AEDPA’s prerequisites and avoid

today’s unnecessary and problematic decision regarding the status of Rule

32.6(b).16

       15
           Wilson is instructive here. In that case, the full Tenth Circuit decided that prior state
court adjudications of petitioners’ claims were not “on the merits” because petitioners were
denied evidentiary hearings under a state “procedural” rule that, while substantive, enforced a
pleading burden that was unclear and different than that which would have been enforced in
federal court. 577 F.3d at 1290–93. The rule enforced, Oklahoma Appellate Rule 3.11(B)(3)(b),
provided for evidentiary hearings in cases where counsel was alleged to have provide ineffective
assistance for failing to present mitigating evidence only if the petitioner can show “by clear and
convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize
or identify the complained-of evidence.” The prior panel opinion, the result of which was
upheld en banc, rejected an argument by the dissent that Rule 3.11 necessarily resolved the
merits of the federal constitutional claim: “Although the interplay of these two standards—one
more demanding, one less demanding, than the federal—is not clear, we cannot conclude that
when the state court denies an evidentiary hearing under Rule 3.11 it has necessarily decided that
the federal standard was not satisfied.” Wilson v. Sirmons, 536 F.3d 1064, 1081 (10th Cir.
2008).
       16
           For the reasons explained in my concurrence in Childers v. Floyd, — F.3d —, No. 08-
15590, slip op. at 60–65 (June 2, 2011) (en banc) (Wilson, J., concurring in the judgment), I
must object to the majority’s footnote 42, which states that “it matters not for our analysis
whether the Court of Criminal Appeals resolved Borden’s claim under Strickland or under a
state rule.” Majority Op. at 62 n.42 (citing Early v. Packer, 537 U.S. 3, 123 S. Ct. 362 (2002)

                                                  85
2. Summary Dispositions, Evidentiary Hearings, and AEDPA

       The majority’s central holding—that Borden’s claims were adjudicated on

their merit when the Alabama state court dismissed them for failing to meet Rule

32.6(b)’s specificity requirement—raises another important concern.

       Borden was never afforded an evidentiary hearing. The state court

summarily dismissed his claims without granting him an opportunity to develop

the factual record. The majority decides that these Rule 32.6(b) dismissals were on

the merits, triggering deferential review under AEDPA, because they were the

substantive equivalent of dismissals under Rule 4 of the Rules Governing Section

2254 Cases (the “Habeas Rules”) in federal court. Puzzlingly, however, in

applying that deference, the majority never once engages with, or even mentions,

the substantive pleading burden enforced by Habeas Rule 4. See Habeas Rule 4,

advisory committee’s note (“[T]he petition is expected to state facts that point to a

real possibility of constitutional error.” (internal quotation marks omitted)).

       All adjudications on the merits—including summary dismissals—are

entitled to deference under AEDPA. But not all adjudications on the merits decide

the same thing. Habeas claims may be dismissed at the pleading stage, for



(per curiam)). It matters a great deal. If the state rule enforces a different or higher burden
against Borden at the pleading stage, an adjudication under that burden surely cannot be
considered “on the merits” of the federal constitutional claim.

                                                 86
example, because, as pled, they are so “‘vague (or) conclusory’ as to warrant

dismissal for that reason alone,” Blackledge v. Allison, 431 U.S. 63, 75, 97 S. Ct.

1621 (1977) (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S. Ct.

510 (1962)); or “when viewed against the record,” they may be shown to be “so

palpably incredible, so patently frivolous or false, as to warrant summary

dismissal,” id. at 76 (internal quotation marks omitted) (citations omitted). If

claims survive these threshold inquiries, they may still be susceptible to summary

judgment because there remains no genuine issue of material fact to resolve in

further proceedings. Id. at 80–81 (citing Fed. R. Civ. P. 56(e), (f));17 see also

Alabama Rule of Criminal Procedure 32.7(d). Alternatively, when claims are

denied at the proof stage—i.e. after the proceedings have run their full course—the

court has simply decided that the petitioner failed to carry his or her burden of



       17

               This is not to say that every set of allegations not on its face without
               merit entitles a habeas corpus petitioner to an evidentiary hearing.
               As in civil cases generally, there exists a procedure whose purpose is
               to test whether facially adequate allegations have sufficient basis in
               fact to warrant plenary presentation of evidence. That procedure is,
               of course, the motion for summary judgment. Upon remand the
               warden will be free to make such a notion [sic], supporting it with
               whatever proof he wishes to attach. If he chooses to do so, [the
               petitioner] will then be required either to produce some contrary
               proof indicating that there is a genuine issue of fact to be resolved by
               the District Court or to explain his inability to provide such proof.
               Fed. Rules Civ. Proc. 56(e), (f).
431 U.S. at 80–81 (footnote omitted).


                                                  87
proof.

         For many habeas claims, the distinctions among these different dismissals or

denials at the various stages of habeas litigation are distinctions without a

difference, because those claims do not require any factual development in order

for the judge to conclusively evaluate the petitioner’s entitlement to relief. Other

types of claims, however, are not similarly susceptible to summary proceedings.

See Machibroda, 368 U.S. at 494–95 (“The factual allegations contained in the

petitioner’s motion . . . related primarily to purported occurrences outside the

courtroom and upon which the record could, therefore, cast no real light.”). That is

why federal law prohibits summary dismissals “where specific allegations before

the court show reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is confined illegally and is therefore

entitled to relief . . . .” Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082 (1969).

So long as a petitioner has raised such a possibility—that, if the facts are fully

developed, there is “reason to believe” that he or she “may” be able to demonstrate

a constitutional violation—“it is the duty of the court to provide the necessary

facilities and procedures for an adequate inquiry.” Id.; see id. at 298 (“Petitioners

in habeas corpus proceedings . . . are entitled to careful consideration and plenary

processing of their claims including full opportunity for presentation of the



                                           88
relevant facts.”); see also Blackledge, 431 U.S. at 82 n.25 (“But before dismissing

facially adequate allegations short of an evidentiary hearing, ordinarily a district

judge should seek as a minimum to obtain affidavits from all persons likely to have

firsthand knowledge of the existence of any plea agreement.”); Franklin v. Rose,

765 F.2d 82, 85 (6th Cir. 1985) (per curiam) (“Even Franklin’s undeveloped

allegations satisfied the requirement of Blackledge v. Allison, that a habeas

petition must ‘state facts that point to a “real possibility of constitutional error.”’”

(citation omitted)).18

       Federal courts reviewing § 2254 petitions must recognize exactly what

federal law requires of habeas petitioners at each stage of habeas litigation.

AEDPA mandates deference for all state court adjudications on the merits. But it

does so in light of what is required under “clearly established Federal law.” See 28

U.S.C. § 2254(d)(1) (emphasis added). Under that provision, it is our job to

determine whether a state court’s merits adjudication falls outside the wide range



       18
            Our understanding of what federal law demands of habeas petitioners at the pleading
stage is informed by 28 U.S.C. § 2255. The Supreme Court has looked to § 2255 and cases
thereunder to map the procedural requirements of federal habeas corpus, stating that “the remedy
under § 2255 was designed to be ‘exactly commensurate’ with the federal habeas corpus
remedy.” Blackledge, 431 U.S. at 74 n.4. Therefore, assuming a petition is not subject to Rule 4
dismissal, courts “must accord [a habeas petitioner] an evidentiary hearing [u]nless the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief.
If the trial record is inadequate to show conclusively that the movant’s contentions are without
merit, the [habeas court] must conduct a hearing.” Anderson v. United States, 948 F.2d 704, 706
(11th Cir. 1991) (internal quotation marks omitted) (footnotes omitted).

                                                89
of objectively reasonable resolutions permissible under that clearly established

federal law. See Williams v. Taylor, 529 U.S. 362, 409–10, 120 S. Ct. 1495

(2000). We simply cannot conduct that analysis unless we understand both what

burden the state court determined the petitioner failed to carry and what federal law

requires of habeas petitioners at that particular stage in the proceedings.

       The majority finds Borden’s allegations lacking in prejudice. It does so by

briefly comparing Borden’s allegations, as pled, against the evidence of prejudice

relied upon by the Supreme Court to find petitioners deserving of habeas relief on

similar claims. Majority Op. at 68–69 (citing Wiggins v. Smith, 539 U.S. 510, 123

S. Ct. 2527 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005)).

But the evidence of prejudice in those cases had been developed during the very

proceeding Borden was denied: an evidentiary hearing. And the state court

adjudications being reviewed were decisions that the petitioners had failed to prove

their entitlement to relief after full proceedings.19

       Here, conversely, we are reviewing a pleading-stage dismissal. And based

on the majority’s own authority for finding Borden’s claims adjudicated on their

merits, the question we must ask under § 2254(d) is whether fairminded jurists


       19
           I draw these distinction not to say that Borden need not make his substantial showing
of a real possibility of constitutional error to obtain further proceedings, but simply to highlight
that we risk over-enforcing burdens of pleading if we compare on equal footing evidence of
prejudice, as pled, with the evidence of prejudice, as uncovered during an evidentiary hearing.

                                                 90
could disagree that Borden pled facts demonstrating a “real possibility of

constitutional error.” We are not asking whether Borden—like Wiggins and

Rompilla—had actually proven his entitlement to habeas relief beyond any

objectively reasonable dissent. If that were the question, the majority would surely

be correct to deny relief on all counts—as would virtually any federal court

reviewing the dismissal of claims naturally relying on non-record evidence at the

pleading stage. Without the aid of legal process and a developed record to rely

upon, it would be virtually impossible for any petitioner to carry his or her ultimate

burden of proof, let alone to demonstrate that he or she is entitled to habeas relief

in federal court under AEDPA’s “doubly deferential” standard of review. See

Pinholster, 131 S. Ct. at 1403.20


       20
           The majority implies otherwise, relying on the nature of habeas fact-pleading and
Alabama’s requirement that Rule 32 petitioners plead “every fact” needed for their claim. See
Majority Op. at 46, 49.
        But federal law has long recognized that a burden of proof is often impossible to carry
without the benefit of legal process, such as the ability to compel the testimony of reluctant
witnesses, because habeas petitioners often do not possess all the facts they need to make out
their constitutional claim:
                It is now established beyond the reach of reasonable dispute that the
                federal courts not only may grant evidentiary hearings to applicants,
                but must do so upon an appropriate showing. And this Court has
                emphasized, taking into account the office of the writ and the fact
                that the petitioner, being in custody, is usually handicapped in
                developing the evidence needed to support in necessary detail the
                facts alleged in his petition, that a habeas corpus proceeding must not
                be allowed to founder in a ‘procedural morass.’
Harris, 394 U.S. at 291–92 (emphasis added). See also Blackledge, 431 U.S. at 83 n.26.
        Moreover, federal law does not require that habeas petitioners set forth “every fact”
bearing on their claims in their petitions in order avoid summary dismissal. In fact, the text of

                                                91
       Therefore, when applying § 2254(d) to summary dismissals of such claims

in state court, we should not expand the already exceedingly broad sweep of

AEDPA deference by enforcing the wrong burden against habeas petitioners.

Instead, we must recognize the important distinctions among the different merits

adjudications made at different stages in habeas litigation and review a particular

state court merits adjudications in light of the decision that court actually made.

                                               ***

       Notwithstanding these reservations, I agree with the majority that, if our

view is restricted to the allegations contained in his first Amended Rule 32

Petition,21 Borden is not entitled to federal relief on the vast majority of his claims.


Habeas Rule 2 in force at the time Borden made his filings specifically instructed petitioners to
plead their factual case in summary form:
                (c) Form of Petition. . . . . It shall specify all the grounds for relief
                which are available to the petitioner and of which he has or by the
                exercise of reasonable diligence should have knowledge and shall set
                forth in summary form the facts supporting each of the grounds thus
                specified.
Habeas Rule 2 (effective Aug. 1, 1982) (emphasis added). See Cuadra v. Sullivan, 837 F.2d 56,
58 (2d Cir. 1988) (“Although the Habeas Rules contemplate more than the ‘notice’ pleading
envisioned by the Federal Rules of Civil Procedure, they do not require that the petitioner plead
evidentiary detail in his petition. Rather, the Habeas Rules require that the petitioner set forth
facts supporting the grounds of the petition ‘in summary form.’” (citations omitted)); see also
Spaziano v. Singletary, 36 F.3d 1028, 1031 n.2 (11th Cir. 1994) (“Although the habeas rules
require more than notice pleading, and some factual specificity will often be helpful, or even
necessary, a habeas petition should not resemble a treatise.”).
       21
           The majority relies on Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (per
curiam), for this limitation. Majority Op. at 59. Though the relevant language in that case was
uncited, I concede that, in the wake of Pinholster, its conclusion seems sound. I am troubled by
the fact, however, that such a limitation essentially renders the drafting and filing of a separate
federal petition a meaningless formality. For a merits review as undertaken in this case, the

                                                 92
This is a closer case, however, than the majority conveys.

       As noted above, the majority resolves this case on Strickland’s prejudice

prong. When evaluating the potential prejudice of an unprofessional error at the

sentencing phase of a death penalty case, a court asks “whether there is a

reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695. To answer that question, the court

“reweigh[s] the evidence in aggravation against the totality of available mitigating

evidence.” Wiggins, 539 U.S. at 534. Therefore, naturally, the weaker the

evidence of aggravation, the less evidence of mitigation will be needed to create a

“reasonable probability” that the sentencer would have struck a different balance.

See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only weakly supported

by the record is more likely to have been affected by errors than one with

overwhelming record support.”); Williams v. Allen, 542 F.3d 1326, 1343 (11th

Cir. 2008) (“Further supporting a finding of prejudice is the fact that this case is


court would not even need to read it. This seems strangely at odds with a well-developed body
of exhaustion-requirement caselaw allowing § 2254 petitioners to retool their federal allegations,
so long as the substance of their claims was fairly presented to the state court. See Vasquez v.
Hillery, 474 U.S. 254, 258–60, 106 S. Ct. 617 (1986); Kelley v. Sec’y for Dept. of Corr., 377
F.3d 1317, 1344 (11th Cir. 2004) (“We recognize that habeas petitioners are permitted to clarify
the arguments presented to the state courts on federal collateral review provided that those
arguments remain unchanged in substance.”); see also Childers, slip op. at 24 (majority opinion)
(“The concept of an ‘adjudication on the merits’ is the corollary of the long-held requirement
that a state prisoner first exhaust his claims in state court.”).

                                                93
not highly aggravated.”).

       Here, there was minimal evidence of aggravation. The prosecution proved

only a single aggravating factor: Borden “knowingly created a great risk of death

to many persons” by firing several bullets into a house. Ala. Code § 13A-5-49(3).

It did so without providing any evidence that Borden actually knew there were

others in the house, and by paraphrasing the aggravating standard for the jury in a

way that relaxed its statutory requirements. See note 12, supra. And the jury

recommended the death penalty by a vote of 10 to 2—the bare minimum allowed

under Alabama law.22

       Borden’s chief complaint at issue in this appeal is that counsel was



       22
           The majority asserts that, “In Borden’s case, we must determine whether the facts pled
in his Amended Petition establish that, had his counsel conducted a reasonable investigation and
presented additional mitigating evidence, there is a reasonable probability that the jury would
have recommended—and the judge would have imposed—a sentence of life without parole.”
Majority Op. at 67. The standard actually set by Strickland reads as follows: “When a defendant
challenges a death sentence . . . , the question is whether there is a reasonable probability that,
absent the errors, the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” 466 U.S. at 695 (emphasis added). Though it is a minor
distinction, in the context of Alabama’s capital sentencing regime, it is an important one.
Strickland’s rule is phrased in the negative: “the balance of aggravating and mitigating
circumstances did not warrant death.” Death recommendations by Alabama juries must be made
by a vote of at least 10-2, whereas a recommendations of life must be made by a vote of 7-5.
Ala. Code § 13A-5-46(f). Since Alabama’s death penalty statute does not create a binary
structure (allowing for the possibility of a hung jury) and Borden’s death recommendation was
10-2, Strickland’s rule would have been satisfied if Borden had changed only one juror’s mind,
not five. Cf. Wiggins, 539 U.S. at 537 (“Had the jury been able to place petitioner’s excruciating
life history on the mitigating side of the scale, there is a reasonable probability that at least one
juror would have struck a different balance.” (emphasis added)).

                                                 94
ineffective for failing to contact his treating physicians and present their testimony

at the sentencing phase of trial. The majority dismisses these allegations as

“boilerplate” and insufficient to establish a reasonable probability that the result of

the proceeding would be different:

               We are not blind to the possibility that testimony from
               Borden’s treating physicians at the penalty phase of his
               trial could have strengthened his ability to fully present
               the mitigating circumstances he sought to prove to the
               jury; while the jury had access to Borden’s complete
               medical history and defense counsel urged the jurors to
               review that history, we can imagine that hearing
               testimony from his doctors could have provided a more
               in-depth view of Borden’s mental state over the years.
               But our inquiry into Strickland prejudice requires that we
               find more than a possibility that the jury could have
               benefitted from additional testimony that would shed
               light on evidence already produced for their review.

Majority Op. at 73.

       But “the Strickland [prejudice] inquiry requires [a] . . . probing and

fact-specific analysis.” Sears, 130 S. Ct. at 3266. Had such an inquiry been

conducted here, in light of the trial record in this case, I believe Borden may have

raised a real possibility of constitutional error.23

       23
           This specific allegation of error is one of those for which the Criminal Court of
Appeals’s opinion contains no clear merit-based alternative ruling to its Rule 32.6(b)
determination. Borden made this allegation alongside others claiming counsel was ineffective
for not calling medical experts to testify at the penalty phase of trial. Faulting Borden for failing
to “identify what type of mental health expert he believed should have been presented at the
sentencing phase, or how that expert’s testimony would have differed from the testimony
presented at the guilt phase,” the court affirmed the trial court’s dismissal for lack of specificity.

                                                  95
       First of all, I cannot agree with the majority’s characterization that testimony

from Borden’s treating physicians would have merely cast additional light on

evidence already produced for the jury’s review. There were over 1,100 pages of

photocopied medical records submitted, in bulk, as evidence. I have reviewed a

number of these records, and it is impossible to believe that, in the hour they

deliberated, these lay jurors would have been able to read and digest this

information in any way that would have even begun to stand-in for professional

summary and analysis. Second, counsel made no attempt—other than a passing

request that the jurors review the medical records—to apply the guilt-phase

mental-health evidence to the demonstrably lower burden of mental-health

mitigation at the penalty phase. See Bell v. Cone, 535 U.S. 685, 706–08 n.4, 122

S. Ct. 1843 (2002) (Stevens, J., dissenting) (“It is true that the jury was instructed

to consider mitigation from the guilt phase, and also true that [counsel]’s brief

penalty phase opening referenced the mental health evidence from the guilt phase,

but the jury’s whole view of that testimony was influenced by its relation to the

debunked insanity defense.”). Third, and most importantly, testimony from


CCA Op. at 26. But the ruling was completely non-responsive to Borden’s claim that his
attorneys failed to present testimony from any of his prior “mental health care providers.” See
Amended Petition ¶ 66. Had the majority avoided its categorical treatment of Rule 32.6(b), I
believe this is one of the rulings that would have been difficult to categorize as truly “on the
merits” of the federal constitutional question. Consequently, I dissent from the majority’s
affirmance of the district court’s denial of this claim, and I would remand it to the district court
for de novo review and further factual development.

                                                  96
Borden’s physicians would have rebutted a powerful and pervasive attack leveled

at Borden’s mental-health strategy throughout the entire trial.

        The prosecution tirelessly attacked Borden’s affirmative guilt-phase

defense, claiming he was “faking” and that his alleged mental health problems

were an “excuse.” On cross-examination of both medical experts (neither of whom

were among Borden’s treating physicians), the prosecution repeatedly inquired if

their tests contained any controls for faking, or what objective proof one could

obtain for psychological complaints such as hallucinations. At closing argument,

this concerted strategy culminated in a powerful indictment of Borden’s mental-

health defense:

               And if there was a serious attempt here, folks, to give you
               the big picture and all the information, we’re missing
               somebody, aren’t we? The defendant’s mother said that
               in the year 1993 leading up to these shootings that
               nobody, nobody, knew the defendant’s condition better
               than Dr. Shehi.[24] Where is he? Have you seen him?
                                           ...
               And don’t you think you’ve got a right to expect if they
               want to prove something to you, they’re going to bring
               the person who according to the defendant’s own mother
               knows more about him than anything [sic] else? And
               they chose not to. And I think you can infer from that
               why.



       24
            Dr. Shehi was the physician treating Borden just before the incident. Borden’s mother
testified that Dr. Shehi was more familiar with Borden’s state of mind during the relevant time
period than any other person.

                                               97
The jury subsequently rejected Borden’s affirmative defense and convicted him of

capital murder.

       In light of the picture painted by the trial transcript, if Borden’s counsel truly

failed to even contact most of Borden’s treating physicians, I am not convinced

that this unprofessional oversight would have created only a “possibility that the

jury could have benefitted from additional testimony that would shed light on

evidence already produced for their review.” Majority Op. at 73. Their testimony

was likely the only evidence that could have meaningfully countered the

prosecution strategy—a strategy that clearly prevailed at the guilt stage. See

Rompilla, 545 U.S. at 385–86 (finding counsel provided ineffective assistance for

failing to uncover evidence that counsel knew the prosecution would put at issue,

despite the fact that counsel had conducted a largely extensive background

investigation).

       Had the factual record been developed, despite the clear inadequacy of most

of his other allegations, Borden may still have ultimately proven his entitlement to

relief on this claim. Unfortunately, there is no way to be sure; he was never

afforded the opportunity.25


       25
           I also dissent from the majority’s affirmance of the district court’s denial of Borden’s
claim that counsel was ineffective for failing to investigate and present evidence of Borden’s
significant religious activities. Specifically, Borden contended that he was deeply religious, and
that he and his wife were so active in their church that the pastor asked them to establish their

                                                 98
       Because of the unique severity and finality of the punishment, we have

always aspired to a higher degree of factual reliability in proceedings leading to a

prisoner’s execution. See Brownlee v. Haley, 306 F.3d 1043, 1070 (11th Cir.

2002) (“[T]he Supreme Court and this Court . . . have repeatedly emphasized the

constitutional right of a defendant facing the death penalty to present any relevant


own congregation. Borden asserts that his religious activities constituted an additional
mitigating factor that would have counseled the jury against voting for the death penalty.
        The trial court found this claim sufficiently pleaded, but denied it on a summary
judgment basis. The Alabama Court of Criminal Appeals affirmed, stating:
                 Although we cannot say, based on the record before us, that trial
                 counsel knew about Borden’s religious activities and made a decision
                 not to present them, we agree with the trial court that presentation of
                 the evidence could have severely damaged the defense theory. As
                 such, the trial court correctly determined that Borden could not
                 establish that counsel’s failure to present evidence of his religious
                 activities constituted deficient performance. Borden also could not
                 establish that the failure to present evidence of the religious activities
                 resulted in prejudice to his defense. There is no reasonable
                 probability that, had the evidence been presented, Borden would not
                 have been sentenced to death. Therefore, no material issue of law or
                 fact existed and the trial court correctly dismissed the claim.
CCA Op. at 38.
        But under federal law, summary judgment denying Borden the opportunity to present
evidence on a sufficiently pleaded claim is proper only when the record conclusively shows that
the petitioner is not entitled to relief. Though it is possible—perhaps even likely—that, if
developed, Borden’s purported evidence of mitigation would have done violence to his mental-
health strategy or failed to rise to provide sufficient prejudice under Strickland, it is entirely
possible that it would have not. Given this ambiguity, summary judgment was entirely
inappropriate. See note 18, supra; 28 U.S.C. § 2255(b) (“Unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions
of law with respect thereto.”); Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461
(1973) (“On this record, we cannot conclude with the assurance required by the statutory
standard ‘conclusively show’ that under no circumstances could the petitioner establish facts
warranting relief under § 2255; accordingly, we vacate the judgment of the Court of Appeals and
remand to that court to the end that the petitioner be afforded a hearing on his petition in the
District Court.” (emphasis added)); Anderson, 948 F.2d at 706.

                                                  99
evidence of mitigating circumstances. In Lockett v. Ohio, the Supreme Court

explained that the ‘qualitative difference between death and other penalties calls

for a greater degree of reliability when the death sentence is imposed,’ . . . .”

(citation omitted)). Perhaps that is why prisoners facing death sentences are almost

never denied even a single post-conviction hearing on their alleged constitutional

claims.

      The majority decides this case on Strickland prejudice—an inquiry that tests

our confidence in a conviction or a sentence. See Cave v. Sec’y for Dept. of Corr.,

638 F.3d 739, 748 (11th Cir. 2011). And on the underdeveloped record in this

case, I cannot say with complete confidence that this sentence of death was

untainted by constitutional error. But under AEDPA, it is no longer this Court’s

task to evaluate the constitutional sufficiency of Borden’s counsel directly. Rather,

we determine if the Alabama Court of Criminal Appeals was objectively

unreasonable in evaluating the same. See Pinholster, 131 S. Ct. at 1402 n.12;

Richter, 131 S. Ct. at 788. Under that deferential standard of review, and with the

exception of the two claims addressed in footnotes 23 and 25, I concur in the result

reached by the majority.




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